FERRO CORPORATION SUPPLEMENTAL EXECUTIVE DEFINED BENEFIT PLANEmployee Benefits Plan Agreement |
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<PAGE>
(FERRO LOGO)
EXHIBIT
10(l)
================================================================================
FERRO
CORPORATION
SUPPLEMENTAL
EXECUTIVE
DEFINED
BENEFIT PLAN
================================================================================
Amended and
Restated Effective
June
30, 2004
<PAGE>
As Amended and Restated
June 30, 2004
FERRO
CORPORATION
SUPPLEMENTAL EXECUTIVE
DEFINED BENEFIT PLAN
INTRODUCTION
This document (this
"Plan") is the FERRO CORPORATION SUPPLEMENTAL EXECUTIVE
DEFINED BENEFIT PLAN. This Plan was originally adopted and effective as of
January 1, 1983.
This Plan is now amended and
restated effective June 30, 2004, as follows.
ARTICLE I
NAME AND
PURPOSE
1.1 Name. The name of this Plan is the
"Ferro Corporation Supplemental
Executive Defined Benefit
Plan." (This Plan was previously known as the
"Ferro Corporation Nonqualified
Retirement Plan.")
1.2 Plan Sponsor. The sponsor of this
Plan is Ferro Corporation ("Ferro"), an
Ohio corporation.
1.3 Purpose. This purpose of this Plan
is to provide supplemental retirement
benefits for certain management and
highly compensated employees of the
Ferro Group Companies whose benefits
under the Qualified Plan are limited
by Sections 401(a)(17) and 415 of the Code,
so that the aggregate benefits
provided for each such employee by
the Qualified Plan and by this Plan will
not be less than benefits that would
be provided to each such employee by
the Qualified Plan but for the
limitations contained in the Qualified Plan
to effect compliance with Sections
401(a)(17) and 415 of the Code
1.4 Plan for a Select Group. This Plan
covers only employees of a Ferro Group
Company who are members of a
"select group of management or highly
compensated Participants" as
provided in Sections 201(2), 301(a)(3),
401(a)(1) and 4021(b)(6) of ERISA.
Notwithstanding any provision of this
Plan to the contrary, this Plan will
be administered and its benefits
limited in a manner to comply with
the above cited sections of ERISA.
1.5 Not a Funded Plan. Ferro intends
that this Plan be deemed to be "unfunded"
for tax purposes as well as for
purposes of Title I of ERISA.
Notwithstanding any provision of
this Plan to the contrary, this Plan will
be administered in a manner so that
it is deemed "unfunded."
ARTICLE II
DEFINITIONS AND
INTERPRETATION
2.1 Definitions. Appendix A sets forth
the definitions of certain terms used in
this Plan. Those terms shall have
the meanings set forth on Appendix A
where used in this Plan and
identified with initial capital letters.
-2-
<PAGE>
As
Amended and Restated
June 30, 2004
2.2 General Rules of Construction. For
purposes of interpreting this Plan,
(A)
the masculine gender will include the feminine and neuter, and vice
versa, as the context requires;
(B)
the singular number will include the plural, and vice versa, as the
context requires;
(C)
the present tense of a verb will include the past and future tenses,
and vice versa, as the context
requires; and
(D)
as provided under Article VIII, the Administrator retains the power
and duty to interpret this Plan
and resolve ambiguities.
ARTICLE III
PARTICIPATION
3.1 Eligibility. In order to be eligible
to participate in this Plan, Ferro
must determine that an individual
is:
(A)
in a select group of management or highly compensated employees as set
forth in Section 1.4;
(B)
a participant in the Qualified Plan; and
(C)
a participant in the Qualified Plan whose benefit payable under the
Qualified Plan is limited by
the provisions in the Qualified Plan to
effect compliance with Sections
401(a)(17) or 415 of the Code or the
elimination of the Regular
Compensation Formula under the Qualified
Plan.
3.2 Participation. An individual who is
eligible to participate in this Plan
will become a Participant in this Plan
immediately on the date that he
satisfies the eligibility
requirements in Section 3.1.
