Exhibit 10.9


 


THE HERTZ
CORPORATION

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

(as amended and restated effective January 1, 2005)

(as further amended effective December 31, 2008)


 


The Hertz Corporation, with its
principal office at 225 Brae Boulevard, Park Ridge, New Jersey, by action of
the Compensation Committee of its Board of Directors, adopted, effective January 1,
1999, a Supplemental Executive Retirement Plan (the “Plan”) to provide a select
group of key executives and highly compensated employees a program
supplementing benefits payable to them under The Hertz Corporation Account
Balance Defined Benefit Pension Plan (the “Retirement Plan”) and other
non-qualified benefit plans.


 


The Plan was amended and
restated, effective as of January 1, 2005, in order to conform the Plan to
the requirements of Code Section 409A. 
The Company has determined that it does not wish to distinguish the
treatment of benefits accrued and vested by December 31, 2004 from that of
benefits accrued or vested after that date. 
Accordingly, the Company intends that this amendment and restatement
constitute a material modification of the Plan as in effect on October 3,
2004 and that, consequently, all benefits under the Plan be administered on a
unitary basis subject to Code Section 409A.  The Plan was amended and restated again,
effective as of December 31, 2008, in order to reflect the operation of
the Plan pursuant to final regulations issued under Section 409A and to
bring the plan into documentary compliance thereunder.


 


ARTICLE 1 - DEFINITIONS


 


Capitalized words and phrases
used herein, but which are not defined herein, shall have the same meaning
ascribed to them in the Retirement Plan. 
In addition, the following definitions shall apply for purposes of this
Plan:


 


	
  1.1

  	
  Actuarial
  Equivalent

  	
  -

  	
  Shall mean a
  benefit or amount that replaces another and has the same value as the benefit
  or amount it replaces, based on 

  



 

















 


	
   

  	
   

  	
   

  	
  the
  actuarial assumptions set forth in Schedule C of the Retirement Plan.



  
	
  1.2

  	
  Affiliated
  Company

  	
  -

  	
  Shall mean:
  (i) the Company, (ii) a member of a controlled group of
  corporations of which an Employer is a member, (iii) an unincorporated
  trade or business which is under common control with an Employer as
  determined in accordance with Section 414(c) of the Code, (iv) a
  member of an affiliated service group with any Employer as defined in
  Section 414(m) of the Code or (v) any other entity that must
  be aggregated with an Employer under Section 414(o) of the Code. A
  corporation or an unincorporated trade or business shall not be considered an
  Affiliated Company for any period while it does not satisfy clause (i), (ii),
  (iii), (iv) or (v) of this definition. For purposes of this
  definition, a “controlled group of corporations” is a controlled group of
  corporations as defined in Section 1563(a) of the Code (determined
  without regard to Code Sections 1563(a)(4) and (e)(3)(c)).



  
	
  1.3

  	
  Beneficiary

  	
  -

  	
  Shall mean
  the person designated in writing, on such form as the Committee may
  prescribe, to receive any benefits with respect to such Participant in the
  event of his or her 

  death. Such beneficiary designation may be changed at any time.



  
	
  1.4

  	
  BEP

  	
  -

  	
  Shall mean
  The Hertz Corporation Benefit Equalization Plan, as amended from time to
  time.

  



 


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  1.5

  	
  Change in
  Control

  	
   

  	
  Shall mean:
  (i) the direct or indirect acquisition by any person or group of persons
  acting in concert, of beneficial ownership, through a purchase, merger or
  other acquisition transaction or series of transactions, of securities of the
  Company entitling such person or group to exercise more than 50% of the
  combined voting power of the Company’s securities; (ii) the transfer,
  whether by sale, merger or otherwise, of all or substantially all of the
  business and assets of the Company to any person or group of persons acting
  in concert; or (iii) any other event constituting a change in the
  ownership or effective control of the Company or in the ownership of a
  substantial portion of the assets of the Company, in the case of each of (i),
  (ii) and (iii) as defined in applicable guidance under Code
  Section 409A. In addition, with respect to any Participant, a Change in
  Control shall be deemed to have occurred upon any of the transactions set
  forth in clause (i), (ii) or (iii) occurring with respect to Hertz
  Global Holdings, Inc. or the Affiliated Company that employs the
  Participant (substituting Hertz Global Holdings, Inc. or such Affiliated
  Company for “the Company” therein).



