Exhibit 10.55
WYETH
SUPPLEMENTAL EMPLOYEE SAVINGS
PLAN
(amended and restated effective
as of January 1, 2005)
PURPOSE
The purpose of the Plan is to
provide an additional savings plan of deferred compensation for a
select group of management and highly compensated employees.
Accordingly, the Plan supplements the benefits of Participants
whose benefits under the Savings Plan are limited (i) by the
Code Limits or (ii) as a result of their election to defer
Base Salary under the DCP or the Prior DCP. The Plan is intended to
be an unfunded deferred compensation plan for a select group of
management or highly compensated employees within the meaning of
ERISA, and shall be construed and administered
accordingly.
The Plan is an amendment and
restatement of the Prior Plan effective as of the Restatement
Date.
Capitalized terms not otherwise
defined in the text hereof shall have the meanings set forth in
Section 1.
SECTION 1
DEFINITIONS
1.1 Rules of
Construction . Except
where the context indicates otherwise, any masculine terminology
used herein shall also include the feminine gender, and the
definition of any term herein in the singular shall also include
the plural. All references to sections and appendices are, unless
otherwise indicated, to sections or appendices of the
Plan.
1.2 Terms Defined in the
Plan . Whenever used
herein, the following terms shall have the meanings set forth
below:
(a) “ 409A Account
” means a bookkeeping account (including all sub-accounts)
maintained by the Company for each Participant, to
record: (i) the Participant’s Base Salary and/or
Excess Compensation deferrals under the Plan; (ii) all
Matching Contributions credited to a Participant, plus or minus
(iii) Investment Earnings/Losses on those amounts minus
(iv) all distributions or withdrawals made to a Participant or
his Beneficiary, or forfeitures of unvested Matching Contributions
that relate to his 409A Account, in each case to the extent that
such amounts are not included in the Participant’s
Grandfathered Account. The 409A Account shall be divided into Base
Salary and/or Excess Compensation deferral and Matching
Contribution sub-accounts.
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(b) “ Administrative
Procedures ” means the policies and procedures
established by the Committee and/or the Administrative Record
Keeper from time to time governing elections to participate in the
Plan, maintenance of Deferral Accounts, Investment Options,
calculation of Investment Earnings/Losses, required Election Forms,
distributions from the Plan and such other matters as are necessary
for the proper administration of the Plan.
(c) “ Administrative Record
Keeper ” means the person or persons designated by the
Committee in accordance with Section 2.
(d) “ Affiliate ”
means any corporation which is included in a controlled group of
corporations (within the meaning of Section 414(b) of the
Code) which includes Wyeth and any trade or business (whether or
not incorporated) which is under common control with Wyeth (within
the meaning of Section 414(c) of the Code); provided ,
however , that in applying Section 1563(a)(1), (2), and
(3) of the Code for purposes of determining a controlled group
of corporations under Section 414(b) of the Code the language
“at least 50 percent” shall be used instead of
“at least 80 percent” each place it appears in
Section 1563(a)(1), (2) and (3) of the Code, and in
applying Section 1.414(c)-2 of the Treasury Regulations, for
purposes of determining trades or businesses (whether or not
incorporated) that are under common control for purposes of
Section 414(c) of the Code, “at least 50 percent”
shall be used instead of “at least 80 percent” in
each place it appears in Section 1.414(c)-2 of the Treasury
Regulations.
(e) “ Base Salary
” means the annual base compensation from all sources (
i.e. , regardless of whether United States source or foreign
source) to be paid during a Plan Year by the Company to an Employee
for services rendered to the Company. Base Salary may only be
deferred under the Plan to the extent it would otherwise be payable
from the Company’s regular U.S. payroll.
(f) “ Beneficiary
” shall have the meaning ascribed to it in the Savings
Plan.
(g) “ Board of
Directors ” means the Board of Directors of Wyeth (or any
Committee of the Board of Directors to whom the Board of Directors
delegates, from time to time, its authority hereunder).
(h) “ Business Day
” means each day that the New York Stock Exchange is open for
business.
(i) “ Claimant ”
has the meaning set forth in Section 9.1.
(j) “ Code ”
means the Internal Revenue Code of 1986, as amended, and any
applicable rulings and regulations promulgated
thereunder.
(k) “ Code Limits
” means Section 401(a)(17) of the Code.
(l) “ Committee ”
means the committee of three or more officers or employees of the
Company designated from time to time by Wyeth to administer the
Plan and any successor thereto.
