EXHIBIT 10.31
SPEEDWAY SUPERAMERICA
LLC
EXCESS BENEFIT
PLAN
Amended and Restated As
Of
January 1, 2009
EXCESS BENEFIT
PLAN
ARTICLE I.
Purpose
This Plan, formerly known as the
Emro Marketing Company Excess Benefit Plan, was amended and
restated to become the Speedway SuperAmerica LLC Excess Benefit
Plan effective January 1, 1999 and to include amendments made
to the plan effective January 1, 1997 relating to the
provision of additional benefits for amounts deferred under the
Company’s existing and former deferred compensation plans as
well as amendments made to recognize non-consecutive bonuses in
calculating Final Average Pay. The purpose of this Plan is to
compensate employees for the loss of benefits under the Speedway
SuperAmerica LLC Retirement Plan (the “Retirement
Plan”, formerly the Retail Sub-Plan of the Marathon Ashland
Petroleum Retirement Plan) due to certain limits placed by the
Internal Revenue Code (“Code”) and in certain cases to
provide benefits relating to compensation updates under the
provisions of that Plan relating to the former Petroleum Marketing
Retirement Plan which was merged into the Retirement Plan but which
are unavailable under the qualified plan due to certain Code
limitations.
Effective January 1, 2009, this
document is restated and shall apply only to benefits that are not
fully distributed as of such date, including both 409A Accruals and
Grandfathered Accruals. With respect to the 409A Accruals, the
Excess Benefit Plan, as amended and restated, is intended to
conform to the requirements of Code section 409A, and, in all
respects, shall be administered and construed in accordance with
such requirements. With respect to the Grandfathered Accruals, the
Excess Benefit Plan, as amended and restated, does not represent a
material enhancement of the benefits or rights available under the
Excess Benefit Plan on October 3, 2004.
This Excess Benefit Plan sets forth
the terms and conditions under which benefits designed to
compensate Employees for the aforementioned losses of benefits
shall be accrued and paid by the applicable Employer. Capitalized
terms, unless otherwise specified, are defined under the Retirement
Plan. In addition, for purposes of this Article I and the remainder
of this Plan, the following definitions apply:
“ 409A Accruals ”
means those benefits that were accrued after or became vested after
2004, as adjusted for interest or changes in present value, as
applicable. Such amounts shall be determined in accordance with
Code section 409A.
“ Code ” means
the Internal Revenue Code.
“ Code section 409A
” means section 409A of the Code and any Treasury and
Internal Revenue Service regulations and guidance issued
thereunder.
“ Company ” means
Speedway SuperAmerica LLC.
“ Employee ”
means any individual employed by an Employer.
“ Employer ” includes the
Company and each related company or business which is part of the
same controlled group under Code sections 414(b) or 414(c);
provided that where specified by the Employer in accordance with
Code section 409A in applying Code section 1563(a)(1) –
(a)(3) for purposes of determining a controlled group of
corporations under Code section 414(b) and in applying Treasury
Regulation section 1.414(c)-2 for purposes of determining whether
trades or businesses are under common control under Code section
414(c), the phrase “at least 50 percent” is used
instead of “at least 80 percent.” In addition, the term
“Employer” shall also include any entity that
previously met the requirements of an “Employer” as set
forth herein that continues to employ a Participant to the extent
so designated by the Plan Administrator.
“ Excess Benefit Plan
” means the Speedway SuperAmerica LLC Excess Benefit
Plan.
“ Grandfathered
Accruals ” means those benefits that are exempt from Code
section 409A because they were accrued and vested before
January 1, 2005, as adjusted for interest or changes in
present value, as applicable. Such amounts shall be determined in
accordance with Code section 409A.
“ Retirement Plan
” means the Speedway SuperAmerica LLC Retirement
Plan.
“ Separation from
Service ” shall have the same meaning as set forth under
Code section 409A with respect to an Employer.
“ Specified Employee
” shall have the meaning as set forth under Code section 409A
and as determined by the Employer in accordance with its
established policy.
ARTICLE II.
Eligibility
The following individuals are
eligible to accrue Excess Benefit Plan benefits:
Every individual who qualifies for a
benefit under the terms of the Retirement Plan and (1) whose
benefit under the Retirement Plan is reduced due to salary
deferrals under the Speedway SuperAmerica LLC Deferred Compensation
Plan or any similar plan maintained by the Employer or by either
Code section 415 or the annual compensation limit as set forth
under Code section 401(a)(17) (collectively, the “Defined
Benefit Limits”), (2) would accrue a Special Excess
Bonus Recognition benefit as set forth in section 3.1(b) hereof and
is designated by the Plan Administrator, or (3) who is
eligible to receive compensation updates under the Retirement Plan
(relating to the Petroleum Marketing Retirement Plan which was
merged into the Retirement Plan) which are unavailable under the
Retirement Plan due to certain Code limitations.
Every individual who is eligible to
receive benefits under this Excess Benefit Plan by reason of his or
her active employment with an Employer shall be known as a
Participant. Every individual who becomes eligible to receive
benefits under this Excess Benefit Plan in the event of the death
of a Participant shall be known as a Beneficiary.
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The Beneficiary of a Participant under this
Excess Benefit Plan shall be such Beneficiary as may be provided
under Section 3.3(b).
