Exhibit 10.5
SILGAN PLASTICS SUPPLEMENTAL
SAVINGS AND PENSION PLAN
SUPPLEMENTAL PENSION PLAN
1997
RESTATEMENT
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SILGAN PLASTICS SUPPLEMENTAL
SAVINGS AND PENSION PLAN
SUPPLEMENTAL PENSION PLAN
1997 RESTATEMENT
TABLE OF CONTENTS
ARTICLE I - ESTABLISHMENT AND
PURPOSE..........................................1
1.1 History and
Structure..............................................1
1.2
Purpose............................................................1
1.3 Type of
Plan.......................................................1
ARTICLE II -
DEFINITIONS.......................................................3
ARTICLE III - RETIREMENT
BENEFITS..............................................3
3.1
Limitations........................................................3
3.2 Annual Contribution
Amount.........................................4
3.3 Supplemental Pension
Formula.......................................5
3.4 Transfer of
Funds..................................................5
3.5 Participant's
Accounts.............................................5
3.6
Vesting............................................................6
ARTICLE IV - PAYMENT OF
BENEFITS...............................................7
4.1 Form of
Payment....................................................7
4.2 Time of
Payment....................................................7
4.3 Death
Benefits................................. ...................7
ARTICLE V - SOURCES OF
PAYMENTS................................................9
ARTICLE VI - PLAN
ADMINISTRATOR................................................9
6.1 Plan
Administrator.................................................9
6.2 Standard of
Conduct................................................9
ARTICLE VII - NONALIENATION OF
BENEFITS.......................................10
ARTICLE VIII - AMENDMENT AND
TERMINATION......................................10
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ARTICLE IX - GENERAL
PROVISIONS...............................................10
9.1 Plan Not a Contract
of Employment.................................10
9.2 Construction of
Terms.............................................10
9.3
Successors........................................................11
9.4 Official
Actions..................................................11
9.5 Controlling State
Law.............................................11
9.6
Severability......................................................11
9.7
Withholding.......................................................11
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SILGAN PLASTICS SUPPLEMENTAL
SAVINGS AND PENSION PLAN
SUPPLEMENTAL PENSION PLAN
1997 RESTATEMENT
ARTICLE I
ESTABLISHMENT AND PURPOSE
1.1 History and Structure. The Silgan
Plastics Supplemental Savings and
Pension Plan is comprised of two components: the Contributory
Retirement Plan
and the Supplemental Pension Plan. The Supplemental Pension Plan
component of
the Silgan Plastics Supplemental Savings and Pension Plan initially
was adopted
by an instrument dated April 29, 1996. The Plan initially was
structured as a
traditional defined benefit supplemental plan, which provided a
retirement
income benefit based on a formula for highly compensated employees
whose benefit
in the qualified defined benefit plan maintained by Silgan Plastics
Corporation
was curtailed by the limits applicable to qualified plans.
Silgan Plastics Corporation now wishes to
replace the defined benefit
formula with a defined contribution formula. As amended by this
1997
Restatement, the Plan provides a benefit for highly compensated
employees whose
benefit under the Silgan Plastics Corporation Pension Plan for
Salaried
Employees is curtailed by certain limitations imposed by the
Internal Revenue
Code on qualified plans. In general, the present value of the
amount of the
pension that is so curtailed will be calculated as of the end of
each year; such
amount will be credited to the account of the Participant; the
account will be
adjusted for earnings and losses; and the Participant's retirement
income
benefit will be determined solely by the amount credited to the
account of the
Participant from time to time.
The terms and conditions of the
Contributory Retirement Plan component of
the Silgan Plastics Supplemental Savings and Pension Plan are set
forth in a
separate instrument.
1.2 Purpose. The Supplemental Pension Plan
is intended to provide benefits
to participants in the Silgan Plastics Corporation Pension Plan For
Salaried
Employees (the "Pension Plan") whose benefits are curtailed by
certain
limitations imposed by the Internal Revenue Code on qualified
plans.
