SUPPLEMENTAL RETIREMENT PLAN
(as amended and restated April 24, 2008)
WHEREAS ,
VECTOR GROUP LTD., a Delaware corporation (the
“Company”), adopted the Vector Group Ltd. Supplemental
Retirement Plan as of January 1, 2002, as amended by Amendment
No. 1 thereto entered into on January 21, 2003, as
amended and restated March 3, 2004, and as further amended and
restated January 27, 2006, for the purpose of providing
certain select management employees of the Company and its
affiliates unfunded deferred compensation benefits payable upon
retirement, death or other termination of employment;
WHEREAS ,
the Board has the right under Section 8.2 of the Plan to amend
the Plan; and
WHEREAS ,
the Board desires to make certain additional amendments to the
Plan, to cause the Plan to meet the applicable requirements of
Section 409A of the Internal Revenue Code of 1986, as amended,
and to amend and restate the Plan in its entirety.
NOW,
THEREFORE , the Plan is amended and restated, as of
January 1, 2008, to read as follows:
Except as
otherwise provided herein, the following terms shall be defined in
accordance with this Section 1:
1.1
“Accrued Benefit” shall mean that amount of projected
annual retirement benefit set forth on Exhibit A hereto that a
Participant who fulfills the terms and conditions of the Plan would
receive at his Normal Retirement Date.
1.2
“Actuarial Equivalent” shall mean a form of benefit
differing in time, period or manner of payout from the normal form
of Retirement Benefit provided under the Plan but having the same
value when computed using post-retirement mortality table 1983
Group Annuity (50% male/50% female) and pre- and post-retirement
interest rates of 7.5%.
1.3
“Adopting Employer” means (a) any business entity
in which the Company owns a majority interest upon the Effective
Date or (b) any other business entity, which, following the
Effective Date, is authorized by the Board to adopt the
Plan.
1.4
“Anniversary Date” shall mean the Effective Date and
each anniversary thereof while the Plan remains in
effect.
1.5
“Board” shall mean the Board of Directors of the
Company.
1.6
“Code” shall mean the Internal Revenue Code of 1986, as
amended, and the regulations, rulings and other guidance published
thereunder by the Internal Revenue Service.
1.7
“Committee” shall mean the person, persons or entity
designated by the Company to administer the Plan on behalf of the
Company and the Adopting Employers. Unless otherwise designated by
the Board, the Compensation Committee of the Board shall serve as
the Committee to administer the Plan.
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1.8
“Company” shall mean Vector Group Ltd., a Delaware
corporation.
1.9
“Disability” shall mean the date a Participant becomes
“disabled” within the meaning of
Section 409A(a)(2) of the Code; provided, however, that a
Participant shall be deemed to be disabled if the Participant is
determined to be totally disabled by the Social Security
Administration.
1.10
“Disability Retirement Date” shall mean a date selected
by the Committee as soon as practicable following a determination
by the Committee that a Participant has incurred a
Disability.
1.11
“Effective Date” shall mean the date set forth in
Section 8.1 of the Plan.
1.12
“Employer” shall mean the Company and any Adopting
Employer for which a Participant renders service.
1.13
“Employer Contribution” shall mean the contribution by
an Employer to the Fund for each Plan Year described in
Section 3.1 hereof.
1.14
“Fiscal Year” shall mean the fiscal year of the
Company.
1.15
“Fund” shall mean the fund established under the Trust
Fund Agreement.
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1.16
“Normal Retirement Date” shall mean the January 1
following the Participant’s attainment of the later of age 60
during active Service or the completion of 8 Years of Participation
with the Company or an Adopting Employer following the Effective
Date, provided, however, that Mr. Lorber’s Normal
Retirement Date for purposes of the supplemental benefit shown on
Exhibit A shall be January 1, 2013.
1.17
“Participant” shall mean any key employee of an
Employer who from time to time may be designated on Exhibit A
hereto as a participant in the Plan by the Board and who is an
active participant in the Plan.
