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THE PEP BOYS - MANNY, MOE & JACK
LEGACY PLAN
(formerly part of The Pep Boys - Manny, Moe & Jack
Executive Supplemental Retirement Plan)
RECITALS
WHEREAS,
The Pep Boys - Manny, Moe & Jack, a Pennsylvania
corporation
(the ?Company?), established an Executive Supplemental Pension Plan
(hereinafter referred to as
the ?Supplemental Plan?) effective January 1, 1982;
WHEREAS,
the Company previously amended and completely restated the
Supplemental Plan effective January 1, 1988, and further amended
and restated the Supplemental
Plan effective on February 13, 1992, March 31, 1995, and March 26,
2002;
WHEREAS,
pursuant to resolutions adopted March 3, 2004, the Board
changed
the name of the Supplemental Plan to the ?Executive Supplemental
Retirement Plan? (the
?Executive Plan?) and amended and restated the Executive Plan with
respect to certain of those
individuals who were Eligible Employees (as defined in the
Executive Plan) on such date, altered
the method of delivering benefits for certain specified Legacy Plan
Participants and gave others
an election as to the manner in which they were credited with a
benefit;
WHEREAS,
the foregoing changes were incorporated into an amendment and
restatement of the Executive Plan, effective as of January 31,
2004;
WHEREAS,
the Company now desires to amend the Executive Plan to comply
with the requirements of section 409A of the Code and its
corresponding final regulations;
WHEREAS, the Company also now desires to split the Executive Plan
into two
separate independent plan documents, with one plan document
covering Non-Legacy Plan
Participants, the Non-Legacy Plan, and the other plan document
covering Legacy Plan
Participants, this Plan;
WHEREAS,
effective January 1, 2009, this Plan document is intended to
reflect
the split of the Executive Plan and to cover all Legacy Plan
Participants who were entitled to
receive a benefit from the Executive Plan as of December 31, 2008,
but did not receive their
benefit from the Executive Plan as of such date in accordance with
terms of the Executive Plan,
and to implement changes required pursuant to and consistent with
section 409A of the Code;
WHEREAS,
as permitted by the transition relief set forth in the Proposed
Regulations under section 409A of the Code and IRS Notice 2007-86,
all amounts payable under
the Plan for periods on and after January 1, 2009 shall be paid to
the Legacy Plan Participants in
a single lump sum payment in January 2009 and no further
distributions will be made from the
Plan;
WHEREAS,
benefit payments commencing prior to January 1, 2009 are
governed
by the terms of the Executive Plan as it existed prior to the
Effective Date and are either
grandfathered from the requirements of section 409A of the Code or
payable pursuant to a fixed
schedule as required by, and in compliance with, section 409A of
the Code, with payments made
between January 1, 2005 and December 31, 2008 that are subject to
the requirements of section
409A, the Executive Plan has been operated in accordance with
transition relief established by
the Treasury Department and Internal Revenue Service pursuant to
section 409A of the Plan; and
WHEREAS,
Section 9.1 of the Executive Plan authorizes the Board to amend
the
Executive Plan.
NOW,
THEREFORE, the portion of the Executive Plan relating to Legacy
Plan
Participants, is hereby amended and restated, effective as of
January 1, 2009, as follows:
ARTICLE I
Definitions
1.1 ?Actuarial
Equivalent Benefit? shall mean as such term is defined in the
Executive Plan.
1.2 ?Administrator?
or ?Plan Administrator? shall mean a committee
composed of three or more persons designated from time to time by
the Board.
1.3 ?Board?
shall mean the Board of Directors of the Company.
1.4
?Code? shall mean the Internal Revenue Code of 1986, as amended
from
time to time and includes any regulations issued thereunder.
1.5 ?Company?
shall mean The Pep Boys - Manny, Moe & Jack, a
Pennsylvania corporation.
1.6 ?Effective
Date? shall mean January 1, 2009.
1.7 ?Eligible
Employee? shall mean an employee of the Employer who was a
Legacy Plan Participant in the Executive Plan immediately prior to
the Effective Date and is
employed by the Employer on the Effective Date. On and after the
Effective Date no additional
employees shall be designated as an Eligible Employee under this
Plan. Any individual who is
participating in the Non-Legacy Plan shall not qualify as an
Eligible Employee for purposes of
this Plan.
1.8 ?Employer?
shall mean the Company or any of its subsidiaries.
1.9 ?ERISA?
shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time and includes any regulations
issued thereunder.
1.10 ?Executive
Plan? shall mean such term as is defined in the Recitals of
this
Plan.
1.11 ?Legacy
Plan Participant? shall mean any individual who was deemed as
such under the Executive Plan and was entitled to receive a benefit
under the Executive Plan
immediately prior to the Effective Date.
1.12 ?Non-Legacy
Plan? shall mean The Pep Boys ? Manny, Moe & Jack
Executive Account Plan.
1.13 ?Participant?
shall mean each Legacy Plan Participant who is an Eligible
Employee who is entitled to receive a benefit from the Executive
Plan immediately prior to the
Effective Date and did not receive full payment of his or her
benefit under the Executive Plan
immediately prior to the Effective Date.
