Exhibit 10.4
SILGAN CONTAINERS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
THIS INDENTURE is made
on the 21st day of January, 2008,
by Silgan
Containers Corporation, a corporation duly organized and existing
under the laws
of the State of Delaware (hereinafter called the "Primary
Sponsor").
INTRODUCTION
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The Primary
Sponsor maintains the
Silgan Containers Corporation
Supplemental Executive Retirement Plan (the
"Plan"), which is intended to
benefit only a select group of management or highly compensated
employees within
the meaning of Sections 201(2), 301(a)(3)
and 401(a)(1) of ERISA, and any
regulations relating thereto.
The Primary Sponsor has
determined that employees hired or rehired on or
after January 1, 2007 shall not be eligible for the supplemental
pension portion
of the Plan, consistent with the exclusion of those
employees from the Pension
Plan (as defined in the Plan). The Primary Sponsor has
determined that the Plan
previously adopted by the Primary Sponsor needs to be
amended in certain other
respects, including to conform to the requirements of Code
Section 409A and the
applicable guidance thereunder. Therefore, the Primary Sponsor
declares that the
Plan is amended and restated in its entirety effective
January 1, 2007, except
as otherwise provided herein, to read as follows:
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SILGAN CONTAINERS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
ARTICLE 1
DEFINITIONS........................................................1
ARTICLE 2 ELIGIBILITY AND DEFERRAL
ELECTIONS.................................6
ARTICLE 3
CONTRIBUTIONS......................................................7
ARTICLE 4 INDIVIDUAL FUNDS AND
INVESTMENTS...................................8
ARTICLE 5 WITHDRAWALS DURING
EMPLOYMENT......................................9
ARTICLE 6 GENERAL RULES ON
DISTRIBUTIONS.....................................9
ARTICLE 7 ADMINISTRATION OF THE
PLAN........................................12
ARTICLE 8 CLAIMS REVIEW
PROCEDURE...........................................13
ARTICLE 9 INCOMPETENT DISTRIBUTEE AND UNCLAIMED
PAYMENTS....................15
ARTICLE 10 LIMITATION OF
RIGHTS..............................................16
ARTICLE 11 AMENDMENT TO OR TERMINATION OF THE PLAN AND THE
TRUST.............16
<PAGE>
ARTICLE 1
DEFINITIONS
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Wherever used herein, the masculine
pronoun shall be deemed to include the
feminine, and the singular to include the plural,
unless the context clearly
indicates otherwise and the following words and phrases shall, when
used herein,
have the meanings set forth below:
1.1 "Account" means a
Participant's aggregate balance in the following
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accounts, as adjusted pursuant to the Plan as of any given
date:
(a)
"Deferral Contribution Account"
which shall reflect a
---------------------------------
Participant's interest
in contributions made by a Plan
Sponsor under
Section 3.1.
(b)
"Matching Account" which shall reflect a Participant's interest
in
----------------
matching contributions made by
a Plan Sponsor under Section 3.2.
(c)
"DISP Make-up Account" which shall
reflect a Participant's
----------------------
interest in contributions made
by a Plan Sponsor under Section 3.3.
(d)
"Supplemental Pension Account" which shall reflect a
Participant's
----------------------------
interest in contributions made by a Plan
Sponsor under Section 3.4.
1.2 "Affiliate" means:
---------
(a) any
corporation which is a member of the same controlled group
of
corporations (within the
meaning of Code Section 414(b)) as is a Plan
Sponsor; and
(b) any
other trade or business (whether or not
incorporated) under
common control (within the
meaning of Code Section 414(c)) with a Plan
Sponsor.
1.3 "Annual Compensation" means
"Compensation" as defined from time to time
-------------------
in the Pension Plan, except that
(a)
Annual Compensation shall be determined without
consideration of
the Annual Compensation Limit
and before any Deferral Contributions made
under this Plan; and
(b) Annual
Compensation shall include amounts paid by an Affiliate.
