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EXHIBIT
10.74
AMENDED AND RESTATED SCRIPPS
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Scripps Supplemental
Executive Retirement Plan
(As Amended and Restated
Effective May 8, 2008)
TABLE OF
CONTENTS
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Page |
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ARTICLE 1. INTRODUCTION
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1 |
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ARTICLE 2. DEFINITIONS
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2 |
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ARTICLE 3. PLAN PARTICIPATION
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4 |
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ARTICLE 4. BENEFITS PAYABLE; TIME AND
FORM OF PAYMENT
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4 |
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ARTICLE 5. PAYMENT OF SERP
BENEFITS
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5 |
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ARTICLE 6. PLAN
ADMINISTRATION
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5 |
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ARTICLE 7. MISCELLANEOUS
PROVISIONS
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6 |
ARTICLE 1.
INTRODUCTION
1.1 Effective Date . The
E.W. Scripps Company (“EWSCO”) hereby amends and
restates the Scripps Supplemental Executive Retirement Plan
(sometimes heretofore called the Scripps Excess Benefit Plan),
effective as of May 8, 2008. The Plan is amended and restated
to comply with the provisions of Section 409A of the Internal
Revenue Code of 1986, as amended (“Code”). In order to
comply with Section 409A of the Code, effective immediately
before the Effective Date, the Plan is divided into two parts, one
of which shall be named “Part One” and the other of
which shall be named “Part Two”. Except as otherwise
provided herein, Part One of the Plan shall be governed by the
terms and conditions of the Plan as in effect on October 3,
2004, a copy of which is attached hereto as Exhibit A. Nothing
contained herein is intended to materially enhance a benefit or
right existing under Part One of the Plan as of October 3,
2004, or add a new material benefit or right to the amounts accrued
under Part One of the Plan. Part One of the Plan is frozen as to
new participants. Part Two of the Plan shall be governed by the
terms and conditions set forth herein.
1.2 History . The Scripps
Supplemental Executive Retirement Plan (“Scripps SERP”
or “SERP”) originally was established by a predecessor
of EWSCO on October 27, 1982 in response to certain
limitations that were imposed upon tax qualified pension plans by
the Tax Equity and Fiscal Responsibility Act of 1982
(“TEFRA”). TEFRA had the effect of reducing tax
qualified pension benefits for executive employees by limiting the
amount of an employee’s annual compensation that may be
recognized under such a plan and limiting the maximum level of
benefits that may be paid to an employee by such a plan. Following
the original adoption of the SERP by EWSCO, various affiliates of
EWSCO thereafter adopted the SERP from time to time for the benefit
of their own executive employees.
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1.3 Purpose . The purpose
of the SERP is to supplement benefits payable to, and on behalf of,
covered employees by the Scripps Pension Plan, a tax qualified
retirement plan maintained by EWSCO and its affiliates. In general,
the SERP provides covered employees with benefits approximately
equal to the additional benefits they would have earned under the
Scripps Pension Plan, by reason of their Scripps and
Scripps-related employment, in the absence of the annual
compensation limits and maximum benefit limits imposed by
Section 401(a)(17) and Section 415, respectively, of the
Code.
1.4 Part One . Except as
otherwise provided herein, Part One of the Plan shall exclusively
govern the benefits payable to any Covered Employee who was vested
as of December 31, 2004, separated from service prior to
January 1, 2005, and with respect to whom no additional
amounts were “deferred” (as defined in
Section 409A of the Code) under the Plan after
December 31, 2004. Part One therefore covers an individual who
is in pay status under the Plan as of December 31, 2004 or who
separated from service prior to January 1, 2005 and who was
entitled to a benefit under the Plan (even if payment of the
benefit had not begun by December 31, 2004) provided that no
additional amounts were “deferred” (as defined in
Section 409A of the Code) under the Plan after
December 31, 2004.
1.5 Part Two . Part Two of
the Plan shall govern the benefits payable to all Covered Employees
whose benefit is not otherwise governed by Part One.
1.6 Separation Transaction
. Notwithstanding anything in this Plan to the contrary, SNI
Participants who have accrued, or were eligible to accrue, benefits
under the Plan immediately prior to the Distribution Date shall
continue to accrue, or be eligible to accrue, benefits under the
Plan for the Transition Period. Notwithstanding anything contained
herein to the contrary, SNI shall be responsible for any and all
liabilities and other obligations with respect to SNI Participants
under the Plan during the Transition Period, and shall reimburse
EWSCO for all amounts paid by it to SNI Participants during the
Transition Period. Effective as of the day immediately following
the Transition Period End Date for the Plan, the Scripps Networks
Interactive, Inc. Supplemental Executive Retirement Plan
(“SNI SERP”) will assume, and fully perform, pay and
discharge all liabilities, when such liabilities become due, of the
Plan with respect to all SNI Participants, and the SNI Participants
shall cease to participate or have any rights under this Plan.
