CHIQUITA BRANDS INTERNATIONAL, INC. CAPITAL ACCUMULATION PLAN
Exhibit 10.3
CHIQUITA BRANDS INTERNATIONAL, INC.
CAPITAL ACCUMULATION PLAN
(As Amended and Restated Effective as of January 1, 2005, conformed to include
amendments through July 8, 2008)
CHIQUITA BRANDS INTERNATIONAL, INC.
CAPITAL ACCUMULATION PLAN
(As Amended and Restated Effective as of January 1, 2005)
SECTION 1
PURPOSE AND EFFECTIVE DATE OF PLAN
A. Purpose. The purpose of the Plan is to provide retirement, disability, death and employment termination benefits for a select group of management and highly compensated employees of the Participating Companies and for the beneficiaries of those employees. The Plan is intended to be a non-qualified plan of executive deferred compensation, exempt from the requirements of Parts 2, 3, and 4 of Title I of ERISA.
B. History and Effective Date.
| (i) | Effective as of January 1, 2000, Chiquita Brands International, Inc. (the “Sponsoring Company”) established the Chiquita Brands International, Inc. Capital Accumulation Plan (the “Plan”) on behalf of selected employees of the Sponsoring Company and any Affiliated Companies which adopt the Plan with the permission of the Sponsoring Company, all in accordance with the terms and conditions of such plan. |
| (ii) | The provisions set forth herein constitute an amendment, restatement and continuation of the Plan as in effect immediately prior to January 1, 2005 (the “Effective Date”). |
| (iii) | Benefits provided under the Plan will be subject to the provisions of section 409A of the Internal Revenue Code and applicable guidance issued thereunder (“Section 409A”) only to the extent that Section 409A is applicable to such amounts in accordance with the effective date provisions of Section 409A, including the effective date provisions set forth in Treas. Reg. §1.409A-6. |
| (iv) | Benefits subject to Section 409A (including, without limitation, benefits deferred and vested prior to January 1, 2005, as determined in accordance with Section 409A) are subject to the Plan as set forth herein. Benefits not subject to Section 409A will be subject to the applicable provisions of the Plan as in effect prior to the Effective Date (the “Prior Plan”) and will not be subject to the terms of this Plan as set forth herein. |
SECTION 2
DEFINITIONS
The following definitions shall apply for purposes of the Plan:
“Accounts” shall mean a Participant’s Basic Match Contribution Account, his Deferral Contribution Account, his Incremental Match Contribution Account, his Savings Plan Restoration Match Contribution Account, and, if applicable, his Deemed Participation Match Contribution Account. The term “Accounts” shall also include any additional accounts established by the Administrative Committee, in its sole discretion.
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“Administrative Committee” shall mean the Chiquita Brands International, Inc. Employee Benefits Committee which has been appointed to administer the Plan in accordance with the provisions of Section 5. Notwithstanding the foregoing, “Administrative Committee” may also include any individual or committee to which the Administrative Committee has delegated authority to act with respect to a specific activity.
“Affiliated Company” or “Affiliated Companies” shall mean (i) a Related Company, (ii) a member of an affiliated service group of which the Sponsoring Company is a member, as determined in accordance with Section 414(m) of the Internal Revenue Code, and (iii) any other entity designated by the Board of Directors of the Sponsoring Company in its sole discretion; provided that with respect to any entity described in clause (ii) or designated in accordance with clause (iii), the Administrative Committee shall establish such provisions as are necessary to satisfy Section 409A (including, without limitation, provisions relating to termination of employment).
“Basic Match Contribution” shall mean the cumulative amount the Participating Company contributes to the Trust each Plan Year on behalf of a Participant, as described in Section 7(B).
“Basic Match Contribution Account” shall mean the account maintained for a Participant reflecting the Basic Match Contributions allocated to such Participant pursuant to Section 7(B), as adjusted by earnings or losses thereon in accordance with the provisions of Section 6.
“Beneficiary” shall mean any person entitled to receive benefits which are payable upon or after a Participant’s death pursuant to Section 10.
“Board of Directors” shall mean the Board of Directors of the Sponsoring Company or the Board of Directors of a Participating Company, as the case may be, or any individual or committee to which the Board of Directors has delegated authority to act with respect to a specific activity.
“Bonus” for any calendar year or Performance Period shall mean bonus amounts attributable to services performed during that calendar year or Performance Period, respectively (not including severance bonuses), but only to the extent that such amount is classified as a “Bonus” for purposes of this Plan and is payable pursuant to a program which has been specifically identified by an authorized representative of the Sponsoring Company prior to the beginning of such calendar year or Performance Period, respectively, as eligible for consideration as a Bonus hereunder. The Bonus amount will be increased by any amounts with respect to which the Employee has elected to defer or reduce such Bonus for federal income tax purposes (i) under this Plan, (ii) under a Savings Plan or (iii) under any “cafeteria plan,” dependent care assistance program or qualified transportation fringe benefit program (as described in Sections 125, 129 and 132 of the Internal Revenue Code) maintained by the Participating Companies. Bonus for any year shall not include any amounts paid to the Employee pursuant to a program which, prior to such calendar year, has not been identified as eligible for consideration as the source of a Bonus for purposes of this Plan.
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“Change of Control” shall mean the occurrence of any of the following events:
| (i) | any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than an Exempt Holder or Exempt Entity, is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have “beneficial ownership” of all shares that such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 30% or more of the total voting power of all of the Sponsoring Company’s voting securities then outstanding (“Voting Shares”), provided, that Exempt Holders “beneficially own” (as so defined), on a combined basis, a lesser percentage of the Voting Shares than such other person and do not have the right or ability by voting power, contract or otherwise to elect or designate for election a majority of the Board of Directors of the Company; |
| (ii) | on any date, the individuals who constituted the Sponsoring Company’s Board of Directors at the beginning of the two-year period immediately preceding such date (together with any new directors whose election by the Sponsoring Company’s Board of Directors, or whose nomination for election by the Sponsoring Company’s shareholders, was approved by a vote of at least two-thirds of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors then in office; or |
| (iii) | immediately after a merger or consolidation of the Sponsoring Company or any subsidiary of the Sponsoring Company with or into, or the sale or other disposition of all or substantially all of the Sponsoring Company’s assets to, any other corporation, (a) the Voting Shares of the Sponsoring Company outstanding immediately prior to such transaction do not represent (either by remaining outstanding or by being converted into voting securities of the surviving or acquiring entity or any parent thereof) more than 50% of the total voting power of the voting securities of the Sponsoring Company or surviving or acquiring entity or any parent thereof outstanding immediately after such merger or consolidation; and (b) either (x) a person or group (other than an Exempt Entity) beneficially owns a percentage of the total voting power of the Sponsoring Company or surviving or acquiring entity or any parent thereof which exceeds both 20% and the percentage owned, on a combined basis, by the Exempt Holders or (y) the Exempt Holders beneficially own, on a combined basis, less than 2% of such voting power. In the case of a Participating Company other than the Sponsoring Company, “Change of Control” shall mean (i) such Participating Company ceasing to be a direct or indirect subsidiary of the Sponsoring Company (or its successor entity) or (ii) a sale of substantially all of such Participating Company’s assets to an entity other than the Sponsoring Company (or its successor entity) or one or more of its subsidiaries. |
“Company Contribution Account” shall mean the account maintained for a Participant reflecting contributions made by a Participating Company which are allocated to such Participant pursuant to Section 7, as adjusted for earnings or losses thereon in accordance with the provisions of Section 6. A Participant’s Company Contribution Account shall consist of the
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following subaccounts where applicable: (i) a Basic Match Contribution Account, (ii) a Deemed Participation Match Contribution Account, (iii) a Savings Plan Restoration Match Contribution Account and (iv) an Incremental Match Contribution Account. All references in the Plan or Trust Agreement to “Company Contribution Account” shall, where appropriate, be deemed to constitute a reference to the above-referenced subaccounts.
“Compensation” for any calendar year shall mean an Employee’s Salary and Bonus payable by a Participating Company with respect to services performed during that calendar year. However, Salary scheduled to be paid after the last day of the calendar year solely for services performed during the final payroll period (as defined in Internal Revenue Code section 3401(b)) containing the last day of the calendar year will be treated as compensation for services performed in the subsequent calendar year.
“Deemed Participation Match Contribution” shall mean the credit made to the ledger account maintained by a Participating Company on behalf of a Participant who had attained age forty-five (45) prior to January 1, 2000 which reflects the hypothetical Basic Match Contributions and Incremental Match Contributions which would have been made to the Trust on behalf of the Participant between the Participant’s Index Date and January 1, 2000, had the Plan been in effect during such period of time, subject to the further limitations described in Section 7(E).
“Deemed Participation Match Contribution Account” shall mean the ledger account maintained by a Participating Company on behalf of a Participant reflecting the Deemed Participation Match Contributions allocated to such Participant pursuant to Section 7(E).
“Deferral Contribution” shall mean the cumulative amount the Participating Company contributes to the Trust each Plan Year on behalf of a Participant equal to the amount by which a Participant elected to reduce his Compensation for such Plan Year pursuant to Section 7(A).
“Deferral Contribution Account” shall mean the account maintained for a Participant reflecting the Deferral Contributions allocated to such Participant pursuant to Section 7(A), as adjusted by earnings or losses thereon in accordance with the provisions of Section 6.
“Deferral Election” shall mean the form filed with the Administrative Committee or its delegate or filed in accordance with such procedure as may be specified by the Administrative Committee from time to time, whereby a Participant may elect to defer Compensation under the Plan.
“Deferred Compensation” shall mean payments or benefits that would be considered to be provided under a nonqualified deferred compensation plan as that term is defined in Treas. Reg. §1.409A-1.
“Distribution Election” shall mean the form filed with the Administrative Committee or its delegate or filed in accordance with such procedure as may be specified by the Administrative Committee from time to time, whereby a Participant may elect the time at which amounts are to be paid under the Plan (including with respect to both in-service withdrawals and payments on termination of employment).
