Exhibit 10.1
ALLIANCE ONE INTERNATIONAL,
INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
Amended and Restated Effective
January 1, 2005
Originally Effective
January 1, 1997
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
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2
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1.01.
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Accounting
Firm
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2
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1.02.
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Administrator
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2
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1.03.
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Affiliate
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2
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1.04.
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Board
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2
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1.05.
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Cash Balance
Plan
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2
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1.06.
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Capped
Parachute Payments
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2
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1.07.
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Cause
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2
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1.08.
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Change in
Control
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3
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1.09.
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Code
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3
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1.10.
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Compensation
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3
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1.11.
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Compensation
Committee
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3
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1.12.
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Competes
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3
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1.13.
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Control Change
Date
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4
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1.14.
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Corporation
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4
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1.15.
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Credited
Compensation
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4
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1.16.
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Employee
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4
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1.17.
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Excess
Parachute Payment Amount
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4
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1.18.
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Fiscal
Year
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4
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1.19.
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Foreign Social
Security Benefit
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4
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1.20.
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Frozen Average
Compensation
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5
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1.21.
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Joint and
Survivor Annuity
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5
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1.22.
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Net After-Tax
Amount
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5
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1.23.
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Nonqualified
Offset Plan
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5
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1.24.
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Normal
Retirement Allowance
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6
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1.25.
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Normal
Retirement Date
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6
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1.26.
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Offset
Amount
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6
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1.27.
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Parachute
Payment
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7
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1.28.
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Participant
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7
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1.29.
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Pension Equity
Plan
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7
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1.30.
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PEP Retirement
Allowance
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7
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1.31.
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Plan
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7
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1.32.
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Profit Sharing
Account
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7
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1.33.
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Pro Ration
Percentage
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8
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1.34.
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Retirement
Account
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8
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1.35.
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Retirement,
Retire, Retired or Retires
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8
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1.36.
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Separation from
Service
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8
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1.37.
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Spouse or
Surviving Spouse
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8
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1.38.
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Years of
Service
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8
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ARTICLE 2
PARTICIPATION
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9
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ARTICLE 3
RETIREMENT ALLOWANCES
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9
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3.01.
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Normal
Retirement Allowance
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9
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3.02.
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Pre-Retirement
Death Benefit
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10
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3.03.
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Delay of
Payments
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11
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3.04.
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Certain Retired
Participants as of April 1, 2007
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11
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i
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ARTICLE 4
VESTING
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12
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4.01.
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Normal
Vesting
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12
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4.02.
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Change in
Control
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12
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4.03.
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Transition
Rules
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12
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4.04.
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Forfeiture
Events
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12
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ARTICLE 5
ADMINISTRATION OF THE PLAN
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13
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5.01.
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Generally
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13
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5.02.
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Delegation
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13
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5.03.
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Costs
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14
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5.04.
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Reliance
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14
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5.05.
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Indemnification
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14
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5.06.
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Cooperation
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14
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ARTICLE 6 CLAIM
AND APPEAL PROCEDURES
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14
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6.01.
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Filing of a
Claim for Benefits
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14
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6.02.
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Notification to
Claimant of Decision
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15
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6.03.
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Procedure for
Appeal and Review
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15
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6.04.
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Decision on
Review
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15
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6.05.
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Action by
Authorized Representative of Claimant
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16
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6.06.
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Exhaustion of
Administrative Remedies and Deadline for Filing Suit
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16
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ARTICLE 7
TERMINATION, AMENDMENT OR MODIFICATION OF PLAN
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16
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7.01.
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Reservation of
Rights
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16
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7.02.
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Limitation on
Actions
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16
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ARTICLE 8
MISCELLANEOUS
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17
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8.01.
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Limitation on
Benefits
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17
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8.02.
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Unfunded
Plan
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18
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8.03.
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Other Benefits
and Agreements
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18
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8.04.
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Restrictions on
Transfer of Benefits
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18
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8.05.
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No Guarantee of
Employment
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19
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8.06.
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Facility of
Payments
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19
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8.07.
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“Top
Hat” Pension Benefit Plan
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19
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8.08.
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Receipt and
Release
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19
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8.09.
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Setoff
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19
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8.10.
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Reliance on
Data
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20
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8.11.