ARTICLE IV
PLAN
BENEFITS
4.1 Plan Benefits Conditioned on
Noncompetition Agreement. The Plan benefits
set forth in this Article IV payable
to Participants whose employment with
all Ferro Group Companies terminates
on or after January 1, 2001, shall be
conditioned upon (i) Ferro's receipt
of a Noncompetition Agreement signed
by the Participant, and (ii) the
Participant's continual compliance with
the terms and conditions of such
Noncompetition Agreement; provided,
however, the requirement that a
Participant sign and continually comply
with the terms and conditions of
such Noncompetition Agreement shall not
apply to any Participant whose
employment terminates either (i) as a result
of the Participant's death prior to
the commencement of Plan benefits, or
(ii) following a Change in Control.
If the Participant fails to so
continually comply, then all of the
Participant's benefits (including,
without limitation, benefits to such
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<PAGE>
As Amended
and Restated
June 30, 2004
employee's Participant's Qualified
Spouse or designated beneficiary or
beneficiaries) under this Plan shall
be automatically forfeited and repaid
to Ferro as provided in Section
10.19 hereof.
4.2 Normal and Early Retirement. A
Participant will receive a normal or early
retirement benefit in the amount set
forth in Section 4.2(A) and in the
manner and form of payment set forth
in Section 4.2(B).
(A)
Amount. Subject to the provisions of Section 4.4, the Plan benefit
payable to a Participant upon
termination of employment after
eligibility for an early or
normal retirement benefit under the
Qualified Plan is the excess of
(a) the amount of the benefit that
would have been payable to the
Participant under the Qualified Plan
upon normal or early retirement
but for the Qualified Plan limitations
pertaining to Code Sections
401(a)(17) and 415 and the elimination of
the Regular Compensation
Formula under the Qualified Plan over (b) the
amount of the benefit that is
actually paid, or would be payable, to
the Participant upon normal or
early retirement under the provisions
of the Qualified Plan.
Notwithstanding the foregoing, the calculation
of an early retirement benefit
for a Participant who is a Ferro
officer elected by Ferro's Board
of Directors shall be determined in
accordance with the early
retirement factors in the following column
labeled "Special
Factors" with the result that there shall be no
benefit reduction due to age
for retirement on or after age 60:
<TABLE>
<CAPTION>
EARLY RETIREMENT FACTORS
------------------------
AGE
SPECIAL FACTORS
---
---------------
<S> <C>
65 1.00
64 1.00
63 1.00
62 1.00
61 1.00
60 1.00
59 0.94
58 0.88
57 0.82
56 0.76
55 0.70
</TABLE>
(B)
Manner and Form of Payment. The benefit provided under Section 4.2(A)
for each Participant who
terminates employment with a Ferro Group
Company after eligibility for
an early or normal retirement benefit
under the Qualified Plan, shall
be paid in the form of a lump sum cash
payment that is 50% or 100% of
the commuted present value as
determined by the Qualified
Plan's actuary using the Present Value
Factors of the benefit
determined under Section 4.2(A) of this Plan;
provided such Participant's
Qualified Spouse consents in writing to
such lump sum cash payment. If
such Participant's Qualified Spouse
does not consent to the 100% or
50% commuted present value payment or
consents to the 50% commuted
present value payment, then such
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<PAGE>
As
Amended and Restated
June 30, 2004
Participant's remaining benefit
under this Plan shall be in the form
of monthly payments paid under
the Qualified Plan commencing with the
month in which benefit payments
from the Qualified Plan commence and
continuing to and including the
month in which such employee's death
occurs, with a minimum
guarantee of 120 monthly payments with such
deceased Participant's
Qualified Spouse (or properly designated
beneficiary or beneficiaries)
receiving for the number of months left
in such 120-month period a
monthly benefit under this Plan equal to
the benefit the deceased
Participant was receiving prior to death
under this Plan. If a deceased
Participant's surviving Qualified
Spouse under the Qualified Plan
is the beneficiary of the 120 monthly
payments, a supplemental
monthly benefit under this Plan equal to
one-half of the monthly benefit
under this Plan paid for the 120-month
period, shall be payable to the
surviving Qualified Spouse commencing
with the month following the
later of the date of such employee's
death or the end of the
120-month period, and continuing to and
including the month in which
the surviving Qualified Spouse's death
occurs.
