Exhibit 10.46
THE ACE USA SUPPLEMENTAL
EMPLOYEE
RETIREMENT PLAN
Effective January 1, 2009
The ACE USA Supplemental Employee
Retirement Plan (the “Plan”) is hereby amended and
restated effective January 1, 2009, except as where indicated
otherwise, by ACE INA Holdings, Inc. to permit Eligible Employees
to defer receipt of certain compensation pursuant to the terms and
provisions set forth below. From January 1, 2005 through
December 31, 2008, the Plan has operated in good faith
compliance with Code section 409A and the transitional guidelines
set forth in official IRS guidance.
The Plan is intended (1) to
comply with Code section 409A, the final regulations and official
guidance issued thereunder for credited amounts earned and vested
after December 31, 2004, while credited amounts earned and
vested prior to January 1, 2005 (and applicable earnings
credited on these amounts) are not intended to be subject to the
provisions of Code section 409A (the “Grandfathered
Amounts”), to the fullest extent permitted by Code section
409A, the final regulations and official guidance, and (2) to
be “a plan which is unfunded and is maintained by an employer
primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees”
within the meaning of sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA. Notwithstanding any other provision of this Plan, this Plan
shall be interpreted, operated and administered in a manner
consistent with these intentions. The Plan document and Plan
procedures in effect on December 31, 2004 will remain in full
force and effect for the Grandfathered Amounts and is labeled
Attachment A.
SECTION 1
DEFINITIONS
Wherever used herein the following
terms shall have the meanings hereinafter set forth:
“ Account ” means
a bookkeeping account established by the Company for each
Participant electing to defer Eligible Income under the
Plan.
“ Affiliate ”
means any corporation or other entity that is treated as a single
employer with the Company under section 414 of the Code.
“ Base Salary ”
means the regular base salary paid to an Eligible Employee by the
Company or an Affiliate.
“ Code ” means
the Internal Revenue Code of 1986, as amended.
“ Committee ”
means the Retirement Committee of ACE INA Holdings, Inc.
“ Company ” means
ACE INA Holdings, Inc. and Affiliates or any successor corporation
or other entity.
“ Eligible Employee
” means an Employee who is designated by the Committee as
belonging to a “select group of management or highly
compensated employees,” as such phrase is defined under
ERISA, and eligible to participate in the Plan. Any determination
of the Committee regarding whether an Employee is an Eligible
Employee shall be final and binding for all Plan
purposes.
“ Eligible Income
” means Base Salary, Incentive Awards and other amounts
designated by the Committee to the extent such income would be
eligible compensation under the ACE USA Basic Employee Retirement
Savings Plan, the ACE USA Puerto Rico Basic Employee Retirement
Savings Plan, the ACE USA Employee Retirement Savings Plan and the
ACE USA Puerto Rico Employee Retirement Savings Plan for each Plan
Participant, without regard to limitations under the
Code.
“ Employee ”
means an individual who is a regular employee on the United States
payroll of the Company or its Affiliates. The term
“Employee” shall not include a person hired as an
independent contractor, leased employee, consultant, or a person
otherwise designated by the Company or an Affiliate as not eligible
to participate in the Plan, even if such person is determined to be
an “employee” of the Company or an Affiliate by any
governmental or judicial authority.
“ ERISA ” means
the Employee Retirement Income Security Act of 1974, as
amended.
“ Grandfathered Amounts
” means amounts that were deferred under the Plan and earned
and vested as of December 31, 2004. Grandfathered Amounts are
subject to the distribution rules in effect prior to this amendment
and restatement.
“ Incentive Award
” means an amount payable to an Eligible Employee under an
annual bonus or incentive compensation plan of the Company or an
Affiliate.
“ Investment Options
” means the investment options, as determined from time to
time by the Committee, used to credit earnings, gains and losses on
Account balances.
“ Key Employee ”
means an Employee treated as a “specified employee”
under Code section 409A(a)(2)(B)(i) ( i.e. , a key employee
(as defined in Code section 416(i) without regard to paragraph
(5) thereof)) of the Company. Key Employees shall be
determined by the Committee in accordance with Code section 409A
using a December 31 identification date. A listing of Key
Employees as of an identification date shall be effective for the
12-month period beginning on the January 15 following the
identification date.
