Exhibit 10.20
SUPPLEMENTAL
EXECUTIVE
RETIREMENT PLAN OF
AVON PRODUCTS,
INC.
AMENDED AND RESTATED AS OF
JANUARY 1, 2009
TABLE OF CONTENTS
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Page
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SECTION 1
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INTRODUCTION
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1
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SECTION 2
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DEFINITIONS
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1
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SECTION 3
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PARTICIPATION
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9
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SECTION 4
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SUPPLEMENTAL
RETIREMENT ALLOWANCES
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10
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SECTION 5
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BENEFICIARY
RETIREMENT ALLOWANCES
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13
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SECTION 6
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FORMS
OF PAYMENT
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15
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SECTION 7
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ADMINISTRATION
OF THE PLAN AND GOVERNING LAW
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16
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SECTION 8
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CERTAIN
RIGHTS AND LIMITATIONS
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17
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SECTION 9
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AMENDMENT
AND TERMINATION OF THE PLAN
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19
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SECTION 10
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CLAIM
PROCEDURES
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SECTION 1
INTRODUCTION
Avon Products, Inc. (the
“Company”) adopted the Supplemental Executive
Retirement and Life Plan, originally effective as of
January 1, 1982, and last amended and restated such plan as of
July 1, 1998. The Company has now amended and restated such
plan to comply with Section 409A, and bifurcated the
Supplemental Executive Retirement and Supplemental Life portions of
such plan into separate plan documents, this plan being one of
those plan documents. The terms of this plan document shall be
effective as of January 1, 2009 and this plan shall
hereinafter be referred to as the Supplemental Executive Retirement
Plan of Avon Products, Inc. (the “Plan”). With respect
to distributions made under the Plan and calculating the amount of
such distributions, this plan document governs distributions that
begin on or after January 1, 2009. Distributions under the
Plan that began prior to January 1, 2009 (and calculating the
amount of such distributions) are governed by the distribution and
benefit calculation provisions in the version of the Plan in effect
at the time such distributions began (as modified by the Company in
order to ensure good faith compliance with Section 409A during
the period of time prior to January 1, 2009), and by the terms
of this plan document only to the extent not inconsistent with such
distribution and benefit calculation provisions.
In order to afford Participants and
their Beneficiaries the maximum security, the Company has
established a grantor trust (the “Trust”) to aid it in
accumulating the amounts necessary to satisfy its contractual
liability to pay certain benefits under the terms of the Plan. The
Plan provides for the Company to pay all benefits and
administrative costs from its general assets to the extent not paid
by the Trust. The establishment of the Trust shall not convey
rights to the Participants that are greater than those of the
general creditors of the Company and shall not affect the
Company’s continuing liability to pay Plan benefits and
administrative costs, except that the Company’s liability
shall be offset by actual benefits and administrative cost
payments, if any, made by the Trust.
SECTION 2
DEFINITIONS
As used in the Plan, the masculine
pronoun shall include the feminine and the feminine pronoun shall
include the masculine unless otherwise specifically indicated. In
addition, the following words and phrases as used in the Plan shall
have the following meanings unless a different meaning is plainly
required by the context:
2.1 “ Actuarial
Equivalent ” shall refer to a benefit of equivalent value
and shall have the same definition as such term has under the
Retirement Plan.
2.2 “ Annual Benefit
Offset ” shall mean the aggregate annual retirement
allowance that would have been payable to a Participant under the
Retirement Plan and the Other Plans, expressed in the form of a
single life annuity, which form of benefit shall be the Actuarial
Equivalent of the aggregate benefits that would be payable under
such plans if they commenced on the same date as the Supplemental
Retirement Allowance. In calculating the Annual Benefit Offset, for
purposes of determining the annual retirement allowance payable
under the Retirement Plan, such allowance shall be deemed to be the
annual retirement allowance that would have been payable to the
Participant under the formula contained in the Retirement Plan on
June 30, 1998, if such formula had continued in effect after
that date until the Participant’s retirement or
death.
2.3 “ Average Final
Compensation ” shall mean the average annual Compensation
of a Participant during the three (3) years of the
Participant’s last ten (10) years of Creditable Service
in which the Participant’s Compensation was highest. If a
Participant has less than three (3) years of Creditable
Service, Average Final Compensation shall be computed over all such
years. In the event that a Participant has a “Partial
Compensation Year” (as that term is defined in Section 1
of Appendix VI of the Retirement Plan), solely for purposes of
determining a Participant’s three (3) years of
Compensation to be used in calculating his Average Final
Compensation, the Participant’s Compensation for such Partial
Compensation Year shall be annualized in accordance with the rules
set forth in the last sentence of the penultimate paragraph of
Section 1 of Appendix VI of the Retirement Plan; provided that
the reference in such sentence to the “sixth highest
year” shall be replaced with a reference to the “fourth
highest year.”