1.4 "Annual Compensation
Limit" means $225,000 ($230,000 for 2008), which
---------------------------
amount may be adjusted in subsequent Plan Years based on
changes in the cost of
living as announced by the Secretary of the Treasury.
1.5 "Beneficiary" means the person
or trust that a Participant designated
-----------
most recently in writing to the Plan Administrator;
provided, however, that if
the Participant has failed to make a designation, no person
designated is alive
at the date of the Participant's death, no trust
1
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has been established, or no successor
Beneficiary has been designated who is
alive, the term "Beneficiary" means:
(a) the
Participant's spouse; or
(b) if no
spouse is alive at the date of the Participant's death,
the
Participant's children, per stirpes;
or
(c) if
no children or none of the children's issue are
alive at the
date of the Participant's death, the
Participant's estate.
A Participant may change his designation at any
time. If, subsequent to the
death of a Participant, the Participant's
Beneficiary dies while entitled to
receive benefits under the Plan, the
successor Beneficiary, if any, or the
Beneficiary listed under Subsection (a) or, if no
spouse is alive, Subsection
(b) or, if no children (or children's issue) are alive,
Subsection (c) shall be
the Beneficiary.
1.6 "Board of
Directors" means the Board of Directors of
the Primary
Sponsor. --------------------
1.7 "Change in Control" means,
solely with regard to Silgan Holdings,
-----------------
Inc., one of the following:
(a) a
"change in ownership of a corporation" as defined, and
subject
to the limitations, in Code
Section 409A and the regulations and related
guidance thereunder;
(b) a
"change in effective control of a corporation" as
defined, and
subject to the limitations, in
Code Section 409A and the regulations and
related guidance thereunder; or
(c) a
"change in ownership of a substantial portion of a
corporation's
assets" as defined, and subject to
the limitations, in Code Section 409A
and the regulations and
related guidance thereunder, but
substituting
"eighty-five percent
(85%)" for the phrase "40 percent"
in Treasury
Regulation Section 1.409A-3(i)(5)(vii)(A),
or any successor thereto.
Notwithstanding the foregoing, no Change in
Control shall be deemed to have
occurred with respect to a particular Eligible Employee by reason
of any actions
or events in which the Eligible Employee participates
in a capacity other than
in the Eligible Employee's capacity as an
employee or director of the Primary
Sponsor or an Affiliate or as a
shareholder of the Primary Sponsor or
an
Affiliate solely exercising the Eligible Employee's voting or
tendering rights.
1.8 "Code" means the Internal
Revenue Code of 1986, as amended.
----
1.9 "Deferral
Contribution" means a contribution of a
Plan Sponsor on
----------------------
behalf of a Participant pursuant to Section 3.1 equal to a
percentage or dollar
amount of an Eligible Employee's Eligible Compensation that is not
yet payable.
2
<PAGE>
1.10 "Deferral Election"
means an Eligible Employee's election
under
------------------
Section 2.2 that is made during
an Election Period to have a
Deferral
Contribution made to his Account.
1.11 "DISP Compensation" means
"Annual Compensation" as defined from time
-----------------
to time in the Savings Plan, except that
(a) DISP
Compensation shall be determined without consideration of the
Annual Compensation Limit; and
(b) solely
for purposes of calculating DISP Make-up Contributions
for
Plan Years ending before January 1, 2006,
DISP Compensation shall include
any bonus paid under the Primary
Sponsor's Performance Incentive Program
and any bonus paid under the bonus program
for senior executives of Silgan
Holdings, Inc.
1.12 "DISP Make-up Contribution"
means a profit sharing contribution made
--------------------------
pursuant to Section 3.3.