  
	
  1.6

  	
  Code

  	
   

  	
  Shall mean
  the Internal Revenue Code of 1986, as amended from time to time, and
  applicable rules and regulations thereunder. Reference to any section of
  the Code shall be to 

  



 


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  that section
  as it may be renumbered, amended, supplemented or reenacted.



  
	
  1.7

  	
  Committee

  	
  -

  	
  Shall mean
  the Pension and Welfare Plans Administration Committee appointed by the
  Company, or any successor to that committee.



  
	
  1.8

  	
  Company

  	
  -

  	
  Shall mean
  The Hertz Corporation, or any successor thereto.



  
	
  1.9

  	
  Disability

  	
  -

  	
  Shall mean
  that (A) the Participant is unable to engage in any substantial gainful
  activity by reason of any medically determinable physical or mental
  impairment that can be expected to result in death or can be expected to last
  for a continuous period of not less than 12 months, or (B) the
  Participant is, by reason of any medically determinable physical or mental
  impairment that can be expected to result in death or can be expected to last
  for a continuous period of not less than 12 months, receiving income replacement
  benefits for a period of not less than three months under an accident and
  health plan covering employees of the Participant’s employer.



  
	
  1.10

  	
  Employee

  	
  -

  	
  Shall mean
  any person employed by an Affiliated Company.



  
	
  1.11

  	
  Final
  Average Earnings

  	
  -

  	
  Shall mean
  that the Participant’s average annual compensation for the five (5) Plan
  Years while a Member of the Retirement Plan, whether or not consecutive, in
  which he 

  



 


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  received the
  greatest amount of annual compensation within the most recent ten
  (10) Plan Years. Annual compensation for this purpose is determined in
  accordance with the Retirement Plan but without regard to
  Section 401(a)(17) of the Code.



  
	
  1.12

  	
  Normal
  Retirement Date

  	
  -

  	
  Shall mean
  the first day of the month coincident with or next following a Participant’s
  65th birthday.



  
	
  1.13

  	
  Participant

  	
  -

  	
  Shall mean
  an Employee who meets the participation requirements of Article 2.



  
	
  1.14

  	
  Plan Year

  	
  -

  	
  Shall mean
  the calendar year.



  
	
  1.15

  	
  Retirement
  Plan

  	
  -

  	
  Shall mean
  The Hertz Corporation Account Balance Defined Benefit Pension Plan, as
  amended from time to time. Reference to a section of the Retirement Plan
  shall be to that section as it may be renumbered, amended or supplemented.



  
	
  1.18

  	
  Supplemental
  Benefit

  	
  -

  	
  Shall mean
  the benefit payable to a Participant or his Beneficiary pursuant to this
  Plan.



  
	
  1.19

  	
  Supplemental
  Retirement and Savings Plan

  	
  -

  	
  Shall mean
  The Hertz Corporation Supplemental Retirement and Savings Plan, as amended
  from time to time.



  
	
  1.20

  	
  Years of
  Benefit Service

  	
  -

  	
  Shall mean
  the sum of the Years of Credited Service accrued under the Retirement Plan
  through June 30, 1987 and the years and months of service while an
  active Member of the Retirement Plan after June 30, 1987, where a period
  of twelve (12) calendar months of service (which need not be 

  



 


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  consecutive)
  shall be considered a Year of Benefit Service and a period of less than
  twelve (12) calendar months shall be credited as a partial Year of Benefit
  Service equal to a fraction, the numerator of which is the number of such
  months of service, and the denominator of which is twelve (12). A Participant
  will be credited with a month of service for each calendar month in which he
  is credited with an Hour of Service under the Retirement Plan.