4.3 Disability. A Participant will
receive a disability benefit in the amount
set forth in Section 4.3(A) and in
the manner and form of payment set forth
in Section 4.3(B).
(A)
Amount. If a Participant becomes totally and permanently disabled and
receives a disability retirement
benefit from the Qualified Plan, the
benefit payable to the
Participant under this Plan is a monthly amount
equal to the excess of (a) the
amount of the monthly disability
retirement benefit under the
Qualified Plan that would have been
payable to the Participant but
for the limitations pertaining to Code
Sections 401(a)(17) and 415 and
the elimination of the Regular
Compensation Formula under the
Qualified Plan, over (b) the amount of
the monthly disability retirement benefit
that is actually paid to the
Participant under the
provisions of the Qualified Plan. The monthly
benefit payable under this Plan
terminates upon the earlier of the
Participant's recovery from the
disability, death, or attainment of
age 65; and, thereafter, the
applicable provisions of this Article IV
shall apply.
(B)
Manner and Form of Payment. The benefit provided under this Plan for
each Participant who becomes
totally and permanently disabled and
receives a disability
retirement benefit from the Qualified Plan,
shall be paid in the form of
monthly payments payable under the
Qualified Plan commencing with
the month in which benefit payments
from the Qualified Plan
commence and continuing to and including the
month in which the earlier of
the Participant's recovery from the
disability, his death or
attainment of age 65 occurs.
4.4 Death. A Qualified Spouse (or
properly designated beneficiary or
beneficiaries) or Beneficiary will
receive a death benefit in the amount
set forth in Section 4.4(A) and in
the manner and form of payment set forth
in 4.4(B).
(A)
Amount. If a Participant dies before the commencement of Plan benefits
under this Plan (other than
monthly disability benefits under this
Plan) and a Primary Death
Benefit is payable from the Qualified Plan
as a result of such employee's
death, the benefit payable under this
Plan to the Participant's
Qualified Spouse (or properly designated
beneficiary or beneficiaries)
is the commuted present value of the
excess of (a) the amount of the
Primary Death Benefit, and
supplemental spouse's benefit
if such employee's Qualified Spouse is
the beneficiary, that would
have been payable under the Qualified
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<PAGE>
As Amended and Restated
June 30, 2004
Plan but for the limitations
pertaining to Code Sections 401(a)(17)
and 415 and the elimination of
the Regular Compensation Formula under
the Qualified Plan, over (b)
the amount of the Primary Death Benefit,
and supplemental spouse's
benefit if such employee's Qualified Spouse
is the beneficiary, that is
actually payable under the provisions of
the Qualified Plan.
(B)
Manner and Form of Payment. The benefit provided under this Plan for
the deceased Participant's
Qualified Spouse or properly designated
beneficiary or beneficiaries
shall be paid in the form of a single
lump sum cash payment that is
the commuted present value as determined
by the Qualified Plan's actuary
using the Present Value Factors of the
benefit determined under
Section 4.4(A) of this Plan if the
Participant's Qualified Spouse (or properly
designated beneficiary or
beneficiaries) consents in
writing to such lump sum cash payment. If
the Participant's Qualified
Spouse or properly designated beneficiary
or beneficiaries does not or do
not so consent, then the deceased
Participant's benefits under
this Plan shall be in the form of monthly
payments commencing with the
month in which benefit payments from the
Qualified Plan commence and
continuing for 120 monthly payments with
the deceased Participant's
Qualified Spouse (or properly designated
beneficiary or beneficiaries)
receiving such 120 monthly payments. If
the deceased Participant's
surviving Qualified Spouse is the
beneficiary of the 120 monthly
payments, a supplemental monthly
benefit under this Plan equal
to one-half of the monthly benefit paid
for the 120-month period shall
be payable to the surviving Qualified
Spouse (if the Qualified Spouse
is living at the end of the 120-month
period) commencing with the
month following the end of the 120-month
period, and continuing to and
including the month in which the
surviving Qualified Spouse's death
occurs.