1.18
“Participant Payment Date” shall mean the date on which
a Participant’s Retirement Benefit shall be paid to the
Participant. Such date shall be: (a) the Disability Retirement
Date of a Participant who has incurred a Disability, (b) that
date which falls 30 days following the later to occur of
(i) the Normal Retirement Date of a Participant and
(ii) the Participant’s actual termination of Service
with the Company or an Adopting Employer, (c) that date
selected by the Committee as soon as practicable following the
death of a Participant, if the Participant’s death takes
place prior to any date described in clauses (a), (b) or
(d) of this Section 1.18, or (d) that date that falls
30 days following the termination of the Service of a
Participant without cause (as defined in Section 4.4 hereof),
but only to the extent that any such termination of Service
constitutes a “separation from service” described in
Section 409A(a)(2) of the Code.
1.19
“Participation Ratio” shall mean that percentage equal
to a fraction, the numerator of which consists of that number of
full Years of Participation of the Participant in the Plan that
were completed by the Participant prior to the Participant’s
termination of Service or incurrence of a Disability and the
denominator of which consists of that total number of Years of
Participation that would have been required on the part of the
Participant for the Participant to attain the Participant’s
Normal Retirement Date.
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1.20
“Plan” shall mean the Vector Group Ltd. Supplemental
Retirement Plan, as set forth herein and as the same may be amended
from time to time hereafter.
1.21
“Retirement Benefit” shall mean the benefit payable to
a Participant in accordance with Section 4.
1.22
“Service” shall mean the period of full time continuous
employment of the Participant by the Company or an Adopting
Employer, following the Effective Date.
1.23
“Specified Employee” shall mean each Participant who is
considered to be a “specified employee” under
Section 409A(a)(2) of the Code, and the determination of
Specified Employee status shall be made as of
December 31 st of
each year.
1.24
“Trust Fund Agreement” shall mean the Vector Group Ltd.
Supplemental Retirement Plan Trust, the purpose of which agreement
is to hold the Fund.
1.25
“Trustee” shall mean the trustee serving in such
capacity under the Trust Fund Agreement.
1.26
“Year of Participation” shall mean a Year of Service in
which the Participant participated in the Plan. A Participant shall
be deemed to have commenced participation in the Plan on the
participation date set forth on Exhibit A hereto.
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1.27
“Year of Service” shall mean a 12 consecutive month
period, in each month of which a Participant is entitled to
compensation by reason of Service.
SECTION 2
DESIGNATION OF PARTICIPANTS
AND ELIGIBILITY FOR BENEFITS
2.1
Designation of Participants . The Participants shall be
those key employees of the Company or an Adopting Employer that the
Board designates to participate in the Plan.
2.2
Eligibility for Benefits . Except as otherwise provided
herein, benefits under the Plan shall be payable in respect of a
Participant at the Participant Payment Date applicable to the
Participant and only by reason of the circumstances provided in
Sections 4.1 through 4.4 hereof.
3.1
Amount of Employer Contribution . For the Fiscal Year ending
with the Effective Date or within which falls the Effective Date
and thereafter for each Fiscal Year (or portion thereof) that the
Plan remains in effect, an Employer may, in the discretion of the
Board, make an Employer Contribution to the Fund in that amount
that the Employer shall determine to be necessary or appropriate to
provide the benefits under the Plan.
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SECTION 4
CIRCUMSTANCES OF PAYMENT; EXCLUSIVITY
4.1
Attainment of Normal Retirement Date . Upon the attainment
of a Participant of the Participant’s Normal Retirement Date,
the Participant shall be vested in the Participant’s Accrued
Benefit, which shall be paid in the manner set forth in
Section 5 hereof to the Participant at the Participant Payment
Date of such Participant, as provided in Section 1.18(b)
hereof.
4.2
Disability . A Participant in the Service of an Employer who
incurs a Disability prior to the attainment of the
Participant’s Normal Retirement Date shall be vested at the
Participant’s Disability Retirement Date in that amount equal
to: (i) the Actuarial Equivalent of the Participant’s
Accrued Benefit, multiplied by (ii) the Participant’s
Participation Ratio, which amount shall be paid in the manner set
forth in Section 5 hereof to the Participant at the
Participant Payment Date of such Participant, as provided in
Section 1.18(a) hereof.
4.3
Death . In the event a Participant in the Service of an
Employer dies prior to incurring a Disability or attaining his
Normal Retirement Date, such Participant’s beneficiary shall
be vested in the Actuar
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