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“Effective Date” of the Plan shall mean January 1, 2005.
“Eligible Participant” shall be used in the context of determining which Participants are eligible to receive Incremental Match Contributions and Savings Plan Restoration Match Contributions and shall mean any Participant who (i) was employed by a Participating Company or an Affiliated Company on the last day of the Plan Year, and (ii) elected, pursuant to Section 7(A), to reduce his Compensation with respect to such Plan Year; provided, however, that an Employee will not fail to be a Participant with respect to reduction of Compensation and crediting of Deferral Contributions for any year solely by reason of his failure to be employed by a Participating Company or an Affiliated Company on the last day of the Plan Year.
“Employee” shall mean, for any Plan Year:
| (i) | Any person who is employed by a Participating Company and, as of the first day of that Plan Year, (A) is a “Highly Compensated Employee” determined by applying the principles of Section 414(q) of the Internal Revenue Code as if the person’s Salary was the only compensation received from the Participating Company, and (B) has either been designated as an “Executive Officer” by the Board of Directors for purposes of Rule 3b-7 under the Exchange Act or has been designated by the Administrative Committee as eligible to participate in the Plan. For purposes of clause (A) above, an individual will be treated as satisfying such condition with respect to the first day of a Plan Year if the individual’s Salary on the first day of that Plan Year equals or exceeds the indexed dollar amount of compensation under Section 414(q)(1)(B)(i) of the Internal Revenue Code as in effect on the October 1 of the immediately preceding Plan Year. |
| (ii) | Any person who does not satisfy the requirements of paragraph (i) above as of the first day of such calendar year, but during the calendar year satisfies the requirements of clauses (i)(A) and (I)(B) above (by reason of being hired during the year, promoted during the year, or otherwise) shall become eligible to be a Participant in the Plan 30 days after first meeting the requirements of clauses (i)(A) and (i)(B) above. For purposes of this paragraph (ii), a person will be considered to have satisfied clause (i)(A) above at the time his current Salary rate equals or exceeds the indexed dollar amount of compensation under Section 414(q)(1)(B)(i) as in effect on the first day of such Plan Year. However, in determining the amount that is subject to deferral under the Plan for the Plan Year, the Compensation of a person who becomes eligible to become a Participant in accordance with this paragraph (ii) shall be disregarded to the extent that it is attributable to services performed before the 30th day after the date the employee first satisfies the requirements of clauses (i)(A) and (i)(B) above. |
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. References in the Plan to any Section of ERISA shall include any successor provision thereto.
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“Exchange Act” shall mean the Securities Exchange Act of 1934.
“Exempt Holder” shall mean American Financial Group, Inc., each of its subsidiaries and affiliates, Carl H. Lindner, his spouse, his children and their spouses and his grandchildren (or the legal representative of any such person) and each trust for the benefit of each such person.
“Exempt Entity” means (i) an institution that is entitled under Rule 13(d)-1 of the Exchange Act (or any successor rule or regulation) to report its ownership of equity securities of the Sponsoring Company through the filing of a statement on Schedule 13G under the Exchange Act, in lieu of Schedule 13D, for so long as such institution remains so entitled, (ii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iii) the Sponsoring Company, any of its subsidiaries or any employee benefit plan (or related trust) sponsored or maintained by the Sponsoring Company or any of its subsidiaries, and (iv) the surviving or acquiring entity (and the direct and indirect wholly owning parents thereof) in a merger, consolidation, sale or disposition transaction of the type referred to in clause (iii) of the definition of a Change of Control provided such transaction has not resulted in a Change in Control due to failure to satisfy the conditions of subclause (a) or subclause (b) of said clause (iii).
“Incremental Match Contribution” shall mean the cumulative amount the Participating Company contributes to the Trust each Plan Year on behalf of an Eligible Participant described in Section 7(C).
“Incremental Match Contribution Account” shall mean the account maintained for a Participant reflecting the Incremental Match Contribution allocated to such Participant pursuant to Section 7(C), as adjusted by earnings or losses thereon in accordance with the provisions of Section 6.
“Incremental Years” shall mean, with respect to a Participant, the whole number of Plan Years in the sequence which begins with the Participant’s Index Year and ends with the then-current Plan Year, inclusive.
“Index Date” shall mean, in the case of Participant who is employed on January 1, 2000 and who has attained 45 on or before January 1, 2000, the first day of the calendar year in which such Participant attained age 45. In the case of a Participant who is employed on January 1, 2000 and has not yet attained age 45 as of January 1, 2000, the term Index Date means the first day of the calendar year in which the Participant attains the age of 45 plus “n” where “n” equals the number of years from the beginning of the Participant’s first year of participation in this Plan prior to the year in which the Participant attains age 45. In the case of a Participant who is hired after January 1, 2000, and who attains age 45 prior to becoming a Participant in the Plan, the Index Date shall be the first day of the calendar year in which the Participant attained age 45. In the case of a Participant who is hired after January 1, 2000 and who has not attained age 45 prior to commencing participation in the Plan, the Index Date shall be the first day of the calendar year in which the executive attains age 45 plus “n” where “n” equals the number of years, if any, from the beginning of the Participant’s first year of participation in this Plan prior to the year in which the Participant attains age 45.
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“Index Year” shall mean, with respect to a Participant, the Plan Year that includes such Participant’s Index Date.
“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended from time to time. References in the Plan to any Section of the Internal Revenue Code shall include any successor provision thereto.
“Investment Election” shall mean the form, filed with the Administrative Committee, or its delegate, or such other procedure as may be specified by the Administrative Committee at any time, and from time to time, through which a Participant may designate the manner in which the rate of investment return on his Accounts shall be allocated among the Investment Funds.
“Investment Election Date” shall mean the first business day of each month.
“Investment Fund” shall mean each fund, contract, or other arrangement designated by the Administrative Committee as an Investment Fund in which Participants may direct their Accounts to be invested.
“Participant” shall mean an Employee who becomes a Participant in the Plan as provided in Section 4.
“Participating Company” shall mean the Sponsoring Company, or any Affiliated Company which the Sponsoring Company designates as having adopted the Plan and Trust pursuant to the provisions of Section 20.
“Performance-Based Compensation” means compensation that is contingent on the satisfaction of preestablished organizational or individual subjective or objective performance criteria relating to a Performance Period of at least 12 consecutive months, subject to the provisions of Treas. Reg. §1.409A-1(e). Performance criteria are considered preestablished if established in writing not later than 90 days after the beginning of the period of service to which the criteria relates, and the outcome is substantially uncertain at the time the criteria are established. Performance-Based Compensation does not include any amount or portion of the amount that will be paid either regardless of performance or based on a level of performance that is substantially certain to be met at the time the criteria are established. However, compensation will not fail to be Performance-Based Compensation solely by reason of the compensation being payable due to the Employee’s death or disability (as defined in Treas. Reg. §1.409A-1(e)); provided that if such event occurs before the Employee’s Deferral Election has been filed, the Deferral Election may not be effective under the exception for Performance-Based Compensation.
“Performance Period” with respect to any Bonus shall mean the period during which performance is measured for purposes of determining the amount of such Bonus.
“Plan” shall mean the Chiquita Brands International, Inc. Capital Accumulation Plan, and as hereafter amended. “Prior Plan” shall have the meaning set forth in Section 1(B).
“Plan Year” shall mean the twelve (12)-consecutive month period ending on December 31. If an Employee has a taxable year for Federal income tax purposes that is other than a
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calendar year, then, to the extent required by Section 409A, the term “calendar year” shall mean the individual’s taxable year. For purposes of the Plan, an Employee will be presumed to have a calendar year as his taxable year except to the extent he provides evidence to the Committee to the contrary.
“Related Companies” shall mean all companies and other persons with whom the Sponsoring Company is considered to be a single employer under Section 414(b) of the Internal Revenue Code, and all persons with whom the Sponsoring Company would be considered a single employer under Section 414(c) of the Internal Revenue Code.
“Related Plans” shall mean, with respect to any type of plan described in Treas. Reg. §1.409A-1(v), the corresponding portion of this Plan and any other plan to the extent that is required to be aggregated with such portion of this Plan pursuant to Treas. Reg. §1.409A-1(c)(2)(A).
“Retirement Date” of a Participant shall mean the later of (i) Participant’s fifty-fifth (55th) birthday, or (ii) the date upon which a Participant completes ten (10) Years of Service commencing with the calendar year in which the Participant attains his forty-fifth (45th) birthday.
“Salary” shall mean basic cash compensation before any payroll deductions for taxes or any other purposes, payable by a Participating Company to an Employee in respect of such Employee’s service for a Participating Company during the Plan Year; provided that the Salary amount will be increased by any amounts with respect to which the Employee has elected to defer or reduce Salary for federal income tax purposes (i) under this Plan, (ii) under a Savings Plan or (iii) under any “cafeteria plan,” dependent care assistance program or qualified transportation fringe benefit program (as described in Sections 125, 129 and 132 of the Internal Revenue Code) maintained by the Participating Companies. Salary shall not include any amounts paid to the Employee as (i) overtime pay, (ii) any imputed income, severance pay and special allowances or other amounts not considered as a part of base salary for time actually worked, (iii) any amounts paid during a Plan Year on account of the Employee under this Plan or under any other employee pension benefit plan (as defined in Section 3(2) of ERISA), and (iv) except as otherwise provided in the preceding sentence, any amounts which are not includible in the Employee’s income for applicable income tax purposes.
“Savings Plan” shall mean the Chiquita Savings and Investment Plan and any other qualified or nonqualified retirement program maintained by any Participating Company into which employee contributions and employer matching contributions may be made.
“Savings Plan Restoration Match Contribution” shall mean the cumulative amount the Participating Company contributes to the Trust each Plan Year as described in Section 7(C).
“Savings Plan Restoration Match Contribution Account” shall mean the account maintained for a Participant reflecting the Savings Plan Restoration Match Contribution allocated to such Participant pursuant to Section 7(D), as adjusted by earnings or losses thereon in accordance with the provisions of Section 6.
