Exhibit 10.46
The Fisher-Price Excess Benefit
Plan
The Fisher-Price Excess Benefit Plan
(the “ Plan ”) is continued with this document.
The Plan was originally established June 28, 1991. Following a
corporate reorganization in January, 1995, the Plan was continued
by the newly formed and renamed corporate entities now known as
Fisher-Price, Inc. and Mattel Operations, Inc. Beginning in
January, 1998, the Plan was extended to Tyco Preschool, Inc. upon
the inclusion of Tyco Preschool, Inc. as a covered employer under
the Fisher-Price Pension Plan, as amended from time to time (the
“ Pension Plan ”). The term “
Company ” as used in the Plan shall refer to each
employer that has adopted and has employees participating in the
Pension Plan. As a result of the enactment in 2004 of
Section 409A of the Internal Revenue Code of 1986, as amended
(the “ Code ”), and the regulations and other
guidance promulgated thereunder (“ Section 409A
”), the Company wishes to amend and restate the Plan
effective as of January 1, 2009 to conform the written terms
of the Plan to the requirements of Section 409A.
The Plan is intended to be an
unfunded “excess benefit plan” within the meaning of
Sections 3(36) and 4(b)(5) of the Employee Retirement Income
Security Act of 1974, as amended (“ ERISA ”);
provided, however , that, to the extent, if any, that the
Plan provides benefits which cannot be provided by an “excess
benefit plan,” the Plan shall be considered and interpreted
in all respects as an unfunded “top-hat” plan
maintained primarily to provide deferred compensation benefits 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
and therefore to be exempt from Parts 2, 3 and 4 of Subtitle B of
Title I of ERISA to the maximum extent permissible under the
provisions thereof. The purpose of the Plan is to provide benefits
to certain participants in the Pension Plan in excess of the
compensation limitation under Section 401(a)(17) of the Code
(“ Section 401(a)(17) ”) or the limitations on
benefits imposed by Section 415 of the Code (“
Section 415 ”) and to make up for any loss in
benefit under the Pension Plan as a result of the deferral of
compensation by the Participant pursuant to a non-qualified
deferred compensation plan.
Fisher-Price, Inc., on behalf of
itself and the other Companies participating in the Pension Plan,
hereby continues the terms and provisions of the Plan by restating
the Plan as follows:
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1.
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Each term used
in the Plan and also used in the Pension Plan shall have the same
meaning herein as under the Pension Plan.
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2.
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If a
Participant shall be entitled to receive a retirement benefit under
the Pension Plan, the Participant will be entitled to a benefit
payable under the Plan equal to:
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(a)
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the Participant’s accrued
monthly pension benefit (as calculated under the Pension Plan using
the actuarial assumptions and methods then used under the Pension
Plan) that such Participant would have been paid under the Pension
Plan upon normal retirement (i) without regard to the
limitation on benefits imposed by Section 401(a)(17) or
Section 415 and (ii) by including any deferral of
compensation by the Participant pursuant to a nonqualified deferred
compensation plan as compensation for purposes of the Pension Plan,
at the time such deferrals would have been paid absent
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the deferral, provided that had the
compensation been paid to the Participant it would have been
treated as compensation for purposes of the Pension Plan,
regardless of whether such amounts are includable in the
Participant’s gross income;
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(b)
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the
Participant’s accrued monthly pension benefit under the
Pension Plan.
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Subject to the following paragraph,
such amount shall be paid upon the later of (i) a
Participant’s “separation from service” within
the meaning of Treas. Reg. §1.409A-1(h), whether voluntary or
involuntary and (ii) the Participant’s attainment of age
55; provided, however , that if a Participant is a
“specified employee” (within the meaning of
Section 409A(a)(2)(B)(i) of the Code) as of the date of the
Participant’s “separation from service” and the
benefit under the Plan becomes payable as a result of such
“separation from service,”