“ Participant ”
means an Eligible Employee who elects to defer amounts under the
Plan pursuant to Section 3.2 or who automatically participates
under Section 2.1.
“ Plan ” means
the ACE USA Supplemental Employee Retirement Plan, as set forth
herein and as amended from time to time.
“ Plan Year ”
means January 1 through December 31.
“ Separation from
Service ” or “ Separate from Service ”
means a “separation from service” within the meaning of
Code section 409A.
SECTION 2
Supplemental Basic Plan
Benefits
2.1 Participation . Subject
to the terms and conditions of the Plan, each Eligible Employee of
an Employer shall become a “Participant” in the Plan
for purposes of Supplemental Basic Plan Benefits on the first day
on which all of the following conditions are satisfied:
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(a)
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he is a
participant in the ACE USA Basic Employee Retirement Savings Plan
or he is a participant in the ACE USA Puerto Rico Basic Employee
Retirement Savings Plan;
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(b)
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his salary
grade level is 30 or above (or such other comparable classification
designated by the employer); and
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(c)
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his benefits
under either the ACE USA Basic Employee Retirement Savings Plan or
the ACE USA Puerto Rico Basic Employee Retirement Savings Plan are
limited by either or both of sections 415 and 401(a)(17) of the
Code.
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2.2 Amount of Supplemental Basic
Plan Benefit . For any Plan Year, a Participant shall be
credited with a “Supplemental Basic Plan Benefit” which
consists of an amount equal to the difference, if any, between
(a) the employer contributions that would have been
contributed on behalf of the Participant to the ACE USA Basic
Employee Retirement Savings Plan or to the ACE USA Puerto Rico
Basic Employee Retirement Savings Plan for that Plan Year, in
accordance with the terms thereof determined without regard to the
limitations of sections 401(a)(17) or 415 of the Code and
(b) the amount of the employer contributions actually made to
the ACE USA Basic Employee Retirement Savings Plan or to the ACE
USA Puerto Rico Basic Employee Retirement Savings Plan on behalf of
the Participant. Credits of the Supplemental Basic Plan Benefit to
the Participant’s Supplemental Basic Plan Account pursuant to
this subsection 2.2 shall be made at the same time that employer
contributions would otherwise have been credited to his accounts
under the ACE USA Basic Employee Retirement Savings Plan or the ACE
USA Puerto Rico Basic Employee Retirement Savings
Plan, as applicable in accordance with the terms
thereof determined without regard to the limitations of sections
401(a)(17) or 415 of the Code and (b) the amount of the
employer contributions actually made to the ACE USA Basic Employee
Retirement Savings Plan or to the ACE USA Puerto Rico Basic
Employee Retirement Savings Plan on behalf of the Participant.
Credits of the Supplemental Basic Plan Benefit to the
Participant’s Supplemental Basic Plan Account pursuant to
this subsection 2.2 shall be made at the same time that employer
contributions would otherwise have been credited to his accounts
under the ACE USA Basic Employee Retirement Savings Plan or the ACE
USA Basic Puerto Rico Employee Retirement Savings Plan, as
applicable, provided the eligibility requirements for employer
contributions under either said plan have been
satisfied.
SECTION 3
Supplemental Savings Plan
Benefits
3.1 Participation . Subject
to the terms and conditions of the Plan, each Eligible Employee of
an Employer shall become a “Participant” in the Plan
for purposes of Supplemental Savings Plan Benefits on the first day
on which all of the following conditions are satisfied:
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(a)
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he is a
participant in the ACE USA Employee Retirement Savings Plan or a
participant in the ACE USA Puerto Rico Employee Retirement Savings
Plan;
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(b)
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his salary
grade level is 30 or above (or such other comparable classification
designated by the employer); and
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(c)
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his benefits
under either the ACE USA Employee Retirement Savings Plan or the
ACE USA Puerto Rico Employee Retirement Savings Plan are limited by
any or all of sections 415, 401(a)(17), 402(g), 401(k) or 401(m) of
the Code.
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A “Participant’s
Supplemental Savings Plan Benefit” consists of the amounts
credited to his accounts, if any, pursuant to subsections 3.2
through 3.4.