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“Specified Employee” shall be defined in accordance with Treas. Reg. §1.409A-1(i) and such rules as may be established by the Administrative Committee (including its delegate) from time to time.
“Sponsoring Company” shall mean Chiquita Brands International, Inc.
“Termination of Employment.” References in the Plan to a Participant’s termination of employment (including references to a Participant’s employment termination, and to the Participant terminating employment and other similar references) shall mean the Participant ceasing to be employed by the Sponsoring Company and the Related Companies, subject to the following:
| (i) | The employment relationship will be deemed to have ended at the time the Participant and his employer reasonably anticipate that the level of bona fide services the Participant would perform for the Sponsoring Company and the Related Companies after such date (whether as an employee or independent contractor, but not as a director) would permanently decrease to no more than 20% of the average level of bona fide services performed over the immediately preceding 36 month period for the Sponsoring Company and the Related Companies (or the full period of service to the Sponsoring Company and the Related Companies if the Participant has performed services for the Sponsoring Company and the Related Companies for less than 36 months). In the absence of an expectation that the Participant will perform at the above-described level, the date of termination of employment will not be delayed solely by reason of the Participant continuing to be on the Sponsoring Company’s and the Related Companies’ payroll after such date. |
| (ii) | The employment relationship will be treated as continuing intact while the Participant is on a bona fide leave of absence (determined in accordance with Treas. Reg. §1.409A-1(h)). |
| (iii) | The Participant shall be treated as having terminated employment at the time the Participant’s employer ceases to be a Related Company; provided, however, that to the extent required by Section 409A, no such termination of employment will be deemed to occur by reason of a spinoff or other transaction where the Participant continues to be employed by his employer immediately after the time of the consummation of the transaction, or thereafter until the Participant ceases to be employed by the employer or its affiliates. |
“Total and Permanent Disability” shall mean a physical and/or mental incapacity of such a nature that it prevents a Participant from engaging in or performing the principal duties of his customary employment or occupation on a continuing or sustained basis.
“Trust” shall mean the entity established pursuant to a Chiquita Brands International, Inc. Capital Accumulation Plan Trust Agreement between the Sponsoring Company and a trustee selected by the Administrative Committee from time to time.
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“Unforeseeable Emergency” shall mean a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participant’s spouse, the Participant’s beneficiary, or the Participant’s dependent; loss of the Participant’s property due to casualty; or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant; provided, however, that the determination of Unforeseeable Emergency shall be made by the Administrative Committee in a manner that is consistent with the meaning of Unforeseeable Emergency set forth in Treas. Reg. §1.409A-3(i)(3).
“Valuation Date” shall mean the last day of each calendar month, or such other date or dates determined prospectively by the Administrative Committee.
“Year of Service” shall mean a twelve (12) month period beginning on a Participant’s initial date of hire and on successive anniversaries of such date during which the Participant is treated by the Sponsoring Company or any Affiliated Company as continuously employed.
Wherever appropriate, words used in the Plan in the singular may mean the plural, the plural may mean the singular, and the masculine may mean the feminine.
SECTION 3
REQUIREMENTS FOR ELIGIBILITY
An Employee who completes the eligibility requirements set forth in the Plan may participate in the Plan in accordance with its terms. Subject to the provisions of Section 4, for each Plan Year beginning on or after the Effective Date, an individual shall be eligible to have Deferral Contributions made on his behalf under the Plan, and to share in Basic Match Contributions, to the extent provided in Section 4.
SECTION 4
PARTICIPATION IN THE PLAN
For Plan Years beginning on or after the Effective Date:
A. Full Years of Salary. Subject to the provisions of this Section 4, a Deferral Election by an eligible Employee to defer Salary for services performed during any calendar year must be filed with the Administrative Committee no later than the last day of the preceding calendar year, or such earlier date as may be required by the Administrative Committee.
B. Full Years of Bonus.
| (i) | Subject to the following provisions of this Section 4, a Deferral Election by an eligible Employee to defer Bonus amounts for services performed during any calendar year must be filed with the Administrative Committee no later than the last day of the preceding calendar year, or such earlier date as may be required by the Administrative Committee. Accordingly, to the extent required by the provisions of Section 409A, if more than one year is included in the Performance Period under a Bonus arrangement, and to the extent the amount of the payments under the arrangement could be affected by performance in |
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| the entire Performance Period, the deadline for filing the Deferral Election with respect to such Performance Period is the end of the calendar year prior to the calendar year in which the Performance Period begins. |
| (ii) | Notwithstanding the preceding sentence, to the extent permitted by the Administrative Committee, if the Bonus satisfies the requirements for Performance-Based Compensation, the Deferral Election with respect to such Bonus may be made on or before the date that is six months before the end of the Performance Period with respect to such Bonus, provided that the individual performs services continuously from the later of the beginning of the Performance Period or the date the performance criteria for such bonus are established through the date the Deferral Election is filed, and provided further that in no event may an election to defer Performance-Based Compensation be made after such compensation has become readily ascertainable (as determined in accordance with Treas. Reg. §1.409A-2(a)(8)). |
C. Initial Participation. For the first calendar year in which an individual becomes eligible to participate in this Plan; the individual may make an initial Deferral Election to participate in this Plan; provided, however, that such election must be made by filing a Deferral Election to defer Salary or Bonus within 30 days after the date the individual initially becomes eligible to participate in this Plan or, if earlier, any of the Related Plans, and may only apply with respect to Salary or Bonus paid for services to be performed after the election is filed. Where a Deferral Election is made under this paragraph (C) with respect to a Bonus, the election may apply to no more than an amount equal to the total amount of the Bonus for the Performance Period multiplied by the ratio of the number of days remaining in the Performance Period after the election over the total number of days in the Performance Period.
D. Date of Filing. For purposes of this Section 4, a Deferral Election will be deemed to be filed on the later of the date it is filed with Administrative Committee or the date on which it becomes irrevocable. In the case of a Deferral Election that is with respect to compensation for services to be performed in the calendar year following the calendar year in which the election is filed, the election shall become irrevocable on the last day of such earlier year, but in no event later than the deadline established by the Administrative Committee. In the case of a Deferral Election that is with respect to an individual who initially becomes eligible to participate in the Plan or any other Related Plan, the Deferral Election will be considered to become irrevocable on the 30th day after such initial eligibility date or, if earlier, on the date established by the Administrative Committee.
E. Determination of Eligibility. The determination of eligibility under this Section 4 shall be subject to Treas. Reg. §1.409A-2(a)(7) (relating to the determination of initial eligibility).
F. Deferral on Rehire. If, at the time of a Participant’s termination of employment, he has a Deferral Election in effect with respect to Salary, and he is thereafter hired by a Related Company within the calendar year of termination, such Deferral Election shall apply with respect to his Salary for the remainder of the year. If, at the time of a Participant’s termination of employment, he has a Deferral Election in effect with respect to Salary, and he is thereafter hired
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by a Participating Company in a calendar year after the calendar year of termination, his Deferral Election shall be treated as having been cancelled as of the December 31 of the year in which such termination occurs, regardless of whether the Deferral Election otherwise provides that it would remain in effect for subsequent year until cancelled by election of the Participant.
G. Transfers among Related Companies. If, during any calendar year, a Participant has a Deferral Election in effect with respect to Salary, and the Participant’s employment is transferred to a Related Company, the Participant’s Deferral Election shall remain in effect for the remainder of that year with respect to the Participant’s Salary at his new employer. If, during any calendar year, a Participant who has a Deferral Election in effect with respect to Bonus, and the Participant’s employment is transferred to a Related Company, the Participant’s Deferral Election shall remain in effect with respect to the Bonus from the prior employer, but except as otherwise expressly provided in the applicable Deferral Election, the Deferral Election shall not apply to any Bonus from his new employer.
H. Expiration of Deferral Election. A Deferral Election with respect to compensation for services performed in any calendar year shall not apply to compensation for services with respect to a subsequent calendar year except as otherwise provided by the applicable Deferral Election form (but only to the extent permitted by the Administration Committee).
SECTION 5
ADMINISTRATION OF THE PLAN
A. Responsibility for Administration of the Plan. The Administrative Committee shall be responsible for the management, operation and administration of the Plan.
B. Appointment of Administrative Committee. The Board of Directors of the Sponsoring Company has appointed the Chiquita Brands International, Inc. Employee Benefits Committee to be the Administrative Committee hereunder. The Administrative Committee shall be responsible for the management, operation and administration of the Plan. Any member of the Administrative Committee may resign by delivering written notice to the Board of Directors of the Sponsoring Company. The Board of Directors of the Sponsoring Company shall be authorized to remove any member of the Administrative Committee at any time and in its sole discretion to appoint a successor whenever a vacancy on the Administrative Committee occurs.
C. Delegation of Powers. The Administrative Committee may appoint such assistants or representatives as it deems necessary for the effective exercise of its duties in administering the Plan. The Administrative Committee may delegate to such assistants and representatives any powers and duties, both ministerial and discretionary, as it deems expedient or appropriate.
D. Records. All records, together with such other documents as may be necessary for the administration of the Plan, shall be preserved in the custody of the Administrative Committee or the assistants or representatives appointed by it.
E. General Administrative Powers. The Administrative Committee shall have all powers necessary to administer the Plan in accordance with its terms, including the power to construe the
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Plan and to determine all questions that may arise thereunder. In the exercise of such powers under the Plan, the Administrative Committee shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless such interpretation or determination is made after a Change in Control and is shown to be unreasonable, arbitrary or capricious.
F. Appointment of Professional Assistance and Investment Manager. The Administrative Committee may engage accountants, attorneys, physicians and such other personnel as it deems necessary or advisable. The functions of any such persons engaged by the Administrative Committee shall be limited to the specific services and duties for which they are engaged, and such persons shall have no other duties, obligations or responsibilities under the Plan. Such persons shall exercise no discretionary authority or discretionary control respecting the management of the Plan. The fees and costs of such services shall be paid by the Participating Companies.
G. Actions by the Administrative Committee. All actions of the Administrative Committee shall be taken pursuant to the decision of a majority of the then members of the Administrative Committee.
