Exhibit 10.56
WYETH
EXECUTIVE RETIREMENT PLAN
(amended and restated effective as
of January 1, 2005)
PURPOSE
The purpose of the Plan is to
provide competitive executive retirement benefits for key
executives and to enhance the ability of the Company to attract and
retain key senior executives. The Plan is intended to constitute an
unfunded deferred compensation plan for a select group of
management or highly compensated employees within the meaning of
ERISA, and shall be construed and administered
accordingly.
The Plan is an amendment and
restatement of the Prior Plan, effective as of the Restatement
Date.
Capitalized terms not otherwise
defined in the text hereof shall have the meanings set forth in
Section 1.
SECTION 1 DEFINITIONS
1.1 Rules of Construction .
Except where the context indicates otherwise, any masculine
terminology used herein shall also include the feminine gender, and
the definition of any term herein in the singular shall also
include the plural. All references to sections and appendices are,
unless otherwise indicated, to sections or appendices of the
Plan.
1.2 Terms Defined in the Plan
. Whenever used herein, the following terms shall have the meanings
set forth below:
(a) “ 25, 50, 75 or 100%
Joint and Survivor Annuity ” has the meaning set forth in
Section 5.6(a)(2).
(b) “ 409A Benefit
” has the meaning set forth in
Section 4.5(b).
(c) “ Administrative Record
Keeper ” means the person or persons designated by the
Committee in accordance with Section 2.
(d) “ Affiliate ”
means any corporation which is included in a controlled group of
corporations (within the meaning of Section 414(b) of the
Code) which includes Wyeth and any trade or business (whether or
not incorporated) which is under common control with Wyeth (within
the meaning of Section 414(c) of the Code); provided ,
however , that in applying Section 1563(a)(1), (2), and
(3) of the Code for purposes of determining a controlled group
of corporations under Section 414(b) of the Code the language
“at least 50 percent” shall be used instead of
“at least 80 percent” in each place it appears in
Section 1563(a)(1), (2) and (3) of the Code, and in
applying Section 1.414(c)-2 of the Treasury Regulations, for
purposes of determining trades or businesses (whether or not
incorporated) that are under common control for purposes of
Section 414(c) of the Code, “at least 50 percent”
shall be used instead of “at least 80 percent” in
each place it appears in Section 1.414(c)-2 of the Treasury
Regulations.
(e) “
Annual Pension Earnings ” means the sum of a
Participant’s (i) base salary rate (without regard to
salary deferral contributions subject to Section 401(k) of the
Code and elective contributions to a plan subject to Sections 125
and 132(f) of the Code) as of January 1
st
of each calendar
year and (ii) any cash bonuses paid by the Company in such
calendar year in each case calculated as if (A) the
Participant’s compensation for each calendar year included
the Participant’s Deferrals for each such year and
(B) the Code Limits did not apply.
(f) “ Beneficiary
” means, with respect to death benefits payable under
Sections 5.2(c), 5.3(e), 5.6(a)(3), 5.6(a)(4) and 5.7, as
applicable, a Participant’s Surviving Spouse or, if there is
no Surviving Spouse, the Participant’s estate. Participants
shall not be permitted or required to make Beneficiary designations
under the Plan. If the Surviving Spouse of a Participant is legally
impaired or prohibited from receiving any amounts under the Plan
otherwise payable to a Beneficiary, the Participant’s
Beneficiary shall be the Participant’s estate. The term
Beneficiary shall not refer to any “contingent
annuitant” applicable to a Participant in connection with a
Payment Form.
(g) “ Board of
Directors ” means the Board of Directors of Wyeth (or any
committee of the Board of Directors to whom the Board of Directors
delegates, from time to time, its authority hereunder).
(h) “ Business Day
” means each day on which the New York Stock Exchange is open
for business.
(i) “ Claimant ”
has the meaning set forth in Section 8.1.
(j) “ Code ”
means the Internal Revenue Code of 1986, as amended, and any
applicable rulings and regulations promulgated
thereunder.
