Exhibit 10.9
TUPPERWARE BRANDS
CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
(amended and restated effective
January 1, 2009)
TUPPERWARE BRANDS
CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
TABLE OF CONTENTS
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ARTICLE
I Introduction
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1
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Section 1.1.
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Name
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1
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Section 1.2.
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Purpose
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1
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Section 1.3.
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Effective
Date
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1
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ARTICLE
II Definitions
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1
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Section 2.1.
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Definitions
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1
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Section 2.2.
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Gender and
Number
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5
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ARTICLE
III Administration
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5
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Section 3.1.
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The
Committee
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5
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Section 3.2.
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Authority of
the Committee
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5
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Section 3.3.
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Decisions
Binding
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6
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ARTICLE
IV Eligibility and Participation
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6
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Section 4.1.
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Eligibility
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6
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Section 4.2.
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Participation
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6
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Section 4.3.
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Notification of
Participation
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6
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ARTICLE V Plan
Benefits
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7
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Section 5.1.
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Vesting
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7
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Section 5.2.
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Benefit
Amount
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7
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Section 5.3.
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Reduction for
Early Retirement
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7
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Section 5.4.
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Death
Benefit
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8
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Section 5.5.
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Forfeiture of
Benefits
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8
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ARTICLE VI Distributions
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8
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Section 6.1.
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Form of
Distribution
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8
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Section 6.2.
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Change of
Control
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8
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Section 6.3.
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Delays in the
Timing of Distributions
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8
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ARTICLE VII Rabbi
Trust
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9
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Section 7.1.
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Establishment
of a Rabbi Trust
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9
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Section 7.2.
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Terms of the
Rabbi Trust
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9
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Section 7.3.
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Funding of the
Rabbi Trust
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9
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Section 7.4.
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Payments from
the Rabbi Trust
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9
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i
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ARTICLE VIII Beneficiary
Designation
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10
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ARTICLE IX General
Provisions
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10
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Section 9.1.
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Applicable
Law
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10
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Section 9.2.
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Unfunded
Plan
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10
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Section 9.3.
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Expenses
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10
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Section 9.4.
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Effect on Other
Benefit Plans
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10
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Section 9.5.
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Tax
Matters
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11
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Section 9.6.
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Indemnification
and Exculpation
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11
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Section 9.7.
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Immunity of
Committee Members
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11
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Section 9.8.
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Non-Alienation
of Benefits
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11
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Section 9.9.
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Plan Not to
Affect Employment Relationship
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12
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Section 9.10.
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Severability
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12
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Section 9.11.
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Subordination
of Rights
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12
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Section 9.12.
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Successors
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12
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Section 9.13.
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Payment to
Incompetent
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12
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ARTICLE
X Amendment and Termination
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12
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Section 10.1.
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Amendment
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12
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Section 10.2.
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Plan
Termination
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12
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ii
ARTICLE I
Introduction
Section 1.1. Name . The name
of the Plan shall be the “Supplemental Executive Retirement
Plan.”
Section 1.2. Purpose . The
Plan shall constitute an unfunded arrangement established and
maintained for the purpose of providing deferred compensation to
E.V. Goings, the Company’s Chief Executive Officer, and other
key employees who are among a select group of the Company’s
management employees and selected to participate in the Plan by the
Committee in its sole discretion.
Section 1.3. Effective Date .
The Plan is effective as of January 1, 2009 and is an
amendment and restatement of Corporation Supplemental Executive
Retirement Plan, effective as of June 1, 2003 (the
“Prior Plan”).
ARTICLE II
Definitions
Section 2.1. Definitions .
Whenever used herein, the following terms shall have the respective
meanings set forth below and, when intended, such terms shall be
capitalized.
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(a)
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“Actuarial Equivalent” shall mean
the equivalence in present value between two forms of payment based
upon a determination by an actuary chosen by the Committee, using
sound actuarial assumptions at the time of such determination.
Actuarial assumptions prescribed by the Base Retirement Plan shall
be automatically deemed to be sound actuarial assumptions for
purposes of the Plan.
