Exhibit 10.1
H AWKER B EECHCRAFT
C ORPORATION A MENDED AND
R ESTATED E XCESS P ENSION
P LAN
HAWKER BEECHCRAFT CORPORATION
AMENDED
AND RESTATED EXCESS PENSION
PLAN
Table of
Contents
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Page
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ARTICLE I – PURPOSE
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1
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Section 1.01.
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Purpose
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1
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ARTICLE II – DEFINITIONS
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1
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Section 2.01.
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Affiliated
Company(ies)
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1
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Section 2.02.
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Beneficiary(ies)
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2
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Section 2.03.
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Board of
Directors
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2
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Section 2.04.
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Code
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2
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Section 2.05.
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Company
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2
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Section 2.06.
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Effective
Date
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2
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Section 2.07.
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Employee
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2
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Section 2.08.
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Employer
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2
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Section 2.09.
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ERISA
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2
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Section 2.10.
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Participant
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2
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Section 2.11.
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Plan
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2
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Section 2.12.
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Plan
Administrator
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2
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Section 2.13.
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Plan
Year
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2
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Section 2.14.
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Qualified
Retirement Plan
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2
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Section 2.15.
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Separation from
Service
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3
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Section 2.16.
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Sole
Discretion
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3
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Section 2.17.
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Specified
Employee
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3
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Section 2.18.
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Termination for
Cause
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3
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Section 2.19.
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Vested
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3
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ARTICLE III – ELIGIBILITY
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3
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Section 3.01.
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Eligibility
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3
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ARTICLE IV – BENEFITS
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4
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Section 4.01.
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Benefits
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4
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Section 4.02.
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Payment
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4
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Section 4.03.
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Beneficiary
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5
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ARTICLE V – CONDITIONS
PRECEDENT
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5
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Section 5.01.
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Conditions
Precedent
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5
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-i-
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ARTICLE VI – SOURCE OF
BENEFITS
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5
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Section 6.01.
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Source of
Benefits
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5
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Section 6.02.
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Multiple
Employers
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6
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ARTICLE VII –
ADMINISTRATION
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6
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Section 7.01.
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Plan
Administrator
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6
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Section 7.02.
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Reliance on
Certificates, etc.
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6
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ARTICLE VIII – AMENDMENT AND
TERMINATION
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6
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Section 8.01.
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Amendment
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6
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Section 8.02.
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Termination
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7
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ARTICLE IX – RESTRICTIONS ON
ALIENATION
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7
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Section 9.01.
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Restrictions on
Alienation
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7
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ARTICLE X – CLAIMS
PROCEDURES
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7
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Section 10.01.
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Claims
Procedures
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7
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Section 10.02.
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Litigation of
Claim
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8
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ARTICLE XI – MISCELLANEOUS
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9
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Section 11.01.
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Effective
Date
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9
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Section 11.02.
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No Guarantee of
Interests
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9
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Section 11.03.
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Payments Net of
Withholding
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9
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Section 11.04.
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Binding on
Successors
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9
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Section 11.05.
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Adoption by
Other Employers
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9
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Section 11.06.
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Minors and
Incompetents
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9
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Section 11.07.
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Erroneous
Payments
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9
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Section 11.08.
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Headings
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9
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Section 11.09.
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Notices
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10
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Section 11.10.
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Severability
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10
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Section 11.11.
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No Contract of
Employment
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10
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Section 11.12.
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Certain
Limitations
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10
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Section 11.13.
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Governing
Law
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10
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Section 11.14.
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Nonexclusivity
of the Plan
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10
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Section 11.15.
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No
Acceleration
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10
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Section 11.16.
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FICA Tax
Liability
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10
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-ii-
HAWKER BEECHCRAFT CORPORATION
AMENDED
AND RESTATED EXCESS PENSION
PLAN
W
I T N
E S S E T H :
That;
WHEREAS, the Employer provides specified unfunded
deferred compensation benefits to eligible individuals pursuant to
the Hawker Beechcraft Corporation Excess Pension Plan (the
“Plan”), which Plan has been effective since
March 26, 2007; and
WHEREAS, it has become desirable to adopt a new plan
document for the Plan; and
WHEREAS, the Board of Directors of the Company has
reviewed the terms and provisions hereof and found them
satisfactory.
NOW, THEREFORE,
effective as of the Effective Date,
the Company hereby adopts this plan document. From and after the
Effective Date, the Plan will be known as the “Hawker
Beechcraft Corporation Amended and Restated Excess Pension
Plan.” The terms of this plan document will apply to any
individual first becoming eligible for benefits under the Plan on
or after the Effective Date.
ARTICLE I –
PURPOSE
Section 1.01. Purpose .
The purpose of the Plan is to provide specified unfunded deferred
compensation benefits for individuals who are eligible to
participate in the Plan. It is the intention of the Company that
this Plan be administered as an unfunded plan of deferred
compensation for income-tax purposes and as an unfunded employee
benefit plan established and maintained primarily for a select
group of management or highly compensated employees within the
meaning of Sections 201(2), 301(a)(3), and 401(a)(1) of
ERISA.
ARTICLE II –
DEFINITIONS
For purposes of this Plan, the
following phrases or terms will have the following meanings, unless
otherwise clearly apparent from the context.
Section 2.01. Affiliated
Company(ies) means each entity that has a relationship to the
Employer as described by Section 414(b), (c), or (m) of
the Code.
For purposes of determining whether
a Participant has incurred a Separation from Service, the foregoing
provisions of Code Sections 414(b) and 414(c) will be applied by
substituting the phrase “more than 50%” for the phrase
“at least 80%” in each place it appears in Code
Section 1563(a)(1), (2), and (3) and in each place it
appears in Treasury Regulation Section 1.414(c)-2.
