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HAVERTY FURNITURE COMPANIES, INC. SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

Addendum or Modifications

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Title: HAVERTY FURNITURE COMPANIES, INC. SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Governing Law: Georgia     Date: 3/16/2009
Industry: Retail (Specialty)     Sector: Services

HAVERTY FURNITURE COMPANIES, INC. SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN, Parties: haverty furniture companies inc
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HAVERTY FURNITURE COMPANIES, INC.

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

 

As Amended and Restated Effective January 1, 2009

 

Haverty Furniture Companies, Inc. ("Havertys") adopted the Haverty Furniture Companies, Inc. Supplemental Executive Retirement Plan, effective January 1, 1996 (the “SERP”), to supplement the retirement pay of a select group of management and highly compensated employees who might otherwise receive less retirement pay due to Congressional limits. The SERP has been amended and/or restated several times since its establishment, most recently effective January 1, 2003.

The SERP is now further amended and restated, effective January 1, 2009, as set forth below, to comply with Internal Revenue Code Section 409A with respect to benefits earned under the Plan, and to de-link the SERP from the Haverty Furniture Companies, Inc. Retirement Plan.

ARTICLE I

DEFINITIONS

1.1

“Accrued Benefit” means a Participant’s annual benefit calculated as provided in Appendix A without the Compensation Limitations applied and without excluding the cash bonuses which the Participant elected to defer under Havertys’ Top Hat Mutual Fund Option Plan in the year in which such cash bonuses would have been paid.

 

1.2

“Actuarial Equivalent” means a form of benefit differing in time, period, or manner of payment from a specific benefit provided under this SERP but having the same value when computed using the “Applicable Mortality Table” and the “Applicable Interest Rate” where:

 

 

(a)

The “Applicable Mortality Table” means the table prescribed by the Secretary of the Treasury. Such table shall mean a mortality table, modified as appropriate by the Secretary of the Treasury, based upon the mortality table specified for the Plan Year under subparagraph (A) of Code Section 430(h)(3) (without regarding to subparagraph (C) or (D) of such Section).

 

 

(b)

The “Applicable Interest Rate” means the adjusted first, second and third segment rates applied under rules similar to the rules of Code Section 430(h)(2)(C) for the month before the date of the distribution or such other time as the Secretary of the Treasury may prescribe by regulation.

Notwithstanding the above, if a benefit is distributed in a form other than a nondecreasing annuity payable for a period not less than the life of a Participant or, in the case of a Pre-Retirement Survivor Annuity, the life of the surviving spouse, the interest rate used in determining the Actuarial Equivalent of the portion of the excess/offset portion of the

 

 

 

 

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monthly retirement benefit pursuant to this Appendix A shall not be less than the lesser of 7.5% or the “Applicable Interest Rate.”

In the event this Section is amended, the Actuarial Equivalent of a Participant’s Hypothetical Retirement Benefit on or after the date of change shall be determined (unless otherwise permitted by law or Regulation) as the greater of (1) the Actuarial Equivalent of the Hypothetical Retirement Benefit as of the date of change computed on the old basis, or (2) the Actuarial Equivalent of the total Hypothetical Retirement Benefit computed on the new basis.

1.3

"Affiliate" means Havertys and any other entity that is a member of the same controlled group as defined in Code Sections 414(b), (c), (m) or (o).

 

1.4

“Beneficiary” means the person(or entity) designated by the Participant on his or her Distribution Election Form (or other form designated by the Committee) to receive the benefits (if any) which are payable under this SERP upon or after the death of the Participant. If the Beneficiary does not predecease the Participant, but dies prior to distribution of the death benefit, any benefit payable under this SERP will be paid to the Beneficiary's estate. Notwithstanding anything in this Section to the contrary, if a Participant has designated the spouse as a Beneficiary, then a divorce decree or a legal separation that relates to such spouse shall revoke the Participant's designation of the spouse as a Beneficiary unless the decree or a qualified domestic relations order (within the meaning of Code Section 414(p)) provides otherwise.

 

1.5

"Board" means the Board of Directors of Haverty Furniture Companies, Inc.

 

1.6

"Code" means the Internal Revenue Code of 1986, as amended, and any rules and regulations issued thereunder.