2.4 “ Beneficiary
” shall mean the person or persons designated by a
Participant as his beneficiary, such designation to be made in a
time and manner determined by the Retirement Board. If a
Participant fails to designate a beneficiary or if a beneficiary
predeceases a Participant, then the Participant’s spouse
shall be the beneficiary, or if no spouse survives the Participant,
then the Participant’s estate shall be the beneficiary. A
Participant may change his beneficiary at the time and in the
manner determined by the Retirement Board.
2.5 “ Beneficiary’s
Allowance ” shall mean the benefit payable to the
Beneficiary of certain Participants as described in
Section 5.
2.6 “ Board of
Directors ” shall mean the board of directors of the
Company.
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2.7 “ Change of Control
” shall mean:
(a) the acquisition by any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the corporation where such acquisition causes such
person to own twenty percent (20%) or more of the combined
voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors
(the “Outstanding Company Voting Securities”); provided
that for purposes of this Section 2.7(a), the following
acquisitions shall not be deemed to result in a Change of Control:
(i) any acquisition directly from the Company; (ii) any
acquisition by the Company; (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company; or
(iv) any acquisition by any corporation pursuant to a
transaction that complies with clauses (i), (ii) and
(iii) of Section 2.7(c); and provided further that, if
any Person’s beneficial ownership of the Outstanding Company
Voting Securities reaches or exceeds twenty percent (20%) as a
result of a transaction described in clause (i) or
(ii) above, and such Person subsequently acquires beneficial
ownership of additional voting securities of the Company, then such
subsequent acquisition shall be treated as an acquisition that
causes such Person to own twenty (20%) or more of the
Outstanding Company Voting Securities; or
(b) individuals who, as of
January 1, 2009, constitute the Board of Directors (the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board of Directors; provided that any
individual becoming a director subsequent to such date whose
election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least two-thirds of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board of
Directors; or
(c) the approval by the shareholders
of the Company of a reorganization, merger or consolidation, or
sale or other disposition of all or substantially all of the assets
of the Company (“Business Combination”), or, if
consummation of such Business Combination is subject, at the time
of such approval by shareholders, to the consent of any government
or governmental agency, then the obtaining of such consent (either
explicitly or implicitly by consummation); excluding, however, any
Business Combination pursuant to which (i) all or
substantially all of the individuals and entities who were the
beneficial owners of the Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own,
directly or indirectly,
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more than sixty percent (60%) of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation that as a
result of such transaction owns the Company or all or substantially
all of the Company’s assets either directly or through one or
more subsidiaries) in substantially the same proportions as their
ownership immediately prior to such Business Combination of the
Outstanding Company Voting Securities, (ii) no Person
(excluding any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, twenty
percent (20%) or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then
outstanding voting securities of such corporation except to the
extent that such ownership existed prior to the Business
Combination, and (iii) at least a majority of the members of
the board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the action of
the Board of Directors, providing for such Business Combination;
or
(d) approval by the shareholders of
the Company of a complete liquidation or dissolution of the
Company.
Notwithstanding the foregoing, no
Change of Control shall be deemed to have occurred with respect to
any individual by reason of any actions or events in which such
individual participates in a capacity other than in his capacity as
an officer or employee of the Company (or as a director of the
Company or a Subsidiary, where applicable).
2.8 “ Code ”
shall mean the Internal Revenue Code of 1986, as amended from time
to time.
2.9 “ Compensation
” shall mean the regular salary or wages paid to an Active
Participant or deferred for services rendered to the Company or a
Subsidiary during any year in which the Participant accrues
Creditable Service, including any deferrals under a 401(k) plan or
salary reduction under a “Section 125 plan” of the
Company or a Subsidiary, plus any annual bonus (as opposed to a
bonus or award that is based on performance over multiple years)
payable to an employee (disregarding any election to defer the
receipt thereof) under the Company’s Management Incentive
Plan, Variable Incentive Plan, Executive Incentive Plan, or any
similar or successor plan for services performed during the prior
year; provided that Active Participants eligible to participate in
the Management Incentive Plan are not eligible to participate in
the Variable Incentive Plan after January 1, 1998, but the
bonus payable to the Active Participants participating in the
Variable Incentive Plan prior to January 1, 1998 will continue
to be included in Compensation. Unless otherwise expressly provided
in a
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Participant’s Individual Agreement,
Compensation shall not include special termination or severance
payments or benefits, whether characterized as such, made pursuant
to any employment agreement, separation agreement, severance plan
or policy, or any similar arrangement.