(k) “ Code Limits
” means Sections 401(a)(17) and 415 of the Code and any other
provisions of the Code which limit the amount of benefits that a
Participant may accrue or receive under or from the Retirement
Plan.
(l) “ Committee ”
means the Compensation and Benefits Committee of the Board of
Directors and any successor thereto.
(m) “ Company ”
means Wyeth and its Affiliates.
(n) “ Company Non-Account
Plan ” means any arrangement sponsored by the Company,
other than the Plan, that is a “non-account balance
plan,” as such term is defined under Section 409A and
that is required to be aggregated with the Plan under Treasury
Regulation 1.409A-1(c)(2)(C).
(o) “ Credited Service
” has the meaning ascribed to it in the Retirement Plan as of
January 1, 2006, and, prior to such date, has the meaning
ascribed to “Wyeth Service”, as such term was defined
in the Retirement Plan prior to January 1, 2006. Under the
terms of the Prior Plan and continuing under the Plan, effective
June 16, 2004, Credited Service also includes all service with
any Affiliate (including any non-U.S. Affiliate).
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(p) “ DCP ” means
the Prior DCP and the New DCP.
(q) “ DCP Option
” has the meaning set forth in
Section 5.6(a)(6).
(r) “ Default Payment
Form ” means (i) with respect to a
Participant’s Grandfathered Benefit, the form of payment
elected by such Participant under the Retirement Plan in connection
with the Participant’s Separation from Service; and
(ii) with respect to a Participant’s 409A Benefit, the
Lump-Sum Option; provided , however , that if the
Participant participates in the SERP prior to becoming eligible to
participate in the Plan, his Default Payment Form under the Plan
shall be his “Payment Form” under the SERP.
(s) “ Deferral Plan
” means each of the DCP, the Wyeth Supplemental Employee
Savings Plan, as amended from time to time, and/or any other
non-qualified plan of the Company designated from time to time by
the Committee pursuant to which Participants may elect to defer
annual, base compensation or annual, cash bonus compensation, sales
bonuses or sales commissions.
(t) “ Deferrals ”
means any cash compensation earned by a Participant from the
Company that is not taken into account in determining a
Participant’s accrued benefit under the Retirement Plan
because of the Participant’s election under a Deferral Plan
to defer the receipt of such compensation.
(u) “ Deferred Compensation
Tax Compliance Committee ” means a committee of such
officers and/or employees of the Company as shall be designated
from time to time by the Board.
(v) “ Delayed Payment
Amount ” has the meaning set forth in
Section 5.7.
(w) “ Early Commencement
Factors ” means the factors set forth in Appendix
A .
(x) “ Elected Payment
Date ” means (i) with respect to the Grandfathered
Benefit, the first day of any month after a Participant’s
Separation from Service elected by the Participant in accordance
with Section 5.2 and/or (ii) with respect to the 409A
Benefit, the Normal Payment Date, unless the Participant elects the
DCP Option in accordance with Section 5.3, or elects to
redefer his 409A Benefit into the DCP in accordance with
Section 7, in which case the Elected Payment Dates shall be
determined in accordance with the applicable terms of the
DCP.
(y) “ Elected Payment
Form ” means the Payment Form elected by a Participant
(i) for the payment of his Grandfathered Benefit in accordance
with Section 5.2, and/or (ii) for the payment of his 409A
Benefit in accordance with Section 5.3 or
Section 7.
(z) “ Eligible Employee
” means an employee (i) who is a Participant in the
Retirement Plan; and (ii) who has attained age 55; and
(iii) who satisfies one of the following conditions:
(A) has a Rate of Salary equal to or in excess of the Minimum
Eligible Compensation Level in effect at that time; (B) has
been elected or appointed by the Board of Directors as a Member of
the Wyeth Management Committee; or (C) has been
selected by the Chief Executive Officer for participation in the
Plan, and such participation has been approved by the Board
of
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Directors. Notwithstanding the foregoing,
effective December 1, 2008, the individual serving as Chief
Financial Officer of Wyeth may participate in the Plan even if he
does not satisfy the age requirement in (ii) above.