 

1.7

"Committee" means the Employee Benefits Committee of the Board. The Committee will have primary responsibility for administering the Plan under Article VI.

 

1.8

“Compensation Limitations” means the limitations described in Section 3.1 of Appendix A, as adjusted by law.

 

1.9

“Distribution Election Form” means the form designated by the Committee for the Participant to designate the timing and form of distribution of his or her SERP Benefit, as modified from time to time in accordance with Article V.

 

1.10

“Distribution Event” means an event triggering distribution under this SERP, as described in Article V.

 

1.11

“Early Retirement Age” means the date on which a Participant attains age 55 and has completed at least 15 Years of Service (Early Retirement Age).

 

 

 

 

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1.12

“Early Retirement Date” means the first day of the month (prior to the Normal Retirement Date) coinciding with or following the date the Participant attains Early Retirement Age and Separates from Service. A Participant who Separates from Service after satisfying the service requirement for the Early Retirement Age and who thereafter reaches the age requirement contained herein shall be considered to have attained his Early Retirement Date.

 

1.13

"Eligible Spouse" means the person to whom the Participant is legally married at the time of the Participant's death.

 

1.14

"Employee" means a common law full-time employee of Havertys or any of its Affiliates.

 

1.15

"Havertys" means Haverty Furniture Companies, Inc.

 

1.16

“Hour of Service” means (a) each hour for which an Employee is directly or indirectly compensated or entitled to compensation by Havertys or its Affiliates for the performance of duties (these hours will be credited to the Employee for the computation period in which the duties are performed); (b) each hour for which an Employee is directly or indirectly compensated or entitled to compensation by Havertys or its Affiliates (irrespective of whether the employment relationship has terminated) for reasons other than performance of duties (such as vacation, holidays, sickness, jury duty, disability, lay-off, military duty or leave of absence) during the applicable computation period (these hours will be calculated and credited pursuant to Department of Labor regulation 2530.200b-2 which is incorporated herein by reference); (c) each hour for which back pay is awarded or agreed to by Havertys or its Affiliates without regard to mitigation of damages (these hours will be credited to the Employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which the award, agreement or payment is made). The same Hours of Service shall not be credited both under (a) or (b), as the case may be, and under (c).

Notwithstanding the above, (i) no more than 501 Hours of Service are required to be credited to an Employee on account of any single continuous period during which the Employee performs no duties (whether or not such period occurs in a single computation period); (ii) an hour for which an Employee is directly or indirectly paid, or entitled to payment, on account of a period during which no duties are performed is not required to be credited to the Employee if such payment is made or due under a plan maintained solely for the purpose of complying with applicable worker’s compensation, or unemployment compensation or disability insurance laws; and (iii) Hours of Service are not required to be credited for a payment which solely reimburses an Employee for medical or medically related expenses incurred by the Employee.

For purposes of this Section, a payment shall be deemed to be made by or due from Havertys or its Affiliates regardless of whether such payment is made by or due from Havertys or its Affiliates directly, or indirectly through, among others, a trust fund, or insurer, to which Havertys or its Affiliates contributes or pays premiums and regardless

 

 

 

 

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of whether contributions made or due to the trust fund, insurer, or other entity are for the benefit of particular Employees or are on behalf of a group of Employees in the aggregate.

For purposes of this Section, Hours of Service will be credited for employment with other Affiliates. The provisions of Department of Labor regulations 2530.200b-2(b) and (c) are incorporated herein by reference.

For purposes of this Section, Havertys and its Affiliates shall use the equivalency of 190 hours per month with respect to calculating Hours of Service, as permitted under DOL Reg. § 2530.200b-3(e)(1)(iv).

1.17

“Hypothetical Retirement Benefit” means a Participant’s hypothetical benefit calculated as provided in Appendix A.

 

1.18

“Late Retirement Date” means the first day of the month coinciding with or next following a Participant’s Separation from Service after having reached his Normal Retirement Date.

 

1.19

“Normal Retirement Age” means a Participant’s 65 th birthday, or his 5 th anniversary of joining the Retirement Plan, if later.

 

1.20

"Normal Retirement Date" means the first day of the month coinciding with or next following the date the Participant attains Normal Retirement Age.

 

1.21

"Participant" means an Employee of Havertys who is one of a select group of management and highly compensated employees, and who otherwise meets the requirements of Article II of this Plan.