1.13 "Election Period" means
---------------
(a)
with respect to contributions for the
Plan Year in which an
Eligible Employee becomes
initially eligible to participate in the Plan,
the thirty (30)-day period
commencing with the date an Eligible Employee
first becomes eligible
to participate in the Plan; provided that
such
Eligible Employee has not, for a period of
at least twenty-four (24) months
prior to such initial eligibility, been
eligible to participate in the Plan
or in any other plan of the Employer
Group (other than accruing earnings
under the Plan or such plan) that
(1) with respect to the Deferral
Contribution portion of the
Plan,
is an Account Balance Plan that provides
for deferrals of
compensation
at the election of the Eligible Employee; and
(2) with respect to the Matching Contribution portion,
the DISP
Make-up
Contribution portion, and the Supplemental Pension Portion
of
the
Plan, is an Account Balance Plan that provides
for deferrals of
compensation
other than at the election of the Eligible Employee.
For this purpose, an
"Account Balance Plan" means plan
described in
Treasury Regulation Section
1.409A-1(c)(2)(A).
(b) with
respect to contribution for any other Plan Year, the
period
ending before the beginning of
such Plan Year as prescribed by the Plan
Administrator.
1.14 "Eligible
Compensation" means that portion of
a Participant's
-----------------------
compensation that is in excess of the
Annual Compensation Limit, that is
otherwise payable to him for a Plan Year, and that consists of:
3
<PAGE>
(a) his base
salary;
(b) any
bonus paid under the Primary Sponsor's Performance
Incentive
Program; and
(c) any
bonus paid under the bonus program for senior
executives of
Silgan Holdings, Inc.
1.15 "Eligible Employee" means
a common law employee of a Plan Sponsor or
------------------
an Affiliate who:
(a) is an
officer of a Plan Sponsor or Silgan Holdings, Inc.;
(b) is
projected, based on his rate of base pay and projected bonus as
of January 1 of a Plan Year, to have
Annual Compensation in excess of the
Annual Compensation Limit (without regard
to whether such employee's Annual
Compensation exceeds such Annual
Compensation Limit);
(c) is
determined by the Plan Administrator in its sole discretion
to
be a member of a select group of
management or highly compensated employees
of that Plan Sponsor within the meaning of
Sections 201(2), 301(a)(3) and
401(a)(1) of ERISA, and any regulations
relating thereto; and
(d) was both
employed by the Primary Sponsor and a Participant in this
Plan on January 1, 2007
or, thereafter is designated as an
Eligible
Employee by the Board of Directors.
1.16 "Employer Group" means the Primary
Sponsor and each Affiliate, except
--------------
that in applying Internal Revenue Code
Section 1563(a)(1), (2) and (3), "at
least 50 percent" is used instead of "at least 80 percent."
1.17 "ERISA" means the Employee
Retirement Income Security Act of 1974, as
-----
amended.
1.18 "Normal
Retirement Age"
means the earlier
of:
---------------------------
(a)
the attainment of at least age sixty (60) with the
completion of
ten (10) or more Periods of Service;
or
(b) the
attainment of at least age sixty-five (65) with the completion
of five (5) or more Periods of
Service.
1.19 "Participant" means any
Eligible Employee or former Eligible Employee
-----------
who has become a participant in the Plan for so long as his
Account balance has
not been fully distributed pursuant to the Plan.
1.20 "Pension Plan" means the Silgan
Containers Corporation Pension Plan
------------
for Salaried Employees.
4
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1.21 "Period of
Service" means "Period of Service" as
defined in the
-------------------
Pension Plan.
1.22 "Plan Administrator"
means the organization or person designated by
-------------------
the Primary Sponsor to administer the Plan and, in lieu of any such
designation,
means the Primary Sponsor.
1.23 "Plan Sponsor" means the Primary
Sponsor.
------------
1.24 "Plan Sponsor
Contributions" means Deferral
Contributions, DISP
----------------------------
Make-up Contributions, Matching
Contributions, and Supplemental Pension
Contributions.
1.25 "Plan Year" means the calendar
year.
---------
1.26 "Savings Plan" means the Silgan
Containers Retirement Savings Plan.