(aa) “ ERISA ”
means the Employee Retirement Income Security Act of 1974, as
amended from time to time, including any applicable rulings and
regulations promulgated thereunder.
(bb) “ Final Average Annual
Pension Earnings ” means the average of a
Participant’s highest Annual Pension Earnings for the three
calendar years during the ten calendar-years immediately preceding
the date of his Separation from Service.
(cc) “ Grandfathered
Benefit ” means the portion of a Participant’s Plan
Benefit that, for purposes of Section 409A, was both earned
and vested as of December 31, 2004.
(dd) “ Guaranteed Death
Benefit Option ” has the meaning set forth in
Section 5.6(a)(4).
(ee) “ Key
Employee ” means (i) each “specified
employee,” as defined in Section 409A(a)(2)(B)(i) of the
Code, who meets the requirements of Section 416(i)(1)(A)(i),
(ii) or (iii) of the Code (applied in accordance with the
regulations thereunder and disregarding Section 416(i)(5) of
the Code) at any time during the 12-month period ending on
December 31 st of a calendar year and
(ii) to the extent not otherwise included in (i) hereof,
each of the top-100 paid individuals (based on taxable wages for
purposes of Section 3401(a) of the Code as reported in
Box 1 of Form W-2 for the 12-month period ending on
December 31 st of such calendar year, plus
amounts that would be included in wages for such 12-month period
but for pre-tax deferrals to a tax-qualified retirement plan or
cafeteria plan or for qualified transportation benefits) who
performed services for the Company at any time during the 12-month
period ending on December 31 st of such calendar year. A
Participant shall be treated as a Key Employee for the 12-month
period beginning on April 1 st of the calendar year following
the calendar year for which the determination under clause
(i) or (ii) of this definition is made.
(ff) “ Lump-Sum Option
” has the meaning set forth in
Section 5.6(a)(5).
(gg) “ Minimum Eligible
Compensation Level ” means, effective as of
January 1, 2008, a Rate of Salary equal to or greater than
Four Hundred Thirty Thousand Dollars ($430,000), which amount shall
be adjusted annually by the Annual Approved U.S. Merit Guideline,
rounded down to the nearest ten thousand dollars
($10,000).
(hh) “ New DCP ”
means the Wyeth 2005 (409A) Deferred Compensation Plan, as
amended and restated as of the Restatement Date, as subsequently
amended from time to time thereafter.
(ii) “
Normal Retirement Date ” means the first day of the
first month following a Participant’s 60
th
birthday, unless
such birthday falls on the first of the month, in which case Normal
Retirement Date means the Participant’s 60
th
birthday.
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(jj) “ Normal Payment
Date ” means (i) with respect to a
Participant’s Grandfathered Benefit, the first day of the
month on which benefits commence to be paid to the Participant
under the Retirement Plan; and (ii) with respect to a
Participant’s 409A Benefit, the following: (A) for a
Participant who incurs a Separation from Service with a Vested Plan
Benefit prior to attaining age 55, the first day of the month
coincident with or next following the month in which he attains age
55; and (B) for a Participant who incurs a Separation from
Service with a Vested Plan Benefit on or after attaining age 55,
the first day of the month following his Separation from
Service.
(kk) “ Participant
” means an Eligible Employee who has met the requirements for
participation in the Plan in accordance with
Section 3.
(ll) “ Payment Date
” means the Elected Payment Date or, if no such date has been
elected or is permitted to be elected by the Participant, the
Normal Payment Date, in each case, for the commencement of payment
of a Plan Benefit.
(mm) “ Payment Delay
Period ” means, solely with respect to a Lump-Sum Option
payment of a Participant’s Grandfathered Benefit, the
twelve-month period beginning on the first day of the month
following the month in which occurs the Participant’s
Separation from Service.