H. Discretionary Acts. In the event the Administrative Committee exercises any discretionary authority under the Plan with respect to a Participant who is a member of the Administrative Committee, such discretionary authority shall be exercised solely and exclusively by those members of the Administrative Committee other than such Participant, or, if such Participant is the sole member of the Administrative Committee, such discretionary authority shall be exercised solely and exclusively by the Board of Directors of the Sponsoring Company. Notwithstanding any other provision of the Plan, no person shall be paid a benefit under the Plan unless the Administrative Committee, in its sole discretion, determines that such person is entitled to benefits under the Plan.
I. Payment of Fees and Expenses. The members of the Administrative Committee and their assistants and representatives shall be entitled to payment from the Participating Companies for all reasonable costs, charges and expenses incurred in the administration of the Plan, including, but not limited to, reasonable fees for accounting, legal and other services rendered, to the extent incurred by the members of the Administrative Committee or their assistants and representatives in the course of performance of their duties under the Plan.
J. Plan Administrator. The Sponsoring Company shall be the “administrator” (as defined in Section 3(16)(A) of ERISA) of the Plan. The Vice President of Human Resources of the Sponsoring Company shall be the designated agent for service of legal process.
K. Allocation and Delegation of Administrative Committee Responsibilities. The Administrative Committee may upon approval of a majority of the members of the Administrative Committee, (i) allocate among any of the members of the Administrative Committee any of the responsibilities of the Administrative Committee under the Plan or (ii)
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designate any person, firm or corporation that is not a member of the Administrative Committee to carry out any of the responsibilities of the Administrative Committee under the Plan. Any such allocation or designation shall be made pursuant to a written instrument executed by a majority of the members of the Administrative Committee.
SECTION 6
PARTICIPANTS’ ACCOUNTS
A. Maintenance of Accounts. There shall be maintained on behalf of each Participant a Basic Match Contribution Account, an Incremental Match Contribution Account, a Deferral Contribution Account, a Savings Plan Restoration Match Contribution Account and, if applicable, a Deemed Participation Match Contribution Account. The Participant’s interest in his Company Contribution Accounts shall be subject to the vesting schedule set forth in Section 11(A). All payments to a Participant or his Beneficiaries shall be charged against the respective Accounts of such Participant.
B. Accounts of Participant Transferred to an Affiliated Company. If a Participant is transferred to an Affiliated Company which has not adopted the Plan, the amounts which are credited to his Accounts shall continue to be governed by the provisions of the Plan.
C. Adjustment of Participants’ Accounts. As of each Valuation Date, the Administrative Committee or its delegate shall adjust the Accounts of each Participant (other than a Participant’s Deemed Participation Match Contribution Account) so that the amount of net income, loss, appreciation or depreciation in the value of the amount invested in an Investment Fund shall be allocated equitably and exclusively to the Accounts of the Participants invested in such Investment Fund. Promptly after the last day of each Plan Year, the Administrative Committee shall adjust the Deemed Participation Match Contribution Account of each Participant by the amount of interest specified in Section 7(E).
D. Investment of Contributions.
| (i) | Participant-Directed Investments. In accordance with procedures established by the Administrative Committee, each Participant shall have the opportunity, at the time of enrollment for a Plan Year and subsequently on or before each Investment Election Date, to make an Investment Election with the Administrative Committee or its delegate, which shall apply to all of the Participant’s Accounts for all or any specified Plan Year or Plan Years to determine the deemed investment return other than his Deemed Participation Match Contribution Account which will be credited with interest as specified in Section 7(E). This election shall be effective beginning on the Investment Election Date following its receipt by the Administrative Committee, or its delegate, and shall continue in effect until revoked or modified as of a subsequent Investment Election Date. The following restrictions shall apply to such investment elections: |
(a) No election may be made in violation of any applicable investment contract or other agreement establishing an Investment Fund, and
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(b) Transfers among the available Investment Funds may be made daily in whole percentage multiples of one percent (1%) of the balances therein.
In addition, the Administrative Committee, in its sole discretion, may from time to time establish special Investment Election Dates to provide the Participants with additional opportunities to designate the manner in which the deemed investment return on their Accounts shall be allocated among the then-available Investment Funds.
| (ii) | Other Investments. All Accounts not subject to an Investment Election filed with the Administrative Committee pursuant to paragraph (i) above shall have a deemed investment return equal to the return on a money market fund or other liquid or pooled fund investment vehicle selected by the Administrative Committee. |
E. No Right to Specific Assets. The fact that for administrative purposes Accounts are maintained for each Participant under the Plan shall not be deemed to segregate for such Participant, or to give such Participant any direct interest in, any specific assets of the Participating Companies except as otherwise provided in Section 18.
F. Participant Statements. Promptly after the end of each Plan Year the Administrative Committee shall issue statements of account to each Participant.
SECTION 7
ALLOCATIONS TO PARTICIPANTS’ ACCOUNTS
A. Deferral Contributions. Each Plan Year, the Participating Company employing a Participant who has elected to reduce his Compensation pursuant to paragraph (i) below shall withhold from such Participant’s Compensation the Deferral Contributions, as elected by such Participant.
| (i) | Deferral Elections. A Participant may elect to reduce his Compensation by an amount of up to eighty percent (80%) of his Salary and up to eighty percent (80%) of his Bonus provided, however, that the aggregate amount by which a Participant may elect to reduce his Compensation under this paragraph (i) shall not cause such Participant’s Compensation to be reduced below the amount necessary to satisfy the following obligations: |
(a) Applicable employment taxes (e.g. FICA/Medicare) on amounts of Compensation which have been deferred;
(b) Any Federal or state tax withholding requirements relating to any employee benefit plan; and
(c) Any Federal or state tax withholding requirements relating to any taxable remuneration payable to the Participant.
Such contributions shall be made through regular payroll deductions by notifying the Administrative Committee pursuant to such notification procedures as the Administrative
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Committee may establish, from time to time. Subject to Section 409A, any and all of the dates referenced in the preceding paragraph may be modified by the Administrative Committee at any time and from time to time.
| (ii) | Method of Allocating Deferral Contributions. Each Participant who elected to reduce his Compensation during a Plan Year pursuant to the provisions of this Section 7(A) shall receive an allocation of Deferral Contributions to his Deferral Contribution Account for such Plan Year equal to the amount by which he elected to reduce and has in fact reduced his Compensation for such Plan Year pursuant to the provisions of this Section 7(A). Such allocations shall be credited to the Participant’s Deferral Contribution Account as soon as practicable but in no event more than 30 days after they are deducted from Participant’s Salary or Bonus. |
B. Basic Match Contributions. Each Participant shall receive an allocation to his Basic Match Contribution Account in accordance with the following:
| (i) | Allocation of Basic Match Contributions. For each Plan Year, each Participant shall receive allocations to his Basic Match Contribution Account for such Plan Year in accordance with paragraphs (a) and (b) below: |
(a) For each Plan Year, each Participant shall receive an allocation to his Basic Match Contribution Account for such Plan Year in an amount equal to one-hundred percent (100%) of the amount of Deferral Contributions allocated to such Participant under Section 7(A) for such Plan Year. The aggregate amount of the Basic Match Contributions under this Section 7(B)(i)(a) which may be allocated to each Participant’s Basic Match Contribution Account for such Plan Year shall not exceed the percent of the Participant’s Compensation determined in accordance with the chart below:
| Participant’s Highest Attained Age During Plan Year | Percent of Compensation | |
| Age 44 and Below | 1% | |
| 45 | 2% | |
| 46 | 3% | |
| 47 | 4% | |
| 48 | 5% | |
| 49 | 6% | |
| 50 | 7% | |
| 51 | 8% | |
| 52 | 9% | |
| 53 | 10% | |
| 54 | 11% | |
| 55 | 12% | |
| 56 | 13% | |
| 57 | 14% | |
| 58 | 15% | |
| 59 | 16% | |
| Age 60 and Above | 17% |
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(b) For each Plan Year, each Participant shall receive an allocation to his Basic Match Contribution Account for such Plan Year in an amount equal to one-hundred percent (100%) of the amount of Deferral Contributions allocated to such Participant under Section 7(A) above for such Plan Year, provided that the aggregate amount of the Basic Match Contribution under this Section 7(B)(i)(b) which may be allocated to each Participant’s Basic Match Contribution Account for such Plan Year under this Plan shall not exceed four percent (4%) of the portion of the Participant’s Compensation for such Plan Year that exceeds the dollar limitation on compensation set forth under Section 401(a)(17) of the Internal Revenue Code.
| (ii) | Time of Allocation. The Basic Match Contribution shall be credited to the Participant’s Basic Match Contribution Account at the same time as the Participant’s Deferral Contributions, to which such Basic Match Contributions relate, are credited to the Participant’s Account. |
| (iii) | Vesting. The Basic Match Contribution Account shall be subject to the vesting schedule set forth in Section 11(A)(iii). |
| (iv) | Limit. Notwithstanding the foregoing, the Basic Match Contribution with respect to any Plan Year for any Participant may not exceed Fifty Thousand Dollars ($50,000). |
C. Incremental Match Contributions. For Plan Years beginning on or after January 1, 2004, no Participant shall receive an allocation to his Incremental Match Contribution Account. For Plan Years beginning prior to January 1, 2004, each Participant shall receive an allocation to his Incremental Match Contribution Account in accordance with the following:
| (i) | For each Plan Year beginning prior to January 1, 2004, each Eligible Participant whose Index Date has occurred during such Plan Year or during a prior Plan Year shall receive an allocation to his Incremental Match Contribution Account for such Plan Year in an amount such that when added to his Basic Match Contribution under Section 7(B)(i) shall equal fifty percent (50%) of the amount of Deferral Contributions allocated to such Eligible Participant under paragraph (A) above for such Plan Year. Notwithstanding the above, the aggregate amount of Incremental Match Contributions which may be allocated to an Eligible Participant’s Incremental Match Contribution Account with respect to a Plan Year may not exceed the multiple of (a) one percent (1%) of the Eligible Participant’s Compensation for such Plan Year, times (b) the number of the Eligible Participant’s Incremental Years as of the last day of the current Plan Year. |
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| (ii) | As a further limitation to the amount of an Eligible Participant’s Basic Match Contributions set forth in Section 7(B)(i) and Incremental Match Contributions, the sum of the Basic Match Contributions set forth in Section 7(B)(i) and the Incremental Match Contributions with respect to any Plan Year may not exceed the lesser of (a) Fifty Thousand Dollars ($50,000) or (b) Fifteen Percent (15%) of the Eligible Participant’s Compensation with respect to such Plan Year. |
If the application of these limitations would otherwise result in the reduction of the Incremental Match Contributions to an amount less than zero, such excess reduction shall instead be applied to reduce the Participant’s Basic Match Contributions set forth in Section 7(B)(i).
