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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