(nn) “ Payment Election
” means the elections made by a Participant for his
Grandfathered Benefit and/or 409A Benefit, as applicable, under
Section 5 or Section 7, as applicable.
(oo) “ Payment Form
” means the Elected Payment Form or, if no such form is
elected or is permitted to be elected by a Participant, the Default
Payment Form, in each case for the payment of a Plan
Benefit.
(pp) “ Plan ”
means this Wyeth Executive Retirement Plan, as amended from time to
time.
(qq) “ Plan Benefit
” means, as of a given date, the benefit, expressed as a
Single Life Annuity commencing at the Participant’s Normal
Retirement Date, that a Participant has accrued under the Plan in
accordance with Section 4.2.
(rr) “ Prior DCP
” means the terms of the Wyeth Deferred Compensation Plan (as
amended and restated as of November 20, 2003), as set forth in
the Company’s written documentation, rules, practices and
procedures applicable to such plan (but without regard to any
amendments thereto after October 3, 2004 that would result in
any material modification of such plan, within the meaning of
Section 409A).
(ss) “ Prior Plan
” means the terms of the Plan in effect immediately prior to
the Restatement Date, as set forth in the Company’s written
documentation, rules, practices and procedures applicable to the
Plan (but without regard to any amendments thereto after
October 3, 2004 that would result in any material modification
of the Grandfathered Benefit, within the meaning of
Section 409A).
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(tt) “ Puerto Rico
Participant ” means a Participant employed by the Company
in Puerto Rico and who resides in Puerto Rico.
(uu) “ Rate of Salary
” means the annual rate of an employee’s base salary
from the Company, as in effect on the applicable date of
determination, and prior to any Deferrals.
(vv) “ Restatement Date
” means January 1, 2005.
(ww) “ Retirement
Eligible ” means a Participant who, as of the date of his
Separation from Service, is (i) at least age 55 with at least
five Years of Vesting Service or (ii) at least age
60.
(xx) “ Retirement Plan
” means the Wyeth Retirement Plan – United States, as
amended from time to time.
(yy) “ Section 409A
” means Section 409A of the Code and the applicable
notices, rulings and regulations promulgated thereunder.
(zz) “ Section 409A
Compliance ” has the meaning set forth in
Section 9.1.
(aaa) “ Separation from
Service ” means a separation from service with the
Company for purposes of Section 409A, determined using the
default provisions set forth in Treasury Regulation
Section 1.409A-1(h); provided, however, that, for purposes of
the Grandfathered Benefit, “Separation from Service”
shall be determined in accordance with the terms of the Prior Plan.
Notwithstanding the foregoing, if a Participant would otherwise
incur a Separation from Service in connection with a sale of assets
of the Company, the Company shall retain the discretion to
determine whether a Separation from Service has occurred in
accordance with Treasury Regulation
Section 1.409A-1(h)(4).
(bbb) “ SERP ”
means the Wyeth Supplemental Executive Retirement Plan, as amended
from time to time.
(ccc) “ SERP 409A
Benefit ” means the portion of a Participant’s
benefit under the SERP that is subject to Section 409A of the
Code.
(ddd) “ Single Life
Annuity ” has the meaning set forth in
Section 5.6(a)(1).
(eee) “ Social Security
Benefit ” means the estimated annual amount of an
employee’s old age retirement benefits that a Participant
shall receive under the United States Social Security
system.
(fff) “ Surviving
Spouse ” means the individual to whom a Participant was
legally married, for federal law purposes, for a continuous period
of at least one year as of the date of the Participant’s
death.
(ggg) “ Ten Year Certain
and Life Option ” has the meaning set forth in
Section 5.6(a)(3).
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(hhh) “ Transition
Elections ” means elections made by a Participant prior
to January 1, 2009 in accordance with the provisions of
Notices 2005-1, 2006-79 and 2007-86, promulgated by the U.S.
