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
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1.1
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“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.
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1.2
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“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:
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(a)
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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).
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(b)
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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.
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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
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.
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1.3
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"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).
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1.4
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“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.
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1.5
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"Board" means the Board of Directors
of Haverty Furniture Companies, Inc.
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1.6
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"Code" means the Internal Revenue
Code of 1986, as amended, and any rules and regulations issued
thereunder.
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1.7
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"Committee" means the Employee
Benefits Committee of the Board. The Committee will have primary
responsibility for administering the Plan under Article
VI.
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1.8
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“Compensation
Limitations” means the limitations described in Section 3.1
of Appendix A, as adjusted by law.
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1.9
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“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.
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1.10
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“Distribution Event”
means an event triggering distribution under this SERP, as
described in Article V.
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1.11
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“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
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“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.
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1.13
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"Eligible Spouse" means the person
to whom the Participant is legally married at the time of the
Participant's death.
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1.14
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"Employee" means a common law
full-time employee of Havertys or any of its Affiliates.
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1.15
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"Havertys" means Haverty Furniture
Companies, Inc.
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1.16
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“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).
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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
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).
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1.17
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“Hypothetical Retirement
Benefit” means a Participant’s hypothetical benefit
calculated as provided in Appendix A.
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1.18
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“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.
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1.19
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“Normal Retirement Age”
means a Participant’s 65 th birthday, or his 5
th anniversary of joining the Retirement Plan, if
later.
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1.20
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"Normal Retirement Date" means the
first day of the month coinciding with or next following the date
the Participant attains Normal Retirement Age.
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1.21
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"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.
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1.22
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"Plan Year" means the calendar
year.
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1.23
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“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:
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(a)
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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
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(b)
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in the case of a Participant who
dies on or before his Early Retirement Age, if such Participant
had:
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(i)
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Separated from Service on the
earlier of the actual time of separation or the date of his
death,
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(ii)
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survived to his Early Retirement
Age,
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(iii)
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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
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(iv)
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died on the day after the day on
which said Participant would have attained his Early Retirement
Age.
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1.24
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“Regulation” means the
Income Tax Regulations as promulgated by the Secretary of the
Treasury or his delegate, and as amended from time to
time.
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1.25
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"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.
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1.26
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“Retirement Date” means
the date of a Participant’s Retirement.
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1.27
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“Retirement Plan” means
the Haverty Furniture Companies, Inc. Retirement Plan, as amended
from time to time.
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1.28
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“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:
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(a)
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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.
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(b)
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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)
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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).
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1.29
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"SERP" means the Haverty Furniture
Companies, Inc. Supplemental Executive Retirement Plan set forth in
this document, as amended from time to time.
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1.30
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"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.
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1.31
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"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).
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1.32
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“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.
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1.33
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“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.
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ARTICLE II
ELIGIBILITY
Any Employee who:
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2.1
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is among a select group of
management or highly compensated Employees,
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2.2
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is a participant in the Retirement
Plan, and
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2.3
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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.
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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:
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4.1
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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.
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4.2
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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
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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.
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4.4
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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.
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4.5
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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.
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ARTICLE V
TIMING AND FORM OF
PAYMENT
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(a)
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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:
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(i)
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Early Retirement Date,
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(ii)
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Normal Retirement Date,
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(iii)
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Late Retirement Date, or
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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.
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(b)
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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.
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(c)
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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.
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5.2
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Form of Payment.
A Participant’s SERP Benefit
shall be paid in the following manner:
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(a)
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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.
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(i)
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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).
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(ii)
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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).
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(iii)
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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.
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(iv)
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Life and Certain
Annuity. The life
and certain annuity is an annuity that provides either
a:
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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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