  



 


ARTICLE 2 - PARTICIPATION IN THE PLAN


 


2.1           An Employee shall
become eligible for participation in this Plan if the employee is designated as
so eligible by the Company’s Senior Vice President, Employee Relations, in his
sole and absolute discretion.  An
eligible Employee shall become a Participant in the Plan upon the designation
of the Company’s Chief Executive Officer, in his sole and absolute discretion.


 


2.2           If a Participant’s job
responsibilities are altered or his compensation is decreased, provided that
the Committee determines that such Participant remains a member of a “select
group of management or highly compensated employees,” the Company’s Chief
Executive Officer, in his sole and absolute discretion, shall determine whether
the Participant shall continue to accrue benefits under this Plan after the
date of such change of responsibility or compensation.


 


ARTICLE 3 - VESTING


 


3.1           Except as provided in Section 3.2,
the Supplemental Benefit payable pursuant to Article 4 hereof shall be
payable by the Company only with respect to a Participant who has been 


 


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credited with at least five
Vesting Years of Service under the Retirement Plan and whose employment
terminates with an Affiliated Company due to death, Disability or otherwise
separates from service on or after his attainment of age 55.


 


3.2           In the event a
Participant with at least five Vesting Years of Service under the Retirement
Plan who has not attained age 55 is terminated from employment by an Affiliated
Company for reasons other than a voluntary termination or for Cause in
connection with a Change in Control, such Participant shall be vested in any
Supplemental Benefit accrued by such Participant to the date of the employment
termination without having attained age 55 at the time of such
termination.  In such event, distribution
of such Participant’s Supplemental Benefit shall be made as provided in Section 4.2.


 


3.3           For the purpose of this
Article 3, the term “Cause” shall mean (i) any act of dishonesty or
knowing and willful breach of fiduciary duty by a Participant which is intended
to result in the Participant’s personal enrichment at the expense of the
Affiliated Company; (ii) commission of a felony involving moral turpitude
or unlawful, dishonest, or unethical conduct that a reasonable person would
consider damaging to the reputation of the Affiliated Company or improper and
unacceptable conduct by an employee thereof; (iii) insubordination or
refusal to perform assigned duties or comply with the directions of the
Affiliated Company; or (iv) a material failure or inability to perform
duties in a satisfactory and competent manner or to achieve reasonable profit
or performance goals or objectives following written warning and a reasonable
opportunity to cure.


 


ARTICLE 4 - SUPPLEMENTAL BENEFITS


 


4.1           A Participant’s
Supplemental Benefit shall be equal to the excess, if any, of (a) minus
(b), plus (c) where:


 


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(a)           is
the annual benefit payable at Normal Retirement Date (or Retirement) based on
the following formula:


 


$192.00 plus
1.6% of Final Average Earnings over $15,660 multiplied by Years of Benefit
Service;


 


(1)           A
Participant who terminates from employment prior to his Normal Retirement Date
and elects to defer benefit commencement under the Retirement Plan, shall have
the benefit computed in this subsection 4.1(a) reduced by 1/3 of 1% for
each month that the distribution precedes his Normal Retirement Date; and


 


A Participant who terminates
from employment prior to his Normal Retirement Date and elects to commence
benefits immediately under the Retirement Plan, shall have the benefit computed
in this subsection 4.1(a) reduced in accordance with the following
schedule:


 


	
  Age at Retirement

  	
        

  	
  % Reduction

  	
   

  
	
  60 or over

  	
        

  	
  0

  	
  %

  
	
  59

  	
        

  	
  13

  	
  %

  
	
  58

  	
        

  	
  20

  	
  %

  
	
  57

  	
        

  	
  27

  	
  %

  
	
  56

  	
        

  	
  34

  	
  %

  
	
  55

  	
        

  	
  40

  	
  %

  



 


(2)           The
benefit in this subsection 4.1(a) is computed without regard to the limitations
of Section 415 of the Code.