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Withholding and
Reporting
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20
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8.12.
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Deferred
Compensation
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20
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8.13.
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No Tax
Representation
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20
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8.14.
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Successors
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20
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8.15.
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Construction
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20
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8.16.
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Severability
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21
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8.17.
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Governing
Law
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21
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ARTICLE 9
Adoption and execution
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21
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ii
ALLIANCE ONE INTERNATIONAL,
INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
INTRODUCTION
Alliance One International, Inc.
(the “Corporation”) maintains the Alliance One
International, Inc. Supplemental Executive Retirement Plan (the
“Plan”) to provide unfunded supplemental retirement
benefit to a select group of management and highly compensated
employees as such terms are used in sections 201, 301, and 501 of
the Employee Retirement Income Security Act of 1974. The Plan was
originally effective January 1, 1997. The Corporation
previously amended the Plan on or about August 25, 2004 and
March 11, 2005.
Except as otherwise specifically
provided, the provisions of the Plan as amended and restated herein
are generally effective as of January 1, 2005, and are
intended to satisfy the requirements of Section 409A(a)(2),
(3) and (4) of the Internal Revenue Code of 1986, as
amended.
Participation in the Plan is frozen
effective March 31, 2007. In addition, no Participant shall
accrue additional benefits under this Plan on account of
Compensation paid after March 31, 2007.
ARTICLE 1
DEFINITIONS
1.01. Accounting
Firm
Accounting Firm means the accounting
firm, consulting firm or other qualified service provider
designated by the Corporation.
1.02.
Administrator
Administrator means an
administrative committee composed of the Corporation’s Senior
Vice President – Human Resources and Vice President –
Compensation and Benefits, provided that no member of such
committee shall take part in any discretionary administrative
decision with respect to such member’s benefits (if any)
under the Plan. The Administrator shall be the named fiduciary with
respect to this Plan. Notwithstanding the foregoing, the
Compensation Committee in its discretion may remove or replace any
member of the administrative committee, or name a different
committee or an individual to serve as Administrator
hereunder.
1.03.
Affiliate
Affiliate means any related person
or entity that along with the Corporation would be considered a
single employer under Code Section 414(b) or (c). A person or
entity shall be considered an Affiliate only during the time it
would be considered a single employer with the Corporation under
such provisions.
1.04. Board
Board means the Board of Directors
of the Corporation.
1.05. Cash Balance
Plan
Cash Balance Plan means the Alliance
One International, Inc. Pension Plan (formerly known as the DIMON
Incorporated Cash Balance Plan), and any successor
thereto.
1.06. Capped Parachute
Payments
Capped Parachute Payments means the
largest amount of Parachute Payments that may be paid to the
Participant without liability under Code
Section 4999.
1.07. Cause
A Participant’s termination of
employment will be deemed to have been “for Cause”
hereunder if the Administrator determines that the
Participant’s employment was terminated in whole or in part
by reason of (i) one or more violations of the
Corporation’s Code of Conduct (as in effect from time to
time) or (ii) one or more violations of law (other than
misdemeanor traffic violations) that injure or damage the business
reputation or prospects of the Corporation or an
Affiliate.
2
1.08. Change in Control
Effective on and after April 1,
2007, Change in Control means that (i) any
“person” (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended)
becomes the beneficial owner, directly or indirectly, of securities
of the Corporation representing more than 30% of the aggregate
voting power of all classes of the Corporation’s voting
securities on a fully diluted basis, after giving effect to the
conversion of all outstanding warrants, options and other
securities of the Corporation convertible into or exercisable for
voting securities of the Corporation (whether or not such
securities are then exercisable); (ii) the shareholders of the
Corporation approve (A) a plan of merger, consolidation or
share exchange between the Corporation and an entity other than a
direct or indirect wholly-owned subsidiary of the Corporation or
(B) a proposal with respect to the sale, lease, exchange or
other disposal of all, or substantially all, of the
Corporation’s property; or (iii) during any period of
two consecutive years (which period may be deemed to begin prior to
the date of this agreement), individuals who at the beginning of
such period constituted the Board, together with any new members of
the Board whose election by the Board or whose nomination for
election by the shareholders of the Corporation was approved by a
majority of the members of the Board then still in office who
either were directors at the beginning of such period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute a majority of the
Board.
