Exhibit 10.(A)
AMPCO-PITTSBURGH
CORPORATION
1988 SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
(as amended and restated
December 17, 2008)
The purpose of this Supplemental
Executive Retirement Plan (the “Plan”) is to provide a
further means whereby Ampco-Pittsburgh Corporation (the
“Company”) may attract, retain and encourage the
productive efforts of a select group of officers and senior
executives who render valuable services to the Company constituting
an important contribution towards the Company’s continued
growth and success. The Plan provides retirement benefits to
participants who qualify for such benefits (generally described in
Article III) and may also provide benefits to a surviving spouse
following a qualifying participant’s death before retirement
(generally described in Article IV).
The terms and conditions of the Plan
are as follows:
ARTICLE I
DEFINITIONS
The following terms when used in
this Plan shall have the designated meaning, unless a different
meaning is clearly required by the context. All other capitalized
terms in the Plan shall have the meaning defined in the
Ampco-Pittsburgh Corporation Retirement Plan, as in effect from
time to time (the “Retirement Plan”).
1.1 Cause means the willful
engaging by the Participant in misconduct which is materially
injurious to the Company. For purposes of this definition, no act,
or failure to act, on the Participant’s part shall be
considered “willful” unless done, or omitted to be
done, by the Participant in bad faith and without reasonable belief
that his action or omission was in the best interests of the
Company.
1.2 Participant means an
individual who has been designated as a Participant pursuant to
Article II.
1.3 Qualified Plan Pension
means all amounts paid or payable to or in respect of any
Participant (other than in respect of pre-tax or after-tax employee
contributions) from the Retirement Plan or from any other plan
which is tax-qualified under Internal Revenue Code section (
“IRC §”) 401(a) or 403(a) to which the Company,
any Affiliate, or any other prior employer of the Participant
contributed. The Participant’s Qualified Plan Pension Benefit
shall be expressed as a monthly amount in the same form (using the
actuarial assumptions used in each such plan) and commencing at the
same time as the monthly benefit payable hereunder.
1.4 Early Retirement Date
means the date a Participant attains age fifty-five (55) and
completes ten (10) years of Continuous Service.
1.5 Change in Control shall
be deemed to have occurred if:
(i) any “person” (as
defined in Sections 13(d) and 14(d) of the Exchange Act) other than
the persons or the group of persons in control of the Company on
the date hereof is or becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing fifty percent
(50%) or more of the combined voting power of the
Corporation’s then outstanding securities;
(ii) within any
period of two consecutive years (not including any period prior to
the effective date of this Plan) there shall cease to be a majority
of the Board comprised as follows: individuals who at the beginning
of such period constitute the Board and any new director(s) whose
election was approved by a vote of at least two-thirds (
2 / 3 ) of the directors then
still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously
so approved;
(iii) the shareholders of the
Company approve a merger of, or consolidation involving, the
Company in which (A) the Company’s Common Stock, par
value $1.00 per share (such stock, or any other securities of the
Company into which such stock shall have been converted through a
reincorporation, recapitalization or similar
transaction,
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hereinafter called “Common
Stock of the Company”), is converted into shares or
securities of another corporation, or into cash or other property,
or (B) the Common Stock of the Company is not converted as
described in Clause (A), but in which more than forty percent
(40%) of the Common Stock of the surviving corporation in the
merger is owned by Shareholders other than those who owned such
amount prior to the merger; or any other transaction after which
the Company’s Common Stock is no longer to be publicly
traded; in each case, other than a transaction solely for the
purpose of reincorporating the Company in another jurisdiction or
recapitalizing the Common Stock of the Company; or
(iv) the shareholders of the Company
approve a plan of complete liquidation of the Company, or an
agreement for the sale or disposition by the Company of all or
substantially all of the Company’s assets, either of which is
followed by a distribution of all or substantially all of the
proceeds to the shareholders.
1.6 Good Reason means,
without a Participant’s express written consent, the
occurrence after a Change in Control of any one or more of the
following conditions, which condition continues without timely and
complete remedy by the Company after notice, as provided
below:
(i) the assignment to such
Participant of duties inconsistent with such Participant’s
duties, responsibilities and status immediately before the Change
in Control or a reduction or alteration in the nature or status of
such Participant’s responsibilities from those in effect
immediately before the Change in Control;
(ii) a reduction by the Company in
such Participant’s base salary as in effect immediately
before the Change in Control, a failure to increase such base
salary at the same intervals as prevailed before the Change in
Control in an amount at least equal to the same percentage increase
as the last increase prior to the Change in Control, or a reduction
in bonus after the Change in Control over the last bonus paid
before the Change in Control unless there are equivalent reductions
in bonuses for all executives of the
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Company;
(iii) the requirement that such
Participant be based at a location in excess of twenty-five
(25) miles from the location where such Participant is based
immediately before the Change in Control;
(iv) the failure by the Company to
continue in effect any of the Company’s employee benefit
plans, policies, practices or arrangements in which such
Participant participates or under which such Participant is
entitled to benefits, or the failure by the Company to continue
such Participant’s therein or benefits thereunder on
substantially the same basis, both in terms of the amount of
benefits provided and the level of such Participant’s
participation relative to other participants, as existed
immediately prior to the Change in Control; or
(v) the failure of the Company to
obtain a satisfactory agreement from any successor to the Company
to assume and agree to perform this Plan;
The foregoing notwithstanding, the
Participant shall notify the Company within 90 days of the initial
existence of a particular condition described above in this
Section 1.6, and the Company shall have 30 days from such
notice completely to remedy such particular condition so that the
Participant is in the same position as if the condition had never
occurred. If the Company timely and completely remedies the
condition as required above, then the particular occurrence of the
particular condition for which the Participant gave notice shall no
longer constitute Good Reason.