-1-
Section 2.02.
Beneficiary(ies) means the person(s) or entity(ies) entitled
to receive any benefits under this Plan pursuant to the designation
of a Participant (or in default of such designation), as provided
in Section 4.03 hereof.
Section 2.03. Board of
Directors means the board of directors of the
Company.
Section 2.04. Code means
the Internal Revenue Code of 1986, as amended.
Section 2.05. Company
means Hawker Beechcraft Corporation, or its successor.
Section 2.06. Effective
Date means January 1, 2009.
Section 2.07. Employee
means an individual who is employed and compensated (by (i) a
payroll check issued directly from the Employer or Employer agent
to the individual, (ii) direct payroll deposit made to the
individual’s account by the Employer or Employer agent, or
(iii) other similar means of direct payment by the Employer or
Employer agent, such as electronic pay card or debit card) by the
Employer. In no event will the term “Employee” include
any individual classified, treated, or otherwise characterized by
the Employer as an independent contractor, consultant, leased
employee, temporary agency employee, or otherwise not treated by
the Employer as an “Employee” for purposes of this
Plan.
Section 2.08. Employer
means the Company and any Affiliated Company that adopts this
Plan.
Section 2.09. ERISA
means the Employee Retirement Income Security Act of 1974, as
amended.
Section 2.10.
Participant means an individual who is eligible to
participate in this Plan in accordance with Section 3.01
hereof. Where the context requires, the term
“Participant” also will include a former
Participant.
Section 2.11. Plan means
this Hawker Beechcraft Corporation Amended and Restated Excess
Pension Plan, as amended.
Section 2.12. Plan
Administrator means the Company or the person(s) designated by
the Company to administer this Plan. The Plan Administrator may be
a committee of two or more individuals. If a committee is
appointed, it will operate under such rules and procedures as the
Board of Directors may designate or approve from time to
time.
Section 2.13. Plan Year
means the 12-month period commencing January 1 each
year.
Section 2.14. Qualified
Retirement Plan means the Hawker Beechcraft Corporation
Retirement Income Plan for Salaried Employees, as amended, and any
successor to such plan.
-2-
Section 2.15. Separation
from Service means the Participant’s termination of
employment with the Employer and all Affiliated Companies. The term
includes, but is not limited to, terminations of employment which
arise from the Participant’s death, disability, retirement,
discharge (with or without cause), or voluntary termination. The
term does not include any temporary absences due to vacation,
sickness, or other leaves of absence granted to the Participant by
the Employer. A Separation from Service will not be deemed to occur
upon a transfer involving any combination of the Employer and any
Affiliated Company. The Plan Administrator will determine, in its
Sole Discretion, whether and under what circumstances the
Participant has incurred a Separation from Service.
Section 2.16. Sole
Discretion means the right and power to decide a matter, which
right may be exercised arbitrarily at any time and from time to
time.
Section 2.17. Specified
Employee means, at any time any stock of a corporation is
publicly traded on an established securities market or otherwise,
each individual who is either (i) an officer of the
corporation having annual compensation greater than $130,000 (as
adjusted for cost-of-living increases in accordance with Code
Section 416(i)(1)(A) and Code Section 415(d)),
(ii) a 5% owner of the corporation, or (iii) a 1% owner
of the corporation having annual compensation from the corporation
of more than $150,000. For purposes of determining an
individual’s percentage ownership in the corporation, the
constructive-ownership rules described in Code
Section 416(i)(1)(B) will apply.
The determination of whether an
individual is a Specified Employee will be made by the Plan
Administrator in accordance with regulations issued under Code
Section 409A and other available guidance.
Section 2.18. Termination
for Cause means, with respect to a Participant, a Separation
from Service involving (i) breach of fiduciary duty with
respect to the Employer; (ii) material breach of any provision
of an employment contract; (iii) the commission of a felony
crime or crime involving moral turpitude; (iv) theft, fraud,
misappropriation, or embezzlement (or suspicion of the same);
(v) willful violation of any federal, state, or local law
(except traffic violations and other similar matters not involving
moral turpitude); or (vi) refusal to obey any direction of the
Participant’s supervisor or the governing body of the
Employer. The Plan Administrator will determine, in its Sole
Discretion, whether, for purposes of the Plan, a Participant has
incurred a Separation from Service that is a Termination for
Cause.
Section 2.19. Vested
means, with respect to a Participant, that the Participant has a
nonforefeitable right to the Participant’s accrued benefit
under the Qualified Retirement Plan.
ARTICLE III –
ELIGIBILITY
Section 3.01.
Eligibility . Any Employee who is a participant in the
Qualified Retirement Plan and whose benefit under the Qualified
Retirement Plan is limited by Code Section 401(a)(17) and/or
Code Section 415 will become a Participant in this
Plan.
-3-
ARTICLE IV –
BENEFITS
Section 4.01. Benefits .
Upon incurring a Separation from Service, if a Participant is
Vested, then, subject to Article V, the amount of the
Participant’s benefit under this Plan (if any) will be equal
to A. minus B. where:
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A.
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Equals the
Vested benefit that would have been payable in the normal form of
benefit payment under the Qualified Retirement Plan, determined as
if the limitations of Code Section 401(a)(17) and Code
Section 415 had not been imposed under the terms of the
Qualified Retirement Plan.
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B.
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Equals the
Vested benefit payable in the normal form of benefit payment under
the Qualified Retirement Plan, determined utilizing the limitations
of Code Section 401(a)(17) and Code
Section 415.
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As of the date payment is to
com