 

1.22

"Plan Year" means the calendar year.

 

1.23

“Pre-Retirement Survivor Annuity” is an immediate annuity form of payment for the life of the surviving spouse of a Participant who dies prior to his benefit commencement date, the payment under which must be equal to the amount which would be payable as a survivor annuity under the joint and 50% survivor annuity provisions of this SERP:

 

 

(a)

in the case of a Participant who dies after his Early Retirement Age, if such Participant had retired with an immediate joint and 50% survivor annuity on the day before the Participant’s date of death, or

 

 

(b)

in the case of a Participant who dies on or before his Early Retirement Age, if such Participant had:

 

 

(i)

Separated from Service on the earlier of the actual time of separation or the date of his death,

 

 

 

 

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(ii)

survived to his Early Retirement Age,

 

 

(iii)

retired with an immediate joint and 50% survivor annuity at the Early Retirement Age based on his Accrued Benefit on his date of death, and

 

 

(iv)

died on the day after the day on which said Participant would have attained his Early Retirement Age.

 

1.24

“Regulation” means the Income Tax Regulations as promulgated by the Secretary of the Treasury or his delegate, and as amended from time to time.

 

1.25

"Retirement" means a Participant’s Separation from Service at, Early Retirement Date, Normal Retirement Date, or Late Retirement Date under the terms of this Plan.

 

1.26

“Retirement Date” means the date of a Participant’s Retirement.

 

1.27

“Retirement Plan” means the Haverty Furniture Companies, Inc. Retirement Plan, as amended from time to time.

 

1.28

“Separation from Service” (or “Separates from Service”) means when a Participant ceases to be an employee of Havertys or any of its Affiliates other than due to death or disability. The occurrence of a Separation from Service is determined by the Committee under the facts and circumstances and in accordance with Code Section 409A, and the following special rules shall apply:

 

 

(a)

A Participant’s absence from work due to military leave, sick leave, or other bona fide leave of absence (such as temporary employment by the government) shall not constitute a Separation from Service if the period of such leave does not exceed six months or such longer period as is provided either by statute or by contract. If the period of leave exceeds six months and the Participant’s right to reemployment (or reinstatement in the case of a Director) after such extended leave is not provided either by statute or by contract, the Participant shall be deemed to have incurred a Separation from Service on the first day immediately following such six-month period.

 

 

(b)

A Participant not described under the preceding leave of absence provisions is deemed to have incurred a Separation from Service if he or she provides services to Havertys or an Affiliate at an annual rate that is less than 20% of the services rendered, on average, during the immediately preceding three full calendar years of employment (or the actual period of employment, if less than three years) and the annual remuneration for such services is at least equal to 20% of the average annual remuneration earned, on average, during the immediately preceding three full calendar years of employment (or the actual period of employment, if less than three years).

 

 

 

 

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(c)

Where a Participant continues to provide services to Havertys or an Affiliate in a capacity other than as an employee, a Separation from Service will not be deemed to have occurred if the former employee is providing services at an annual rate that is 50% or more of the services rendered, on average, during the immediately preceding three full calendar years of employment (or the actual period of employment, if less than three years) and the annual remuneration for such services is 50% or more of the average annual remuneration earned during the final three full calendar years of employment (or the actual period of employment, if less than three years). For these purposes, the annual rate of providing services is determined based upon the measurement used to determine the service provider’s base compensation (e.g., amounts of time required to earn a salary, hourly wages, or payments for specific projects).

 

1.29

"SERP" means the Haverty Furniture Companies, Inc. Supplemental Executive Retirement Plan set forth in this document, as amended from time to time.

 

1.30

"SERP Benefit” means the Participant’s Accrued Benefit less his Hypothetical Retirement Benefit, determined as provided in Article IV as of the date of benefit commencement.

 

1.31

"Social Security Benefit" means the Primary Insurance Amount payable at age 65 or actual retirement, if later, to the Participant under the Federal Social Security Act. Solely for purposes of determining the amount of benefits payable from this SERP prior to Normal Retirement Date, the estimated Primary Insurance Amount payable from Social Security at age 65 will be actuarially reduced (using the early retirement reduction factors specified in Appendix A to the date of Retirement hereunder).

