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Exhibit
10.1
HARTE-HANKS,
INC.
RESTORATION PENSION
PLAN
As Amended and Restated
Effective January 1, 2008
The HARTE-HANKS, INC.
RESTORATION PENSION PLAN (hereinafter referred to as the
“Restoration Plan”) was established by Harte-Hanks,
Inc. (hereinafter referred to as “Harte-Hanks”),
effective as of January 1, 1994, in order to provide for the
payment of retirement and retirement-related benefits to a certain
select group of highly compensated employees who are participants
(except as otherwise provided under Section 4 hereof) in the
HARTE-HANKS, INC. PENSION PLAN (hereinafter referred to as the
“Basic Plan”) as in effect from time to time on and
after the effective date hereof and whose benefits under the Basic
Plan are restricted because of the application of the limitations
of Section 401(a)(17) and/or Section 415 of the Internal
Revenue Code of 1986, as amended (hereinafter referred to as the
“Code”), and because of the freezing of benefit
accruals effective as of December 31, 1998. The Restoration
Plan was subsequently amended and restated effective
January 1, 2000, in order to incorporate prior amendments to
the Restoration Plan, to change the Vesting Date, and to allow the
board of directors of Harte-Hanks (the “Board”) to
designate an employee to participate in the Restoration Plan
whether or not participating in the Basic Plan.
Effective as of
January 1, 2008, the Restoration Plan is being amended and
restated in its entirety, as hereinafter set forth in this
instrument, in order to (i) bring the Plan into compliance
with the requirements of Code Section 409A for amounts earned
after December 31, 2004 without making any material
modification to the Plan for such amounts; (ii) establish a
limit on the amount of bonus includable under the Restoration Plan;
(iii) clarify vesting; (iv) add alternative payment
options; and (v) add a funding mechanism upon a change of
control. Harte-Hanks intends and desires by the adoption of this
Restoration Plan to recognize the value to Harte-Hanks of the past
and present services of its employees covered by the Restoration
Plan and to encourage and assure their continued service to
Harte-Hanks by making more adequate provisions for their future
retirement security.
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(a) |
“Covered Compensation” shall mean Compensation as
defined in the Basic Plan without regard to the limitation imposed
by Code Section 401(a)(17), except that |
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(i) |
the amount of bonus that otherwise would have been included in
the Participant’s Compensation for a given calendar year
ending prior to January 1, 2001 shall not exceed an amount
equal to the 100% potential bonus level established for that
Participant for the year for which such bonus was paid,
and |
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(ii) |
the amount of bonus that otherwise would have been included in
the Participant’s Compensation for a given calendar year
ending after December 31, 2000 shall not exceed an amount
equal to the 50% potential bonus level established for that
Participant for the year for which such bonus was paid; |
provided that any salary or
bonuses (including the amount of bonus a Participant would have
received in cash had the Participant not elected to receive such
bonus in the form of restricted stock) deferred by the Participant
under an unfunded, nonqualified deferred compensation plan of the
Employer pursuant to the Participant’s election shall be
included in the Participant’s Covered Compensation for
purposes of the Restoration Plan in the calendar year during which
such salary or bonuses would have been paid to the Participant in
the absence of such election to defer.
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(b) |
“Employer” shall include Harte-Hanks, Inc. and any
of its subsidiaries. |
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(c) |
“Participant” means an individual who has become a
participant in this Restoration Plan in accordance with the
provisions of Section 4 hereof and whose interest hereunder
has not been fully paid. |
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(d) |
“Vesting Date” is defined in Section 5
hereof. |
All other terms used in this
Restoration Plan shall have the same meaning assigned to them under
the provisions of the Basic Plan unless otherwise qualified by the
context.
For the purposes of this
Restoration Plan, a Participant’s employment with the
Employer shall not be considered to have terminated so long as such
Participant is in the employment of the Employer or a Controlled
Group Member.
This Restoration Plan shall
be administered by a committee appointed by the Board from time to
time (hereinafter referred to as the “Committee”). The
Committee shall administer the Restoration Plan in a manner
consistent with the administration of the Basic Plan, as from time
to time amended and in effect, except that this Restoration Plan
shall be administered as an unfunded plan that is not intended to
meet the qualification requirements of Code Section 401(a).
The Committee shall have full power and authority to interpret,
construe, and administer this Restoration Plan and the
Committee’s interpretations and construction thereof, and
actions thereunder, including the amount or recipient of the
payment to be made, shall be binding and conclusive on all persons
for all purposes, subject to any rights of the Participant to make
a claim for benefits under Title I of the Employee Retirement
Income Security Act of 1974, as amended.
Participation in this
Restoration Plan shall be limited to those employees of the
Employer who are designated as Participants hereunder by the Board,
whether or not such persons are eligible for benefits under the
Basic Plan. If an employee designated by the Board to participate
in this Restoration Plan is not a participant in the Basic Plan,
then, for purposes of this Restoration Plan,
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such person shall be considered as
though he were a participant eligible for a benefit under the Basic
Plan and the Credited Service of such person shall be deemed to
commence on the later of such person’s date of hire or the
date on which such person’s Employer was acquired by
Harte-Hanks. No person shall have an automatic right to be selected
as a Participant or to continue as an active Participant once
selected.