Notwithstanding the foregoing, with
respect to any period of absence (during which disability benefits
are being paid to the Participant under the Company’s
short-term or long-term disability plan) that is included as
Creditable Service, the Participant’s annual Compensation for
purposes of the Plan during such period of absence shall be deemed
to be the greater of (i) his Compensation in his last full
calendar year of employment immediately preceding the beginning of
such absence, or (ii) the actual Compensation that he received
in the year the absence began.
2.10 “ Compensation
Committee ” means the Compensation Committee appointed by
the Board of Directors.
2.11 “ Creditable
Service ” shall mean:
(a) the total number of years and
completed months of service rendered by an Active Participant as an
employee of the Company or any Subsidiary;
(b) periods of authorized leaves of
absence from the Company or a Subsidiary approved by the Retirement
Board, including but not limited to leaves required to be granted
pursuant to the Family and Medical Leave Act of 1993 and the
Uniformed Services Employment and Reemployment Rights Act, and,
notwithstanding any other provision of the Plan to the contrary,
any period of absence while disability benefits are being paid to
the Participant under the Company’s short-term or long-term
disability plans, provided that no Creditable Service will accrue
for any portion of a leave of absence that extends beyond the date
that the Participant incurs a “separation from service”
(as that term is defined in Section 409A);
(c) any prior Creditable Service
under the Plan rendered by an employee who was formerly a
Participant and who subsequently becomes a new Active Participant
pursuant to Section 3; and
(d) service that is recognized for
purposes of the Plan by reason of any Outside Agreement.
Subject to approval by the
Compensation Committee, a Participant may be granted additional
years of Creditable Service either for purposes of determining the
amount of the allowance under the Plan or for purposes of
satisfying the service requirements necessary for benefits under
the Plan, or both. Additional service granted
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under a specific provision of the Plan or under
provisions of individual contracts with the Participant or under
any severance plan or policy of the Company covering the
Participant shall also be included in determining Creditable
Service, but only in accordance with the specific terms of such
provisions.
2.12 “ Dependent Child
” shall have the meaning set forth in the Participant’s
Individual Agreement.
2.13 “ Dependent
Children’s Allowance ” shall mean the benefit
payable to the Dependent Children as described in
Section 5.2.
2.14 “ Domestic Partner
” shall mean, effective January 1, 1999, an individual
of the same or opposite sex as the Participant, who shares a
committed and mutually dependent relationship with the Participant,
and
(a) both the Participant and the
Domestic Partner are at least the age of consent for marriage in
the Participant’s state of residence, and
(b) the domestic partnership is an
exclusive relationship with the Participant in which the Domestic
Partner resides with the Participant and intends to do so
permanently, and
(c) the Domestic Partner is mutually
responsible with the Participant for basic living expenses,
and
(d) the Domestic Partner is not
related by blood to a degree of closeness that would prohibit legal
marriage, and
(e) the Domestic Partner is not
married to, or in a domestic partner relationship with, anyone
else, and
(f) the Participant has filed an
Affidavit of Eligibility for Domestic Partner Benefits with the
Retirement Board.
An individual shall cease to be a
Domestic Partner upon the filing by the Participant of an Affidavit
of Termination of Domestic Partnership with the Retirement
Board.
2.15 “ Early Retirement
Allowance ” shall mean the Supplemental Retirement
Allowance that is payable to an Active Participant who retires
before attaining Normal Retirement Age, but after attaining age 55
with fifteen (15) or more years of Creditable Service, or
after attaining an age that, when added to his Creditable Service,
totals at least 85 years.
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2.16 “ Hardship Retirement
Allowance ” means a Supplemental Retirement Allowance
that may be payable to an Active Participant pursuant to
Section 4.1(b).
2.17 “ Individual
Agreement ” means a written agreement entered into
between the Company and a Participant that specifically refers to
benefits payable to or on behalf of such Participant under the
Plan. The intent of the parties to any such Individual Agreement
is, in part, to cause benefits payable under the Plan to be in
compliance with Section 409A.
2.18 “ Nonforfeitable
” shall refer only to the vested unsecured contractual right
of a Participant, his Beneficiary, and his Dependent Children, if
any, to benefits under the Plan. In no event shall
“Nonforfeitable” imply any preferred claim on or to, or
any beneficial ownership interest in, any assets of the Company or
its Subsidiaries before those assets are paid to any individual
pursuant to the terms of the Plan. As provided in Sections 8.5
and 8.6, certain events may result in the forfeiture of
Nonforfeitable benefits.
