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AMENDED AND RESTATED SENIOR EXECUTIVE RETIREMENT PLAN

Employee Benefits Plan Agreement

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This Employee Benefits Plan Agreement involves

SUPERIOR ESSEX INC

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Title: AMENDED AND RESTATED SENIOR EXECUTIVE RETIREMENT PLAN
Governing Law: Georgia     Date: 3/25/2008
Industry: Misc. Fabricated Products     Sector: Basic Materials

AMENDED AND RESTATED SENIOR EXECUTIVE RETIREMENT PLAN, Parties: superior essex inc
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Exhibit 10.7

 

SUPERIOR ESSEX INC.

 

AMENDED AND RESTATED

SENIOR EXECUTIVE RETIREMENT PLAN

 

Introduction

 

The purpose of the Plan is to provide supplemental retirement benefits to certain employees of the Company and its Affiliates, in addition to other sources of retirement income.  It is intended that the Plan will be a non-qualified, unfunded, deferred compensation plan for a “select group of management or highly compensated employees” as that term is used in ERISA.  The purpose of the Plan is also to attract, retain and motivate key personnel for the progress of the Company and its Affiliates.

 

This Plan was originally effective November 10, 2003 and is hereby amended and restated effective as of April 1, 2008.

 

Article I.

Definitions

 

The following words and phrases as used herein have the following meaning unless a different meaning is plainly required by the context:

 

1.1.           “Actuarial Equivalent” means an amount equal in value on an actuarial basis, as determined by an actuary selected by the Committee, based on the Actuarial Equivalent Factor.  The calculation by the actuary shall be final and binding on all persons.

 

1.2            “Actuarial Equivalent Factor” means a factor reflecting an assumption of interest at a rate of 7.0%and utilizing the sex-distinct RP-2000 Mortality Tables based on White Collar Mortality with Mortality Improvements Projected to the calendar year in which the Participant’s Normal Retirement Date would occur, using projection scale AA.

 

1.3.           “Affiliate” means each of the following:  (a) any subsidiary corporation of the Company within the meaning of Section 424(f) of the Code; (b) any parent corporation of the Company within the meaning of Section 424(e) of the Code; (c) any corporation, trade or business (including, without limitation, a partnership or limited liability company) which is directly or indirectly controlled 50% or more (whether by ownership of stock, assets or an equivalent ownership interest or voting interest) by the Company or one of its Affiliates; and (d) any other entity in which the Company or one of its Affiliates has a material equity interest and which is designated as an “Affiliate” by resolution of the Committee.

 

1.4.           “Beneficiary” means the individual designated by the Participant to receive benefits payable under the Plan in the event of the Participant’s death.  If no Beneficiary is designated or if the Beneficiary predeceases the Participant, the Participant’s Beneficiary shall be his or her spouse, or if the Participant is not married, the Participant’s estate.  A Participant’s designation of a Beneficiary (or any election to revoke or change a prior Beneficiary designation) must be made and filed with the Committee, in writing, on such form(s) and in such manner prescribed by the Committee.  Upon the acceptance by the Committee of a new Beneficiary designation, all Beneficiary designations previously filed shall be canceled.  The Committee shall be entitled to rely on the last Beneficiary designation filed by the Participant and accepted by the Committee prior to his or her death.

 



 

1.5.           “Benefit Percentage” means, except as provided in Appendix A, one and one-half percent (1.5%).

 

1.6.           “Board” means the board of directors of the Company.

 

1.7.           “Cause” means the following: (a) in the case where there is no employment agreement or similar agreement in effect between the Company or an Affiliate and the Participant (or where there is such an agreement but it does not define “cause” (or words of like import)), (i) a Participant’s continued willful failure to perform substantially the Participant’s duties (other than as a result of total or partial incapacity due to physical or mental illness) following written notice by the Company to the Participant of such failure, (ii) dishonesty in the performance of the Participant’s duties which is injurious (other than in some immaterial or de minimis respect) to the financial condition or business reputation of the Company or any of its Affiliates, (iii) a Participant’s conviction of, or plea of guilty or nolo contendere to, a crime constituting (y) a felony under the laws of the United States or any state thereof or (z) a misdemeanor involving misconduct by the Participant in his personal or professional conduct punishable by imprisonment of more than three days or a fine in excess of $5,000 (other than a traffic violation), which is reasonably likely to damage the business, prospects or reputation of the Company or any of its Affiliates in any respect, (iv) a Participant’s willful malfeasance or willful misconduct in connection with the Participant’s duties or any act or omission which is injurious (other than in some immaterial or de minimis respect) to the financial condition or business reputation of the Company or any of its Affiliates or (v) a Participant’s breach of the provisions of Sections 9 or 10 of this Agreement (other than a breach which is insubstantial and insignificant, taking into account all of the circumstances); provided , however , that any event described in clauses (i), (ii) and (iv) of this Section 1.7(a) shall constitute Cause only if a Participant fails to cure such event, to the reasonable satisfaction of the Board, within 10 days after receipt from the Company of written notice of the event which constitutes Cause or (b) in the case where there is an employment agreement or similar agreement in effect between the Company or an Affiliate and the Participant that defines “cause” (or words of like import), as defined under such agreement; provided, however, that with regard to any agreement under which the definition of “cause” only applies on occurrence of a change in control, such definition of “cause” shall not apply until a change in control actually takes place and then only with regard to a termination thereafter, provided that prior to a change in control “cause” shall be defined as provided in subsection (a) above.

