EXHIBIT 10.1
THE WASHINGTON POST
COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
(Originally Effective as of
January 1, 1989)
Amended June 26,
2008
THE WASHINGTON POST COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
Section 1. Purpose . The
Washington Post Company Supplemental Executive Retirement Plan (the
“Plan”) is an unfunded plan established for the purpose
of providing deferred compensation for a select group of management
or highly compensated employees, as referred to in Sections
201(a)(2), 301(a)(3) and 401(a)(1) of ERISA, in order to induce
employees of outstanding ability to join or continue in the employ
of the Company or an Affiliate of the Company and to increase their
efforts for its welfare by providing them with supplemental
benefits notwithstanding the limitations imposed by the Internal
Revenue Code on retirement and other benefits from tax qualified
plans.
This Plan is strictly a voluntary
undertaking on the part of the Company and shall not be deemed to
constitute a contract of employment or part of a contract between
the Company and any employee or any employee of an Affiliate, nor
shall it be deemed to give any employee the right to be retained in
the employ of the Company or an Affiliate, as the case be made, or
to interfere with the right of the Company or an Affiliate, as the
case may be, to discharge any employee at any time, nor shall this
Plan interfere with the right of the Company or an Affiliate, as
the case may be, to establish the terms and conditions of
employment of any employee.
Benefits under this Plan shall be
payable solely from the general assets of the Company and
participants herein shall not be entitled to look to any source for
payment of such benefits other than the general assets of the
Company.
The Plan is hereby amended and
restated for the purpose of complying with § 409A of the
Internal Revenue Code (“§ 409A”). It is the intent
of the Company that all benefits under the Plan shall either be
exempt from § 409A or compliant with § 409A, and any
ambiguity under the Plan shall be interpreted, to the extent
possible, consistently with that objective. To the extent necessary
to comply with § 409A, the provisions of this restated
document shall be effective January 1, 2005. With respect to a
Participant who terminated
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employment before January 1, 2005, any
benefits payable hereunder shall be based on the terms of the Plan
in effect on such termination of employment, and not on the terms
of this amendment and restatement.
Section 2. Definitions .
As used in this Plan, the following words shall have the following
meanings:
(a) “Actuarial
Equivalent” (or any similar term, whether or not capitalized)
shall, except as otherwise provided herein, be determined using the
actuarial assumptions specified in the Retirement Plans for such
purpose, but taking into account any amendments to such actuarial
assumptions to comply with the Pension Protection Act of 2006, even
if such amendment has not yet been adopted.
(b) “Actual Salary”
means the regular basic compensation paid or payable to an employee
during a calendar year by the Company or an Affiliate (including
tax-deferred contributions, otherwise payable to an employee,
elected by the employee under any Savings Plan and including
earnings not payable by application of a salary reduction election
made pursuant to Section 125 of the Internal Revenue Code),
but excluding any other items of compensation such as
(i) bonuses and commissions, (ii) overtime,
(iii) transportation benefit plan deferrals,
(iv) compensation under the terms of the long-term component
of the Incentive Compensation Plan of the Company paid during such
Plan Year, (v) Workers’ Compensation, (vi) amounts
paid by the Company for insurance, retirement or other benefits,
(vii) contributions or payments made by the Company or an
Affiliate (other than tax-deferred contributions elected by the
employee) under any Retirement Plan, any Savings Plan, this Plan or
other benefits, or (viii) dismissal or other payments made to
an employee as a result of termination of employment. The Actual
Salary of an employee will include any payment made under any
short-term disability income plan of the Company or an
Affiliate.
(c) “Affiliate” means
any corporation (other than the Company) 50% or more of the
outstanding stock of which is directly or indirectly owned by the
Company and any
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unincorporated trade or business which is under
common control with the Company as determined in accordance with
Section 414(c) of the Internal Revenue Code and the
regulations issued thereunder.
(d) “Applicable
Percentage” shall have the meaning set forth in
Section 4.
(e) “Committee” means
the Compensation Committee of the Board of Directors of the
Company.
(f) “Company” means The
Washington Post Company, a Delaware corporation, and any successors
in interest thereto. Where required by context the term Company
will include Affiliates.
(g) “Compensation” means
the Actual Salary of an employee plus, starting in 1988, bonuses
awarded under the annual component of the Incentive Compensation
Plan of the Company during a calendar year by the Company or an
Affiliate. Bonuses (other than “Special Annual Incentive
Awards”) awarded under the annual component of the Incentive
Compensation Plan of the Company will be considered as part of
Compensation for the year in which they are paid to the Employee,
or would otherwise be paid but for the Employee’s election to
defer receipt of payment under the Company’s Deferred
Compensation Plan.