1.09. Code
Code means the Internal Revenue Code
of 1986, as amended, or any successor thereto, as in effect at the
relevant time.
1.10.
Compensation
Compensation means the taxable
earnings for services rendered as an Employee and paid in cash by
the Corporation and its Affiliates to the Participant, plus amounts
deferred or contributed under Code Sections 401(k), 125, 129 or
132(f)(4) pursuant to the Participant’s salary reduction
agreement, but excluding commissions, extra pay for temporary
foreign service, amounts paid as special incentive bonuses under
incentive programs established in connection with the merger of
Standard Commercial Corporation and DIMON Incorporated, and
severance or similar benefits paid by the Corporation or any
Affiliate on account of termination of employment. Compensation
shall not include any amount paid or payable after March 31,
2007.
1.11. Compensation
Committee
Compensation Committee means the
Executive Compensation Committee of the Board (or such other
committee of the Board appointed by the Board to administer the
Plan).
1.12.
Competes
Competes means that the Participant,
either directly or indirectly, either as principal, agent,
employee, employer, owner, stockholder (owning more than 5% of the
value of a corporation’s outstanding stock), partner,
contractor, consultant or in any other individual or representative
capacity, engages in the business of a tobacco dealer, importer or
exporter or any
3
other business in which the Corporation or an
Affiliate is engaged at such time. If any provision of the
preceding sentence or Section 4.04 is ever deemed to exceed
the time, geographic area, or activity limitations permitted by
applicable law, the Corporation and Participant (by virtue of his
participation in the Plan), agree that such provisions must be and
are reformed to the maximum time, geographic area and activity
limitations permitted by applicable law, and expressly authorize a
court having jurisdiction to reform the provisions to the maximum
time, geographic area and activity limitations permitted by
applicable law.
1.13. Control Change
Date
Control Change Date means the date
on or after April 1, 2007, on which all of the events
necessary for a Change in Control have occurred.
1.14.
Corporation
Corporation means Alliance One
International, Inc. and any successor corporation.
1.15. Credited
Compensation
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(a)
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If the
Participant dies or Retires prior to April 1, 2007, Credited
Compensation means fifty percent (50%) of the average of the
Compensation paid to the Employee with respect to periods of
employment with the Corporation or an Affiliate during the three
Fiscal Years occurring during the last ten Fiscal Years that the
Participant was employed by the Corporation that yields the highest
number.
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(b)
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If the
Participant dies or Retires on or after April 1, 2007,
Credited Compensation means fifty percent (50%) of the
Participant’s Frozen Average Compensation.
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1.16.
Employee
Employee means a person who is an
employee of the Corporation or an Affiliate.
1.17. Excess Parachute Payment
Amount
Excess Parachute Payment Amount
means the excess of the total amount of Parachute Payments over the
amount of Capped Parachute Payments.
1.18. Fiscal
Year
Fiscal Year means the
Corporation’s taxable year for Federal income tax
purposes.
1.19. Foreign Social Security
Benefit
Foreign Social Security Benefit
means the excess, if any of (a) the benefit payable to a
Participant at normal retirement age under a retirement program
maintained or established by a foreign government over (b) the
benefit that would have been payable to the Participant at normal
retirement age under the United States Social Security program had
the Participant been covered by such program.
4
1.20. Frozen Average
Compensation
Frozen Average Compensation means
the average of the Compensation paid to the Participant with
respect to periods of employment with the Corporation or an
Affiliate during the three Fiscal Years occurring during the last
ten Fiscal Years immediately preceding April 1, 2007 that the
Participant was employed by the Corporation that yields the highest
such average.
1.21. Joint and Survivor
Annuity
Joint and Survivor Annuity means an
annuity benefit under which equal monthly installments are payable
to the Participant during his lifetime and under which, upon the
earlier death of the Participant, monthly installments are payable
to the Surviving Spouse during her lifetime in an amount equal to
50% of the Participant’s monthly payment.
1.22. Net After-Tax
Amount
Net After-Tax Amount means the
amount of any Parachute Payments or Capped Parachute Payments, as
applicable, net of taxes imposed under Code Sections 1, 3101(b) and
4999 and any State or local income taxes applicable to the
Participant as in effect on the date of the first payment under
this Plan after a Control Change Date. The determination of the Net
After Tax Amount shall be made using the highest combined effective
rate imposed by the foregoing taxes on income of the same character
as the Parachute Payments or Capped Parachute Payments, as
applicable, in effect for the year in which the determination is
made.