ARTICLE III. Excess
Benefits
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3.1
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Amount of
Excess Benefit
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The amount of a Participant’s
benefit under this Section 3.1 (the “Excess
Benefit”) shall be determined as of the Participant’s
Separation from Service, as follows:
(a) The amount of Excess Benefit
which a Participant or Beneficiary (as defined in
Section 3.3(b)) is entitled to receive shall be equal to the
excess of (1) over (2) below:
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(1)
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The amount of
benefit which such Participant or Beneficiary would be entitled to
receive under the Retirement Plan if such benefit were computed
without giving effect to the Defined Benefit Limitations and
including elected deferred compensation contributions as permitted
under the Speedway SuperAmerica LLC Deferred Compensation Plan or
any similar plan maintained by the Employer; less
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(2)
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The amount of
benefit which such Participant or Beneficiary is entitled to
receive under the Retirement Plan.
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(b) The following individuals shall
be entitled to an additional Excess Benefit equal to the difference
between (1) and (2) below (“Special Excess Bonus
Recognition”): (i) Eligible Grandfather Employees; and
(ii) after November 1, 2006, any Grade 19 and above
employee of Speedway SuperAmerica LLC, who is recommended by the
Vice President of Human Resources of Marathon Oil Corporation and
approved by the President of Marathon Oil Corporation.
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(1)
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An amount
calculated under the Retirement Plan benefit formula, without
regard to any Code mandated limitations (including, but not limited
to, the Defined Benefit Limits) and including elected deferred
compensation contributions as permitted under the Speedway
SuperAmerica LLC Deferred Compensation Plan or any similar plan
maintained by the Employer, and substituting the following Final
Average Pay (FAP) definition for the definition of “Final
Average Pay” contained in the Retirement Plan:
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Final Average Pay shall be the
highest pay, excluding bonuses, of a member for any consecutive
36-month period during the last ten years of employment plus the
highest three bonuses paid out of the last 10 years (not
necessarily consecutive), divided by 36.
Page 3
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(2)
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An amount as
normally determined under the Retirement Plan, plus any retirement
benefit otherwise payable under the Excess Benefit Plan (
i.e. , exclusive of any benefits attributable to the
calculation in Section 3.1(b)(1) above).
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For purposes of the calculations in
(1) and (2) of this Section 3.1(b) “Eligible
Grandfather Employee” means any Speedway SuperAmerica Grade
19 employee eligible for Special Excess Bonus Recognition under
Article III, Section A of this Plan prior to November 1, 2006.
However, an individual’s Eligible Grandfather Employee status
shall permanently cease upon termination, retirement, or death as
an employee.
(c) Compensation updates under the
provisions of the Retirement Plan (relating to the Petroleum
Marketing Retirement Plan which was merged into the Retirement
Plan) which are unavailable under the Retirement Plan due to
certain Code limitations.
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3.2
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Payment of
Excess Benefit
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A Participant shall be entitled to a
cash distribution of the Participant’s Excess Benefit as
provided in this Section 3.2.
(a) Except as otherwise provided in
this Section 3.2, a Participant’s Excess Benefit shall
be paid in a lump sum within 90 days of Separation from Service for
any reason other than death.
(b) In the event of the death of a
Participant, the Participant’s Excess Benefit shall be paid
to the Participant’s applicable Beneficiary in a lump sum
within 90 days of the Participant’s death or, if earlier,
within the 90-day period following the Participant’s
Separation from Service as described in Section 3.2(a) (or, in
the event of a Separation from Service of a Specified Employee (as
defined below) not on account of death, the 90-day period described
in Section 3.2(c)). The Participant’s
“Beneficiary” shall be designated in accordance with
guidelines established by the Plan Administrator. Each Participant
shall have the right to designate, or to rescind or change the
designation of, a primary and a contingent Beneficiary to receive
benefits payable in the event of the Participant’s death.
Such designation, or rescission or change of designation, shall be
made in writing and shall be filed with the Plan Administrator. The
designation, rescission, or change of designation shall be
effective as of the date filed with the Plan Administrator and
shall be controlling over any disposition by will or otherwise. In
the event there shall be no Beneficiary so designated by such
Participant living at the time of such Participant’s death,
then and in either of said events, any such benefits shall be paid
to the person or persons comprising the first surviving class of
the following classes: (1) the Participant’s surviving
spouse; (2) the Participant’s surviving natural born and
legally adopted children; (3) the Participant’s surviving
parents; (4) the Participant’s surviving brothers and
sisters; and (5) the executor or administrator of the
Participant’s estate.
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(c) Distribution of the Excess
Benefit of a Participant who the Plan Administrator determines is a
Specified Employee (other than such Participant’s
Grandfathered Accruals) shall be paid in a lump sum within the
90-day period following the first of the month following 6 months
after Separation from Service (other than a Separation from Service
on account of the death of Participant). In the event of a
Separation from Service of a Specified Employee on account of
death, payment shall be made pursuant to Section 3.2(b).
Payment of a Specified Employee’s Grandfathered Accruals
shall be made in accordance with Section 3.2(a).
(d) A Participant must be vested
under the Retirement Plan in order for an Excess Benefit to be
payable. The amount of any lump sum payment hereunder shall be
determined by using the same factors and assumptions which would be
used by the Retirement Plan for such Participant or Beneficiary at
the Participant’s Separation from Service. The balance of any
Excess Benefit not paid at the Participant’s Separation from
Service shall accrue interest beginning at the Participant’s
Separation from Service at a rate used under the Retirement Plan to
determine the actuarial equivalent lump sum of a life only monthly
annuity.
(e) Distributions of 409A Accruals
prior to January 1, 2009 were made under reasonable good faith
interpretations of Code section 409A and transition guidance
provided thereunder. Notwithstanding any contrary provisions of
this Section 3.2, to the extent the Plan Administrator
permitted a Participant to submit an election to receive payment in
a form of distribution other than a lump sum and su