------------
1.27 "Separation from
Service" means a termination of employment of the
------------------------
Participant from the Employer
Group. Notwithstanding the foregoing,
the
employment relationship of a Participant with an Employer Group is
considered to
remain intact while the individual is on military
leave, sick leave or other
bona fide leave of absence if there
is a reasonable expectation that the
Participant will return to perform services for a
member of the Employer Group
and the period of such leave does not exceed six months, or
if longer, so long
as the individual retains a right to
reemployment with any member of the
Employer Group under applicable law or
contract. Whether a Participant has
terminated employment with the Employer Group
will be determined by the Plan
Administrator based on whether it is reasonably anticipated
by the Plan Sponsor
and the Participant that the Participant
will permanently cease providing
services to any member of the Employer
Group, whether as a Participant or
independent contractor, or that the
services to be performed, whether as a
Participant or independent contractor, by
the Participant will permanently
decrease to no more than 20% of the
average level of bona fide services
performed, whether as a Participant
or independent contractor, over the
immediately preceding 36-month period or such
shorter period during which the
Participant was performing services for
the Employer Group. If a leave of
absence occurs during such 36-month or shorter period which
is not considered a
Separation from Service, unpaid leaves of absence shall
be disregarded and the
level of services provided during any paid leave of absence shall
be presumed to
be the level of services required to receive the compensation
paid with respect
to such leave of absence. Transfer of a Participant from the
Plan Sponsor or an
Affiliate to another Affiliate shall not be
deemed for any purpose under the
Plan to be a Separation from Service.
1.28 "Supplemental Pension Contributions"
means contributions made pursuant
----------------------------------
to Section 3.4 hereof.
1.29 "Supplemental
Pension Portion" means the portion of the Plan
under
------------------------------
which certain Participants receive Supplemental Pension
Contributions.
1.30 "Trust Agreement" means the
agreement between the Primary Sponsor and
----------------
the Trustee establishing the Trust.
5
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1.31 "Trust" means the Silgan Containers
Corporation Supplemental Executive
-----
Retirement Trust, a grantor trust.
1.32 "Trustee" means the trustee under the
Trust.
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1.33 "Unforeseeable Emergency"
means a severe financial hardship arising
------------------------
from illness or accident of the
Participant or his spouse or dependents,
casualty loss or other similar extraordinary and
unforeseeable circumstances
arising as a result of events beyond control of
the Participant. In order to
satisfy the criteria for an "Unforeseeable
Emergency" the financial need must
not be one that can be relieved through
reimbursement or compensation from
insurance or otherwise or by liquation of
the Participant's assets, to the
extent the liquidation of such assets would not cause severe
financial hardship.
ARTICLE 2
ELIGIBILITY AND DEFERRAL ELECTIONS
----------------------------------
2.1 Supplemental Pension
Portion. Each Eligible Employee who
was a
------------------------------
Participant in the Supplemental Pension Portion
as of December 31, 2006 shall
continue to be a Participant in the
Supplemental Pension Portion until the
earlier of (a) his termination of employment with
all members of the Employer
Group or (b) the date he is no longer an Eligible Employee.
No individual hired
or rehired by the Employer Group on or after January 1, 2007 will
be eligible to
participate in the Supplemental Pension Portion.
2.2 Eligibility for
Deferral Contribution Portion; Elections to
Make
---------------------------------------------------------------------------
Deferral Contributions.
----------------------
(a)
Deferral Election. Each Eligible Employee
may elect to make a
------------------
Deferral Contribution to the Plan by
filing with the Plan Administrator a
Deferral Election that conforms to the
requirements of this Section 2.2, in
such form and manner as designated by the
Plan Administrator, no later than
the last day of his Election Period.
(b)
Duration of Deferral Election.
-----------------------------
(1) Except as provided in this Subsection
(b), any Deferral
Election for all or a portion of a Plan
Year shall be irrevocable
during such
Plan Year. Furthermore, any such Deferral Election
shall
continue to
apply to all Eligible Compensation earned for Plan
Years
after such
election is made until the Participant revokes or
changes
his Deferral
Election in accordance with the terms of the Plan.
