Exhibit
10.28
OWENS CORNING
EXECUTIVE SUPPLEMENTAL BENEFIT PLAN
2009 Restatement
This 2009 Restatement of the
Executive Supplemental Benefit Plan, as amended and restated
effective as of January 1, 2009, provides individuals
participating in the Plan with the full retirement benefits which
they would have accrued under the Retirement Plan by reason of
their employment with the Company, which cannot be paid from the
Retirement Plan due to the limits placed on the payment of such
benefits by the Internal Revenue Code of 1986, as
amended.
I. DEFINITIONS
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1.1
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“Actuarial
Equivalent” shall mean the method of determining benefit
equivalence, as defined in the Retirement Plan.
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1.2
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“Administrator”
shall mean such person as has been designated from time to time as
the Administrator of the Retirement Plan.
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1.3
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“Board
of Directors” shall mean the Board of Directors of Owens
Corning.
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1.4
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“Code”
shall mean the Internal Revenue Code of 1986, as
amended.
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1.5
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“Company”
shall mean Owens Corning, a Delaware corporation, and subsidiaries
whose employees participate in the Retirement Plan.
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1.6
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“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as
amended.
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1.7
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“Participant”
shall mean any individual who becomes eligible to participate in
the Plan.
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1.8
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“Retirement
Plan” shall mean the Owens Corning Cash Balance Pension Plan,
which is part of the Owens Corning Merged Retirement Plan and is
set forth in Attachment 1 to the Owens Corning Merged Retirement
Plan, as amended.
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1.9
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“Plan”
shall mean this Executive Supplemental Benefit Plan, as
amended.
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1.10
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“Separation
from service” as used herein shall mean termination of active
employment from the Company.
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1.11
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“Supplemental
Benefit” shall mean any benefit payable under Article III of
the Plan.
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II. PLAN
PARTICIPATION
Any individual who participates in
the Retirement Plan and accrues benefits thereunder which cannot be
paid because of the application of Code section 401(a)(17) or 415
shall be a Participant in the Plan. A Participant becomes initially
eligible to participate in the Plan as of the first day of the Plan
year immediately following the first year in which the Participant
accrues a benefit under the Plan. An initial election with respect
to the timing and form of the benefit under the Plan shall then be
made within 30 days after that date and shall be applicable to all
accrued amounts including those accrued in the year immediately
preceding the year in which the election is made. For those
participant for which the initial election rule does not apply they
shall be deemed to have elected the default timing and form of
benefits and receive payment of their benefits upon separation from
service in the form of a lump sum payment.
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III. BENEFITS
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3.1
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Retirement
Benefits . A
Participant entitled to receive a benefit under the Retirement Plan
shall be paid a Supplemental Benefit in an amount equal to the
excess of (1) the benefit, as computed under the Retirement
Plan without regard to limits imposed by Code sections 401(a)(17)
and 415, over (ii) the benefit which is actually paid or
payable under the terms of the Retirement Plan.
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3.2
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Pre-Retirement
Death Benefits . If a
Participant entitled to receive a benefit under the Retirement Plan
dies prior to commencement of such benefits, his or her surviving
spouse or other beneficiary who is entitled to receive a death
benefit computed and made payable under Article VI of the
Retirement Plan shall be paid a Supplemental Benefit in an amount
equal to the excess of (i) the death benefit, as computed
under Article VI of the Retirement Plan without regard to limits
imposed by Code sections 401(a)(17) and 415, over (ii) the
death benefit actually paid or payable under the terms of Article
VI of the Retirement Plan.
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3.3
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Survivors
and Beneficiaries .
Payment to a Participant shall include payment on account of said
Participant to his estate, beneficiary or survivor.
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IV. PAYMENT OF SUPPLEMENTAL
BENEFITS
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4.1
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Payment
in Cash from General Company Assets .
Except as otherwise determined by the Compensation Committee of the
Board of Directors, Supplemental Benefits shall be paid at the time
selected by the Participant in a Non-Qualified Retirement Pay
Election Form (“Election Form”) completed within the
time frame set forth in Article II above. If no such Election Form
is completed, then benefits under the Plan shall be paid within 60
days following separation from service. Benefits shall also be
payable upon within 60 days following death or disability or upon a
change of control.
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4.2
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Notwithstanding
the foregoing, payment of benefits is subject to a special rule for
separation from service of any “specified employee”
under Code Section 409A. Specifically, for any specified
employee, the payment of benefits under the Plan and consistent
with their completed Election Form cannot be made before the
earlier of: (1) the date that is six months after the date of
the specified employee’s separation from service; or
(2) the date of the specified employee’s
death.
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4.3
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For
those employees whose payment of benefits is subject to the six
month delay for specified employees or deferred pursuant to their
Election Form beyond the 60 day period following their separation
from service, the benefit amount at the time of actual payment
shall include interest attributable for the period following their
separation from service to until the later payment date. Such
interest shall be credited at the Cash Balance Plan Credit Rate
under the Owens Corning Merged Retirement Plan.
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4.4
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Form
of Payment . All
Supplemental Benefits are to be paid in the form of payment
selected by the Participant in a valid and complete Election Form,
completed within the time frame set forth in Article II above. If
no such Election Form is completed, then benefits under the Plan
shall be paid in an Actuarial Equivalent lump sum.
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V. FORFEITURE OF SUPPLEMENTAL
BENEFITS
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5.1
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Disclosure of Proprietary
Information . The
Supplemental Benefits otherwise payable under the terms of this
Plan shall be forfeited and the Company and the Plan shall have no
additional liability if a Participant discloses, divulges,
publishes’ or otherwise reveals either directly or through
another, to any person, firm or corporation, any knowledge or
information concerning
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2
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any Company inventions, devices,
technical data, strategic plans (business and technical), or
financial data (including any data classified as “Secret and
Proprietary Information”), which knowledge or information has
in any way been disclosed to or acquired by the Participant during
the term of his employment with the Company. Such knowledge or
information shall not include knowledge or i
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