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(b)
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“Affiliate” shall mean (i) a
corporation that is a member of the same controlled group of
corporations (within the meaning of section 414(b) of the Code) as
an Employer; (ii) a trade or business (whether or not
incorporated) under common control (within the meaning of section
414(c) of the Code) with an Employer; (iii) any organization
(whether or not incorporated) that is a member of an affiliated
service group (within the meaning of section 414(m) of the Code)
that includes (A) an Employer, (B) a corporation
described in clause (i) of this definition or (C) a trade
or business described in clause (ii) of this definition; or
(iv) any other entity that is required to be aggregated with
an Employer pursuant to regulations promulgated under section
414(o) of the Code by the U.S. Treasury Department. A corporation,
trade or business or entity shall be an Affiliate only for such
period or periods of time during which such corporation, trade or
business or entity is described in the preceding
sentence.
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(c)
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“Base
Retirement Plan” shall mean the Tupperware Brands Corporation
Base Retirement Plan, or any predecessor or successor plan
thereto.
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(d)
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“Beneficiary” shall mean the person,
persons or legal entity entitled to receive benefits under the Plan
which become payable in the event of the Participant’s
death.
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(e)
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“Board” shall mean the Board of
Directors of the Company.
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(i)
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The willful and
continued failure of a Participant substantially to perform the
Participant’s duties to the Company or one of its Affiliates
(other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial
performance is delivered to the Participant by the Board which
specifically identifies the manner in which the Board believes that
the Participant has not substantially performed the
Participant’s duties;
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(ii)
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The willful
engaging by a Participant in illegal conduct or gross misconduct
which is materially and demonstrably injurious to the Company or
any of its Affiliates;
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(iii)
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The willful
violation by a Participant of any restrictive covenants to which
the Participant is subject; or
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(iv)
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A
Participant’s conviction of, or a plea of nolo contendere to,
a felony.
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For purposes of this provision, no
act or failure to act on the part of a Participant, shall be
considered “willful” unless it is done, or omitted to
be done, by the Participant in bad faith or without reasonable
belief that the Participant’s action or omission was in the
best interests of the Company. Any act, or failure to act, based
upon authority given pursuant to a resolution duly adopted by the
Board or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by a
Participant in good faith and in the best interests of the Company.
The cessation of employment of a Participant shall not be deemed to
be for Cause unless and until there shall have been delivered to
the Participant a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters (3/4) of the
entire membership of the Board at a meeting of the Board called and
held for such purpose (after reasonable notice is provided to the
Participant and the Participant is given an opportunity, together
with counsel, to be heard before the Board), finding that, in the
good faith opinion of the Board, the Participant is guilty of the
conduct described in anyone of the subparagraphs (i), (ii),
(iii) or (iv) above, and specifying the particulars
thereof in detail.
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(g)
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“Change
of Control” shall mean the occurrence of a “change in
the ownership,” a “change in the effective
control” or a “change in the ownership of a substantial
portion of the assets” of the Company, as determined in
accordance with this definition. In determining whether an event
shall be considered a “change in the ownership,” a
“change in the effective control” or a “change in
the ownership of a substantial portion of the assets” of the
Company, the following provisions shall apply:
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(i)
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A “change
in the ownership” of the Company shall occur on the date on
which any one person, or more than one person acting as a group,
acquires ownership of stock of the Company that, together with
stock held by such person or group, constitutes more than 50% of
the total fair market value or total voting power of the stock of
the Company, as determined in accordance with Treasury Regulation
§ 1.409A-3(i)(5)(v). If a person or group is considered either
to own more than 50% of the total fair market value or total voting
power of the stock of the Company, or to have effective control of
the Company within the meaning of part (b) of this definition,
and such person or group acquires additional stock of the Company,
the acquisition of additional stock by such person or group shall
not be considered to cause a “change in the ownership”
of the Company.