1.3 Type of Plan.
The Supplemental Pension Plan is
intended as a
nonqualified unfunded deferred
compensation plan for federal income
tax
purposes. For purposes of the Employee Retirement
Income Security Act of 1974
("ERISA") the Supplemental Pension Plan is structured as two
plans. The portion
of the Supplemental Pension Plan that provides
benefits based on limitations
imposed by Section 415 of the Internal Revenue Code is intended to
be an "excess
benefit plan" as described in Section
4(b)(5) of ERISA. The portion of the
Supplemental Pension Plan that provides benefits based on
limitations imposed by
Section 401(a)(17) of the Internal
Revenue Code is intended to be a plan
described in Sections 201(2), 301(a)(3) and
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401(a)(1) of ERISA providing benefits to a select group of
management or highly
compensated employees.
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ARTICLE II
DEFINITIONS
2.1 (a) Unless otherwise expressly
qualified by the terms or the context of
this Supplemental Pension Plan, the terms used in this Supplemental
Pension Plan
shall have the same meanings as those terms in the Pension
Plan.
(b) "Benefit
Amount" shall mean the amount payable to a Participant
pursuant to this Supplemental Pension Plan, which is the amount
credited to the
Supplemental Pension Account of a Participant from time to time in
accordance
with Article III.
(c) "Eligible
Participant" shall mean Participants in the Pension Plan
whose benefits in the Pension Plan are curtailed by the Limitations
prescribed
in Section 3.1.
(d) "Employer"
shall mean Silgan Plastics Corporation.
(e) "Excess
Compensation shall mean the Covered Compensation of a Plan
Participant for a Plan Year in excess of the limitation imposed by
Section
401(a)(17) of the Code on the maximum amount of compensation that
may be
considered under the Pension Plan for such Plan Year.
(f) "Pension
Participant" shall mean a Participant in the Pension Plan.
(g) "Pension Plan"
shall mean the Silgan Plastics Corporation Pension
Plan for Salaried Employees, a qualified funded defined benefit
pension plan.
(h) "Plan Year"
shall mean the calendar year.
(i) "Silgan" shall
mean Silgan Plastics Corporation.
(j) "Supplemental
Savings and Pension Trust" shall mean the Silgan
Plastics Corporation Supplemental Savings and Pension Trust, a
Rabbi Trust that
is disregarded for purposes of ERISA and is not treated as a
separate taxpayer
entity for federal income tax purposes.
ARTICLE III
RETIREMENT BENEFITS
3.1 Limitations.
The Supplemental
Pension Plan provides a defined contribution pension
benefit to compensate an Eligible Participant for the benefit that
would be
payable to a Pension Participant under the Pension Plan except for
the
application of either or both of the following limitations:
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(a) Benefits not payable under the
Pension Plan because of the
limitations imposed by Section 401(a)(17) of the Code on the
maximum
amount of compensation that may be considered in
determining the benefit payable under the Pension Plan
("Compensation Limitation") (See Section 5.1 of the Pension
Plan.); and
(b)
Benefits not payable under the Pension Plan because of the
limitations imposed by Section 415 of the Code on the benefit
of the Pension Participant ("Section 415 Limitation") (See
Article VIII of the Pension Plan).
3.2 Annual Contribution Amount. As of the
end of each Plan Year, the Plan
Administrator shall determine the annual Supplemental Employer
Contribution
amount, if any, for each Eligible Participant, as follows:
(a) First, calculate the amount
accrued under the Supplemental
Pension Formula set forth in Section 3.3 below as of the end
of the Plan Year in the form of a Single Life Annuity payable
monthly beginning at age 65;
(b) Second, subtract from such
monthly amount the highest such
monthly benefit determined for such Participant as of the end
of any previous Plan Year that resulted in a contribution to
the
Supplemental Pension Account of such Participant under
this Plan;
(c) Third, determine the lump sum
present value of such
difference, if any, using the applicable mortality table and
applicable
interest rate prescribed in Section 417(e) of the
Internal Revenue Code of 1986 in effect as of the end of such
Plan Year. For this purpose the applicable interest rate
stability period shall be monthly and the lookback month shall
be the third full calendar month preceding the stability
period.
Solely in the case of an Eligible Participant who retires while
eligible for an
Early Retirement Benefit under Section 5.2 of the Pension Plan, as
of the Early
Retirement Date of the Participant, the Plan Administrator shall
determine a
special Supplemental Employer Contribution amount, if any, for such
Participant,
as follows:
(a) First, calculate the amount
accrued under the Supplemental
Pension Formula set forth in Section 3.3 below as of the Early
Retirement Date of the Participant in the form of a Single
Life Annuity payable monthly beginning at such Early
Retirement Date;
(b) Second, determine the lump sum
present value of such benefit,
if any, using the applicable mortality table and applicable
interest rate prescribed in Section 417(e)
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of the Internal Revenue Code of 1986 in effect as of the end
of such Plan Year, using the stability period and lookback
month described above;
(c) Third, subtract from such lump
sum amount the lump such amount
calculated pursuant to the immediately preceding paragraph
(benefit beginning at age 65) as of the end of the Plan Year
that immediately precedes such Early Retirement Date.