(2) A Participant's Deferral Election shall
be revoked upon a
Participant receiving a hardship distribution under the
Savings Plan.
Such
Participant may not again make Deferral
Contributions to this
Plan until
the Plan Year following the end of the Minimum
Suspension
Period. The "Minimum Suspension Period" is the
six (6) month period
beginning on
the date of the hardship distribution.
6
<PAGE>
(3) A Participant's Deferral
Election shall be revoked upon a
Participant demonstrating to the Plan
Administrator in such form an
manner as my
be specified by the Plan Administrator from time to time
that he is
suffering from an Unforeseeable Emergency. Such Participant
may not
again make Deferral Contributions to this Plan until the
Plan
Year
following the Plan Year in which Deferral
Contributions cease
under this
Plan Section 2.2(b)(3).
2.3 Loss of
Eligibility. If a Participant is no
longer an Eligible
---------------------
Employee, such Participant shall have his
Deferral Election revoked as of the
earlier of (a) his termination of employment with
all members of the Employer
Group or (b) the first day of the Plan Year following the
Plan Year in which he
is no longer an Eligible Employee. No DISP
Make-up Contributions, Matching
Contributions, or Supplemental Pension
Contributions shall be made to a
Participant's Account during any period
during which he is not an Eligible
Employee.
ARTICLE 3
CONTRIBUTIONS
-------------
3.1 Deferral Contributions.
The Plan Sponsor shall make a contribution to
-----------------------
the Deferral Contribution Account of a Participant who
is an Eligible Employee
in accordance with his Deferral
Election. The Deferral Contribution
made
pursuant to an Eligible Employee's Deferral
Election under this Section 3.1
shall be in an amount equal to the amount specified in
the Deferral Election,
but not greater than six percent (6%) of
the Eligible Employee's Eligible
Compensation. A contribution made
pursuant to this Section 3.1 shall
be
allocated to the Deferral Contribution
Account of the Participant on whose
behalf it was made as soon as reasonably
practicable following the date of
withholding by the Plan Sponsor.
3.2 Matching Contributions. The Plan
Sponsor proposes to make contributions
----------------------
to the Matching Account for each Plan
Year for each Participant who is an
Eligible Employee during the Plan Year in an amount equal to fifty
percent (50%)
of the contribution made for the Plan Year on behalf of a
Participant pursuant
to Section 3.1. The Plan
Sponsor contributions made on behalf
of each
Participant under this Section 3.2 shall be allocated to the
Matching Account of
the Participant on behalf of whom the contribution was made.
3.3 DISP Make-up
Contributions. The Plan Sponsor may make DISP
Make-up
----------------------------
Contributions to the DISP Make-up
Account for each Plan Year for
each
Participant who is an Eligible Employee during the Plan Year and
who is entitled
to a "DISP Contribution" (as defined in the Savings Plan) under the
Savings Plan
for such Plan Year. The amount of the DISP
Make-up Contribution shall be a
percentage of DISP Compensation equal to the percentage of "Annual
Compensation"
(as defined in the Savings Plan) used to calculate the "DISP
Contribution" (as
defined in the Savings Plan) under the Section 3.3 of the
Savings Plan (or any
successor thereto), less the amount of the "DISP
Contribution" (as defined in
the Savings Plan) actually made to such Participant's account
under the Savings
Plan. DISP Make-up Contributions for each Participant
entitled thereto shall be
allocated, as of the last day of each Plan Year that such
contribution is made,
to the DISP Make-up Account of each such Participant.
7
<PAGE>
3.4 Supplemental Pension
Contributions. The Plan Sponsor shall
make
------------------------------------
Supplemental Pension Contributions to the Supplemental
Pension Account of each
Participant in the Supplemental Pension Portion who is an
Eligible Employee in
an amount equal to the yearly contribution using a
level individual aggregate
funding method, without adjusting for
changes in asset values or gains or
losses, which would be expected to fund a
pension benefit commencing at a
Participant's sixty-third (63rd) birthday equal to:
