Nicor Inc.
Form 8-K
Exhibit 10.5
Nicor, Inc. Supplemental Senior
Officer Retirement Plan
(As Amended and Restated for
Post-2004 Benefits, Effective January 1, 2008)
TABLE OF
CONTENTS
Page
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10.9
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Successors
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10.10
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Special
Distribution
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10.11
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Code Section
409A
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Nicor, Inc. Supplemental Senior
Officer Retirement Plan
(As Amended and Restated for
Post-2004 Benefits, Effective January 1, 2008)
SECTION 1
General
1.1 History, Purpose and Effective Date
. Nicor, Inc. (the
“Company”) established the Nicor, Inc. Supplemental
Senior Officer Retirement Plan (the “Plan”) so that it
can provide deferred compensation to or on behalf of its eligible
employees and those of its Affiliates which, with the consent of
the Company, adopt the Plan. The Plan was originally effective as
of January 1, 2002, but is hereby amended and restated effective
January 1, 2008(the “Effective Date”) with respect to
(i) amounts deferred after December 31, 2004, and (ii) amounts
deferred prior to December 31, 2004, which were unvested as of
December 31, 2004. The provisions of this amended and
restated Plan do not apply to those amounts deferred under the Plan
that were earned and vested within the meaning of Treas. Reg.
§§1.409A-6(a) as of December 31, 2004, as well as the
interest earned thereon (“Grandfathered Benefits”) and
the terms of the Plan as in existence on October 3, 2004 shall
apply to Grandfathered Benefits. The terms applicable to
the Grandfathered Benefits have not been materially modified within
the meaning of Treas. Reg. §§1.409A-6(a)(1) and (4) on or
after October 3, 2004. The Company and any
Affiliate of the Company which adopts the Plan, with the consent of
the Company, for the benefit of its eligible employees are referred
to below, collectively, as the “Employers” and
individually as an “Employer.” This Plan is intended to
constitute a non-qualified, unfunded plan for federal tax purposes
and for purposes of Title I of ERISA.
1.2 Source of Benefit Payments
. The amount of any
benefit payable under the Plan shall be paid from the general
assets of the Employer with respect to whose former employee the
benefit is payable. If a Participant (as defined in subsection 2.1)
has been employed by more than one Employer, the portion of his
Plan benefit payable by each such Employer shall be equal to that
portion of his Account (as defined in subsection 3.1)
proportionately attributable to the contributions made by each
Employer. An Employer’s obligation under the Plan shall be
reduced to the extent that any amounts due under the Plan are paid
from one or more trusts, the assets of which are subject to the
claims of general creditors of the Employer or any affiliate
thereof; provided, however, that, nothing contained in the Plan,
and no action taken pursuant to its provisions, shall create or be
construed to create, or require the creation of, a trust of any
kind, or a fiduciary relationship between the Company or any
Affiliate and any employee or other person. To the extent any
person acquires a right to receive a payment from an Employer under
the Plan, such right shall be no greater than that of an unsecured
general creditor of such Employer. Nothing contained herein shall
constitute a guarantee by any of the Employers that the assets of
such Employer will be sufficient to pay the benefits to any
Participant.
1.3 Affiliate. The term “Affiliate”
means any company during any period in which it owns at least 50%
of the voting power of all classes of stock of the Company entitled
to vote; and any company during any period in which at least 50% of
the voting power of all classes of stock of the company entitled to
vote is owned directly or indirectly by the Company or any other
Affiliate.
1.4 Plan Year. The “Plan Year” shall be
the calendar year.
1.5 Limitations on Provisions.
The provisions of the
Plan and the benefits provided hereunder shall be limited as
described herein.
1.6 Definitions, References . Capitalized terms shall be defined
as set forth in the Plan.
SECTION 2
Participation
2.1 Eligibility to Participate
. For purposes of this
Plan, the term “Eligible Employee” shall mean an
employee of an Employer hired on or after January 1, 1998, who is
individually designated by the Committee (as defined in Section 7)
or who is a member of a group designated by the
Committee. Subject to the terms and conditions of the
Plan, an Eligible Employee shall become a “Participant”
in the Plan for any Plan Year in accordance with the
following:
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(a)
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All Eligible
Employees who were Participants on the Effective Date will continue
as Participants in the Plan on the Effective Date; and
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(b)
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All other
Eligible Employees will enter the Plan on the first day of the
calendar month following qualification through attainment of a
position designated by the Committee as eligible to participate in
the Plan or the specific selection of such employee by the
Committee.
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Once an Eligible Employee becomes a Participant
in the Plan, he shall remain a Participant so long as he has an
Account balance under the Plan.
2.2 Plan Not
Contract of Employment . The Plan does not
constitute a contract of employment, and participation in the Plan
will not give any employee the right to be retained in the employ
of any Employer nor any right or claim to any benefit under the
Plan, unless such right or claim has specifically accrued under the
terms of the Plan.
2.3 Ineligible
Employees . Should an employee cease to be an
Eligible Employee as defined in Section 2.1, or the Committee
determines that participation by one or more Participants or
Beneficiaries shall cause the Plan as applied to any Employer to be
subject to Part 2, 3 or 4 of Title I of the Employee Retirement
Income Security Act of 1974, as amended,
then eligibility for future Contributions under the Plan
will cease immediately. All other provisions in the Plan
regarding distribution forms and dates, notional investment
elections and credits, and, distribution elections shall remain
unchanged.
SECTION 3
Contributions
3.1 Participant
Account . The Committee shall maintain an
“Account,” and such subaccounts as the Committee deems
necessary or appropriate, in the name of each person who is a
Participant.
3.2
Contributions . For each Plan Year, provided that
the Participant’s Separation from Service (as defined in
Section 6.7), other than due to Retirement or Disability (as
defined in Section 5.2), has not occurred prior to the last day of
the Plan Year, an amount equal to the Annual Deferral Percentage
(defined below) times the Participant’s Eligible Compensation
(defined below) for such year shall be contributed to the
Participant’s Account under the plan (the
“Contribution”). In the event that the
Participant’s Separation from Service is due to Retirement or
Disability, or the Participant dies during a Plan Year, then the
Participant will not be required to be employed as of the last day
of the Plan Year in order to qualify for a Contribution for such
Plan Year. A Participant will be deemed to have
“Retired” if his or her Separation from Service occurs
after the Participant has both attained the age of 55 and has been
employed by the Company, or an Affiliate, for at least 10
years. In addition, a Participant may qualify for an
additional Contribution pursuant to the terms of an individual
agreement, including but not limited to a Change in Control
Agreement between the Participant and the Company.
For purposes of determining the
Contribution:
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(a)
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the term
“Annual Deferral Percentage” shall be a percentage
amount determined in the sole discretion of the Committee and shall
initially be set at six percent (6%) until such time that the
Committee determines otherwise.
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(b)
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the term
“Eligible Compensation” shall mean the
Participant’s total cash compensation received for the Plan
Year, including Salary and Bonus, and any other components of
compensation selected by the Committee from time to time; provided,
however, that Eligible Compensation shall only include the
foregoing compensation that is earned by the Participant during the
period that the Participant was an Eligible Employee for such Plan
year;
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(c)
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the term
“Salary,” means the regular basic cash remuneration
paid by an Employer to a Participant for such period by reason of
his employment with that Employer, including vacation pay, all as
determined without regard to reductions to reflect contributions
under a plan described in section 125 of the Internal Revenue Code
of 1986, as amended (the “Code”) and contributions
under a cash or deferred arrangement described in section 401 (k)
of the Code, or any amount deferred under an unfunded, nonqualified
plan maintained by the Employer, but excluding pre-paid salary
increase advances, lump sum raise payments, bonuses, overtime pay,
and any other kind of remuneration; and
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(d)
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the term
“Bonus” means the gross annual bonus amount(s) payable
to a Participant from the Employer’s annual incentive plan,
if any, in effect for the
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Employer’s fiscal year coinciding with the
Plan Year (but payable after the end of the Plan Year) otherwise
payable in cash, and considered “wages” for FICA and
federal income tax withholding; provided, however, that a
Participant’s Bonus shall be determined without regard to any
reduction to reflect contributions under a plan described in
section 125 of the Code or contributions under a cash or deferred
arrangement described in section 401 (k) of the Code, or any amount
deferred under an unfunded, nonqualified plan maintained by the
Employer.
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3.3 Timing of
Contributions . Contributions will be made by the
Company as soon as practicable following the end of each Plan Year,
but not later than the last business day of March of such following
year; provided, however, in the event that a Participant’s
Separation from Service occurs due to Retirement or Disability, or
the Participant dies, then the Contribution with respect to such
Participant for the Plan Year within which the Separation from
Service or death occurs shall be made prior to the Distribution
Date (defined below).
SECTION 4
Accounting
4.1 Allocation and
Crediting of Contributions . As of each Accounting
Date (defined below), the Committee shall adjust the Account of
each Plan Participant in the following manner and order:
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(a)
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first , charge to each Participant’s Account the
amount of any distributions that have been paid to or on behalf of
the Participant since the last preceding Accounting Date pursuant
to Section 6 that have not previously been charged;
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(b)
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next ,
each Participant’s Account shall be credited for investment
earnings or charged for investment losses that correspond to the
investment return earned by the Investment Option designated by the
Participant under Section 4.2; and
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(c)
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next ,
credit to his Account the amount of the Contributions, if any, on
behalf of the Participant since the last preceding Accounting Date
that have not previously been credited.
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4.2 Investment
Options .
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(a)
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The Committee
will provide the Participants the opportunity to select, at the
time and in the manner determined by the Committee from time to
time, from one or more investment alternatives by which the
Participant’s benefits under the Plan shall be determined
(the “Investment Option”).
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(b)
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The designation
of one or more Investment Options by a Participant under this
Section 4.2 shall be used solely to measure the amounts of
investment earnings or losses that will be credited or charged to
the Participant’s Account on the Employer’s books and
records, and the Employer shall not be required under the Plan to
establish any account in the similar Investment Option or to
purchase any Investment Option shares on the Participant’s
behalf.
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(c)
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The Investment
Option may be valued as of the close each day the New York Stock
Exchange is open for trading (“Accounting
Date”).
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(d)
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A Participant
may elect to revise the Investment Options with respect to existing
Account allocations or future Contributions at any time by
notification to the Committee in the prescribed
manner. The Committee, however, retains the right to
review and restrict transfer rights at any time.
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(e)
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If a
Participant fails to make a proper designation of Investment
Options, then his or her Accounts shall be deemed to be invested in
the default Investment Option designated by the Committee from time
to time in a uniform and nondiscriminatory manner.
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SECTION 5
Vesting And
Forfeiture
5.1 Vesting of
Accounts . A Participant shall be fully vested in
the value of his or her Account as of the earlier of the third
anniversary of the date the Participant first became an Eligible
Employee or the date of such Participant’s 60th birthday. The
Committee shall determine the date under this Section 5.1 on which
a Participant becomes fully vested in his or her
Account.
5.2 Accelerated
Vesting . In the event that the Participant dies or
the Participant’s Separation from Service occurs due to the
Participant’s permanent Disability (“Disability”
shall be as defined in any applicable Employer-sponsored long-term
disability program or, in the absence of such program, as otherwise
defined by the Committee), such Participant’s Account shall
become 100% vested as of such termination.
5.3 Forfeitures
. A Participant who has an interest in his or her
Account that is less than 100% vested as of his or her Separation
from Service shall forfeit to the Employer the nonvested portion of
such Account as of the date of such Separation from
Service.
SECTION 6
Payment Of Plan
Benefits
6.1 Distribution on
Separation from Service . Subject to the following
provisions of this Section 6, on the later of (i) on the first
business day of the seventh month following the Separati