If the Early Retirement Date of a Participant coincides with the
last day of a
Plan Year, the special Early Retirement amount calculated above
shall be in lieu
of, and not in addition to, the normal annual Supplemental Employer
Contribution
for that Plan Year.
3.3 Supplemental Pension Formula. The
monthly amount of the supplemental
pension for purposes of determining the Supplemental Employer
Contribution shall
be an amount, payable in the form of a Single Life Annuity, equal
to the excess
of:
(a) the monthly retirement benefit
that would have been payable to
a Pension Participant under the Pension Plan without regard to
the Compensation Limitation and the Section 415 Limitation;
over
(b) the amount of the monthly
retirement benefit that is in fact
payable to such Pension Participant under the Pension Plan.
Such benefit shall be reduced by that portion of the benefit
payable from any
nonqualified retirement plan maintained by the Monsanto Company or
Amoco
(including any foreign plans) to the extent that such Monsanto or
Amoco benefit
duplicates the benefit determined above.
3.4 Transfer of Funds. The Employer shall
transfer the Supplemental
Employer Contribution amounts determined in accordance with Section
3.2 in cash
to the Supplemental Savings and Pension Trust as soon as
administratively
feasible after such amount is calculated.
3.5 Participant's Accounts. A separate
"Supplemental Pension Account" shall
be established and maintained for each Participant for whom a
Supplemental
Employer Contribution is required to be made in accordance with
Section 3.2. The
Plan Administrator shall record the dollar amount of the
Supplemental Employer
Contribution of each Participant for each Plan Year to the
Participant's
Supplemental Pension Account.
The amount credited to the Supplemental
Pension Accounts of Participants
shall be adjusted no less frequently than annually by the Plan
Administrator to
reflect earnings, losses, distributions, investment transfers and
any other
transactions attributable to the investment in the Supplemental
Savings and
Pension Trust of the amounts allocated to the Accounts of each
Participant. The
Plan Administrator shall establish such accounting and
recordkeeping rules and
procedures as are reasonable in the circumstances (such as the
nature of the
Trust investments) as it in its discretion shall determine;
provided that such
rules and procedures shall be applied
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uniformly to Participants in similar circumstances. A date as of
which the
Accounts of Participants are so adjusted is referred to in this
Plan as an
"Accounting Date."
The amount credited to the Accounts of a
Participant from time to time as
of the most recent Accounting Date shall constitute the Benefit
Amount of the
Participant at such time.
3.6 Vesting. The Supplemental Pension
Amount of a Participant shall be
vested at the same rate as the Participant's benefit is vested in
the Pension
Plan.
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ARTICLE IV
PAYMENT OF BENEFITS
4.1 Form of Payment. The normal form of
benefit of the Benefit Amount under
this Supplemental Pension Plan shall be a single lump sum
payment.
A Participant may elect to receive his or
her Benefit Amount in annual
installments not to exceed ten years. The amount of each
installment payment
shall be determined under the declining balance accounting method.
For example,
a five year installment payout would be paid as follows: 1/5 of the
Benefit
Amount in the first year; 1/4 of the remaining Benefit Amount in
the second
year; 1/3 of the remaining Benefit Amount in the third year; 1/2 of
the
remaining Benefit Amount in the fourth year; and the balance of the
remaining
Benefit Amount in the fifth year.
An election to take installment payments
shall be made in writing, in a
form prescribed by the Plan Administrator, not later than six
months before
payment is to commence in accordance with Section 4.2 of this
Supplemental
Pension Plan. Such an election shall be irrevocable.
4.2 Time of Payment. Payment(s) of the
Benefit Amount of a Participant
normally shall commence as soon as administratively feasible after
Termination
of Employment of the Participant.