(h) “ERISA” means the
Employee Retirement Income Security Act of 1974, as
amended.
(i) “Executive
Participant” means an employee of the Company or an Affiliate
recommended by the Company’s senior management and designated
a participant in this Plan by the Committee, who is within the
category of a select group of management or highly compensated
employees as referred to in Sections 201(a)(2), 301(a)(3) and
401(a)(1) of ERISA for any Plan Year and who either holds or held
the office of a Vice President of the Company or an Affiliate or
any office senior thereto or a position of equivalent
responsibility or importance, during the current Plan Year or the
prior Plan Year, and was covered under the Company’s
long-term component of the Incentive Compensation Plan or any
successor programs. An Executive Participant shall be designated as
being eligible to participate in Section 3 benefits or
Section 4 benefits or both as determined in the sole
discretion of the Committee.
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(j) “415 Limitations”
means Retirement Plan and Savings Plan provisions adopted pursuant
to Section 415 of the Internal Revenue Code to limit
(i) annual Retirement Plan benefits pursuant to
Section 415(b) thereof, and (ii) annual additions to a
Savings Plan pursuant to Section 415(c) thereof.
(k) “401(a)(17)
Limitations” means Retirement Plan and Savings Plan
provisions adopted pursuant to Section 401(a)(17) of the
Internal Revenue Code to limit earnings considered for purposes of
computing Retirement Plan benefits and Savings Plan
contributions.
(l) “Investment
Election” means an election made by the Executive Participant
selecting the investment credit factor(s) that will be applicable
to the Executive Participant’s Supplemental Savings Account.
The Committee shall determine the manner in which Investment
Elections may be made and the frequency with which such elections
may be prospectively changed.
(m) “Kaplan Key Employee
Participant” means an Executive Participant or a Key Employee
Participant with respect to such employee’s years of Service
with Kaplan, Inc. or an affiliate of Kaplan, Inc.
(n) “Key Employee
Participant” means an employee of the Company or an Affiliate
recommended by the Company’s senior management and designated
a participant in this Plan by the Committee, who is within the
category of a select group of management or highly compensated
employees as referred to in Sections 201(a)(2), 301(a)(3) and
401(a)(1) of ERISA for any Plan Year and who holds or held a key
position during the current Plan Year or the prior Plan Year. A Key
Employee Participant shall be designated as being eligible to
participate in Section 3 benefits as determined in the sole
discretion of the Committee.
(o) “Normal Retirement
Date” means the first day of the calendar month following the
month in which a person’s 65th birthday occurs.
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(p) “Participant” means
an Executive Participant or a Key Employee Participant, as
applicable.
(q) “Plan Year” means
the calendar year.
(r) “Retirement Plans”
means The Retirement Plan for Washington Post Companies, The
Washington Post Washington-Baltimore Newspaper Guild Retirement
Income Plan and such other tax qualified, defined benefit
retirement plans as may be sponsored by the Company or its
Affiliates and designated for inclusion hereunder by the
Committee.
(s) “Savings Plan” means
The Washington Post Tax Deferral and Savings Plan, Post-Newsweek
Stations, Inc. Tax Deferred Savings Plan, The Employees’
Savings Plan of Newsweek, Inc., The Savings and Retirement Plan of
Affiliated Post Companies and such other tax qualified savings and
profit-sharing plans as may be sponsored by the Company or its
Affiliates and designated for inclusion hereunder by the
Committee.
(t) “Service” means the
period of employment by the Company or an Affiliate (excluding both
service prior to the time an Affiliate became such and service
after the time an Affiliate is no longer such, except to the extent
required by Section 414(a) of the Code and the regulations
promulgated thereunder).
(u) “Supplemental Retirement
Benefit” shall have the meaning set forth in
Section 3.
(v) “Supplemental Retirement
Benefit Cash Balance Account” means the Supplemental
Retirement Benefit applicable to a Participant who is covered by
the Cash Balance provisions of the Retirement Plan.
(w) “Supplemental Basic
Contributions,” “Supplemental Savings Account”
and “Supplemental Savings Award” shall have the
meanings set forth in Section 4.
(x) “Surviving Spouse”
means the surviving husband or wife of an employee of the Company
or an Affiliate, who has been married to the employee throughout
the one-year period ending on the date of the death of such
employee.