 

1.8.           “Change in Control” means the following: (a) in the case where there is no change in control agreement or similar agreement in effect between the Company or an Affiliate and the Participant, a “change in control” as defined in the Company’s 2005 Stock Incentive Plan, as amended from time to time, or, if after the Effective Date, the Company adopts a new equity-based incentive plan, a “change in control” as defined in such plan or (b) in the case where there is a change in control agreement or similar agreement in effect between the Company or an Affiliate and the Participant that defines “change in control” (or words of like import), as defined under such agreement without regard to whether a change in control has taken place.

 

1.9.           “Code” means the Internal Revenue Code of 1986, as amended.  Any reference to any section of the Code shall also be a reference to any successor provision and any Treasury Regulation promulgated thereunder.

 

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1.10.         “Committee” means the Compensation Committee of the Board or such other committee as may be appointed by the Board from time to time to administer the Plan.  The Committee may act under the Plan through any officers or employees duly authorized by it.

 

1.11.         “Company” means Superior Essex Inc. and any successors to the Company or the business or all or substantially all of the assets of Superior Essex Inc.

 

1.12.         “Company Client”  with respect to any Participant has the meaning assigned such term (or a substantively similar term or concept in the context of restrictive covenants) in any employment or change in control agreement between such Participant and the Company.  In the absence of any such agreement, “Company Client” means an actual client of the Company or any Affiliate as of the date of a Participant’s Termination of Employment and during the 12 months prior to that date as well as any prospective client of the Company or any Affiliate that has been actively solicited by the Company or any Affiliate during that same 12-month period.

 

1.13.         “Compensation” means a Participant’s annual base salary and actual short term bonus earned as an employee from the Company or an Affiliate, including, without limitation, (a) any amounts reduced pursuant to the Participant’s salary reduction agreement under Section 125, 132 or 401(k) of the Code (if any), or (b) any amounts that the Participant elects to defer under any nonqualified deferred compensation plan or arrangement maintained by the Company or one of its Affiliates.  Compensation shall not include any other compensation, including, without limitation, commissions, overtime pay, severance pay, incentive compensation (other than short-term bonus), benefits paid under any tax-qualified plan, any group medical, dental or other welfare benefit plan, amounts realized upon the exercise of a stock option or vesting of restricted stock, noncash compensation, fringe benefits (cash and noncash), reimbursements or other expense allowances, moving expenses, retention payments or any other additional compensation.  For purposes of this Plan, annual bonus is deemed to be earned as of the end of the year for which services were performed; regardless of whether the bonus had been paid as of the date of Termination of Employment.  Notwithstanding any other provision of the Plan to the contrary, Compensation shall not include any amounts received from the Company or one of its Affiliates (or any of their respective predecessors) prior to November 10, 2003.

 

1.14.         “Competitive Business” with respect to any Participant has the meaning assigned such term (or a substantively similar term or concept in the context of restrictive covenants) in any employment or change in control agreement between such Participant and the Company.  In the absence of any such agreement, “Competitive Business” means an entity or enterprise whose business, in whole or in part, involves the manufacture, sale or distribution of telecommunication wire or cable products or magnet wire or related products that directly compete with or are directly substitutable for the products or services of the Company or its Affiliates, except that, if a Participant’s particular employment responsibilities for the Company or its Affiliates are limited solely to the Company’s telecommunications wire or cable products business or solely to the Company’s magnet wire business, the definition of Competitive Business shall be deemed to apply only to that portion of the business with which the Participant is affiliated.