| (iii) | The Incremental Match Contributions with respect to a Plan Year shall be credited to the Eligible Participant’s Incremental Match Contribution Account as soon as practicable after the end of such Plan Year. |
| (iv) | The Incremental Match Contribution Account shall be subject to the vesting schedule set forth in Section 11(A)(iv). |
| (v) | If a Participant who incurs a termination of employment is subsequently rehired by a Participating Company, the Participant’s Incremental Years for purposes of computing Incremental Match Contributions and the post-date of hire service for purposes of computing the portion of any Deemed Participation Match Contributions earned by the Participant will be adjusted to exclude the years of the break in service and Years of Service for vesting purposes will be adjusted in accordance with the principles applying to qualified plans under the Internal Revenue Code. |
D. Savings Plan Restoration Match Contributions. For Plan Years beginning on or after January 1, 2004, no Participant shall receive an allocation to his Savings Plan Restoration Match Contribution Account. For Plan Years beginning prior to January 1, 2004, each Participant shall receive an allocation to his Savings Plan Restoration Match Contribution Account in accordance with the following:
| (i) | For Plan Years beginning prior to January 1, 2004, each Eligible Participant whose Salary for such Plan Year is less than the dollar limitation on compensation set forth under Section 401(a)(17) of the Internal Revenue Code but only after taking into account the Eligible Participant’s Deferral Contributions with respect to Salary pursuant to Section 7(A), shall receive an allocation to his Savings Plan Restoration Match Contribution Account for such Plan Year in an amount equal to six percent (6%) of the positive difference, if any, between the amount of his Salary which does not exceed the dollar limitation then in effect under Section 401(a)(17) of the Internal Revenue Code and his Salary after reduction by the amount of his Deferral Contributions with respect to Salary pursuant to Section 7(A). |
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| (ii) | The Savings Plan Restoration Match Contribution Account shall be credited to the Eligible Participant’s Savings Plan Restoration Account as soon as practicable after the end of such Plan Year. |
| (iii) | The Savings Plan Restoration Match Contribution Account shall be subject to the vesting schedule set forth in Section 11(A)(v). |
E. Deemed Participation Match Contribution. On January 1, 2000, each Eligible Participant whose Index Date occurred prior to January 1, 2000 and who elected to make a Deferral Contribution for the Plan Year 2000 under the Prior Plan is to receive a ledger account credit for a constructive Deemed Participation Match Contribution with respect to each Plan Year occurring between such Eligible Participant’s Index Date and January 1, 2000 computed as follows:
| (i) | A determination will be made of the amount of the Basic Match Contributions and the Incremental Match Contributions which would have been allocated to such Eligible Participant’s Accounts with respect to each Plan Year had the Plan been in effect during such Plan Year and had the individual elected the maximum amount of permissible Deferral Contributions with respect to such Plan Year based on the Eligible Participant’s annualized Salary and target Bonus in effect on December 1, 1999. Such determination will include all limitations set forth above in connection with the amount of the Basic Match Contributions and Incremental Match Contributions. |
| (ii) | The above amount will be reduced by an amount equal to the actuarial equivalent computed lump-sum value of the annual accrued benefit which the individual has earned as of the time of the computation of such ledger credit under the terms of any defined benefit retirement-type plan (whether tax-qualified or nonqualified) maintained by any Participating Company. Such computation shall be made by the Administrative Committee utilizing such reasonable methodology as it may develop from time to time in its discretion. |
| (iii) | The above-referenced amount will be considered earned over a fifteen (15) year period in equal portions and each portion will be deemed to accrue on each of the first fifteen (15) anniversaries of the Eligible Participant’s date of hire by the Sponsoring Company or any Affiliated Company beginning with the Plan Year in which the Eligible Participant was |
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| first hired by the Sponsoring Company or any Affiliated Company. For the portions of the Deemed Participation Match Contribution which are deemed to have accrued in years prior to January 1, 2000, all such portions shall be deemed to have accrued in a lump-sum on January 1, 2000 without interest. After January 1, 2000, the remaining portions of the Deemed Participation Match Contribution, if any, shall be earned as of successive anniversaries of the Eligible Participant’s date of hire throughout the remainder of such fifteen (15)-year period in equal annual amounts computed as periodic payments, discounted at 10% per annum, and such amounts, as earned, shall be credited to the ledger account on December 31 of each such year. |
| (iv) | The accrued balance in the Eligible Participant’s ledger account shall be credited with interest on December 31 of each year at a rate to be determined prospectively and published by the Administrative Committee, in its discretion. |
| (v) | The Deemed Participation Match Contribution shall not actually be made to the Trust but the cumulative amount credited to the Deemed Participation Match Contribution ledger account shall instead be paid directly to the Eligible Participant in a lump sum by the applicable Participating Company if the Eligible Participant terminates employment after attaining his Retirement Date and after having become vested in accordance with Section 11(A)(vi). |
| (vi) | The entitlement of the Eligible Participant to the Deemed Participation Match Contribution shall be subject to the vesting schedule set forth in Section 11(A)(vi). |
SECTION 8
DISABILITY BENEFITS
A. Disability Retirement Benefits. If a Participant’s employment terminates by reason of Total and Permanent Disability while in the employ of the Sponsoring Company or an Affiliated Company, his Company Contribution Accounts shall fully vest (except for his Deemed Participation Match Contribution Account which will only be paid if the Participant has terminated employment after satisfying the conditions described in Section 11(A)(vi)), and he shall be entitled to receive benefits equal to the total amount in his Accounts in the Plan (except for his Deemed Participation Match Contribution Account which will only be paid if the Participant has terminated employment after satisfying the conditions described in Section 11(A)(vi)). Such benefits shall be paid at the time and in the manner specified in Section 12.
B. Determination of Disability. The Administrative Committee shall determine whether a Participant has suffered a Total and Permanent Disability and its determination in that respect shall be binding upon the Participant. In making its determination, the Administrative Committee may (i) require the Participant to submit to medical examinations by doctors selected by the Administrative Committee or (ii) rely upon a determination that the Participant is entitled to disability benefits payable under Title II of the Social Security Act, 42 U.S.C. 301 et. seq., or similar subsequent section, as evidenced by a certificate of Social Security Insurance Award. The provisions of this Section 8 shall be uniformly and consistently applied to all Participants.
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SECTION 9
RETIREMENT BENEFITS
If a Participant is employed by the Sponsoring Company or an Affiliated Company on his Retirement Date, his Company Contribution Accounts shall fully vest at that time (except for his Deemed Participation Match Contribution Account which will only be paid if the Participant terminates employment after satisfying the conditions described in Section 11(A)(vi)). If the Participant continues in a Participating Company’s employ after his Retirement Date, he shall continue to be eligible to reduce his Compensation under the Plan and to share in the allocations of Company Contributions under the Plan until his actual retirement. Upon retirement on or after attaining his Retirement Date, a Participant shall be entitled to receive benefits equal to the total amount in his Accounts in the Plan (except for his Deemed Participation Match Contribution Account which will only be paid if the Participant terminates employment after satisfying the conditions described in Section 11(A)(vi)). Such benefits shall be paid at the time and in the manner specified in Section 12.
SECTION 10
DEATH BENEFITS
A. Death Benefits. Upon the death of a Participant who is employed by the Sponsoring Company or an Affiliated Company at the time of his death, such deceased Participant’s Company Contribution Accounts shall fully vest (except for his Deemed Participation Match Contribution Account which will only be paid if the Participant dies after having satisfied the conditions described in Section 11(A)(vi)), and his Beneficiary shall be entitled to receive benefits equal to the total amount in the deceased Participant’s Accounts in the Plan (except for his Deemed Participation Match Contribution Account which will only be paid if the Participant dies after having satisfied the conditions described in Section 11(A)(vi)). Upon the death of a Participant who is not employed by the Sponsoring Company or an Affiliated Company at the time of his death, such deceased Participant’s Beneficiary shall be entitled to receive benefits equal to the vested amount in the deceased Participant’s Accounts in the Plan as determined in accordance with the provisions of Section 11(A). In either event, such benefits shall be paid at the time and in the manner specified in Section 12.
B. Designation of Beneficiaries. Each Participant may designate one or more Beneficiaries and contingent Beneficiaries by delivering a written designation thereof over his signature to the Administrative Committee. A Participant may designate different Beneficiaries at any time by delivering a new written designation over his signature to the Administrative Committee. Any such designation shall become effective only upon its receipt by the Administrative Committee. The last effective designation received by the Administrative Committee shall supersede all prior designations. A designation of a Beneficiary shall be effective only if the designated Beneficiary survives the Participant.
C. Failure of Participant to Designate. If a Participant fails to designate a Beneficiary, or if no designated Beneficiary survives the Participant, the Participant shall be deemed to have designated the Beneficiaries then in effect under the group term life insurance plan of the Sponsoring Company or an Affiliated Company, or, in the absence of any such valid designation, his estate.
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D. Beneficiaries’ Rights. Whenever the rights of a Participant are stated or limited in the Plan, his Beneficiaries shall be bound thereby.