3.2 Supplemental Before-Tax
Contributions . For any Plan Year, in the event the
Participant’s before-tax elective contributions to the ACE
USA Employee Retirement Savings Plan are limited by the provisions
of sections 401(a)(17), 401(k)(3), 402(g) or 415 of the Code, as
applicable, his compensation for the Plan Year will continue to be
reduced by, and the Participant’s Supplemental Before-Tax
Account credited with, an amount equal to the amount of before-tax
elective contributions that would have been made under the ACE USA
Employee Retirement Savings Plan had the provisions of sections
401(a)(17), 401(k)(3), 402(g) or 415 of the Code, as applicable,
not applied to him. Credits to the Participant’s Supplemental
Before-Tax Account pursuant to this subsection 3.2 shall be made at
the same time that before-tax elective contributions would
otherwise have been credited to his accounts under the
ACE USA Employee Retirement Savings Plan. A
Participant’s election to make before-tax contributions under
the ACE USA Employee Retirement Savings Plan shall be deemed to be
an election to make elective salary deferral contributions under
the Plan, and such election shall remain in effect until modified
or revoked by the individual in accordance with the terms of the
Plan. Notwithstanding the foregoing provisions of this section 3.2,
salary reductions shall continue and an amount shall be credited to
the Participant’s Supplemental Before-Tax Account in
accordance with this section 3.2 (and Supplemental Matching
Contributions under section 3.3) for a Plan Year only if the
Participant’s before-tax elective contributions to the ACE
USA Employee Retirement Savings Plan have reached the maximum
amount permitted under section 402(g) of the Code or the maximum
elective contributions permitted under the Plan and the Committee
shall require that the Participant elect in the Plan Year (by
December 31 of the year prior to the Plan Year or otherwise as
permitted by Code section 409A and approved by the Committee) the
maximum deferral percentage permitted under the ACE USA Employee
Retirement Savings Plan in order to receive a Supplemental Savings
Plan Benefit for the Plan Year under this Plan, and shall establish
such other administrative procedures as are necessary to comply
with such regulations.
Notwithstanding the foregoing, in
the event that the Participant reduces his deferral election under
the ACE USA Employee Retirement Savings Plan during the Plan Year,
his contributions to the Plan for that Plan Year shall continue as
though no deferral election change was made.
3.3 Supplemental Matching
Contributions . Subject to the requirements of section 3.2, for
any Plan Year, a Participant’s Supplemental Matching Account
shall be credited with an amount equal to the difference, if any,
between (a) the matching contributions that would have been
contributed on behalf of the Participant to the ACE USA Employee
Retirement Savings Plan for that Plan Year, in accordance with the
terms thereof and based on his before-tax elective contributions
under the ACE USA Employee Retirement Savings Plan or based on his
after-tax elective contributions under the ACE USA Puerto Rico
Employee Retirement Savings Plan, as applicable, determined without
regard to the limitations of sections 401(a)(17), 401(k)(3),
401(m), 402(g) or 415 of the Code, and (b) the amount of
matching contributions actually made to the ACE USA Employee
Retirement Savings Plan or the ACE USA Puerto Rico Employee
Retirement Savings Plan, as applicable, on behalf of the
Participant. Credits to the Participant’s Accounts pursuant
to this subsection 3.3 shall be made at the same time that matching
contributions would otherwise have been credited to his accounts
under either the ACE USA Employee Retirement Savings Plan or the
ACE USA Puerto Rico Employee Retirement Savings Plan, as
applicable, provided the eligibility requirements for matching
contributions under either said plan have been
satisfied.
3.4 Supplemental ESIS
Performance-Based Contributions . For any Plan Year beginning
on or after January 1, 2007, a Participant’s
Supplemental ESIS Performance-Based Account shall be credited with
an amount equal to the difference, if any, between (a) the
ESIS Performance-Based Contributions that would have been
contributed on behalf of the Participant for that Plan Year to the
ACE USA Employee Retirement Savings Plan or under the ACE USA
Puerto Rico Employee Retirement Savings Plan, as
applicable, determined without regard to the
limitations of sections 401(a)(17), 401(k)(3), 401(m), 402(g) or
415 of the Code, and (b) the amount o