A Participant may elect to defer receipt
of a lump sum payment, or to defer
commencement of installment payments, until after the end of the
first, second,
third, fourth or fifth calendar year beginning after his of her
Termination of
Employment, or until the Participant attains sixty-five years of
age; provided
that, the installment payment period can never extend more than ten
years
following Termination of Employment. For example, the installment
payout period
of a Participant who elected to defer the commencement of
installment payments
for four years could not exceed six years.
An election to defer the payment of
benefits shall be made in writing, in a
form prescribed by the Plan Administrator, not later than six
months before
payment would normally commence in accordance with this Section.
Such an
election shall be irrevocable.
4.3 Death Benefits. Each Participant
entitled to a Benefit Amount under
this Supplemental Pension Plan shall be entitled to a death benefit
equal to the
entire Benefit Amount of the Participant, whether or not vested.
Such benefit
shall be payable to the Beneficiary of the Participant in a single
lump sum as
soon as administratively feasible after the death of the
Participant.
Each Participant may designate a
Beneficiary or Beneficiaries
(contingently, consecutively, or successively) of a death benefit
and, from time
to time, may change his or her designated Beneficiary. A
Beneficiary may be a
trust. A beneficiary designation shall be made
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in writing in a form prescribed by the Plan Administrator and
delivered to the
Plan Administrator while the Participant is alive. If there is no
designated
Beneficiary surviving at the death of a Participant, payment of any
death
benefit of the Participant shall be made to the persons and in the
proportions
which any death benefit under the CIP Plan is or would be
payable.
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ARTICLE V
SOURCES OF PAYMENTS
Benefits payable under this Supplemental
Pension Plan shall be paid by the
Employer of each Eligible Participant out of its general assets
(except as
provided below with respect to a Rabbi Trust). Obligations to pay
benefits due
Eligible Participants under the Supplemental Pension Plan shall be
the primary
obligation of the Employer. An Eligible Participant shall not have
any rights
with respect to benefits from the Employer under the Supplemental
Pension Plan
other than the unsecured right to receive payments from the
Employer. The
Benefit Amount, as described in Section 3.5, defines the amount
payable by the
Employer to a Participant under this Supplemental Pension Plan.
Except for the obligation to contribute
amounts to the Supplemental Savings
and Pension Trust, an Employer shall not be obligated to set aside,
earmark or
escrow any funds or other assets to satisfy its obligation under
this
Supplemental Pension Plan. Any benefit payable in accordance with
the terms of
this Supplemental Pension Plan shall not be represented by a note
or any
evidence of indebtedness other than the promises contained in this
Supplemental
Pension Plan and the right to receive payments from the
Supplemental Savings and
Pension Trust.
The Supplemental Savings and Pension
Trust, and any other trust established
by the Employer to assist the Employer in meeting its obligations
under this
Plan, shall conform in substance to the terms of the model trust
described in
Revenue Procedure 92-64 with respect to the claim of Participants
to assets of
the Employer and such trust. Payment from the Rabbi Trust of
amounts due under
the terms of this Supplemental Pension Plan shall satisfy the
obligation of the
Employer to make such payment out of its general assets. In no
event shall any
Eligible Participant be entitled to receive payment of an amount
from the
general assets of the Employer that the Eligible Participant
received from the
Rabbi Trust.
ARTICLE VI
PLAN
ADMINISTRATOR
6.1 Plan Administrator. The Supplemental
Pension Plan shall be administered
by the person or Committee appointed by Silgan Plastics Corporation
to be Plan
Administrator of the Pension Plan. The Plan Administrator so
appointed shall
have all of the authority, rights and duties to administer the
Supplemental
Pension Plan as is assigned to the Plan Administrator of the
Pension Plan. The
Plan Administrator may adopt such rules as it may deem necessary,
desirable and
appropriate to administer the Supplemental Pension Plan. Except as
provided in
the Rabbi Trust, the decisions of the Plan Administrator, including
but not
limited to interpretations and determinations of amounts due under
this
Supplemental Pension Plan, shall be final and binding on all
parties.
6.2 Standard of Conduct. The Plan
Administrator shall perform its duties as
the Plan Administrator and in its sole discretion shall determine
what is
appropriate in light of the reason
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and purpose for which the Supplemental Pension Plan is established
and
maintained. Except as provided in the Rabbi Trust, the
interpretation of all
plan provisions and the determination of whether a Participant or
Beneficiary is
entitled to any benefit pursuant to the terms of the Supplemental
Pension Plan,
shall be exercised by the Plan Administrator in its sole
discretion.