1.23. Nonqualified Offset
Plan
Nonqualified Offset Plan means any
supplemental executive retirement benefit (including but not
limited to the Alliance One International, Inc. Pension Equity Plan
and any supplemental retirement benefit provided under an
employment agreement) or any other nonqualified retirement or
deferred compensation plan maintained by the Corporation or an
Affiliate (other than the Retirement Account). Notwithstanding the
foregoing:
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(a)
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A plan or
benefit shall not be considered a Nonqualified Offset Plan unless
the written terms of the plan or benefit include a restriction on
amendments that satisfies the provisions of this Section. A plan or
benefit’s restriction on amendments will satisfy the
provisions of this Section only if the restriction prohibits any
amendment that would trigger the additional taxes provided under
Code Section 409A(a)(1)(B) (by changing the time or form of
payment of any nonqualified deferred compensation benefit or
otherwise), taking into consideration such plan or benefit and all
other nonqualified plans with which its benefits are linked. A plan
or benefit is not required to specifically identify this Plan in
order to be considered a Nonqualified Offset Plan with respect to
this Plan.
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(b)
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A benefit
provided pursuant to an employment agreement shall not be
considered a Nonqualified Offset Plan if the written terms of the
employment agreement provide that the benefit shall not reduce (or
be applied as an offset against) the benefits payable under this
Plan.
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5
1.24. Normal Retirement
Allowance
Normal Retirement Allowance means
the benefit described in Section 3.01.
1.25. Normal Retirement
Date
Normal Retirement Date means the
first day of the month coincident with or next following the later
of the Participant’s attainment of age 65 or the
Participant’s Separation from Service.
1.26. Offset
Amount
Offset Amount means the sum of the
monthly amounts, if any, payable to or on behalf of a Participant
under the Cash Balance Plan, the Alliance One International, Inc.
Global Pension Plan (or its successor), the Alliance One Brasil
Exportadora de Tobacos Ltda Pension Plan (or its successor), any
Nonqualified Offset Plan, the Profit Sharing Account, any Foreign
Social Security Benefit, or any benefit under a non-U.S. pension
plan or similar arrangement (to the extent funded by contributions
by the Corporation or an Affiliate).
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(a)
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For purposes of
Section 3.01(a), the Offset Amount shall be determined as of
the Participant’s Separation from Service and shall be
expressed as a monthly amount that would be paid as a single life
annuity commencing at the Participant’s Normal Retirement
Date (in the case of a Participant who is not legally married on
the date of his Separation from Service), or as a monthly amount
that would be paid to the Participant during his lifetime under a
Joint and Survivor Annuity commencing at the Participant’s
Normal Retirement Date (in the case of a Participant who is legally
married on the date of his Separation from Service).
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(b)
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The Offset
Amount shall be determined using the actuarial assumptions and
methods applicable to the Cash Balance Plan. Except as provided in
paragraph (c) below, the Administrator shall calculate the
Offset Amount by converting each benefit that is includible in the
Offset Amount into an actuarially equivalent monthly benefit
expressed in the appropriate form and assuming a benefit
commencement date as of the date the benefits under this Plan are
scheduled to commence, and then adding such monthly amounts
together.
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(c)
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The
Administrator shall determine the monthly Offset Amount
attributable to benefits under the Pension Equity Plan, if any, in
accordance with this paragraph (c).
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(i)
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First, the
Administrator shall determine the PEP Retirement Allowance payable
pursuant to Section 3.01 of the Pension Equity
Plan.
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(ii)
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Second, the Administrator shall
treat the PEP Retirement Allowance as if it were a life annuity
commencing as of the Participant’s Normal Retirement Date
hereunder (without making any actuarial adjustments). For example,
if the PEP Retirement Allowance is a life annuity with monthly
payments of $1,000 commencing on the first day of the
month
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6
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after the Participant’s
55 th
birthday, the
Administrator shall treat it as if it were a life annuity with
monthly payments of $1,000 commencing at the Participant’s
Normal Retirement Date hereunder.