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(y) “Termination”
(relating to termination of service or termination of employment)
shall mean a separation from service in accordance with § 409A
and the regulations thereunder. A separation from service will be
deemed to occur at any time that an employee and the Company
reasonably anticipate that the bona fide level of services the
employee will perform (whether as an employee or an independent
contractor) will be permanently reduced to a level that is less
than 50 percent of the average level of bona fide services the
employee performed during the immediately preceding 36 months (or
the entire period the employee has provided services if the
employee has been providing services to the employer less than 36
months).
(z) “Vesting Year” means
each calendar year in which a Participant has at least 1,000 hours
of Service with the Company or an Affiliate. Except as provided for
in the applicable schedule of the applicable Retirement Plan,
service with a predecessor company prior to becoming an Affiliate
will not be counted in calculating Vesting Years. In addition, a
pro-rata portion of a year shall be counted as a partial Vesting
Year in the first and last year of service to the extent such
portion of the year is counted in the applicable schedule of the
applicable Retirement Plan.
Section 3. Supplemental
Retirement Benefits .
(a) (i) Each designated person
(other than a Kaplan Key Employee Participant with respect to years
of Service with Kaplan or a Kaplan affiliate), who is an Executive
Participant as of December 3, 1993, or becomes an Executive
Participant or a Key Employee Participant after December 3,
1993, for purposes of being eligible to receive benefits under this
Section and has ten or more Vesting Years upon termination of
Service and to whom benefits become payable under any of the
Retirement Plans, shall be paid a supplemental annual retirement
benefit (the “Supplemental Retirement Benefits”) under
this Plan equal in amount to the difference between (i) the
aggregate annual benefits paid to such person under the Retirement
Plans and (ii) the aggregate annual benefits that would be
payable to such person under the Retirement Plans if the 415 and
401(a)(17) Limitations were not contained therein (the
“Unrestricted Benefit”). If such a
Participant’s
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Surviving Spouse is entitled to and is receiving
a spouse’s benefit under any of the Retirement Plans, the
Surviving Spouse shall be paid a benefit hereunder equal to the
difference between (i) the aggregate spouse’s benefits
payable to such Surviving Spouse under the Retirement Plans and
(ii) the aggregate spouse’s benefit that would be
payable to such Surviving Spouse under the Retirement Plans if the
415 and 401(a)(17) Limitations were not contained therein(the
“Unrestricted Spouse’s Benefit”).
(ii) Each designated person, who is
a Kaplan Key Employee Participant for purposes of being eligible to
receive benefits under this Section and has ten or more Vesting
Years upon termination of Service and to whom benefits become
payable under any of the Retirement Plans, shall be paid a
Supplemental Retirement Benefit under this Plan for his or her
years of Service with Kaplan equal in amount to the difference
between (i) the Unrestricted Benefit calculated as if he or
she were covered by the TWPC Retirement Benefit Schedule of The
Retirement Plan for Washington Post Companies during his or her
years of Service with Kaplan and (ii) the “Kaplan
Qualified Benefit” which shall be the aggregate annual
benefit (payable in the form of a life annuity) related to his or
her years of Service with Kaplan payable to such person under the
Kaplan Cash Balance Retirement Benefits Schedule of The Retirement
Plan for Washington Post Companies. If such a Kaplan Key Employee
Participant’s Surviving Spouse is entitled to and is
receiving a spouse’s benefit thereunder, the Surviving Spouse
shall be paid a benefit hereunder equal to the difference between
(i) the Unrestricted Spouse’s Benefit payable as if the
Kaplan Key Employee Participant had been covered under the TWPC
Retirement Benefits Schedule to The Retirement Plan for Washington
Post Companies and (ii) the Kaplan Qualified Benefit, which in
this case shall be the aggregate spouse’s benefit payable in
the form of a life annuity to such Surviving Spouse under the
Kaplan Cash Balance Retirement Benefits Schedule of The Retirement
Plan for Washington Post Companies.
(iii) For purposes of calculating
the Supplemental Retirement Benefit or the Surviving Spouse’s
benefit hereunder for (i) an Executive Participant or the
Surviving
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Spouse of an Executive Participant, or
(ii) a Kaplan Key Employee Participant or the Surviving Spouse
of a Kaplan Key Employee Participant with respect solely to years
of Service at Kaplan, Inc. or any affiliate of Kaplan, Inc., as the
case may be, Compensation rather than Actual Salary will be
used.
(iv) Notwithstanding the above,
effective January 1, 2008, except as specifically provided
otherwise, benefits under this section 3 shall be determined
without regard to any window benefit (specifically, as if the
Retirement Plans did not have the window benefit). A window benefit
for this purpose is an additional or enhanced benefit in the
Retirement Plans that is available only to participants who
terminate or retire during a specified period of time, not to
exceed one year.
(v) The Company shall ha