 

1.15.         “Confidential Information” with respect to any Participant has the meaning assigned such term (or a substantively similar term or concept in the context of restrictive covenants) in any employment or change in control agreement between such Participant and the Company.  In the absence of any such agreement, “Confidential Information” means any non-public, proprietary or confidential information, including without limitation trade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits,

 

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pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel, compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals concerning the past, current or future business, activities and operations of the Company or Affiliates and/or any third party that has disclosed or provided any of same to the Company or its Affiliates on a confidential basis without the prior written authorization of the Board.  “Confidential Information” shall not include any information that is (a) generally known to the industry or the public other than as a result of the Participant’s breach of this covenant or any breach of other confidentiality obligations by third parties; (b) made legitimately available to the Participant by a third party without breach of any confidentiality obligation; or (c) required by law to be disclosed; provided, however, that the Participant shall give prompt written notice to the Company of such requirement, disclose no more information than is so required, and cooperate (at the Company’s expense) with any attempts by the Company to obtain a protective order or similar treatment.

 

1.16.         “Credited Service” means a Participant’s period (or periods) of employment with the Company or one of its Affiliates, plus any period specified in Appendix A with respect to a Participant.  Credited Service shall not include (a) any periods of employment with the Company or one of its Affiliates (or any of their respective predecessors) prior to November 10, 2003, except that if a Participant was employed by the Company or an Affiliate during the entire period beginning on November 10, 2003 and ending on November 30, 2003, such Participant shall receive one full month of credited service for such period of service or (b) any periods of Disability.  No more than 30 years of Credited Service shall be taken into account for any purpose under the Plan. Credited Service shall be computed in years and full months.  In the event a Participant is rehired, the Committee shall determine, in its sole discretion, the method of calculating Credited Service, taking into account any Retirement Benefit previously paid to the Participant.

 

1.17.         “Deferred Retirement Date” means the first day of the month coincident with or next following the Participant’s Termination of Employment after the Participant’s Normal Retirement Date.  Notwithstanding any other provision to the contrary, a Participant must have a vested interest prior to receiving a Retirement Benefit.

 

1.18.         “Early Retirement Date” means  the first day of the month coincident with or next following the Participant’s attainment of age 55 (“Early Retirement Age”) and completion of 5 years of Credited Service.  Notwithstanding any other provision to the contrary, a Participant must have a vested interest prior to receiving a Retirement Benefit.

 

1.19.         “Early Retirement Reduction Factor” means, except as provided in Appendix A,  5% for each year (or portion of a year), if any, by which (a) (i) the first day of the month coincident with or next following a Participant’s Permanent and Total Disability or (ii) the first day of the month coincident with or next following the a Participant’s Termination of Employment, as the case may be, (b) precedes his or her Normal Retirement Date. Notwithstanding the foregoing, the Early Retirement Reduction Factor shall in no event produce a benefit that is less than the Normal Retirement Benefit reduced by the Actuarial Equivalent Factor.

 

1.20.         “Effective Date” means April 1, 2008.

 

1.21.         “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.  Any reference to any section of ERISA shall also be a reference to any successor provision and any Department of Labor Regulation promulgated thereunder.

 

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1.22          “Final Average Compensation” means the annual average of a Participant’s Compensation earned while designated as a Participant in the Plan, with respect to any three full calendar years worked in the final five full calendar years of employment (or any lesser number of full years of employment) with the Company or an Affiliate prior to the Participant’s Termination of Employment which yields the highest average.   Final Average Compensation shall not include any amount earned for a partial year of service.  Notwithstanding any other provision of the Plan to the contrary, Final Average Compensation shall not include any amounts received from the Company or one of its Affiliates (or any of their respective predecessors) prior to November 10, 2003.

 

1.23.         “Normal Retirement Date” means  the first day of the month coincident with or next following the date on which a Participant attains age 62 (“Normal Retirement Age”) .  Notwithstanding any other provision to the contrary, a Participant must have a vested interest prior to receiving a Retirement Benefit.

 

1.24.         Original Effective Date ” means November 10, 2003.

 

1.25.         “Participant” means (a) the persons specified in Appendix B and any other Chief Executive Officer, Executive Vice-President or Senior Vice-President of the Company or one of its Affiliates selected by the Committee in its sole discretion and designated in writing as a Participant; and (b) any former employees of the Company or one of its Affiliates that is entitled to a Retirement Benefit under the Plan.

 

1.26.         “Participation Service” mea ns a Participant’s period (or periods) of Credited Service during which the person is a Participant hereunder.

 

1.27.         “Permanent and Total Disability” means either of the following with respect to a Participant:

 

(A) The Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months; or

 

(B) The Participant is, by reason of a medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Company or one of its Affiliates.

 

In either case, the date of a Participant’s Permanent and Total Disability shall be as determined and designated by the Committee.

 

1.28.         Plan ” means the Amended and Restated Superior Essex Inc. Senior Executive Retirement Plan, as set forth herein and as amended from time to time.