SECTION 11
EMPLOYMENT TERMINATION BENEFITS
A. Vesting Rules.
| (i) | Vesting of Deferral Contribution Account. A Participant is always vested one hundred percent (100%) in his Deferral Contribution Account. |
| (ii) | Vesting of Company Contribution Accounts in Special Cases. In the event of the termination of employment of a Participant due to death, incurrence of Total and Permanent Disability or after attainment of his Retirement Date or a Change in Control, such Participant shall be entitled to receive one hundred percent (100%) of the amount in his Company Contribution Accounts (other than the Deemed Participation Match Contribution Account which will only be payable if the Participant terminates employment after having satisfied the conditions described in Section 11(A)(vi)). |
| (iii) | Vesting of Basic Match Contribution Account. In the event that the Participant terminates employment for reasons or under circumstances other than those set forth in paragraph (ii) above, the vested status of the Participant’s Basic Match Contribution Account will be based upon a five-year vesting schedule wherein 20% of the balance of the Account will become vested for each Year of Service commencing with the Participant’s initial date of hire with the Sponsoring Company or an Affiliated Company. |
| (iv) | Vesting of Incremental Match Contribution Account. In the event that the Participant terminates employment for reasons or under circumstances other than those set forth in paragraph (ii) above, the vested status of the Participant’s Incremental Match Contribution Account will be based upon a schedule wherein 10% of the balance of the Account will become vested for each Year of Service commencing with the later of (a) the Participant’s initial date of hire with the Sponsoring Company or an Affiliated Company or (b) the Participant’s Index Date. |
| (v) | Vesting of Savings Plan Restoration Match Contribution Account. In the event the Participant terminates employment for reasons or under circumstances other than those set forth in paragraph (ii) above, the vested status of Participant’s Savings Plan Restoration Match Contribution Account will be based upon a five-year vesting schedule wherein 20% of the balance of the Account will become vested for each Year of Service commencing with the Participant’s initial date of hire with the Sponsoring Company or an Affiliated Company. |
| (vi) | Vesting of Deemed Participation Match Contribution Account. A Participant will become vested in his Deemed Participation Match Contribution ledger account on the |
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| later of (a) his attainment of his Retirement Date or (b) the fifth (5th) anniversary of the date of such Participant’s initial participation in the Plan. If the Participant terminates employment for any reason prior to such Retirement Date or prior to such fifth (5th) anniversary, the individual will have no entitlement to receive any payments with respect to his Deemed Participation Match Contribution. |
| (vii) | Termination for Cause. Notwithstanding the above, in the event a Participant’s employment is terminated “for cause” other than a termination which occurs subsequent to a Change in Control, the Participant will not be entitled to receive any payments from the Plan other than a payment relating to his Deferral Contribution Account. For these purposes, the term “for cause” shall mean any of the following in the judgement of the Administrative Committee: |
(a) any type of disloyalty to the Company, including, without limitation, fraud, embezzlement, theft, or dishonesty in the course of a Participant’s employment or business relationship with the Company; or
(b) conviction of a felony or other crime involving a breach of trust or fiduciary duty owed to the Company; or
(c) unauthorized disclosure of trade secrets or confidential information of the Company; or
(d) a material breach of any agreement with the Company in respect of confidentiality, non-disclosure, non-competition or otherwise; or
(e) any serious violation of Company policy that is materially damaging to the Company’s interests.
B. Counting Years of Service. For purposes of this Section 11, all Years of Service (whether or not continuous) shall be taken into account.
C. Forfeiture of Non-Vested Amount. The excess of (i) the amount in the Company Contribution Accounts of a Participant whose termination of employment has occurred, over (ii) the vested amount in such Company Contribution Accounts as determined in accordance with the vesting schedules set forth in Section 11(A) (such difference being referred to herein as the “Non-Vested Amount”) shall be forfeited upon the earlier of (i) the Participant’s receipt of a payment of his total vested Accounts under the Plan or (ii) the second (2nd) anniversary following his termination of employment.
SECTION 12
PAYMENT OF BENEFITS
A. General.
| (i) | Payment Provisions. Amounts shall be paid under the Plan in accordance with the following provisions of this Section 12. |
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| (ii) | Permitted Date of Payment. A payment will be considered to be made on the applicable Payment Date if it is made on or as soon as practicable after that date, but in no event later than the end of the calendar year in which such date occurs or, if later, by the 15th day of the third calendar month following the Payment Date; provided that, except pursuant to a timely filed Distribution Election, a Participant is not permitted, directly or indirectly, to designate the taxable year of the payment. |
| (iii) | Amount of Payment. The amount of a payment with respect to a Participant’s Account balances as of any Payment Date will be determined as of the first Valuation Date occurring on or after that Payment Date; and investment returns on the amount of such payment occurring after that Valuation Date will be disregarded. However, the amount of a payment to be determined as of a Valuation Date in accordance with this paragraph (iii) will be supplemented, where applicable, by a distribution equal to any vested amounts allocated to such Participant’s Accounts after that Valuation Date (but disregarding any adjustment for investment returns after the Valuation Date). |
| (iv) | Deferrals during Year of Termination. For the avoidance of doubt, it is recited that Salary or Bonus amounts that are deferred with respect to any calendar year shall be allocated to the Participant’s Accounts in accordance with the provisions of the Plan and shall be paid in accordance with the terms of the Plan, without regard to whether the Participant’s employment terminates during that year. |
| (v) | Reemployment. For the avoidance of doubt, it is recited that amounts scheduled to be paid on a Payment Date shall not be suspended by reason of a Participant’s reemployment by the Sponsoring Company or an Affiliated Company. |
| (vi) | Disability. If a Participant’s termination of employment is by reason of disability, including by reason of Total and Permanent Disability, the time of payment will be determined without regard to the existence of such disability, provided that this paragraph (vi) shall not affect the application of Section 8 (relating to vesting by reason of Total and Permanent Disability). |
| (vii) | Liability for Taxes. A Participating Company making any payment hereunder shall withhold from the payment any applicable payroll taxes or required income taxes. |
| (viii) | Intervening Event. |
(a) If a Participant has elected to receive payment of all or a portion of his vested Account balances in the form of installments beginning on termination of employment, and the Participant dies before complete payment (or before any payment) of those Account balances (regardless of whether the death occurs before or after termination of employment), then notwithstanding the Participant’s election, the Payment Date of the vested Account balances will be accelerated, and payment will be made in a lump sum in accordance with Section 12(D) (relating to payment on death).
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(b) If a Participant has elected to receive payment of all or a portion of his benefits as an in-service withdrawal in the form of a lump sum or installments, and the Participant dies before payment of all such amounts, then notwithstanding the Participant’s election, the Payment Date for all vested Account balances will be accelerated, and payment will be made in a lump sum in accordance with Section 12(D) (relating to payment on death).
(c) If a Participant has elected to receive all or a portion of his benefits as an in-service withdrawal in the form of installments, and the Payment Date for the first payment of such in-service withdrawal occurs before the Participant’s termination of employment, the amounts otherwise to be paid as an in-service withdrawal will continue to be paid in accordance with the applicable in-service withdrawal installment schedule after the Participant’s termination of employment; provided, however, that if the schedule for payment of Plan benefits upon termination of employment (including, if applicable, the schedule as modified by paragraph (a) and (b) above) would result in a faster payment than the otherwise-applicable schedule for the in-service withdrawal, the remaining portion of the Participant’s benefits to be paid as an in-service withdrawal will instead be paid in accordance with the payment schedule applicable to the Participant’s termination of employment.
(d) If a Participant has elected to receive all or a portion of his benefits as an in-service withdrawal in the form of installments, and the Payment Date for the first payment of such in-service withdrawal is after the date of the Participant’s termination of employment, such in-service withdrawal election shall be disregarded, and the amount shall be paid in accordance with Section 12(B), 12(C), or 12(D), whichever is otherwise applicable.
| (ix) | Payment for Minor Beneficiary. In the event a payment is to be made to a minor, then the Administrative Committee may, in its sole discretion, direct that such payment be made to the legal guardian, or if none, to a parent of such Beneficiary or a responsible adult with whom the Beneficiary maintains his residence, or to the custodian for such Beneficiary under the Uniform Gift to Minors Act or Gift to Minors Act, if such is permitted by the laws of the state in which said Beneficiary resides. Such a payment to the legal guardian or parent of a minor Beneficiary shall fully discharge the Participating Company and the Plan from further liability on account thereof. |
B. Lump Sum Payment on Termination of Employment. Subject to the provisions of this Section 12, a Participant’s vested Account balances shall be paid in a lump sum on the date his employment terminates, which termination date shall be the Payment Date under this paragraph (B).