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(ii)
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A “change
in the effective control” of the Company shall occur on
either of the following dates:
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The date on which any one person, or
more than one person acting as a group, acquires (or has acquired
during the 12-month period ending on the date of the most recent
acquisition by such person or persons) ownership of stock of the
Company possessing 30% or more of the total voting power of the
stock of the Company, as determined in accordance with Treasury
Regulation § 1.409A-3(i)(5)(vi). If a person or group is
considered to possess 30% or more of the total voting power of the
stock of the Company, and such person or group acquires additional
stock of the Company, the acquisition of additional stock by such
person or group shall not be considered to cause a “change in
the effective control” of the Company; or
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(A)
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The date on
which a majority of the members of the Company’s Board of
Directors is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the
members of the Company’s Board of Directors before the date
of the appointment or election, as determined in accordance with
Treasury Regulation § 1.409A-3(i)(5)(vi).
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(B)
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A “change
in the ownership of a substantial portion of the assets” of
the Company shall occur on the date on which any one person, or
more than one person acting as a group, acquires (or has acquired
during the 12-month period ending on the date of the most recent
acquisition by such person or persons) assets from the Company that
have a total gross fair market value equal to or more than 40% of
the total gross fair market value of all of the assets of the
Company immediately before such acquisition or acquisitions, as
determined in accordance with Treasury Regulation §
1.409A-3(i)(5)(vii). A transfer of assets shall not be treated as a
“change in the ownership of a substantial portion of the
assets” when such transfer is made to an entity that is
controlled by the shareholders of the Company, as determined in
accordance with Treasury Regulation §
1.409A-3(i)(5)(vii)(B).
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(h)
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“Code” shall mean the Internal
Revenue Code of 1986, as amended from time to time.
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(i)
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“Committee” shall mean the
Compensation and Management Development Committee of the Board, or
any other committee designated by the Board to administer the Plan,
pursuant to Section 3.1 herein.
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(j)
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“Company” shall mean Tupperware
Brands Corporation, a Delaware corporation, and its successors and
assigns.
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(k)
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“Company
Contributions” shall mean the aggregate total of the
Company’s Employer Contributions and Employer Matching
Contributions (including any earnings thereon), as such terms are
defined under the Defined Contribution Plan, that could be credited
to a Participant’s account under the Defined Contribution
Plan if he had elected the maximum amount of Employee Before-Tax
Contributions that could be contributed to the Defined Contribution
Plan on his behalf.
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(l)
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“Credited
Service” shall have the same meaning as such term is defined
in the Base Retirement Plan.
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(m)
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“Defined
Contribution Plan” shall mean the Tupperware Brands
Corporation Retirement Savings Plan, and any predecessor or
successor plan thereto.
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(n)
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“Disability” shall have the same
meaning as such term is defined under the Base Retirement
Plan.
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(o)
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“Effective Date” shall mean
January 1, 2009.
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(p)
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“Employer” shall mean the Company,
any of its Affiliates or other related entity that adopts the Plan
for the benefit of its eligible employees.
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(q)
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“ERISA” shall mean the Employee
Retirement Income Security Act of 1974, as amended from time to
time.
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(r)
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“Final
Average SERP Pay” shall mean a Participant’s highest
average SERP Pay over a consecutive three (3) year period in
the Participant’s last five (5) years of Credited
Service.
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(s)
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“Leave of
Absence” shall mean a leave, whether paid or unpaid,
authorized by the Participant’s Employer for a period not to
exceed the longer of (i) six months and (ii) the period
of leave set forth in a written agreement between the Participant
and his Employer.
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(t)
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“Normal
Retirement Age” shall mean a Participant’s sixty-fifth
(65th) birthday.
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(u)
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“Normal
Retirement Date” shall mean the first day of the month next
following the Participant’s attainment of his Normal
Retirement Age.
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(v)
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“Participant” shall mean E.V.
Goings, Chief Executive Officer, or any other key employee of the
Company selected by the Committee for participation in the Plan in
accordance with Article IV.
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(w)
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“Plan
Year” shall mean a calendar year.
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(x)
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“Separation from Service” shall mean
an employee’s separation from service with the Employers, as
described in Treasury Regulation § 1.409A-1(h).
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(y)
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“SERP
Pay” shall mean a Participant’s annual base salary plus
annual incentive compensation awards or bonuses earned in a
calendar year (and payable in the next calendar year) under the
Company’s annual incentive programs (not including any
special programs) without taking into account any reductions
pursuant to voluntary deferral
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