EXHIBIT 10.3
MINE SAFETY APPLIANCES
COMPANY
SUPPLEMENTAL PENSION
PLAN
As Amended and Restated
Effective January 1, 2005
MINE SAFETY APPLIANCES
COMPANY
SUPPLEMENTAL PENSION
PLAN
TABLE OF CONTENTS
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Page
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Preamble
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ARTICLE I
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Definitions
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4
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ARTICLE II
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Participation
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11
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ARTICLE III
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Amount of
Benefits and vesting
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12
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ARTICLE IV
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Distribution
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13
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ARTICLE V
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General
Duties
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16
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MINE SAFETY APPLIANCES
COMPANY
SUPPLEMENTAL PENSION
PLAN
WHEREAS, Mine Safety Appliances
Company (the “Company”) maintains the Non-Contributory
Pension Plan for Employees of Mine Safety Appliances Company (the
“Pension Plan”) for the benefit of its
employees;
WHEREAS, the Pension Plan is a
qualified plan under Section 401(a) of the Internal Revenue
Code of 1986, as amended (the “Code”); and
WHEREAS, the Company adopted the
Mine Safety Appliances Company Supplemental Pension Plan effective
April 24, 1984, and as most recently amended and restated
effective January 1, 2003 (the “Plan”), to provide
certain employees of the Company with additional retirement income
by supplementing the pension benefits provided to such employees
under the Pension Plan to the extent benefits payable thereunder
are limited by (i) Code Section 415; and (ii) Code
Section 401(a)(17), and to provide for certain change in
control protection of the supplemental benefits provided hereunder;
and
WHEREAS, the Plan is intended to be
an unfunded, nonqualified plan of deferred compensation for a
select group of management or highly compensated employees for
purposes of Title I of the Employee Retirement Income Security Act
of 1974, as amended; and
WHEREAS, the Company has timely
complied with Code Section 409A documentary requirements by
designating in writing prior to January 1, 2008 the
permissible distribution events and forms of payment under the
Plan, as evidenced by resolutions adopted by the Board of Directors
of the Company at a meeting held on November 6, 2007 and
various writings prepared by the Company and its legal counsel for
the purpose of documenting Plan design determinations;
and
WHEREAS, the Company now wishes to
amend and restate the Plan effective as of January 1, 2005 for
the primary purpose of complying with Code
Section 409A.
NOW THEREFORE, the Company hereby
adopts the amended and restated Plan as set forth
herein.
ARTICLE I
DEFINITIONS
The following definitions shall
apply for purposes of the Plan, unless a different meaning is
plainly indicated by the context:
1.1. “ Actual Death
Benefit ” means the death benefit under the Pension Plan
that is payable to the Spouse following the death of a
Participant.
1.2. “ Actuarially
Equivalent ” means an equivalent amount determined using
the same assumptions utilized under the Pension Plan immediately
prior to the Participant’s Separation from Service, or, if
more favorable to the Participant, immediately prior to the Change
in Control; provided, however, that for purposes of Sections 1.21
and 4.4, actuarial equivalence shall further be determined in
accordance with Code Section 409A and the regulations
thereunder.
1.3. “ Affiliate
” means an “Affiliate” within the meaning set
forth in Rule 12b-2 promulgated under Section 12 of the
Exchange Act.
1.4. “ Annuity ”
means the Normal Form or an Optional Form of Annuity, as
applicable.
1.5. “ Beneficiary
” means, if the Participant has elected an Optional Form of
Annuity, any person designated to receive the remainder of such
Participant’s Supplemental Pension Benefit under the Plan
upon the Participant’s death. Beneficiary designations made
pursuant to this Section 1.5 may be revised by the Participant
at any time prior to the commencement of the Participant’s
Supplemental Pension Benefit under the Plan or death. Beneficiary
designations shall be made in writing on a form provided by, and
filed with, the Committee, shall not be effective unless received
by the Committee prior to the Participant’s death, and shall
be subject to any applicable Spousal Consent
requirements.
1.6. “ Beneficial Owner
” means a “Beneficial Owner” as set forth in Rule
13d-3 under the Exchange Act.
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1.7. “ Benefit
Limitation ” means the annual (a) Code
Section 401(a)(17) limitations on a Participant’s
compensation that may be taken into account for purposes of Company
contributions and (b) Code Section 415 maximum benefit
limitations.
1.8. “ Board ”
means the Board of Directors of the Company, as constituted from
time to time.