 

1.29.         “Restricted Territory” with respect to any Participant has the meaning assigned such term (or a substantively similar term or concept in the context of restrictive covenants) in any employment or change in control agreement between such Participant and the Company.  In the absence of any such agreement, “Restricted Territory” means, with respect to any Participant, all geographical areas within a 100 mile radius of each facility from which or with respect to

 

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which, as of the date the Participant becomes a Participant in the Plan: (a) the Company or its Affiliates manufacture or distribute wire and cable products; and (b) the Participant has responsibility for representing the Company or its Affiliates.  The Parties acknowledge and agree that certain senior executive officers of the Company, including, without limitation, the Tier 1 Executives and “corporate” Participants who are employed by the Company rather than its Affiliates, can reasonably be assumed to be “representing” the Company or its Affiliates anywhere the Company or the Affiliates are doing business.  Thus, the foregoing restricted territory is intended to reflect an attempt by the Company to choose a relatively narrow territory that provides the Company with some protection from competition from its former key executives and yet does not unreasonably restrain the former employee from engaging in a competing business.

 

1.30.         “Retirement Benefit” means any benefit payable under the Plan.  A Participant’s Retirement Benefit under the Plan shall be calculated as a single life annuity commencing at the Participant’s Normal Retirement Age and then converted into the form for payment specified by the Plan or elected by the Participant, which shall have the same Actuarial Equivalent value based on the Actuarial Equivalent Factor.  Notwithstanding any other provision to the contrary, a Participant must have a vested interest prior to receiving a Retirement Benefit.

 

1.31.         “Termination of Employment” means a Participant’s “separation from service” (within the meaning of Section 409A of the Code, without giving effect to any elective provisions that may be available under such definition) with the Company and its Affiliates for any reason.

 

Article II.

Participation

 

2.1.           Participation .   Only Participants designated by the Committee in writing shall participate in the Plan.

 

2.2.           Continuation of Participation .

 

(a)            Subject to the provisions of Article XII, a person who has become a Participant in accordance with Section 2.1 shall, except as provided in (b) below, continue as a Participant as long as he or she continues in the employment of the Company or one of its Affiliates and thereafter as long as he is entitled to benefits under the Plan.

 

(b)            If an employee no longer meets the requirements to be a Participant (e.g., ceases to be the Chief Executive Officer, an Executive Vice-President or Senior Vice-President of the Company or one of its Affiliates), he or she shall no longer be eligible to participate in the Plan but shall continue to be a Participant until his or her Retirement Benefits (if any) have been fully paid; provided that: (a) the individual shall not accrue additional Retirement Benefits under the Plan, (b) for purposes of calculating a Participant’s Retirement Benefit, the Participant’s Credited Service and Final Average Compensation shall be determined as if the date that the employee no longer met the requirements to be a Participant was the date of his or her Termination of Employment, (c) for purposes of Section 5.1(a), the individual shall cease to accrue additional years of Participation Service, and (d) commencement of Retirement Benefits shall not be accelerated by the person’s ceasing to meet the requirements to be a Participant, but rather shall commence at the normal time.

 

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(c)            After a Participant commences to receive Retirement Benefits in accordance with Article IV, the Committee may cease payment of benefits under the Plan if the Committee determines, in its sole reasonable discretion, that the Participant is in violation of the restrictions set forth in Section 2.3.

 

2.3.           Restrictive Covenants .   In consideration of and as a condition of the receipt of any Retirement Benefits by any Participant, the Participant agrees to the following provisions:

 

(a)            If a Participant is a party to an employment agreement, change in control agreement, or other agreement with the Company that contains non-competition, non-solicitation and/or confidentiality covenants, such restrictive covenants shall be deemed incorporated herein by reference in lieu of Sections 2.3(b), (c) and (d) hereof, as the case may be, for the shorter of (i) the applicable period of such other restrictive covenants or (ii) 18 months following the Participant’s Termination of Employment.  If no other such covenants apply or to the extent they apply for less than 18 months following the Participant’s Termination of Employment, then the provisions of Section 2.3(b), (c) and (d) apply.

 

(b)            So long as a Participant is employed by the Company or any of its Affiliates and for a period of 18 months following the Participant’s Termination of Employment for any reason (the “Restricted Period”), the Participant will not, whether on the Participant’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), including, without limitation a Competitive Business, directly or indirectly solicit or assist in soliciting a Company Client for the purpose of providing or having that Company Client provided with products or services directly competitive with or directly substitutable for products or services of the Company or any Affiliate; provided that after the effective date of Participant’s Termination of Employment the foregoing covenant shall be limited to Company Clients:

 

(i)             with who





 
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