C. Installment Payment on Termination of Employment. Subject to the provisions of this Section 12, in lieu of the payment under Section 12(B), a Participant may elect to have his vested Account balances paid in installments commencing on his termination of employment, subject to the following:
| (i) | Payment Dates. Payments made under this paragraph (C) shall be in the form of annual installments, with the first such installment payment to be made on the date of termination of employment (the “Payment Date” for the first such installment). Subsequent payments shall be made on February 1 of each subsequent calendar year (the “Payment Date” for each such respective installment). For purposes of Treas. Reg. §1.409A-2(b), the entitlement to a series of installment payments is treated as the entitlement to a single payment. |
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| (ii) | Distribution Election. A Participant’s vested Account balances shall be paid in the form of installments under this paragraph (C) only if that form of payment is elected by the Participant by filing a Distribution Election with respect to such Account balances not later than the deadline for filing the Deferral Election for the first allocation under the Plan for any of the Participant’s Accounts or, if later, December 31, 2008. However, to the extent required by applicable guidance issued by the Internal Revenue Service, an election made in any of 2005, 2006, 2007 or 2008 may not have the effect of deferring payment of amounts otherwise payable in the year in which such election is made, and may not have the effect of accelerating the date of payment into the year in which the election is made. Except as otherwise expressly provided in the Plan, the Distribution Election with respect to any amounts may not be modified after the deadline for filing the election with respect to such amounts. If a Participant elects payment in the form of installments, the Distribution Election shall further designate the period of time (either five (5) years or ten (10) years) over which the installments are to be paid. In the absence of properly filed election under this paragraph (C), upon termination of employment, a Participant’s vested Account balances shall be paid in accordance with Section 12(B). |
| (iii) | Eligible Participants. Payment in the form of installments under this paragraph (C) shall be available only if payment is by reason of the Participant’s termination of employment, and only if the Participant has attained age forty-five (45) before his termination of employment. If a Participant who has elected to receive payment of his Account balances in installments in accordance with this paragraph (C) has not attained age forty-five (45) before his termination of employment, payment of those vested Account balances shall be made in a lump sum in accordance with Section 12(B). |
| (iv) | Application of Installment Election. The ability to elect to receive installment payments under this paragraph (C) shall be available only if the election applies to all of the Participant’s Accounts excluding Account balances that are to be withdrawn under Section 12(E) (relating to in-service withdrawals), and such in-service withdrawals shall be paid in accordance with Section 12(E) below, subject to paragraph 12(A)(viii) (relating to intervening events). |
| (v) | Amount of Installments. The amount of each installment paid under this paragraph (C) will equal the result of dividing the Participant’s vested Account balances (determined as of the applicable Payment Date) by the number of installments remaining immediately before the payment, with such determination to be made disregarding the possibility of any acceleration described in Section 12(D) (relating to death); provided however that subject to paragraph 12(A)(viii) (relating to intervening events), the determination of the Account balances to be paid under this paragraph (C) shall exclude Account balances that are to be withdrawn under Section 12(E) (relating to in-service withdrawals). |
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| (vi) | Adjustments to Account Balances. Subject to Section 12(A)(iii) (relating to investment returns), during the period installment payments are being made under this paragraph (C), the remaining balances in the Participant’s vested Accounts shall have the investment return as selected by the Participant, and such amounts shall be credited with earnings or losses, in accordance with the provisions of Section 6. |
| (vii) | Accelerated Cash Out for Small Amounts. Notwithstanding the foregoing provisions of this paragraph (C), if, after termination of employment (including any time after installments commence under this paragraph (C)), as of the Payment Date for any installment under this paragraph (C), the Participant’s Account balances subject to payment under this paragraph (C) are less than Fifty Thousand Dollars ($50,000), then in lieu of receiving any further installments under this paragraph (C), the Participant shall receive a lump sum at the time the installment would otherwise be paid equal to the Participant’s Account balances as of such Valuation Date. For purposes of this paragraph (vii), the value of the Account balances shall be determined as of the applicable Payment Date under Section 12(A)(iii). |
D. Death. If a Participant’s termination of employment occurs by reason of death, or if a Participant dies before having received all installments otherwise scheduled to be paid to him under either or both of Section 12(C) or Section 12(E), the Payment Date will be the date of death, and the Participant’s beneficiary determined in accordance with Section 10 will receive a lump sum payment equal to the vested Account balances determined for that Payment Date in accordance with Section 12(A)(iii). Subject to Section 12(A)(ii) (relating to permitted date of payment)), such payment shall be made on the date of death.
E. In-Service Withdrawal. A Participant may elect to receive an in-service withdrawal of amounts credited to the Participant’s Deferral Contribution Account, vested Basic Match Contribution Account or vested Incremental Match Contribution Account, subject to the following:
| (i) | Distribution Election. An in-service withdrawal of amounts attributable to services performed in a calendar year may be made pursuant to a Distribution Election filed not later than the end of the calendar year before the calendar year in which such services are performed or, if later, December 31, 2008, but in no event later than the filing deadline established by the Administrative Committee. Further, to the extent required by applicable guidance issued by the Internal Revenue Service, an election made in any of 2005, 2006, 2007 or 2008 may not have the effect of deferring payment of amounts otherwise payable in the year in which such election is made, and may not have the effect of accelerating the date of payment into the year in which the election is made. A separate Distribution Election may be made for each Plan Year with respect to all but not less than all of the combination of all Deferral Contributions, Basic Match Contributions and Incremental Match Contributions relating to such Plan Year. Except as otherwise expressly provided in the Plan, a Distribution Election with respect to any amounts may not be modified after the deadline for filing the election with respect to such amounts. |
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| (ii) | Installment Period. An in-service withdrawal may be made in the form of a lump-sum payment, or in the form of annual installments over a two, three, four or five year period as specified in the Distribution Election form. |
| (iii) | Payment Dates. Subject to Section 12(A)(viii) (relating to intervening events), the Payment Date (or, in the case of installments, the Payment Date for the first installment) under this paragraph (E) shall be the January 1 of the year specified in the Participant’s Distribution Election under this paragraph (E), provided that the year specified may be no less than two years after the end of the Plan Year in which the services resulting to such Deferral Contributions and/or Matching Contributions are performed. If payments are made in installments, the Payment Date of each installment will be January 1 of the year of the applicable payment. |
| (iv) | Amount of Installments. If amounts deferred for any Plan Year are to be paid in the form of installments in accordance with this paragraph (E), the amount of each installment will equal the result of dividing the Participant’s vested Account balances deferred for such year (determined as of the applicable Payment Date) by the number of installments remaining immediately before the payment, with such determination to be made disregarding the possibility of any acceleration described in Section 12(D) (relating to death). |
| (v) | Adjustments to Account Balances. Subject to Section 12(A)(iii), during the period installment payments are being made under this paragraph (E), the remaining balances in the Participant’s vested Accounts shall have the investment return as selected by the Participant, and such amounts shall be credited with earnings or losses, in accordance with the provisions of Section 6. |
| (vi) | Accelerated Cashout for Small Amounts. Notwithstanding the foregoing provisions of this paragraph (E), if as of the Payment Date for any installment under this paragraph (E), the Participant’s Account balances subject to payment under this paragraph (E) are less than twenty-five thousand dollars ($25,000), then in lieu of receiving any further installments under this paragraph (E), the Participant shall receive a lump sum at the time the installment would otherwise be paid equal to the Participant’s Account balances as of such Valuation Date. For purposes of this paragraph (vi), the value of the Account balances shall be determined as of the applicable Payment Date. The foregoing $25,000 limit shall be applied separately with respect to the Account balances attributable to any single Plan Year. |
F. Unforeseeable Emergency Withdrawals. Unforeseeable emergency withdrawals shall be subject to the following:
| (i) | Prior to and after his termination of employment, a Participant may request the Administrative Committee to allow withdrawal from the Participant’s undistributed |
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| vested Accounts in the event of an Unforeseeable Emergency. The Administrative Committee shall determine the Account or Accounts from which the withdrawal is to be made. |
| (ii) | Subject to the definition of “Unforeseeable Emergency” set forth in Section 2, the Administrative Committee can grant or deny a Participant’s request for a hardship withdrawal in its sole discretion and need not be consistent with respect to similarly situated requests. |
| (iii) | Payments because of an unforeseeable emergency are limited to the amount reasonably necessary to satisfy the emergency need (which may include amounts necessary to pay any Federal, state, local, or foreign income taxes or penalties reasonably anticipated to result from the payment). A payment on account of Unforeseeable Emergency may not be made to the extent that such emergency is or may be relieved through reimbursement or compensation from insurance or otherwise, or by liquidation of the Participant’s assets, to the extent the liquidation of such assets would not cause severe financial hardship. However, in making the determination of amounts reasonably necessary to satisfy the emergency need, the Administrative Committee is not required to take into account any additional compensation that is available under another nonqualified deferred compensation plan due to the unforeseeable emergency but has not actually been paid, or that is available due to the unforeseeable emergency under another plan that would provide for deferred compensation except due to the application of the effective date provisions under Treas. Reg. §1.409A-6. |
G. Accelerated Payment for Tax Liability. To the extent permitted by the Administrative Committee, amounts credited, or to be credited, to a Participant’s Accounts may be reduced to pay Federal Insurance Contributions Act (FICA) tax imposed under Internal Revenue Code Section 3101, Section 3121(a), and Section 3121(v)(2), on compensation deferred under the plan (the “FICA Amount”), or to pay the income tax at the source on wages imposed under Internal Revenue Code Section 3401 or the corresponding withholding provisions of applicable state, local, or foreign tax laws as a result of the payment of the FICA Amount, and to pay the additional income tax at the source on wages attributable to the pyramiding Internal Revenue Code Section 3401 wages and taxes. However, the total payment under this paragraph (G) must not exceed the aggregate of the FICA Amount, and the income tax withholding related to such FICA Amount.
H. Delayed Payment for Specified Employees. Notwithstanding any other provision of the Plan, if a Participant is a Specified Employee at the time of termination of employment, and payment of benefits under the Plan is by reason of the termination of employment, then amounts may not be paid before the date that is six months after the date of termination of employment or, if earlier, the date of death of the employee. At the end of the six-month period described in the preceding sentence, amounts that could not be paid by reason of the limitation in the preceding sentence shall be paid on the first day of the seventh month following the date of termination of employment; provided that the delay required under this paragraph (H) shall not delay payment of any other amounts otherwise due after the six-month anniversary of the termination of the Participant’s employment.
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I. Subsequent Deferral. Notwithstanding the foregoing provisions of the Plan, to the extent permitted by the Administrative Committee, a Participant may elect to postpone payment of amounts under the Plan, provided that the subsequent deferral satisfies the following requirements:
| (i) | The subsequent deferral election may not take effect until at least 12 months after the date on which the election is filed and becomes irrevocable. |
| (ii) | In the case of an election related to a payment not described in Treas. Reg. §1.409A–3(a)(2) (relating to payment on account of disability), Treas. Reg. §1.409A–3(a)(3) (relating to payment on account of death), or Treas. Reg. §1.409A–3(a)(6) (relating to payment on account of the occurrence of an unforeseeable emergency), the payment with respect to which such election is made must be deferred for a period of not less than five years from the date such payment would otherwise have been paid (or in the case of installment payments which are treated as a single payment under the Plan, five years from the date the first amount was scheduled to be paid). |
| (iii) | Any election related to a payment described in Treas. Reg. §1.409A–3(a)(4) (relating to payment at a specified time or pursuant to a fixed schedule) be made not less than 12 months before the date the payment is scheduled to be made (or in the case of installment payments which are treated as a single payment under the Plan, 12 months before the date the first amount was scheduled to be paid). |
J. Benefits of Persons Who Cannot Be Located. If the Administrative Committee determines in good faith that a Participant or Beneficiary entitled to receive a benefit payment hereunder cannot be located, the Administrative Committee shall nevertheless give written notice to such person of the fact that such benefit payment is payable to him under the Plan. Such written notice shall be given by United States mail to the person entitled to the benefit payment (according to the records of the Plan) at the last known address of such person. In addition, the Administrative Committee shall use such other means as it determines are reasonably available to it in order to ascertain the location of such person. If such Participant or Beneficiary makes no claim for such benefit payment before the earlier of (i) the deadline for payment under Section 409A or (ii) the termination of the Plan, then, subject to limitations of applicable law, the Administrative Committee shall declare a forfeiture of the benefits otherwise payable to such person, provided such person has not yet been located.