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(m) “ Company ”
means Wyeth and its Affiliates.
(n) “ Company Account
Plan ” means any arrangement sponsored by the Company,
other than the Plan, that (i) is required to be aggregated
with the Plan under Treasury Regulation 1.409A-1(c)(2) and
(ii) (A) is an “account balance plan,” as
such term is defined in Treasury Regulation 1.409A-1(c)(2)(i)(A) or
(B) provides for the deferral of compensation other than at
the election of the Employee, as described in Treasury Regulation
1.409A-1(c)(2)(i)(B).
(o) “
Company Stock Fund ” means the Investment Option
available under the Plan and the Savings Plan that is designed to
track the performance of Wyeth’s Common Stock, par value
$0.33 1 / 3 .
(p) “ Covered
Compensation ” shall have the meaning ascribed to it in
the Savings Plan.
(q) “ DCP ” means
the Wyeth 2005 (409A) Deferred Compensation Plan, (amended and
restated effective as of January 1, 2005), as amended from
time to time.
(r) “ Death Payment
Date ” shall mean within ninety days after the date of
the Participant’s death.
(s) “ Deferral Account
” means a bookkeeping account (including all sub-accounts)
maintained by the Company for each Participant to record
(i) the Participant’s Base Salary and/or Excess
Compensation deferrals under the Plan; (ii) all Matching
Contributions credited to a Participant, plus or minus
(iii) Investment Earnings/Losses on those amounts, minus
(iv) all distributions or withdrawals made to a Participant or
his Beneficiary, or forfeitures of unvested Matching Contributions,
pursuant to the Plan. The Deferral Account shall be divided into a
409A Account and a Grandfathered Account.
(t) “ Deferred Compensation
Tax Compliance Committee ” means a committee of such
officers or employees of the Company as shall be designated from
time to time by the Company.
(u) “ Election Form
” means the form or forms established from time to time by
the Administrative Record Keeper and/or the Committee, that an
Eligible Employee completes, signs and returns to the
Administrative Record Keeper to make an election under the
Plan.
(v) “ Eligible Employee
” means an Employee who is eligible to participate in the
DCP; provided , however , that in no event shall an
Employee who is a resident of Puerto Rico be an Eligible
Employee.
(w) “ Employee ”
means an employee of the Company.
(x) “ ERISA ”
means the Employee Retirement Income Security Act of 1974, as
amended from time to time, including any applicable rulings and
regulations promulgated thereunder.
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(y) “ Excess
Compensation ” means an Eligible Employee’s
compensation in excess of Covered Compensation.
(z) “ Grandfathered
Account ” means that portion of a Participant’s
Deferral Account under the Plan that, for purposes of
Section 409A, was both earned and vested on December 31,
2004, plus or minus Investment Earnings/Losses on those amounts,
plus or minus retained earnings, minus all distributions or
withdrawals made to a Participant or his Beneficiary, pursuant to
the Plan that relate to his Grandfathered Account. The
Grandfathered Account shall be divided into separate Base Salary
and/or Excess Compensation deferral and Matching Contribution
sub-accounts. For example, the Grandfathered Account of a
Participant will equal all amounts deferred and vested as of
December 31, 2004 and all earnings on such amounts until the
balance of the Grandfathered Account is distributed.
(aa) “ Investment
Earnings/Losses ” means the income, gains and losses that
would have been realized had an amount deferred under the Plan
actually been invested in the Investment Option or Options selected
by the Participant.
(bb) “ Investment
Options ” means the investment options that are selected
by the Committee that are used as hypothetical investment options
among which the Participant may allocate all or a portion of his
Deferral Account.
(cc) “ Matching
Contribution ” has the meaning set forth in
Section 5.1.
(dd) “ Participant
” means an Eligible Employee who participates in the
Plan.
(ee) “ Payment Date
” means as soon as practicable following the first
anniversary of the Participant’s Separation from Service, but
in no event later than the last Business Date of the month
following the month that includes such first anniversary of the
Participant’s Separation from Service.
(ff) “ Plan ”
means this Wyeth Supplemental Employee Savings Plan, as amended
from time to time.
(gg) “ Plan Year
” means the calendar year.
(hh) “ Prior DCP means
the terms of the Wyeth Deferred Compensation Plan (as amended and
restated as of November 20, 2003), as set forth in the
Company’s written documentation, rules, practices and
procedures applicable to such plan (but without regard to any
amendments thereto after October 3, 2004 that would result in
any material modification of such plan, within the meaning of
Section 409A).