 


(b)           is
the aggregate benefit (other than the Supplemental Early Retirement Benefit or
Optional Supplemental Early Retirement Benefit) the Participant is actually
entitled to receive under the Retirement Plan, the 


 


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Retirement
Plan for the Employees of the RCA Corporation and Subsidiary Companies as in
effect on August 30, 1985, any other defined benefit plan qualified under Section 401(a) of
the Code and maintained by an Affiliated Company (including the portion of the
benefit attributable to service before the Affiliated Company became such) and
any non-qualified defined benefit plan maintained by an Affiliated Company
(including, but not limited, to the BEP and the Supplemental Retirement and
Savings Plan).


 


For purposes
of this Section 4.1, if any of the benefits described in paragraphs (a) and
(b) are not in the form of an annuity for the life of the Participant with
a five (5) year period certain feature, the benefit shall be converted to
the Actuarial Equivalent of that form.


 


(c)           is (1) or (2) minus
(3) where;


 


(1)           is
a supplemental early retirement benefit determined as follows:  A Participant who terminates employment after
age 60 but before age 65, has at least 15 Years of Service, elects immediate
commencement of benefits and does not elect to receive the optional
supplemental early retirement benefit (as stated below) is entitled to receive
a supplemental early retirement benefit payable monthly beginning on the day
benefit distribution commences and ending on the last day of the month
beginning after the month in which he attains age 65 (or, if earlier,
dies).  The amount of the monthly
supplemental early retirement benefit depends on the number of Years of Service
as follows:


 


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  Years of Service

  	
   

  	
  Supplemental Early

  Retirement Benefit

  	
   

  
	
  15 but less
  than 20

  	
   

  	
  $

  	
  55

  	
   

  
	
  20 but less
  than 25

  	
   

  	
  $

  	
  60

  	
   

  
	
  25 but less
  than 30

  	
   

  	
  $

  	
  65

  	
   

  
	
  30 but less
  than 35

  	
   

  	
  $

  	
  70

  	
   

  
	
  35 or more

  	
   

  	
  $

  	
  75

  	
   

  



 


(2)           is
the optional supplemental early retirement benefit determined as follows:  A Participant who terminates employment after
age 60 but before age 62, elects immediate commencement of benefits, has at
least 10 Years of Service and does not elect the supplemental early retirement
benefit (stated above), is entitled to receive the optional supplemental early
retirement benefit payable monthly beginning on the day benefit distribution
commences and ending on the last day of the month in which he attains age 62
(or, if earlier, dies.)  The amount of
the monthly optional supplemental early retirement benefit depends on the
number of Years of Service as follows:


 


	
  Years of Service

  	
   

  	
  Optional Supplemental

  Early Retirement

  	
   

  
	
  10 but less
  than 15

  	
   

  	
  $

  	
  100

  	
   

  
	
  15 but less than
  20

  	
   

  	
  $

  	
  140

  	
   

  
	
  20 but less
  than 25

  	
   

  	
  $

  	
  180

  	
   

  
	
  25 but less
  than 30

  	
   

  	
  $

  	
  220

  	
   

  
	
  30 or more

  	
   

  	
  $

  	
  260

  	
   

  



 


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“Years of Service” for purposes
of this Section 4.1(c)(l) and (2) means, with respect to a
Participant who became a Member of the Retirement Plan prior to July 1,
1987, “Years of Credited Service” as defined in Section B.6(e) of the
Retirement Plan.  With respect to a
Participant who became a Member of the Retirement Plan on or after July 1,
1987, “Years of Service” means “Vesting Years of Service” as defined in Section 1.54
of the Retirement Plan.


 


(3)           is the Supplemental
Early Retirement Benefit or the Optional Supplemental Early Retirement Benefit
the Participant is entitled to receive under the Retirement Plan.