SECTION 13
BENEFIT CLAIMS PROCEDURE
A. Claims for Benefits. Any claim for benefits under the Plan shall be made in writing to the Administrative Committee. If such claim for benefits is wholly or partially denied, the Administrative Committee shall, within ninety (90) days after receipt of the claim, notify the Participant or Beneficiary of the denial of the claim. Such notice of denial shall (i) be in writing, (ii) be written in a manner calculated to be understood by the Participant or Beneficiary, and (iii) contain (a) the specific reason or reasons for denial of the claim, (b) a specific reference to the pertinent Plan provisions upon which the denial is based, (c) a description of any additional
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material or information necessary to perfect the claim, along with an explanation of why such material or information is necessary, and (d) an explanation of the claim review procedure as set forth in this Section 13.
B. Request for Review of Denial. Within sixty (60) days after the receipt by a Participant or Beneficiary of a written notice of denial of the claim, or such later time as shall be deemed reasonable taking into account the nature of the benefit subject to the claim and any other attendant circumstances, the Participant or Beneficiary may file a written request with the Administrative Committee that it conduct a full and fair review of the denial of the claim for benefits.
C. Decision on Review of Denial. The Administrative Committee shall deliver to the Participant or Beneficiary a written decision on the claim within sixty (60) days after the receipt of the aforesaid request for review. Such decision shall (i) be written in a manner calculated to be understood by the Participant or Beneficiary, (ii) include the specific reason or reasons for the decision, and (iii) contain a specific reference to the pertinent Plan provisions upon which the decision is based.
SECTION 14
INALIENABILITY OF BENEFITS
The right of any Participant or Beneficiary to any benefit or payment under the Plan shall not be subject to voluntary or involuntary transfer, alienation, or assignment, and, to the fullest extent permitted by law, shall not be subject to attachment, execution, garnishment, sequestration, or other legal or equitable process. In the event a Participant or Beneficiary who is receiving or is entitled to receive benefits under the Plan attempts to assign, transfer or dispose of such right, or if an attempt is made to subject said right to such process, such assignment, transfer or disposition shall be null and void.
SECTION 15
AMENDMENT OF THE PLAN
A. Authority to Amend and Terminate. The Sponsoring Company may amend the Plan at any time, and from time to time, with respect to both Participants who are employed by the Sponsoring Company and Participants who are employed by any Participating Company, pursuant to written resolutions of the Board of Directors of the Sponsoring Company or, to the extent it has delegated such authority, pursuant to written resolutions of the Administrative Committee. Notwithstanding the foregoing provisions of this Plan, the Sponsoring Company may provide for payment of some or all of the Accounts established in connection with the Plan if legal counsel for the Sponsoring Company renders a written opinion that such payment is required to enable the Plan to qualify for exemption from the requirements of Parts 2-4 of Title I of ERISA or as otherwise required by applicable law. No such amendment, however, shall either: (I) have the effect of reducing any then nonforfeitable percentage of benefits of any Participant as computed in accordance with the vesting schedule under Section 11(A); or (ii) have the effect of causing an acceleration or other payment that would otherwise result in the application of penalties under Section 409A.
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B. Prior Plan. An amendment or termination that is adopted after the Effective Date will apply to the Prior Plan only if such amendment or termination expressly provides that it applies to the Prior Plan.
C. Successors. The Sponsoring Company (including a successor to the Company) may, without the consent of any other person:
| (i) | Assignment By Sponsoring Company. Assign its rights and obligations under the Plan or assign the rights and obligations of any other Participating Company under the Plan to any Related Company. |
| (ii) | Assignment in Transaction. Assign its rights and obligations with respect to one or more Participants under the Plan to any person acquiring, whether by merger, consolidation, purchase of assets or otherwise (a “Transaction”), all or substantially all of the assets and business of the Sponsoring Company or any Related Company, all or substantially all of the stock of any Related Company, or all or substantially all of the assets and business of a division or business unit of the Sponsoring Company or a Related Company (a “Successor”); provided that such Successor employs such Participant after the transaction, the business acquired by the Successor employed the Participant before the Transaction, or the Participant provided services to such business before the Transaction. |
| (iii) | The Sponsoring Company will require any assignee (pursuant to paragraph (i) above) or Successor (pursuant to paragraph (ii) above) to assume and agree to perform the Plan in the same manner and to the same extent that the Sponsoring Company or Related Company (including a successor to the Sponsoring Company or Related Company), as applicable, would be required to perform it if no such assignment or succession had taken place; and after such assignment, the Sponsoring Company or Related Company or successor assigning the rights and obligations under the Plan shall have no further rights or obligations with respect to the assigned rights and obligations. The ability to assign rights and obligations under paragraph (ii) above will be applicable with respect to any Participant only if, as a result of the transaction described in paragraph (ii) above, the Participant is not, at the end of the 30-day period following the transaction, employed by the Sponsoring Company or an entity that is then a Related Company. |
SECTION 16
PERMANENCY OF THE PLAN
A. Right of Termination. The Sponsoring Company reserves the right to terminate the Plan with respect to any and all the Participating Companies.
B. Termination Procedure. If the Board of Directors of the Sponsoring Company determines to terminate the Plan completely with respect to any or all Participating Companies, the Plan shall be terminated with respect to such Participating Company as of the date specified in resolutions of such Board of Directors of the Sponsoring Company delivered to the Administrative Committee. Upon such termination or partial termination of the Plan, after payment of all expenses and proportional adjustment of the Accounts of the Participants affected
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by such termination to reflect expenses, profits or losses, and allocations of any previously unallocated amounts to the date of termination, the Participants affected by such termination shall be entitled to receive the vested amounts then credited to their respective Accounts in the Plan. The Administrative Committee shall make payment of such amounts in cash. No such amendment, however, shall have the effect of causing an acceleration or other payment that would otherwise result in accelerated recognition of income or imposition of additional tax under Section 409A.
C. Vesting on Termination. Upon the termination or partial termination of the Plan, the right of each Participant affected by such termination to the vested amount credited to his Accounts at such time shall be nonforfeitable without reference to any formal action on the part of the Administrative Committee or the Participating Company employing such Participant.
SECTION 17
STATUS OF EMPLOYMENT RELATIONS
The adoption and maintenance of the Plan shall not be deemed to constitute a contract between any Participating Company and its Employees or to be consideration for, or an inducement or condition of, the employment of any person. Nothing herein contained shall be deemed (i) to give to any Employee the right to be retained in the employ of a Participating Company; (ii) to affect the right of a Participating Company to discipline or discharge any Employee at any time; (iii) to give a Participating Company the right to require any Employee to remain in its employ; (iv) to affect any Employee’s right to terminate his employment at any time; or (v) to confer the right to receive any Compensation in any form.
SECTION 18
FUNDING
No assets of the Participating Companies shall be set aside, earmarked or placed in trust or escrow for the benefit of any Participant to fund any obligation of any Participating Company which may exist under this Plan; provided, however, that the Sponsoring Company shall establish a grantor trust designated as the “Chiquita Brands International, Inc. Capital Accumulation Plan Trust” to hold assets to secure the obligations to the Participants under this Plan (except for Deemed Participation Match Contribution) provided that neither the establishment nor the maintenance of the Trust results in the Plan being “funded” for purposes of the Internal Revenue Code. Except to the extent provided through the Trust, all payments to a Participant or Beneficiary under this Plan shall be made out of the general revenue of the Sponsoring Company or the Participating Company which employed the Participant to which such benefits were attributable, and the right to such payments by the Participant or Beneficiary shall be solely that of an unsecured general creditor of the Sponsoring Company and the relevant Participating Company. If the Sponsoring Company or other Participating Company makes a direct payment of a benefit to a Participant or Beneficiary, it shall be entitled to reimbursement for such amount from the Trust.
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SECTION 19
APPLICABLE LAW
The Plan shall be construed, regulated, interpreted and administered under and in accordance with the laws of the State of Ohio, to the extent not preempted by ERISA.
SECTION 20
ADOPTION OF PLAN BY AFFILIATED COMPANIES
Any Affiliated Company, whether or not presently existing, may be designated by the Administrative Committee of the Sponsoring Company as a Participating Company under this Plan and a party to any trust established in connection with the Plan. Any such Affiliated Company which is deemed to have adopted the Plan pursuant to action taken by the Administrative Committee of the Sponsoring Company as provided above shall thereafter be included within the meaning of the term “Participating Company” when used in the Plan.
SECTION 21
PAYMENT UNDER BONUS ARRANGEMENTS
Payments under a bonus arrangement established or maintained by a Sponsoring Company or a Related Company attributable to any Performance Period shall be paid on the 15th day of the third month following the end of the first calendar year in which the right to the payment is no longer subject to a substantial risk of forfeiture determined in accordance with Treas. Reg. §1.409A-1(d); provided, however, that the foregoing provisions of this Section 21 shall not apply to the extent otherwise provided in any documents governing such bonus arrangement, and except to the extent that payment of amounts attributable to such bonuses are deferred under the foregoing provisions of this Plan or under any other plan or arrangement document.
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