Treasury Department and the Internal Revenue Service and the
Proposed Regulations under Section 409A, 70 Fed. Reg. 191 (Oct
4, 2005).
(iii) “ Treasury
Regulations ” means the regulations adopted by the
Internal Revenue Service under the Code, as they may be amended
from time to time.
(jjj) “ Valid Notional
Rollover ” means a notional rollover constituting a full
and complete settlement of the Company’s obligations to the
Participant under the Plan with respect to the portion of the
Grandfathered Benefit credited to the Prior DCP or the portion of
the 409A Benefit credited to the New DCP by a Participant who is
Retirement Eligible at the time of his Separation from
Service.
(kkk) “ Vested Plan
Benefit ” means a Plan Benefit that has vested in
accordance with Section 4.4.
(lll) “ Wyeth ”
means Wyeth, a Delaware corporation, and any successor
thereto.
(mmm) “ Wyeth Retirement
Plans ” means the Retirement Plan, the SERP, the American
Cyanamid and Subsidiaries Supplemental Employees Retirement Plan,
the American Cyanamid and Subsidiaries ERISA Excess Plan and/or any
other retirement plan or arrangement of the Company to the extent
it provides retirement or pension benefits (but only to the extent
that service under such plan is counted for purposes of the
Retirement Plan), each as amended from time to time.
(nnn) “ Year of Vesting
Service ” has the meaning ascribed to it in the
Retirement Plan as of January 1, 2006 and, prior to such date,
has the meaning ascribed to “Continuous Service”, as
such term was defined in the Retirement Plan prior to
January 1, 2006.
SECTION 2 ADMINISTRATION
2.1 General Authority . The
general supervision of the Plan shall be the responsibility of the
Committee, which, in addition to such other powers as it may have
as provided herein, shall have the power, subject to the terms of
the Plan: (i) to determine eligibility to participate in, and
the amount of benefit to be provided to any Participant under, the
Plan; (ii) to make and enforce such rules and regulations as
it shall deem necessary or proper for the efficient administration
of the Plan; (iii) to determine all questions arising in
connection with the Plan, to interpret and construe the Plan, to
resolve ambiguities, inconsistencies or omissions in the text of
the Plan, to correct any defects in the text of the Plan and to
take such other action as may be necessary or advisable for the
orderly administration of the Plan; (iv) to make any and all
legal and factual determinations in connection with the
administration and implementation of the Plan; (v) to
designate the Administrative Record Keeper and to review actions
taken by the Administrative Record Keeper or any other person to
whom authority is delegated under the Plan; and (vi) to employ
and rely on legal counsel, actuaries, accountants and any other
agents as may be deemed to be advisable to assist in the
administration of the Plan. All such actions of the Committee shall
be
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conclusive and binding upon all persons. The
Committee shall be entitled to rely conclusively upon all tables,
valuations, certificates, opinions, and reports furnished by any
actuary, accountant, controller, counsel, or other person employed
or engaged by the Company with respect to the Plan. If any member
of the Committee is a Participant, such member shall not resolve,
or participate in the resolution of, any matter relating
specifically to such Committee member’s eligibility to
participate in the Plan or the calculation or determination of such
member’s Plan Benefit.
2.2 Delegation . The
Committee shall have the power to delegate to any person or persons
the authority to carry out such administrative duties, powers and
authority relative to the administration of the Plan as the
Committee may from time to time determine. Any action taken by any
person or persons to whom the Committee makes such a delegation
shall, for all purposes of the Plan, have the same force and effect
as if undertaken directly by the Committee. If any individual to
whom the Committee delegates authority is a Participant, such
individual shall not resolve, or participate in the resolution of,
any matter specifically relating to such individual’s
eligibility to participate in the Plan or the calculation or
determination of such individual’s Plan Benefit.