 


4.2           If an election is not
made in accordance with Section 4.3 or is not permitted pursuant to Section 4.3,
the Supplemental Benefit shall be paid in a lump sum within 90 days following
the later of the Participant’s attainment of age 55 or his separation from
service; provided, however, that, for avoidance of doubt, the Participant shall
be permitted to make a Subsequent Deferral Election as provided in Section 4.3.


 


4.3           If
the Participant, subject to Sections 4.4, 4.5 and 4.6, so elects in writing, in
accordance with such rules and procedures as established by the Committee
consistent with Section 409A and other applicable law, his Supplemental Benefit
will be distributed as follows:


 


(a)           on the date selected by
the Participant for payments to be made (or commence), but not earlier than the
later of his attainment of age 55 or his separation from service, nor later
than the April 1st of the calendar year immediately following the
calendar year in which he attains age 701⁄2; and


 


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(b)           in
the form of any option available under the Retirement Plan that the Participant
selects.


 


Such election
must be made by December 31, 2005 with respect to any Participant as of December 31,
2005.  Any such Participant who fails to
make a timely election under Section 4.3 will be deemed to have elected
the time and method of payment of Section 4.2.  The elections of new or current Employees
first becoming Participants after 2005 shall be made within 30 days of the date
on which such an Employee is hired or first becomes eligible to participate in
the Plan; provided that payment of Supplemental Benefits
hereunder with respect to a Participant who would become vested in his
Supplemental Benefit under the Plan within 12 months after the date of such
election (disregarding vesting that may occur upon death, Disability or Change
in Control) shall be made in the time and method of payment set forth in Section 4.2.  In the event that a Participant commences to
participate in this Plan and at such time also participates in the BEP or the
Supplemental Retirement and Savings Plan (or both of such plans), in no event
will an election under this Plan change the time and method of payment of
benefits to the Participant under such other plans.


 


A Participant
who made a timely election under this Section 4.3, or whose time and
method of distribution is determined pursuant to Section 4.2, may elect to
delay the date of distribution to another date permitted under (a) above
or change the form of distribution to another form permitted under (b) above
(such election, a “Subsequent Deferral Election”), provided that:


 


(c)           such
election will not take effect until at least 12 months after the date on which
the election is made;


 


12

















 


(d)           such
election must be made not less than 12 months prior to the date on which
payment of such distribution would otherwise have been made or commenced (in
the absence of such election); and


 


(e)          the payment
(commencement) date chosen must be not less than five years after the date that
the distribution would have otherwise been made (or commenced).


 


Such
Subsequent Deferral Election must be made in the manner specified by the
Committee and in accordance with the subsequent deferral and anti-acceleration
provisions of Code Section 409A(a)(4)(C) and related
regulations.  A Participant’s election
among actuarially equivalent annuity forms available under the Plan (determined
as permitted under the regulations promulgated under Section 409A) prior
to the commencement date shall not be treated as a Subsequent Deferral Election
and shall instead be immediately effective. 
In no event shall a Participant’s Subsequent Deferral Election result in
a change to the time and method of distribution of benefits to the Participant
under the BEP or the Supplemental Retirement and Savings Plan.


 


4.4           Notwithstanding
any other provision of the Plan to the contrary, if at the time a Participant
separates from service he is a “specified employee” of the Company, as defined
in Code Section 409A(a)(2)(B) and related regulations, payment to him
of benefits under the Plan cannot commence (or be made) until the latest of:


 


(a)           the
lapse of six months following his separation from service (the “Six-Month Delay”);


 


(b)           his
attainment of age 55; or


 


(c)           the
date selected under Section 4.3(a).


 


13

















 


To give effect to the Six Month
Delay, all payments otherwise payable to the Participant during such six-month
period shall be retained by the Company and shall be paid within 30 days
following the expiration of such six-month period.


 


4.5           Notwithstanding
anything in this Plan or the Retirement Plan to the contrary, in the event of
the Participant’s death, the Participant’s Supplemental Benefit under this Plan
shall automatically be paid to the Participant’s Beneficiary in the form of a
lump sum distribution within 90 days following the Participant’s death.