ARTICLE II
ELIGIBILITY
2.1 Original Participants .
The individuals listed on Schedule A were Participants as of
April 23, 1996.
2.2 New Participants . In
addition to the individuals listed on Schedule A, the Board may,
from time to time, designate other individuals as
Participants.
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ARTICLE III
RETIREMENT
BENEFITS
3.1 Normal Retirement Benefit
.
(a) If a Participant’s
employment is terminated voluntarily or involuntarily without Cause
on or after his Normal Retirement Date, the Company will pay the
Participant, commencing on the first day of the seventh month
coincident with, or next following, the date of such termination, a
retirement benefit payable in the Normal Form, in the case of an
unmarried Participant, or as a Qualified Joint and Survivor
Annuity, in the case of a married Participant, in an amount equal
to (a) fifty percent (50%) of his Final Average Earnings
(determined without regard to any limit on compensation under IRC
§ 401(a)(17)) less (b) his Qualified Plan Pension
Benefit. Notwithstanding the foregoing, prior to the date his
participation becomes effective the Participant may irrevocably
elect, on a form prescribed by the Committee, another form of
payment, including a survivor annuity with a designated contingent
annuitant other than Participant’s spouse (and such elected
form of payment does not become ineffective before the date such
payments commence because of the death of such designated
contingent annuitant). However, the first monthly payment to the
Participant in either the Normal Form, the Qualified Joint and
Survivor Annuity, or the survivor annuity with a designated
contingent annuitant other than Participant’s spouse, shall
equal the sum of seven monthly payments plus interest (at the
long-term Applicable Federal Rate, compounded monthly, in effect
when payment is made) to account for the delay in commencement of
payments required under IRC § 409A(a)(2)(B)(i). The
Retirement Plan’s requirements for spousal consent to the
election of forms of payment, shall not apply to this Plan in any
event.
(b) If a Participant’s
employment has terminated as described in Section 3.1(a) and
he shall die prior to the first day of the seventh month coincident
with, or next following, the date of his termination of employment,
then such Participant’s benefits shall be distributed, or
commenced, on the first day of such seventh month, as
follows:
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(1) If the benefits were to be
payable in the Normal Form, a sum equal to the number of monthly
payments that would have been paid to the Participant in such form
prior to his death, but for the six-month delay in payments, shall
be payable in an lump sum (with interest calculated as described in
Section 3.1(a)) to the Participant’s surviving spouse,
if any, otherwise to the personal representative of the
Participant’s estate , and following such payment, no
further benefit of any kind shall be payable to anyone under the
Plan with respect to such Participant.
(2) If the benefits were to be
payable in the Qualified Joint and Survivor Annuity Form, a sum
equal to the monthly payments that would have been paid to the
Participant in such form prior to his death, but for the six-month
delay in payments, shall be payable in a lump sum (with interest
calculated as described in Section 3.1(a)) to the
Participant’s surviving spouse, together with a lump sum
equal to the monthly Survivor Annuity payments (if any) that would
have been payable to such surviving spouse (with interest
calculated as described in Section 3.1(a)) prior to the first
day of such seventh month. Survivor Annuity payments shall then be
made in due course to the surviving spouse commencing with the
first day of such seventh month. However, should the surviving
spouse not survive until the first day of such seventh month, the
lump sum (with interest) payable hereunder shall be paid to the
Participant’s surviving spouse, if any, otherwise to the
personal representative of the Participant’s estate ,
and following such payment, no further benefit of any kind shall be
payable to anyone under the Plan with respect to such
Participant.
(3) If the benefits were to be
payable in the form of a survivor annuity with a designated
contingent annuitant other than participant’s spouse, a lump
sum equal to the monthly payments that would have been paid to the
Participant (with interest calculated as described in
Section 3.1(a)) in such form prior to his death, but for the
six-month delay in payments, shall be payable to the
Participant’s designated contingent annuitant (if surviving),
together with an a lump sum equal to the monthly survivor annuity
payments
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(if any) that would have been
payable to such designated contingent annuitant (with interest
calculated as described in Section 3.1(a)) prior to the first
day of such seventh month. Survivor annuity payments shall then be
made in due course to the designated contingent annuitant
commencing with the first day of such seventh month. However,
should the designated continent annuitant not survive until the
first day of the seventh month, the lump sum payable hereunder
shall be paid to the Participant’s surviving spouse, if any,
otherwise to the personal representative of the Participant’s
estate , and following such payment, no further benefit of
any kind shall be payable to anyone under the Plan with respect to
such Participant.
(c) Pursuant to IRS Notice 2005-1,
Q&A 19(c), the Preamble to Proposed Treasury Regulation
§ 1.409A-1 et seq., XI.C. (70 Fed. Reg. 57957, col. 3),
and IRS Notice 2007-86, Section 3.01(B).02, an individual who
is a Participant and an active employee of the Company as of
Decembe