(ii) “ Prior Plan
” means the terms of the Plan in effect immediately prior to
the Restatement Date, as set forth in the Company’s written
documentation, rules, practices and procedures applicable to the
Plan (but without regard to any amendments thereto after
October 3, 2004 that would result in any material modification
of the Grandfathered Account, within the meaning of
Section 409A).
(jj) “ Restatement Date
” means January 1, 2005.
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(kk) “ Retirement
Eligible ” means a Participant who, as of the date of his
Separation from Service is (i) at least age 55 with at least
five Years of Vesting Service or (ii) at least age
65.
(ll) “ Retirement Plan
” means the Wyeth Retirement Plan - United States, as amended
from time to time.
(mm) “ Savings Plan
” means the Wyeth Savings Plan, as amended from time to
time.
(nn) “ Section 409A
” means Section 409A of the Code and the applicable
notices, rulings and regulations promulgated thereunder.
(oo) “ Section 409A
Compliance ” has the meaning set forth in
Section 10.1.
(pp) “ Separation from
Service ” means a separation from service with the
Company for purposes of Section 409A, determined using the
default provisions set forth in Treasury Regulation
Section 1.409A-1(h); provided , however , that,
for purposes of the Grandfathered Account, “Separation from
Service” shall be determined in accordance with the terms of
the Prior Plan. Notwithstanding the foregoing, if a Participant
would otherwise incur a Separation from Service in connection with
a sale of assets of the Company, the Company shall retain the
discretion with respect to the 409A Account to determine whether a
Separation from Service has occurred in accordance with Treasury
Regulation Section 1.409A-1(h)(4).
(qq) “ Transition
Elections ” means contingent distribution elections made
by a Participant prior to January 1, 2009 in accordance with
the provisions of Notices 2005-1, 2006-79 and 2007-86 promulgated
by the U.S. Treasury Department and the Internal Revenue Service
and the Proposed Regulations under Section 409A, 70 Fed.
Reg. 191 (Oct. 4, 2005).
(rr) “ Treasury
Regulations ” means the regulations adopted by the
Internal Revenue Service under the Code, as they may be amended
from time to time.
(ss) “ Unforeseeable
Emergency ” means “unforeseeable emergency”
within the meaning of Section 409A.
(tt) “ Valid Notional
Rollover ” means a notional rollover of all or a portion
of the balance of (i) a Participant’s Grandfathered
Account to the Prior DCP at the time of Separation from Service of
a Participant who has an account balance in the Prior DCP or
the DCP and is Retirement Eligible at the time of such Separation
from Service or (ii) a Participant’s 409A Account to the
DCP at the time of Separation from Service of a Participant who is
Retirement Eligible at the time of such Separation from Service.
The effective date of a Valid Notional Rollover shall be the first
of the month following the Participant’s Separation from
Service even though the Payment Date may otherwise have been a
later date.
(uu) “ Wyeth ”
means Wyeth, a Delaware corporation, and any successor
thereto.
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(vv) “ Year of Vesting
Service ” has the meaning ascribed to it in the
Retirement Plan as of January 1, 2006, and, prior to such
date, has the meaning ascribed to “Continuous Service,”
as such term was defined in the Retirement Plan prior to
January 1, 2006.
SECTION 2
ADMINISTRATION
2.1 General
Authority . The
general supervision of the Plan shall be the responsibility of the
Committee, which, in addition to such other powers as it may have
as provided herein, shall have the power, subject to the terms of
the Plan: (i) to determine eligibility to participate in, and
the amount of benefit to be provided to any Participant under, the
Plan; (ii) to make and enforce such rules and regulations as
it shall deem necessary or proper for the efficient administration
of the Plan; (iii) to determine all questions arising in
connection with the Plan, to interpret and construe the Plan, to
resolve ambiguities, inconsistencies or omissions in the text of
the Plan, to correct any defects in the text of the Plan and to
take such other action as may be necessary or advisable for the
orderly administration of the Plan; (iv) to make
determinations regarding the valuation of Deferral Accounts;
(v) to make any and all legal and factual determinations in
connection with the administration and implementation of the Plan;
(vi) to designate the Administrative Record Keeper and review
actions taken by the Administrative Record Keeper or any other
person to whom authority is delegated under the Plan; and
(vii) to employ and rely on legal counsel, actuaries,
accountants and any other agents as may be deemed to be advisable
to assist in the administration of the Plan. All such actions of
the Committee shall be conclusive and binding upon all persons. The
Committee shall be entitled to rely conclusively upon all tables,
valuations, certificates, opinions, and reports furnished by any
actuary, accountant, controller, counsel, or other person employed
or engaged by the Company with respect to the Plan. If any member
of the Committee is a Participant, such member shall not resolve,
or participate in the resolution of, any matter relating
specifically to such Committee member’s eligibility to
participate in the Plan or the calculation or determination of such
member’s benefits under the Plan.