Any Employer that adopts and maintains
this Supplemental Pension Plan
hereby consents to actions of the Plan Administrator made in its
sole
discretion.
ARTICLE VII
NONALIENATION OF BENEFITS
Except as may be required by the federal
income tax withholding provisions
of the Code or by the tax laws of any State, the interests of
Eligible
Participants and their beneficiaries under this Supplemental
Pension Plan are
not subject to the claims of their creditors and may not be
voluntarily or
involuntarily sold, transferred, alienated, assigned, pledged,
anticipated, or
encumbered. Any attempt by an Eligible Participant, his
beneficiary, or any
other person to sell, transfer, alienate, assign, pledge,
anticipate, encumber,
charge or otherwise dispose of any right to benefits payable
hereunder shall be
void. The Employer may cancel and refuse to pay any portion of a
benefit which
is sold, transferred, alienated, assigned, pledged, anticipated or
encumbered.
ARTICLE VIII
AMENDMENT AND TERMINATION
Silgan Plastics Corporation reserves the
right to amend, alter or
discontinue this Supplemental Pension Plan at any time; provided
that no such
amendment may eliminate or diminish the benefit to which any
Eligible
Participant would have been entitled under this Plan if such
Participant had
incurred a Termination of Employment immediately before the
adoption of such
amendment. Such action may be taken by any officer of Silgan who
has been duly
authorized by the Board of Directors of Silgan to perform acts of
such kind. In
the event no officer of Silgan has been duly authorized, the Vice
President,
Administration and Human Resources, of Silgan may take any such
action.
ARTICLE IX
GENERAL
PROVISIONS
9.1 Plan Not a Contract of Employment.
This Supplemental Pension Plan does
not constitute a contract of employment, and participation in the
Supplemental
Pension Plan will not give any Eligible Participant the right to be
retained in
the employment of any of the Employers.
9.2 Construction of Terms. Words of gender
shall include persons and
entities of
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any gender, the plural shall include the singular, and the singular
shall
include the plural. Section headings exist for reference purposes
only, and
shall not be construed as part of the Supplemental Pension
Plan.
9.3 Successors. The provisions of this
Supplemental Pension Plan shall be
binding upon the Employers and their successors and assigns and
upon every
Eligible Participant and his heirs, beneficiaries, estates and
legal
representatives.
9.4 Official Actions. Any action required
or permitted to be taken by
Silgan Plastics Corporation pursuant to the Supplemental Pension
Plan may be
performed by the Vice President, Administration and Human
Resources, or by any
other officer or committee of Silgan which has been duly authorized
by the Board
of Directors to take actions of that kind.
9.5 Controlling State Law. To the extent
not superseded by the laws of the
United States, the laws of the State of Missouri shall be
controlling in all
matters relating to this Supplemental Pension Plan.
9.6 Severability. In case any provision of
this Supplemental Pension Plan
shall be held illegal or invalid for any reason, such illegality or
invalidity
shall not affect the remaining provisions of the Supplemental
Pension Plan, and
the Supplemental Pension Plan shall be construed and enforced as if
such illegal
and invalid provisions had never been set forth.
9.7 Withholding. The Employer shall
withhold from amounts due under this
Supplemental Pension Plan, the amount necessary to enable the
Employer to remit
to the appropriate government entity or entities on behalf of the
Eligible
Participant as may be required by the federal income tax
withholding provisions
of the Code, by an applicable state's income tax, or by an
applicable city,
county or municipality's earnings or income tax act. The Employer
shall withhold
from the payroll of, or collect from, an Eligible Participant the
amount
necessary to remit on behalf of the Eligible Participant any FICA
taxes which
may be required with respect to amounts accrued by an Eligible
Participant
hereunder, as determined by the Employer.
IN WITNESS WHEREOF, Silgan Plastics
Corporation has adopted the foregoing
instrument this 12 day of February, 1997.
SILGAN PLASTICS CORPORATION
By: /s/ Howard H.
Cole
----------------------------------------
Title: Vice President HR &
Adm
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FIRST AMENDMENT
SILGAN PLASTICS SUPPLEMENTAL
SAVINGS AND PENSION PLAN
1997 RESTATEMENT
The Silgan Plastics Supplemental
Savings and Pension Plan (the "Plan") was
initially adopt