 

1.32

“Specified Employee” shall mean a “key employee” (as defined in Code Section 416(i) without regard to Code Section 416(i)(5)) of Havertys or an Affiliate any stock of which is actively traded on an established securities market or otherwise, or as defined in Prop. Treas. Regulation 1.409A-1(i). The Committee will identify Specified Employees. The determination of which Employees are Specified Employees will be determined as of the 12-month period ending each December 31, and will become effective with respect to Separations from Service occurring on and after the following April 1.

 

1.33

“Year of Service” shall mean a Plan Year during which an Employee has at least 1000 Hours of Service. Years of Service with any Affiliate shall be recognized.

ARTICLE II

ELIGIBILITY

Any Employee who:

2.1

is among a select group of management or highly compensated Employees,

 

 

 

 

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2.2

is a participant in the Retirement Plan, and

 

2.3

has a benefit under the Retirement Plan that either (a) has been limited by Section 401(a)(17) of the Code, relating to the $200,000 (indexed) limit on compensation, or (b) has been reduced because the cash bonuses which the Employee has elected to defer under the Top Hat Mutual Fund Option Plan are not included in the Retirement Plan's definition of Compensation in the year in which such cash bonuses would have been paid, in which case he or she shall enter the Plan on the date the Employee exceeds the limit referred to above.

shall be eligible to participate in the Plan on the date the Employee meets the above requirements. In addition, an Employee may be designated by the Board to participate in the SERP, in which case the Employee shall be eligible as of the date determined by the Board.

ARTICLE III

VESTING

A Participant shall vest in his or her SERP Benefit upon completion of five (5) Years of Service. A Participant’s Separation from Service for any reason prior to vesting will cause the Participant and his or her Beneficiaries to forfeit any unvested interest in this SERP.

ARTICLE IV

CALCULATION OF SERP BENEFIT

A Participant’s SERP Benefit shall be calculated in the following manner:

 

4.1

SERP Benefit . Upon Retirement from Havertys, a Participant shall be entitled to receive a benefit under this SERP which is the Actuarial Equivalent of (i) his Accrued Benefit, less (ii) his Hypothetical Retirement Benefit. In no event shall a Participant’s SERP Benefit be less than his SERP Benefit accrued as of December 1, 2006.

 

4.2

Maximum Benefit . Any provision to the contrary in this SERP notwithstanding, if the total combined annual benefit (based on the life annuity form) initially payable to the Participant at or after Normal Retirement Date from this SERP, Social Security, and the Retirement Plan, would otherwise exceed $125,000, the Participant’s SERP Benefit will be reduced so that the total combined annual benefit will equal $125,000; provided , however , that such $125,000 total combined annual benefit shall not be deemed to include the portion of the SERP Benefit attributable to cash bonuses that the Participant had elected to defer under Haverty's Top Hat Mutual Fund Option Plan and that were excluded from the Retirement Plan's definition of Compensation in the year in which such cash bonuses would have been paid. This maximum benefit is actuarially reduced (using the early retirement reduction factors specified in Appendix A) if benefits commence prior to Normal Retirement Date.

 

 

 

 

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4.3

Effect of Social Security Act . SERP Benefits being paid to a Participant or Beneficiary may not be decreased by reason of any post-separation Social Security benefit increases or by the increase of the Social Security wage base under Title II of the Social Security Act. SERP Benefits to which a Participant has a vested interest may not be decreased by reason of an increase in a benefit level or wage base under Title II of the Social Security Act.

 

4.4

No Duplication. If a Participant is rehired, such rehire shall not result in duplication of SERP Benefits. Accordingly, if the Participant has received a distribution of his or her SERP Benefit by reason of prior participation, his or her prior Years of Service shall not be counted.

 

4.5

Special Benefits . Notwithstanding anything in this SERP to the contrary, the Board may decide to offer Special Benefits to a named Participant upon his termination of employment with Havertys. Provisions relating to the effective date, amount, timing and form of payment of such Special Benefits shall be set forth in an appendix to this SERP.