1.14 ?Pension
Plan? shall mean the funded defined benefit pension plan of the
Company titled The Pep Boys ? Manny, Moe & Jack Pension Plan,
as in effect on any date of
determination.
1.15 ?Plan?
shall mean The Pep Boys - Manny, Moe & Jack Legacy Plan, as
set forth herein as of the Effective Date, and the same as may be
further amended from time to
time.
1.16 ?Plan
Year? shall mean the calendar year.
1.17 ?Separation
Date? shall mean the last day on which a Participant is
employed by an Employer on account of a Separation From
Service.
1.18
?Separation From Service? shall mean a Participant?s separation
from
service with the Employer within the meaning of section 409A of the
Code and the regulations
issued thereunder.
1.19 ?Specified
Employee? shall mean any Participant who, at any time during
the twelve month period ending on the identification date (as
determined by the Company or its
delegate), is a specified employee under section 409A of the Code,
as determined by the
Company (or its delegate). The determination of ?specified
employees,? including the number
and identity of persons considered ?specified employees? and
identification date, shall be made
by the Company (or its delegate) in accordance with the provisions
of sections 416(i) and 409A
of the Code and the regulations issued thereunder.
ARTICLE II
Participation
2.1 Continued
Participation. Each Legacy Plan Participant who did not
receive full payment of his or her benefit under the Executive Plan
immediately prior to the
Effective Date shall be an Eligible Employee in the Plan as of the
Effective Date and such
Legacy Plan Participant?s benefit shall be governed by the terms of
the Plan as set forth herein
for periods on and after the Effective Date.
2.2 Termination.
A Legacy Plan Participant?s active participation in the Plan
shall terminate on the date such Legacy Plan Participant has
received full payment of the benefit
owed to him or her under the Plan.
2.3 New
Participants. No individual shall be eligible to first become a
Participant in the Plan on or after the Effective Date.
ARTICLE III
Distribution of Benefits
3.1 Distribution
of Benefit. Each Participant in the Plan shall receive a lump
sum payment equal to the value of the Actuarial Equivalent Benefit
that would be payable to
such Participant in an optional form of settlement as a single lump
sum under the Executive Plan
immediately prior to the Effective Date, reduced by the amount of
any distribution made
pursuant to Section 8.11(b) below. The amount each such Participant
shall receive is set forth in
the attached Exhibit A. Such lump sum payment shall be paid to each
such Participant in cash in
January 2009 and no further amounts shall be payable to any
Participant under the Plan.
ARTICLE IV
Termination and Amendments
4.1 Amendments.
The Company may amend this Plan in whole or in part by
appropriate resolution of the Board; provided, however, that, no
amendment shall (i) decrease or
limit any benefits or rights accrued under the Plan prior to the
date of the amendment, or (ii)
modify any provision of this Article IV without the consent of a
majority of the Legacy Plan
Participants affected by such amendment. Notwithstanding the
foregoing, the Board, without the
consent of a Participant, may make all technical, administrative,
regulatory and compliance
amendments to the Plan that the Board deems necessary and
appropriate so that the Plan meets
the requirements of section 409A of the Code.
4.2 Termination.
The Company reserves the right to terminate this Plan in its
entirety at any time by an appropriate resolution of the Board;
provided, however, that any
termination of the Plan shall not (i) terminate or diminish any
benefits then payable under the
Plan, (ii) terminate or diminish any benefits payable in the future
under the Plan with respect to
benefits accrued as of the date of termination of the Plan, or
(iii) decrease or limit any benefits or
rights accrued under the Plan prior to the date of termination
without the consent of a majority of
the Participants affected by such termination. Any termination of
the Plan shall be done in a
manner that complies with the requirements of Treas. Reg. section
1.409A-3(j)(4)(ix) (or any
successor regulation thereto).
ARTICLE V
Plan Administration
5.1 Named
Fiduciary and Plan Administrator. The committee designated by
the Board shall be the Administrator and ?named fiduciary? (within
the meaning of ERISA) of
this Plan. The Administrator shall have the authority to control
and manage the operation and,
administration of the Plan. The Administrator shall act by majority
vote of the committee
members. No Participant who is a member of the committee shall
participate in committee
decisions affecting him.
5.2 Delegation
of Duties. The Administrator may (a) delegate all or a portion
of the responsibilities of controlling and managing the operation
and administration of the Plan
to one or more persons; and (b) appoint such agents, advisors,
counsel, or other representatives to
render advice with regard to any of its responsibilities under the
Plan. Wherever the term
?Administrator? is used herein in connection with the operation or
administration of the Plan,
such term shall include all delegates appointed by the
Administrator.
5.3 Powers
and Duties. The authority and responsibility to control and
manage the operation and administration of the Plan shall include,
but shall not be limited to, the
performance of the following acts:
(a) The
filing of all reports required of the Plan.
(b) The
distribution to Participants and beneficiaries of all reports
and
other i
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