1.9. A “ Change in
Control ” of the Company shall be deemed to have occurred
if the event set forth in any one of the following paragraphs of
this Section 1.9 shall have occurred, to the extent that such
event would also constitute a change in ownership or effective
control of the Company or a change in ownership of a substantial
portion of the assets of the Company within the meaning of Code
Section 409A(a)(2)(A)(v) and the regulations promulgated
thereunder:
(a) Any Person is or becomes the
Beneficial Owner, directly or indirectly, of securities of the
Company (not including in the securities beneficially owned by such
Person any securities acquired directly from the Company or its
Affiliates) representing thirty percent (30%) or more of the
combined voting power of the Company’s then outstanding
securities, excluding any Person who becomes such a Beneficial
Owner in connection with a transaction described in clause
(i) of paragraph (c) below; or
(b) The following individuals cease
for any reason to constitute a majority of the number of directors
then serving: individuals who, on the date of execution hereof,
constitute the Board and any new director (other than a director
whose initial assumption of office is in connection with an actual
or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the
Company) whose appointment or election by the Board or nomination
for election by the Company’s shareholders was approved or
recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on the
date of execution hereof or whose appointment, election or
nomination for election was previously so approved or recommended;
or
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(c) There is consummated a merger or
consolidation of the Company or any direct or indirect subsidiary
of the Company with any other corporation, other than (i) a
merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity or any parent thereof), in combination with the
ownership of any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any subsidiary of
the Company, at least fifty-one percent (51%) of the combined
voting power of the securities of the Company or such surviving
entity or any parent thereof outstanding immediately after such
merger or consolidation, or (ii) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing
thirty percent (30%) or more of the combined voting power of
the Company’s then outstanding securities; or
(d) The shareholders of the Company
approve a plan of complete liquidation or dissolution of the
Company or there is consummated an agreement for the sale or
disposition by the Company of all or substantially all of the
Company’s assets, other than a sale or disposition by the
Company of all or substantially all of the Company’s assets
to an entity, at least fifty-one percent (51%) of the combined
voting power of the voting securities of which are owned by
shareholders of the Company in substantially the same proportions
as their ownership of the Company immediately prior to such
sale.
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Notwithstanding the foregoing, a
“Change in Control” shall not be deemed to have
occurred by virtue of the consummation of any transaction or series
of integrated transactions immediately following which the record
holders of the voting securities of the Company immediately prior
to such transaction or series of transactions continue to have
substantially the same proportionate ownership in an entity which
owns all or substantially all of the assets of the Company
immediately following such transaction or series of
transactions.
1.10. “ Code ”
means the Internal Revenue Code of 1986, as amended from time to
time.
1.11. “ Committee
” means the Non-Contributory Pension Plan for Employees of
Mine Safety Appliances Company Committee, as established under the
Pension Plan.
1.12. “ Company ”
means Mine Safety Appliances Company and any successor to all or a
major portion of its assets or business, which successor assumes
the obligations of the Company under this Plan by operation of law
or otherwise. For purposes of this Plan, any subsidiary or
affiliate of Mine Safety Appliances Company whose employees
participate in the Pension Plan shall be included within the
definition of “Company.”
1.13. “ Distribution
Date ” means the date the Supplemental Pension Benefit
commences to the Participant as determined in accordance with
Section 4.1.
1.14. “ Effective Date
” means, as to this amendment and restatement,
January 1, 2005. The original effective date of the Plan was
April 24, 1984.
1.15. “ Eligible
Employee ” means:
(a) As applicable to periods prior
to January 1, 2009, an Employee of the Company (i) who is
designated by the Board for participation herein; (ii) who
participates in the Pension Plan and; (iii) whose hypothetical
benefits under the Pension Plan are determined on the basis of the
provisions of the Pension Plan without regard to the limitations of
Code Sections 401(a)(17) and 415 and would exceed the actual
benefits payable under the Pension Plan taking into account such
limitations; and
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(b) As applicable to periods on and
after January 1, 2009, an Employee of the Company who is:
(i) classified on the Company payroll system at the
“EXEC” salary grade, or (ii) designated, in
writing, by the Committee for participation herein.
(c) Notwithstanding the foregoing
provisions of this Section 1.15, an Eligible Employee as of
December 31, 2008 shall remain an Eligible Employee on and
after January 1, 2009 only to the extent that he then
meets the definition of Eligible Employee as set forth in
Section 1.15(b).
1.16. “ Employee
” means any person employed and classified by the Company as
a common law employee. An “Employee” does not include a
leased employee or an independent contractor. Individuals not
considered Employees under this Section 1.16 shall not be
reclassified as Employees notwithstanding a contrary determination
by the Internal Revenue Service, any federal state or local agency,
or any court or other tribunal of competent
jurisdiction.
1.17. “ ERISA ”
means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
1.18. “ Exchange Act
” means the Securities Exchange Act of 1934, as amended from
time to time.