2.19 “ Normal Retirement
Age ” shall mean age 65.
2.20 “ Normal Retirement
Allowance ” shall mean the Supplemental Retirement
Allowance that is payable to an Active Participant who retires
after attaining Normal Retirement Age.
2.21 “ Other Plans
” shall mean the employer-provided portion of any defined
benefit pension plan sponsored by the Company (other than the
Retirement Plan) or any Subsidiary and of any retirement or pension
allowance (but not any form of severance or special termination
payment) set forth and payable pursuant to any employment contract
or any other agreement (other than an individual deferred
compensation contract under which elective employee salary or bonus
deferrals are made) between the Participant and the Company or a
Subsidiary.
The term “Other Plans”
shall also include the employer-provided portion of any other
pension or retirement plans sponsored by the predecessor employer
of a Participant and of any retirement or pension allowance (but
not any form of severance or special termination payment) set forth
and payable pursuant to any employment contract or any other
agreement (other than an individual deferred compensation contract
under which elective employee salary or bonus deferrals are made)
between the Participant and the predecessor employer of a
Participant providing for benefits attributable in whole or in part
to service that is recognized under the Plan as Creditable
Service.
Notwithstanding the foregoing, the
employer-provided portion of the benefits paid or payable to or on
behalf of a Participant pursuant to Other Plans shall only include
a proportionate share of such benefits based on the ratio by which
the portion of the
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service recognized under the Other Plan that is
recognized as Creditable Service bears to the total service
recognized under the Other Plan.
2.22 “ Outside
Agreement ” shall mean a written agreement entered into
between a duly authorized officer of the Company with authority to
act in the matter and a Participant that recognizes any period of
time prior to the commencement of such Participant’s
employment with the Company as service for purposes of certain
retirement or other benefits or modifies any of the benefits or
provisions of the Plan. A Participant’s Individual Agreement
is a form of Outside Agreement.
2.23 “ Participant
” shall mean any Active Participant, Retired Participant, or
Vested Participant.
(a) “ Active
Participant ” shall mean an employee from the time
participation in the Plan begins pursuant to Section 3 until
the earliest of the time:
(i) the Participant
retires;
(ii) the Participant
dies;
(iii) the Participant terminates
employment with the Company and its Subsidiaries; or
(iv) the Plan is
terminated.
In addition, if a Participant is
placed on inactive employee status, as defined by the Retirement
Board from time to time under uniform and nondiscriminatory rules,
and, at the date of such change in status, the Participant has
attained age 62 or the sum of the Participant’s age and years
of Creditable Service total at least 80 years, then the Participant
will continue as an Active Participant in the Plan; provided that
such Participant shall cease to be an Active Participant no later
than the date that such Participant “separates from
service” (as that term is defined in
Section 409A).
(b) “ Retired
Participant ” shall mean a former employee who has
retired on or after meeting the requirements for a Supplemental
Retirement Allowance under Section 4.
(c) “ Vested
Participant ” shall mean an employee or former employee
of the Company or Subsidiary who ceased to be an Active
Participant, who has not become a Retired Participant, and who, by
virtue of Section 9, has a Nonforfeitable right to benefits
under the Plan.
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2.24 “ Retirement Board
” shall mean the administrative board or any successor
thereto that administers the Retirement Plan.
2.25 “ Retirement Plan
” shall mean, prior to July 1, 1998, the
Employees’ Retirement Plan of Avon Products, Inc. and,
thereafter, the Avon Products, Inc. Personal Retirement Account
Plan, as amended from time to time.
2.26 “ Section 409A
” shall mean Section 409A of the Code, including any
regulations and other guidance issued under such
Section.
2.27 “ Subsidiary
” shall mean any majority-owned subsidiary of the
Company.
2.28 “ Supplemental
Retirement Allowance ” shall mean the benefit referred to
in Section 4.
2.29 “ Surviving Spouse
” shall mean the spouse to whom a Participant was married on
the date that the Participant’s Supplemental Retirement
Allowance commenced under the Plan, or on the Participant’s
date of death, if earlier.
SECTION 3
PARTICIPATION
3.1 Commencement of
Participation .
(a) Each individual who was a
Participant as of June 30, 1998, shall be a Participant on
July 1, 1998. A listing of Participants as of July 1,
1998 is maintained in the records of the Company, which records may
be updated by the Company from time to time, provided that all
updates shall be attested by the signatures of two members of the
Retirement Board.
(b) The Compensation Committee shall
have the authority to include, as Active Participants, officers of
the Company on the U.S. payroll, at the level