ARTICLE V

TIMING AND FORM OF PAYMENT

5.1

Timing

 

 

(a)

General Rule . A Participant’s SERP Benefit shall be paid on the first day of the second month following the month in which the earliest of the Participant’s death or the following distribution dates (“Distribution Events”) elected by the Participant in his or her Distribution Election Form occurs:

 

 

(i)

Early Retirement Date,

 

 

(ii)

Normal Retirement Date,

 

 

(iii)

Late Retirement Date, or

Upon the happening of a Distribution Event, the Committee shall immediately take all necessary steps and execute all required documents to cause the payment to the Participant of his or her SERP Benefit. No disability benefits, other than those payable upon Separation from Service, are provided by this SERP. The default Distribution Event shall be the earlier of the Participant’s death or Normal Retirement Date.

 

 

(b)

Specified Employee Delay . Any provision to the contrary notwithstanding, if a SERP Benefit becomes payable because of a Separation from Service to a Participant who is a Specified Employee at the time of such separation, and at the time of such separation Haverty's capital stock is publicly-traded on an established securities market, then the commencement of distributions to such

 

 

 

 

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Specified Employee hereunder shall be delayed until a date that is six (6) months after the separation date and the first payment shall equal the initial six (6) month delayed payments.

 

(c)

Immediate Payout Upon 409A Taxation . Any provision to the contrary notwithstanding, (a) in the event that the Internal Revenue Service (“IRS”) prevails in a claim that benefits under the SERP constitute taxable income to a Participant or Eligible Spouse under Section 409A of the Code for any taxable year prior to the taxable year in which such benefits are distributed to him or her, or (b) in the event that legal counsel satisfactory to Havertys and the Participant or Eligible Spouse renders an opinion that the IRS would likely prevail in such a claim, the SERP Benefit, to the extent constituting taxable income, shall be distributed to the Participant or his or her Eligible Spouse as soon as administratively possible. For purposes of this paragraph, the IRS shall be deemed to have prevailed in a claim if such claim is upheld by a court of final jurisdiction, or, if based upon an opinion of legal counsel satisfactory to Havertys and the Participant or Eligible Spouse, the SERP fails to appeal a decision of the IRS, or a court of applicable jurisdiction, with respect to such claim to an appropriate IRS appeals authority or to a court of higher jurisdiction within the appropriate time period.

 

5.2

Form of Payment. A Participant’s SERP Benefit shall be paid in the following manner:

 

 

(a)

Separation from Service or Normal Retirement Date . Upon Separation from Service (other than death) or Normal Retirement Date, a Participant shall be entitled to receive his or her SERP Benefit in one of the following forms, as elected by the Participant in his or her Distribution Election Form, commencing on the first day of the second month following the Distribution Event.

 

 

(i)

Life Annuity . The life annuity form of distribution shall consist of monthly payments continuing for the life of the Participant. A life annuity shall be the default form of payment for a Participant who is not married on his or her benefit commencement date, unless the Participant properly elects (in accordance with Section 5.3) to waive the life annuity and select another form of payment listed in this Paragraph 5.2(a).

 

 

(ii)

Joint and 50% Spousal Survivor Annuity. The joint and 50% survivor annuity is an annuity that provides monthly payments during the life of the Participant and, following the Participant’s death, shall continue to the Participant’s Eligible Spouse during the Spouse’s lifetime at a rate equal to 50% of the rate at which such SERP Benefits were payable to the Participant. The joint and 50% survivor annuity is the default form of payment for a Participant who is married on his or her benefit commencement date, unless the Participant properly elects, in accordance

 

 

 

 

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with this Section 5.2 and Section 5.3, to waive the joint and 50% survivor annuity and select another form of payment listed in this Paragraph 5.2(a).

 

(iii)

Joint and 50%, 75% or 100% Survivor Annuity. The joint and 50%, 75% or 100% survivor annuity provides monthly payments during the life of the Participant and, following the Participant’s death, shall continue to the Participant’s designated Beneficiary (determined at the time of the Participant’s Retirement) during the Beneficiary’s lifetime at the designated percentage (50%, 75% or 100%) of the rate at which such SERP Benefits were payable to the Participant.

 

 

(iv)

Life and Certain Annuity. The life and certain annuity is an annuity that provides either a:

A) Reduced monthly pension payable over the life of the Participant, with the provision that, if a the Participant dies prior to the completion of 60 monthly payments, such monthly payments shall be continued to the Participant’s designated Beneficiary until the monthly paymen


 
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