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(iii)
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Third, the
Administrator shall convert the life annuity determined pursuant to
clause (ii) above into an actuarially equivalent Joint and
Survivor Annuity commencing as of the Participant’s Normal
Retirement Date. For purposes of paragraph (b) above, the
monthly amount that would be payable to the Participant under this
Joint and Survivor Annuity shall be deemed to be the monthly Offset
Amount attributable to benefits under the Pension Equity
Plan.
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(d)
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The
Administrator may adopt such procedures and conventions as it deems
necessary or appropriate to calculate the Offset Amount hereunder,
including but not limited to procedures and conventions for
converting amounts expressed in different currencies into the
corresponding amounts expressed in the currency in which Plan
benefits will be paid.
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1.27. Parachute
Payment
Parachute Payment means a payment
that is described in Code Section 280G(b)(2) (without regard
to whether the aggregate present value of such payments exceeds the
limit prescribed by Code Section 280G(b)(2)(A)(ii)). The
amount of any Parachute Payment shall be determined in accordance
with Code Section 280G and the regulations promulgated
thereunder, or, in the absence of final regulations, the proposed
regulations promulgated under Code Section 280G.
1.28.
Participant
Participant means an Employee who
satisfies the requirements of Article 2.
1.29. Pension Equity
Plan
Pension Equity Plan means the
Alliance One International, Inc. Pension Equity Plan.
1.30. PEP Retirement
Allowance
PEP Retirement Allowance means the
“Normal Retirement Allowance” as defined in
Section 3.01 of the Pension Equity Plan.
1.31. Plan
Plan means this Alliance One
International, Inc. Supplemental Executive Retirement
Plan.
1.32. Profit Sharing
Account
Profit Sharing Account means, as of
any date, a Participant’s March 31, 1998 profit sharing
account balance in the DIMON International Profit Sharing Plan
(currently known as the
7
Alliance One International, Inc. Savings and
Profit Sharing Plan) as adjusted for gains and losses as if such
March 31, 1998 account balance had been invested in such
plan’s stable value fund or, if the plan does not have a
stable value fund, in such successor fund as may be designated by
the Administrator.
1.33. Pro Ration
Percentage
Pro Ration Percentage means the
percentage determined by adding the “service fraction”
and the “age fraction” and dividing the sum by two. The
“service fraction” is a fraction in which the numerator
is the Years of Service (in whole and fractional years, but not to
exceed twenty) credited to a Participant on the date of termination
of employment with the Corporation and its Affiliates and the
denominator of which is twenty. The “age fraction” is a
fraction the numerator of which is the Participant’s age (in
whole and fractional years, but not to exceed sixty) on the date of
termination of employment with the Corporation and its Affiliates
and the denominator of which is sixty. By way of illustration, a
Participant who terminates employment at age fifty and after
completing eighteen years of service and after satisfying the
vesting requirements of Section 4.02 will have a
“service fraction” of 18/20 or 9/10 and an “age
fraction” of 50/60 or 5/6. In that example, the Pro Ration
Percentage is 86.7% (5/6 plus 9/10) divided by 2 = (.833 plus .9)
divided by 2)).
1.34. Retirement
Account
Retirement Account means the
Alliance One International, Inc. Supplemental Retirement Account
Plan.
1.35. Retirement, Retire,
Retired or Retires
Retirement, Retire, Retired or
Retires means the termination of a Participant’s employment
with the Corporation or an Affiliate that occurs on or after the
Participant satisfies the vesting requirements of Section 4.01
or Section 4.02.
1.36. Separation from
Service
Separation from Service means the
Participant’s “separation from service” with the
Corporation and its Affiliates within the meaning of Code
Section 409A(a)(2)(A)(i) and applicable regulations and other
guidance thereunder. A Separation from Service shall not have
occurred so long as the Participant continues to provide more than
insignificant services as an employee, consultant or other service
provider to the Corporation or any Affiliate.
1.37. Spouse or Surviving
Spouse
Spouse means the person to whom the
Participant is legally married on the date the Participant Retires
or dies. Surviving Spouse means the Spouse, provided that the
Spouse survives the Participant.
1.38. Years of
Service
Year of Service means a year of
vesting service as determined under the Cash Balance Plan. If the
Participan