Scripps Networks Interactive, Inc. and its affiliates shall be
responsible for any and all liabilities and other obligations with
respect to the SNI SERP. Capitalized terms used in this
Section 1.6 that are not defined in this Plan shall have the
meaning set forth in the Employee Matters Agreement by and between
The E.W. Scripps Company and Scripps Networks Interactive,
Inc.
1.7 Participating
Employers . EWSCO and its affiliates who participate in the
SERP (collectively, the “Participating SERP Employers”)
each agree to pay the benefits which their own covered employees
become entitled to receive under the terms of the SERP. Each
covered employee only will receive SERP benefits from the
particular Participating SERP Employer by whom he/she was employed.
SERP benefits shall not be advance funded, but rather shall only be
payable from the general assets of the Participating SERP Employer,
with the covered employee being a general creditor of his/her
Participating SERP Employer.
1.8 Interpretation . It is
intended that (i) the SERP constitute an unfunded deferred
compensation plan for a select group of management or highly
compensated employees, within the meaning of Sections 201(2) and
401(a)(1) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”); (ii) the SERP be an excess
benefit plan, within the meaning of Sections 3(36) and 4(b)(5) of
ERISA; and (iii) that the SERP comply with Section 409A
of the Code. Accordingly, all provisions of the SERP are to be
interpreted and carried out in a manner consistent with the
aforesaid intentions.
ARTICLE 2. DEFINITIONS
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| 2.1 |
“Adjusted Annual Compensation ” means
a Covered Employee’s “Annual Compensation” under
the Scripps Pension Plan, but determined without regard to any
limitations imposed by reason of Section 401(a)(17) of the
Code on the maximum amount that may recognized as Annual
Compensation. A Covered Employee’s Adjusted Annual
Compensation also shall include (to the extent not already included
in Annual Compensation) the following amounts, which shall be added
to the Covered Employee’s compensation for the taxable year
in which such amounts are earned: |
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(a) |
Payments in the nature of deferred compensation which have been
designated by the Pension Board as includable in an
employee’s Adjusted Annual Compensation for purposes of this
Plan; and |
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(b) |
Other forms of executive compensation or incentive compensation
which have been designated by the Pension Board as includable in an
employee’s Adjusted Annual Compensation for purposes of this
Plan. |
| 2.2 |
“Beneficiary ” means a Covered
Employee’s “Beneficiary” under the Scripps
Pension Plan. |
| 2.3 |
“Code ” means the Internal Revenue
Code of 1986, as amended. |
| 2.4 |
“Covered Employee ” means a
management or highly compensated employee of a Participating SERP
Employer (i) who is eligible to receive a vested benefit under
the Scripps Pension Plan that is limited by reason of
Section 401(a)(17) and/or Section 415 of the Code, and
(ii) who has not been expressly excluded from participation in
the SERP by agreement with his/her Participating SERP
Employer. |
| 2.5 |
“ERISA ” means the Employee
Retirement Income Security Act of 1974, as amended. |
| 2.6 |
“EWSCO ” means The E.W. Scripps Company, or
any successor. |
| 2.7 |
“Participating SERP Employer ” means
a “Participating Employer” under the Scripps Pension
Plan that is in the EWSCO control group under Section 414(b)
or 414(c) of ERISA, or any other Participating Employer under the
Scripps Pension Plan that adopts the SERP with the consent of the
Pension Board. |
| 2.8 |
“Pension Board ” means the
“Pension Board” under the Scripps Pension
Plan. |
| 2.9 |
“Scripps Pension Plan ” or
“Pension Plan” means the document entitled
Scripps Pension Plan, as the same may be amended and restated from
time to time, including the tax qualified pension plan provided for
thereunder. |
| 2.10 |
“Scripps SERP ” or “SERP
” or “Plan ” means this
document, as the same may be amended from time to time, including
the nonqualified pension plan provided for hereunder. |
| 2.11 |
“Separation from Service ” means a
termination of employment in such a manner as to constitute a
“separation from service” as defined under
Section 409A of the Code and shall include terminations due to
death. Upon a sale or other disposition of the assets of EWSCO or
any member of its controlled group to an unrelated purchaser, the
Pension Board reserves the right, to the extent permitted by
Section 409A of the Code, to determine whether Covered
Employees providing services to the purchaser after and in
connection with the purchase transaction have experienced a
Separation from Service. |
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| 2.12 |
“SERP Benefit ” means any benefit
payable under the Scripps SERP to or on behalf of a Covered
Employee. |
| 2.13 |
In addition to the foregoing, in the case of any |
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