2.2 Delegation
. The Committee shall have the power
to delegate to any person or persons the authority to carry out
such administrative duties, powers and authority relative to the
administration of the Plan as the Committee may from time to time
determine. Any action taken by any person or persons to whom the
Committee makes such a delegation shall, for all purposes of the
Plan, have the same force and effect as if undertaken directly by
the Committee. If any individual to whom the Committee delegates
authority is a Participant, such individual shall not resolve, or
participate in the resolution of, any matter specifically relating
to such individual’s eligibility to participate in the Plan
or the calculation or determination of such individual’s
benefits under the Plan.
2.3 Administrative Record
Keeper . The
Administrative Record Keeper shall be responsible for the
day-to-day operation of the Plan, having the power (except to the
extent such power is reserved to the Committee) to take all action
and to make all decisions necessary or proper in order to carry out
his duties and responsibilities under the provisions of the Plan.
If the
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Administrative Record Keeper is a Participant,
the Administrative Record Keeper shall not resolve, or participate
in the resolution of, any question which relates directly or
indirectly to him and which, if applied to him, would significantly
vary his eligibility for, or the amount of, any benefit to him
under the Plan. The Administrative Record Keeper shall report to
the Committee at such times and in such manner as the Committee
shall request concerning the operation of the Plan.
2.4 Actions;
Indemnification . The
members of the Board of Directors, the Committee, the
Administrative Record Keeper, the members of the Deferred
Compensation Tax Compliance Committee, the members of any other
committee and any director, officer or employee of the Company to
whom responsibilities are delegated by the Committee shall not be
liable for any actions or failure to act with respect to the
administration or interpretation of the Plan, unless such person
acted in bad faith or engaged in fraud or willful misconduct. The
Company shall indemnify and hold harmless, to the fullest extent
permitted by law, the Board of Directors (and each member thereof),
the Committee (and each member thereof), the Deferred Compensation
Tax Compliance Committee (and each member thereof), the
Administrative Record Keeper, the members of any other committee
and any director, officer or employee of the Company to whom
responsibilities are delegated by the Committee from and against
any liabilities, damages, costs and expenses (including
attorneys’ fees and amounts paid in settlement of any claims
approved by the Company) incurred by or asserted against it or him
by reason of its or his duties performed in connection with the
administration or interpretation of the Plan, unless such person
acted in bad faith or engaged in fraud or willful misconduct. The
indemnification, exculpation and liability limitations of this
Section 2.4 shall apply to the Administrative Record Keeper
only to the extent that the Administrative Record Keeper is or was
a director, officer or employee of the Company.
SECTION 3
PARTICIPATION
3.1 Continuing
Participants . Any
individual on the Restatement Date who was participating in the
Prior Plan immediately prior to the Restatement Date shall continue
to be a Participant in the Plan on the Restatement Date.
3.2 Mandatory
Participation . An
Eligible Employee shall be required to commence participation in
the Plan as of the effective date of his first election to defer
Base Salary under the DCP.
3.3 Voluntary
Participation . An
Eligible Employee may voluntarily elect to defer from one to six
percent of Excess Compensation under the Plan. In the event that an
Eligible Employee elects to participate in the Plan in accordance
with this Section 3.3, participation shall commence as of the
first payroll period during a Plan Year in which such Eligible
Employee’s compensation exceeds Covered
Compensation.
3.4 Exclusions
. No Employee who is not
an Eligible Employee shall be eligible to participate in the Plan.
In addition, the Committee may, if it determines it to be necessary
or advisable to comply with ERISA, the Code or other applicable
law, exclude one or more Eligible Employees or one or more classes
of Eligible Employees from Plan participation.
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SECTION 4
ELECTIONS
4.1 Deferral
Elections . All
deferrals under the Plan