 


4.6           If at the time a
Participant separates from service the present value of his Supplemental
Benefit does not exceed $10,000, his benefits shall be distributed in a lump
sum payment in cash within 90 days following the later of the Participant’s
attainment of age 55 or his separation from service.


 


4.7           A
Participant may request the withdrawal of such portion of his Supplemental
Benefit (not in excess of the total vested amount of such benefits) as is
needed to satisfy an “unforeseeable emergency” within the meaning of Code Section 409A(a)(2)(B)(ii).  Such withdrawal may include taxes reasonably
anticipated to be incurred as a result of such withdrawal.  An “unforeseeable emergency” means a severe
financial hardship resulting from the illness or accident of the Participant,
his spouse, or his dependent (as defined in Section 152(a) of the
Code); loss of his property due to casualty; or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond his
control.  The Committee will make the
determination of “unforeseeable emergency,” in accordance with the provisions
of this Section 4.7.  The following
provisions apply to withdrawals for “unforeseeable emergency”:


 


14

















 


(a)           The unforeseeable
emergency must require a withdrawal of at least $5,000.


 


(b)           A Participant must
submit to the Committee a withdrawal request, in accordance with such uniform
and nondiscriminatory procedure as may be established by the Committee.


 


(c)           The Committee shall
determine whether a withdrawal request conforms to the requirements described
in this Section 4.7 and shall notify the Company of any payments to be
made in a timely manner.  The Committee’s
decision to allow a Participant to withdraw all or part of his Supplemental
Benefit in connection with an “unforeseeable emergency” will be based on the
facts and circumstances of each case; provided, that in no event will an event
constitute an “unforeseeable emergency” hereunder if such event is or may be
relieved through reimbursement or compensation from insurance or otherwise or
by liquidation of the Participant’s assets (to the extent such liquidation
would not cause severe financial hardship). 
Any request to make a withdrawal by a member of the Committee may be
approved only by disinterested members of the Committee.


 


(d)           The Company will make a
single sum cash payment to the Participant within 90 days following approval of
a withdrawal request under this Section 4.7.


 


4.8           Participation in the
Plan shall cease when all the Participant’s benefits have been distributed.


 


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ARTICLE 5 - ADMINISTRATION


 


The Plan shall be administered
and interpreted by the Committee.  The
Committee is authorized from time to time to establish such rules and
regulations as it may deem appropriate for the proper administration of the
Plan, and to make such determinations under, and such interpretations of, and
to take such steps in connection with, the Plan as it may deem necessary or
advisable.  Each determination,
interpretation, or other action by the Committee shall be in its sole
discretion and shall be final, binding and conclusive for all purposes and upon
all persons.


 


ARTICLE 6 - FUNDING


 


The benefits payable under this
Plan shall constitute an unfunded obligation and an unsecured promise of the
Company.  The Plan constitutes a mere
promise by the Company to make Supplemental Benefit payments in the future.  Payments shall be made, when due, from the
general funds of the Company.  Anything
in this Article 6 to the contrary notwithstanding, the Company may
establish a grantor trust (or other investment or holding vehicle permitted
under Section 409A) to assist it in meeting its obligations under the Plan
and may provide for such investments in connection therewith, including the
purchase of insurance or annuity contracts, as it may deem desirable; provided
that any such investments shall be subject to the claims of the Company’s general
creditors.  No person eligible for a
benefit under this Plan shall have any right, title, or interest in any assets
held to assist the Company to pay Supplemental Benefits.