1.19. “ Joint and 50%
Surviving Spouse Annuity ” means an immediate annuity for
the life of the Participant with a survivor annuity for the life of
the Participant’s Spouse equal to 50% of the amount payable
for the life of the Participant.
1.20. “ Normal Form
” means, for Participants with a Spouse, the Joint and 50%
Surviving Spouse Annuity; and for Participants without a Spouse,
the Single Life Annuity. The determination of whether a Participant
has a Spouse is made as of the date of the Participant’s
election pursuant to Section 4.3.
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1.21. “ Optional Form of
Annuity ” means any Actuarially Equivalent form of life
annuity available under the terms of the Pension Plan, as in effect
from time to time.
1.22. “ Participant
” means any Eligible Employee, and any former Eligible
Employee who was vested at the time he ceased to be an Eligible
Employee, who has satisfied the eligibility requirements set forth
in Article II.
1.23. “ Pension Plan
” means the Non-Contributory Pension Plan for Employees of
Mine Safety Appliances Company, as it may be amended from time to
time.
1.24. “ Person ”
means a “Person” within the meaning of
Section 3(a)(9) of the Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof, except that such term shall not
include (a) the Company or any of its subsidiaries, (b) a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Affiliates, (c) an
underwriter temporarily holding securities pursuant to an offering
of such securities, (d) a corporation owned, directly or
indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of stock of the Company, or
(e) any individual or entity (including the trustees (in such
capacity) of any such entity which is a trust) which is, directly
or indirectly, the Beneficial Owner of securities of the Company
representing five percent (5%) or more of the combined voting
power of the Company’s then outstanding securities
immediately before the date of execution hereof or any Affiliate of
any such individual or entity, including, for purposes of this
Section 1.24, any of the following: (i) any trust
(including the trustees thereof in such capacity) established by or
for the benefit of any such individual; (ii) any charitable
foundation (whether a trust or a corporation, including the
trustees or directors thereof in such capacity) established by any
such individual; (iii) any spouse of any such individual;
(iv) the ancestors (and spouses) and lineal descendants (and
spouses) of such individual and such spouse; (v) the brothers
and sisters (whether by the whole or half blood or by adoption) of
either such individual or such spouse; or (vi) the lineal
descendants (and their spouses) of such brothers and
sisters.
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1.25. “ Plan ”
means The Mine Safety Appliances Company Supplemental Pension Plan,
as set forth in this plan instrument, as it may be amended from
time to time.
1.26. “ Separation from
Service ” means the Participant’s cessation of
employment with the Company (or any affiliate or subsidiary of the
Company) for any reason whatsoever, whether voluntarily or
involuntarily, including by reason of retirement or death;
provided, however, that the employment relationship is treated as
continuing intact while the Participant is on military leave, sick
leave or other bona fide leave of absence to the extent the period
of such leave does not exceed six (6) consecutive months or,
if longer, so long as the Participant’s right to reemployment
with the Company is provided either by statute or by contract. For
this purpose, in accordance with regulations under Code
Section 409A, a leave of absence shall be considered to be
bona fide only if there is a reasonable expectation that the
Participant will resume performing services for the Company. In
addition, where a leave of absence (a) is due to a medically
determinable physical or mental impairment that is expected to
result in death or can be expected to last for a continuous period
of at least six months, and (b) such impairment causes the
Participant to be unable to perform the duties of his position with
the Company or any substantially similar position, then the
Committee shall be permitted to extend the foregoing six (6)
month maximum period of leave to not more than twenty-nine
(29) months of continuous absence (or such shorter period as
is consistent with the Company’s employment policy regarding
termination of employment of employees on disability leave).
Whether a Separation from Service has occurred shall be determined
by the Committee based on whether the facts and circumstances
indicate that the Participant and the Company reasonably anticipate
that no further services would be performed after a certain date.
However, if the Participant and the Company reasonably expect that,
after such certain date, the Participant would not perform more
than twenty percent (20%) of the average level of bona fide
services performed (measured by time devoted to work or other
measure of performance deemed appropriate by the Committee) by the
Participant over the immediately preceding thirty-six
(36) month period of service to the Company (or any shorter
period that represents the Participant’s full period of
service to the
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Company), then a Separation from Service by the
Participant shall be deemed to have occurred as of said certain
date for purposes of this Plan. At all times, this definition shall
be construed to comply with the definition of “separation
from service” under Section 409(A)(a)(2)(A)(i) of
the Code and regulations thereunder.
1.27. “ Single Life
Annuity ” means an annuity that provides a monthly
payment solely for the life of the Participant (or Spouse, in the
case of a pre-