4.5 Other Termination of Employment. A
participant will receive a deferred
vested benefit in the amount set
forth in Section 4.5(A) and in the manner
and form of payment set forth in
4.5(B).
(A)
Amount. If a Participant terminates employment with all Ferro Group
Companies other than as
provided in Sections 4.2, 4.3, or 4.4 of this
Plan, the benefit payable to
the Participant under this Plan is the
commuted present value
(provided the Participant's Qualified Spouse
consents as described in
Section 4.5(B)) of the excess of (a) the
amount of the Qualified Plan's
deferred vested benefit that the
Participant would have accrued
but for the limitations pertaining to
Code Sections 401(a)(17) and 415 and the
elimination of the Regular
Compensation Formula under the
Qualified Plan over (b) the deferred
vested benefit that the
Participant actually accrued under the
provisions of the Qualified
Plan.
(B)
Manner and Form of Payment. The benefit provided under this Plan for
each Participant shall be paid
in the form of a single lump sum cash
payment that is the commuted
present value as determined by the
Qualified Plan's actuary using
the Present Value Factors of the
benefit determined under
Section 4.5(A) if the Participant's Qualified
Spouse consents in writing to
such lump sum cash payment. If the
Participant's Qualified Spouse
does not consent, the Participant's
benefits under this Plan shall
be in the form of monthly payments
commencing with the month in
which benefit payments from the Qualified
Plan commence and continuing to
and including the month in which the
Participant's death occurs,
with a minimum guarantee of 120 monthly
payments
-6-
<PAGE>
As Amended and Restated
June
30, 2004
with the deceased Participant's
Qualified Spouse (or properly
designated beneficiaries or
beneficiary) receiving for the number of
months left in such 120-month
period a monthly benefit under this Plan
equal to the benefit the
deceased Participant was receiving prior to
death. If the deceased
Participant's surviving Qualified Spouse under
the Qualified Plan is the
beneficiary of the 120 monthly payments, a
supplemental monthly benefit
under this Plan equal to one-half of the
monthly benefit under this Plan
paid for the 120-month period shall be
payable to the surviving
Qualified Spouse commencing with the month
following the later of the date
of the Participant's death or the end
of the 120-month period, and
continuing to and including the month in
which the surviving Qualified
Spouse's death occurs.
4.6 Discretionary Benefit Increases.
Ferro reserves the right, in its sole
discretion and determination, to
increase the amount of benefits payable to
any person under this Plan to offset
United States federal estate taxes
withheld or paid from benefit payments
under this Plan to Qualified Spouses
who are not citizens of the United
States.
4.7 Discretionary Commutation of
Benefits. Notwithstanding anything contained
in this Plan to the contrary, Ferro
reserves the right, in its sole
discretion, to commute any benefits
that are being paid in the form of
monthly payments, and to pay, in
lieu of the monthly payments, a single,
lump sum cash payment equal to the
present value of a person's monthly
benefit payments, as determined by
the Qualified Plan's actuary, using the
Present Value Factors.
4.8 Change in Control. If a Change in
Control occurs, then all of the
obligations of Ferro under this Plan
shall continue to be enforceable
against Ferro and any successor. Notwithstanding
any provision of Article
IV to the contrary, if any person
entitled to benefits under this Plan is
not actively employed by a Ferro
Group Company at the time a Change in
Control occurs, that person shall
immediately receive a single, lump sum
cash payment equal to the commuted
present value of that person's monthly
benefit payments under this Plan
(whether or not such are then in pay
status), as determined by the
Qualified Plan's actuary, using the Present
Value Factors.