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Eligibility for Benefits |
A Participant shall be
eligible for a benefit under the Restoration Plan if, as of his or
her date of termination of employment with the Employer, he or she
has reached his or her “Vesting Date.” The term
“Vesting Date” as used herein shall mean
either:
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(a) |
Immediately, if the Participant is or becomes an officer of
Harte-Hanks with the title of a Senior Vice President or a higher
position; or |
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(b) |
the earlier to occur of (i) the date on which he or she
attains age 55 years or (ii) the date on which he or she
completes 20 years of Credited Service, if the Participant is an
officer of Harte-Hanks with a title below a Senior Vice
President. |
If the employment of a Participant is
terminated for any reason prior to his or her Vesting Date, no
benefit shall be payable under the Restoration Plan.
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Amount of Benefit Provided Under Restoration
Plan |
The monthly benefit payable
under this Restoration Plan to or on behalf of a Participant whose
employment with the Employer is terminated for any reason on or
after his or her Vesting Date shall be an amount equal to the
lesser of:
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(i) |
the monthly benefit, if any, that would have been payable to
such Participant, or on his or her behalf to the
Participant’s Beneficiary or Beneficiaries, as of his or her
date of termination of employment with the Employer under the Basic
Plan as then in effect, if (aa) the provisions of the Basic Plan
had been administered without regard to the limitations imposed by
Code Section 415 and without the limitation imposed by Code
Section 401(a)(17) on the amount of his or her Compensation
under the Basic Plan, (bb) the Participant’s Compensation for
a given calendar year were equal to his or her Covered Compensation
for such calendar year, and (cc) benefit accruals under the Basic
Plan (including determinations of the Participant’s Credited
Service, Final Average Monthly Compensation, and Accrued Deferred
Monthly Retirement Income Commencing at Normal Retirement Date) had
not been frozen as of December 31, 1998; |
minus
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(ii) |
the monthly benefit that is actually payable to such
Participant, or on his or her behalf to the Participant’s
Beneficiary or Beneficiaries, as of his or her date of termination
of employment with the Employer, under the Basic Plan as then in
effect; |
OR
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(i) |
50% of the Participant’s average monthly Covered
Compensation, for the five successive calendar years out of the 10
completed calendar years immediately preceding the first day of the
month coincident with or next following his or her date of
termination of employment that give the highest average monthly
rate; |
minus
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(ii) |
the monthly benefit that is actually payable to such
Participant, or on his or her behalf to the Participant’s
Beneficiary or Beneficiaries, as of his or her date of termination
of employment with the Employer, under the Basic Plan as then in
effect. |
Provided, however, in the event that the
Participant’s Basic Plan benefits are increased after the
date of commencement of the Participant’s benefits under the
Basic Plan due to any cost-of-living adjustment announced by the
Internal Revenue Service pursuant to the provisions of Code
Section 415(d) or for any other reason, and any such increase
would cause a reduction in the amount determined under the above
provisions of this section, the amount of the benefits payable to
or on behalf of the Participant under this Restoration Plan on and
after the date of such increase shall be correspondingly
reduced.
The benefit payable to or on
behalf of the Participant under this Restoration Plan shall be the
amount determined under the above provisions of this section in
which, for all years of the Participant’s employment,
“Covered Compensation” shall include the amount of
bonus the Participant would have received in cash had that
Participant not elected to receive such bonus in the form of
restricted stock; however, for purposes of distribution of amounts
earned and vested before January 1, 2005, the amount of the
benefits payable to or on behalf of the Participant shall be the
amount determined using a definition of “Covered
Compensation” that shall not include any amount of bonus
deferred as restricted stock.
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Timing and Form of Payments of Restoration Plan
Benefit |
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(a) |
Amounts Not Subject to Code Section 409A |
For amounts earned and vested
before January 1, 2005, such amounts shall be
“grandfathered” and not subject to Code
Section 409A, and shall be governed by the terms of this
Restoration Plan in effect prior to January 1, 2008. The
benefit payable
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to a Participant, or on his
or her behalf to the Participant’s Beneficiary, under this
Restoration Plan shall be payable coincident with and in the same
manner as the payment of the benefits to such Participant or
Beneficiary under the Basic Plan; provided, however, that if a
Participant in this Restoration Plan is not a participant in the
Basic Plan, then the benefit payable to such Participant under this
Restoration Plan shall be paid or commence as of the earliest date
that a benefit would have been payable to the Participant under the
Basic Plan (if he were participating in the Basic Plan) and shall
be paid in the normal form of payment provided under the Basic Plan
unless such Participant elects, in writing prior to the
commencement of payment, to receive his benefit under this
Restoration Plan in an optional form provided under the Basic Plan,
in which case the benefit under this Restoration Plan shall be paid
in such optional form and shall be subject to the same adjustment
factors as are used under the Basic Plan to convert the normal form
to such optional form. In the event that a Participant’s
benefits under the Basic Plan commence prior to his or her date of
termination of employment with the Employer, the
Participant’s benefit under this Restoration Plan, for the
period the Participant remains employed with the Employer, shall be
determined as though his or her employment had terminated on the
date of commencement of his or her benefits
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