2.3 Administrative Record
Keeper . The Administrative Record Keeper shall be responsible
for the day-to-day operation of the Plan, having the power (except
to the extent such power is reserved to the Committee) to take all
action and to make all decisions necessary or proper in order to
carry out his duties and responsibilities under the provisions of
the Plan. If the Administrative Record Keeper is a Participant, the
Administrative Record Keeper shall not resolve, or participate in
the resolution of, any question which relates directly or
indirectly to him and which, if applied to him, would significantly
vary his eligibility for, or the amount of, any benefit to him
under the Plan. The Administrative Record Keeper shall report to
the Committee at such times and in such manner as the Committee
shall request concerning the operation of the Plan.
2.4 Actions; Indemnification
. The members of the Board of Directors, the Committee, the
Administrative Record Keeper, the members of the Deferred
Compensation Tax Compliance Committee, the members of any other
committee and any director, officer or employee of the Company to
whom responsibilities are delegated by the Board of Directors shall
not be liable for any actions or failure to act with respect to the
administration or interpretation of the Plan, unless such person
acted in bad faith or engaged in fraud or willful misconduct. The
Company shall indemnify and hold harmless, to the fullest extent
permitted by law, the Board of Directors (and each member thereof),
the Committee (and each member thereof), the Deferred Compensation
Tax Compliance Committee (and each member thereof), the
Administrative Record Keeper, the members of any other committee
and any director, officer or employee of the Company to whom
responsibilities are delegated by the Committee from and against
any liabilities, damages, costs and expenses (including
attorneys’ fees and amounts paid in settlement of any claims
approved by the Company) incurred by or asserted against it or him
by reason of its or his duties performed in connection with the
administration or interpretation of the Plan, unless such person
acted in bad faith or engaged in fraud or willful misconduct. The
indemnification, exculpation and liability limitations of this
Section 2.4 shall apply to the Administrative Record Keeper
only to the extent that the Administrative Record Keeper is or was
a director, officer or employee of the Company.
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SECTION 3 PARTICIPATION
3.1 Continuing Participants .
Any individual who participated in the Prior Plan immediately prior
to the Restatement Date shall continue to be a Participant in the
Plan on the Restatement Date, including, without limitation,
individuals who became Participants in the Prior Plan prior to age
55 under the eligibility rules of the Prior Plan.
3.2 New Participants . An
employee of the Company who does not become a Participant in the
Plan in accordance with Section 3.1 shall commence
participation in the Plan as of the date on which such employee
first becomes an Eligible Employee. Eligible Employees shall not
accrue any Plan Benefit prior to their commencement of
participation in the Plan; provided that when participation
commences a Participant’s accrued Plan Benefit shall be
calculated as of the later of the date the Participant was first
employed by the Company and the date the Participant reached age
21.
3.3 Enrollment . Each
Participant shall complete, execute and return to the
Administrative Record Keeper such forms as are required from time
to time by the Administrative Record Keeper, and such forms shall
be submitted to the Administrative Record Keeper within such time
periods specified by the Administrative Record Keeper. A
Participant’s failure to submit in a complete and timely
manner any such forms to the Administrative Record Keeper shall
subject the Participant to the default rules specified in the Plan.
For purposes of the Plan, “forms” prescribed by the
Administrative Record Keeper can be in paper, electronic or such
other media (or combination thereof) as the Administrative Record
Keeper shall specify from time to time.
3.4 Exclusions . No employee
of the Company who is not an Eligible Employee shall be eligible to
participate in the Plan.
SECTION 4 PLAN FORMULA AND
VESTING
4.1 Applicability of Prior
Plan . The benefit payable to a Participant who had a
Separation from Service prior to the Restatement Date shall be
governed by the terms of the Prior Plan as in effect on the date of
his Separation from Service.