4.9 Protective Distributions. If the
Administrator determines, in its sole
discretion, that a Participant is
not, or may not be, a member of a "select
group of management or highly
compensated employees" within the meaning of
Section 201(2), 301(a)(3), 401(a)(1) or
4021(b)(6) of ERISA, then the
Administrator may, in its sole
discretion, terminate the Participant's
participation in this Plan, and
distribute all benefit amounts under this
Plan in a single lump sum payment
equal to the commuted present value of
that person's monthly benefit
payments under this Plan (whether or not they
are then in pay status), as
determined by the Qualified Plan's actuary,
using the Present Value Factors. Any
distribution under this Section will
be made at the time the
Administrator determines in its sole discretion.
4.10 Tax Withholding. A Ferro Group Company may withhold, from any payment made
by it under this Plan, the amount or
amounts as may be required for
purposes of complying with the tax
withholding or other provisions of the
Code or the Social Security Act or
any state or local income or employment
tax act or for purposes of paying
any estate, inheritance or other tax
attributable to any amounts payable
hereunder.
4.11 Inability to Locate Participant. If a Ferro Group Company or the
Administrator notifies a Participant
or a Qualified Spouse (or properly
designated beneficiary or
beneficiaries)
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<PAGE>
As Amended and Restated
June 30, 2004
of an entitlement to an amount under
this Plan and the Participant or the
Qualified Spouse (or properly
designated beneficiary or beneficiaries)
fails to claim the amount or to
disclose the location of the Participant or
the Qualified Spouse (or properly
designated beneficiary or beneficiaries)
within three years thereafter, then,
except as otherwise required by law,
if the location of one or more of
the next of kin of the Participant or the
Qualified Spouse (or properly
designated beneficiary or beneficiaries) is
known to the Ferro Group Company or
the Administrator, the Administrator
may direct distribution of the
amount to any one or more or all of the next
of kin, and in such proportions as
the Administrator, in its sole
discretion, determines. If the
location of none of the foregoing persons
can be determined, the Administrator
will direct that the amount payable to
the Participant or the Qualified
Spouse (or properly designated beneficiary
or beneficiaries) be forfeited. If,
after the forfeiture, the Participant
or the Qualified Spouse (or properly
designated beneficiary or
beneficiaries) later claims the
benefit under this Plan, then the benefit
will be reinstated without interest
or earnings from the date of
forfeiture. If a benefit payable to
a Participant or a Qualified Spouse (or
properly designated beneficiary or
beneficiaries) that cannot be located is
subject to escheat under state law,
then no further benefit will be payable
with respect to any Participant for
whom payment was made by the
Administrator according to the
escheat provisions of state law.
ARTICLE V
RIGHTS OF
PARTICIPANTS
5.1 Creditor Status of Participants. The
benefits payable under this Plan shall
be merely an unfunded, unsecured
promise of the Ferro Group Company (by
which the Participant is employed)
to make benefit payments in the future
and shall be liabilities solely
against the general assets of such Ferro
Group Company. Except as may be
provided under the terms of a Trust which
may be established pursuant to
Article VI, neither Ferro nor any other
Ferro Group Company shall be
required to segregate, set aside or escrow any
corporate assets to meet its
obligations under this Plan. With respect to
any benefits payable under this
Plan, or a Qualified Spouse (or properly
designated beneficiary or
beneficiaries) will have the status of general
unsecured creditors of the Ferro
Group Company by which the Participant is
employed, and may look only to that
Ferro Group Company and its general
assets for payment of the benefits.
5.2 Rights with Respect to the Trust.
Any trust, and any assets held thereby to
assist Ferro or other Ferro Group
Company in meeting its obligations under
this Plan, will in no way be deemed
to controvert the provisions of Section
5.1 above.