4.2 Plan Benefit Formula .
The Plan Benefit of a Participant who has a Separation from Service
on or after the Restatement Date shall equal the positive
difference , if any, that results from subtracting the amount
determined under Section 4.2(b) from the amount
determined under Section 4.2(a):
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(a)
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An annual
accrued benefit equal to:
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(i)
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Two percent
(2%) of the Participant’s Final Average Annual Pension
Earnings multiplied by the Participant’s actual years of
Credited Service as of the Participant’s Separation from
Service plus , subject to Section 4.3, an additional
three (3) years of Credited Service (not to exceed thirty
(30) years), minus
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9
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(ii)
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1
/
60
of the
Participant’s Social Security Benefit multiplied by the
Participant’s years of Credited Service plus an additional
three years of Credited Service (not to exceed thirty
(30) years).
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Less
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(b)
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An annual
accrued benefit equal to the sum of:
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(i)
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The annual
amount of retirement benefits, if any, as of the
Participant’s Separation from Service, under each of the
Wyeth Retirement Plans (calculated separately for each such plan),
payable in the form of a Single Life Annuity to the Participant at
Normal Retirement Date.
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(ii)
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The annual
amount of retirement benefits, if any, as of the
Participant’s Separation from Service, under any foreign
pension plan contributed to or sponsored by the Company (including
any foreign government-provided retirement benefits pursuant to a
program or arrangement contributed or charged to the Company),
payable in the form of a Single Life Annuity to the Participant at
Normal Retirement Date, provided that such foreign pension
plan benefit reflects years of Credited Service taken into account
for purposes of Section 4.2(a)(i). For purposes of determining
the amount of retirement benefit payable as a Single Life Annuity
at Normal Retirement Date from a foreign pension plan, the
Committee shall utilize whatever assumptions it deems reasonable in
its discretion.
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4.3 Additional Credited Years of
Bridge Service . The three (3) additional years of
Credited Service described in Section 4.2(a) shall be reduced
by one (1) year for each year of service (or part thereof)
that the Participant’s age as of the date of the
Participant’s Separation from Service exceeds 62; provided,
however, that a Participant who commences participation in the Plan
at age 61 or later shall accrue a Plan Benefit in the amount
provided in Section 4.2(a) for two (2) years before such
reductions take effect.
4.4 Vesting . Anything in the
Plan to the contrary notwithstanding, no Plan Benefit or other
amount shall be payable to a Participant under the Plan unless the
Participant has either (i) completed five Years of Vesting
Service or (ii) is at least age 60, in each case as of the
date of the Participant’s Separation from Service.
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4.5 Plan Benefit Components
.
(a) Grandfathered Benefit
.
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(1)
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The portion of
a Participant’s Plan Benefit which is a Grandfathered Benefit
(and the procedures applicable to a Participant’s election to
receive such Grandfathered Benefit, which are set forth in
Section 5.2) shall be based upon the terms of the Prior Plan
and the Retirement Plan in effect immediately prior to the
Restatement Date, disregarding for this purpose any change or
amendment to the terms of the Retirement Plan effective after
October 3, 2004 that would result in any material
modification, within the meaning of Section 409A of the
Grandfathered Benefit.
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(2)
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The
Grandfathered Benefit of a Puerto Rico Participant shall comprise
(i) the portion of his Plan Benefit that was earned and vested
as of December 31, 2004 and (ii) the portion of his Plan
Benefit that was earned or vested on or after January 1, 2005,
but only in the event such Puerto Rico Participant does not become
employed by the Company in the United States (other than in Puerto
Rico) on or after January 1, 2005.
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(3)
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A
Participant’s Grandfathered Benefit shall not be increased if
the payment of the Grandfathered Benefit is made after the
Participant’s Normal Retirement Date.
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(b) 409A Benefit . A
Participant’s 409A Benefit shall mean any portion of the
Participant’s Plan Benefit which is not a Grandfathered
Benefit.
(c) Special Adjustment at
Separation from Service to the 409A Benefit . Solely to the
extent necessary to comply with Section 409A, a special
allocation shall be made to the Plan Benefit of a Participant who
was not eligible to retire under the Plan as of December 31,
2004 with a subsidized early retirement benefit (solely by reason
of the Participant as of December 31, 2004, not having ten or
m