5.3 Investments. In Ferro's sole
discretion, the Ferro Group Companies may
acquire insurance policies,
annuities or other financial vehicles for the
purpose of providing future assets
of the Ferro Group Companies to meet
their anticipated liabilities under
this Plan. Such policies, annuities or
other investments, shall at all
times be and remain unrestricted general
property and assets of the Ferro
Group Companies or property of a trust
established pursuant to Article VI
of this Plan. Participants and Qualified
Spouses (or properly designated
beneficiaries) will have no rights, other
than as general creditors, with
respect to any such policies, annuities or
other acquired assets.
-8-
<PAGE>
As Amended and Restated
June 30, 2004
ARTICLE VI
TRUST
6.1 Establishment of Trust.
Notwithstanding any other provision or
interpretation of this Plan, Ferro may
establish a Trust in which to hold
cash, insurance policies or other
assets that may be used to make, or
reimburse Ferro or any other Ferro
Group Company for, payments to the
Participants or Qualified Spouses
(or properly designated beneficiary or
beneficiaries) of all or part of the
benefits under this Plan. Any Trust
assets shall at all times remain
subject to the claims of general creditors
of Ferro or the Ferro Group Company
in the event of the insolvency of Ferro
or the Ferro Group Company as more
fully described in the Trust.
6.2 Obligation of Ferro. Notwithstanding
the fact that a Trust may be
established under Section 6.1, the
Ferro Group Companies shall remain
liable for paying the benefits under
this Plan. However, any payment of
benefits to a Participant or a
Qualified Spouse (or a properly designated
beneficiary or beneficiaries) made
by a Trust will satisfy the appropriate
Ferro Group Company's obligation to
make payment to such person under this
Plan.
6.3 Trust Terms. A Trust established
under Section 6.1 may contain any terms as
Ferro may determine to be necessary
or desirable. Ferro may terminate or
amend a Trust established under
Section 6.1 at any time, and in any manner
it deems necessary or desirable,
subject to the terms of any agreement
under which any Trust is established
or maintained.
ARTICLE VII
ADMINISTRATION AND
CLAIMS PROCEDURE
7.1 Administrator. The Administrator
will be Ferro, acting by and through
Ferro's Corporate Human Resources
Department, unless the Board of
Directors, acting itself or through
an appropriate committee designates
otherwise.
7.2 General Rights, Powers, and Duties
of Administrator. The Administrator will
be the Plan Administrator under
ERISA. The Administrator will be
responsible for the general
administration of this Plan and will have all
powers as may be necessary to carry
out the provisions of this Plan and
may, from time to time, establish
rules for the administration of this Plan
and the transaction of this Plan's
business. In addition to any powers,
rights and duties set forth
elsewhere in this Plan, it will have the
following powers and duties:
(A)
To enact rules, regulations, and procedures and to prescribe the use
of such forms as it deems
advisable;
(B)
To appoint or employ agents, attorneys, actuaries, accountants,
assistants or other persons
(who may also be Participants in this Plan
or be employed by or represent
a Ferro Group Company) at the expense
of the Ferro Group Companies,
as it deems necessary to keep its
records or to assist it in
taking any other action authorized or
required under this Plan;
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<PAGE>
As Amended and Restated
June
30, 2004
(C)
To interpret this Plan, and to resolve ambiguities, inconsistencies
and omissions, to determine any
question of fact, to determine the
right to benefits of, and the
amount of benefits, if any, payable to,
any person in accordance with
the provisions of this Plan and resolve
all questions arising under
this Plan;
(D)
To administer this Plan in accordance with its terms and any rules and
regulations it establishes; and
(E)
To maintain records concerning this Plan as it deems sufficient to
prepare reports, returns and
other information required by this Plan
or by law; and
(F)
To direct a Ferro Group Company to pay benefits under this Plan,and to
give other directions and
instructions as may be necessary for the
proper administration of this
Plan.
Any decision, interpretation or
other action made or taken by the
Administrator arising out of or in
connection with this Plan, will be
within the absolute discretion of
the Administrator, and will be final,
binding and conclusive on Ferro, all
other Ferro Group Companies, and all
Participants, Qualified Spouses and
Beneficiaries and their respective