 


ARTICLE 7 - CLAIMS PROCEDURE


 


7.1           Claims for benefits
under the Plan shall be submitted in writing to the Committee (or its delegate)
on a form prescribed for such purpose. 
Within 90 days after its receipt of any claim for a benefit under the
Plan, the Committee (or its delegate) shall give written notice to the claimant
of its decision on the claim unless the Committee (or its delegate) 


 


16

















 


determines that special
circumstances require an extension of time for processing the claim.  If an extension of time for processing the
claim is needed, a written notice shall be furnished to the claimant within the
90-day period referred to above which states the special circumstances
requiring the extension and the date by which a decision can be expected, which
shall be no more than 180 days from the date the claim was filed.  If a claim for benefits is being denied, in
whole or in part, such notice shall be written in a manner calculated to be
understood by the claimant and shall include:


 


(a)           the
specific reason or reasons for denial of the claim;


 


(b)           a
reference to the relevant Plan provisions upon which the denial is based;


 


(c)           a
description of any additional material or information necessary for the
claimant to perfect the claim, together with an explanation of why such
material or information is necessary; and


 


(d)           an
explanation of the Plan’s claim review procedures and the time limits
applicable to such procedures, including a statement of the claimant’s right to
bring a civil action under ERISA Section 502(a) following an adverse
benefit determination on appeal.


 


7.2           Any claimant whose
claim for benefits has been denied by the Committee (or its delegate) may
appeal to the Committee for a review of the denial by making a written request
therefor within 60 days of receipt of a notification of denial.  Any such request may include any written
comments, documents, records and other information relating to the claim and
may include a request for “relevant” documents to be provided free of
charge.  The claimant may, if he chooses,
request a representative to make such written submissions on his behalf.  The claimant will be afforded a full and fair review that takes 


 


17

















 


into
account all such comments, documents, records and other information, whether or
not they were submitted or considered in the initial benefit determination and
without deference to the initial benefit determination.


 


Within 60 days after receipt of a request for an appeal, the Committee
shall notify the claimant in writing of its final decision.  If the Committee determines that special
circumstances require additional time for processing, the Committee may extend
such 60-day period, but not by more than an additional 60 days, and shall
notify the claimant in writing of such extension.  If the period of time is extended due to a
claimant’s failure to submit information necessary to decide a claim, the
period for making the benefit determination on appeal shall be tolled from the
date on which the notification of the extension is sent to the claimant until
the date on which the claimant responds to the request for additional
information.


 


In the case of an adverse benefit determination on appeal, the
Committee will provide written notification to the claimant, set forth in a manner
calculated to be understood by the claimant, of:


 


(a)           the
specific reason or reasons for the adverse determination on appeal;


 


(b)           the
specific Plan provisions on which the denial of the appeal is based;


 


(c)           a
statement that the claimant is entitled to receive, upon request and free of
charge, reasonable access to, and copies of all documents, records, and other
information “relevant” to the claimant’s claim for benefits; and


 


(d)           a
statement of the claimant’s right to bring a civil action under ERISA
Section 502(a).


 


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For purposes of this Section, a document, record or other information
shall be considered “relevant” to a claimant’s claim if such document, record
or other information:  (i) was
relied upon in making the benefit determination; (ii) was submitted,
considered, or generated in the course of making the benefit determination,
without regard to whether such document, record, or other information was
relied upon in making the benefit determination; or (iii) demonstrates
compliance with the administrative processes and safeguards required in making
the benefit determination.


 


ARTICLE 8 - AMENDMENT AND TERMINATION


 


8.1           While the Company
currently intends to maintain this Plan in conjunction with the Retirement Plan
for so long as is desirable, the Company reserves the right to amend or to
terminate this Plan by action of its Board of Directors, in its sole
discretion, for whatever reason it may deem appropriate but subject to the
requirements of Code Section 409A. 
No amendment to or termination of the Plan, however, shall reduce the
Supplemental Benefits accrued as of the effective date of such amendment or
termination.


 


8.2           References herein to a
Participant’s “separation from service” or “termination of employment” (and
corollary terms) with the Company shall be construed to refer to a Participant’s
“separation from service” (as determined under Treas. Reg. Section 1.409A-1(h),
as uniformly applied by the Company) with the Company.  For avoidance of doubt, whenever a provision
under this Plan specifies a payment period with reference to a number of days,
the actual date of payment within the specified period shall be within the sole
discretion of the Company.  In the event
that the Company reasonably determines that any provision of this Plan is
subject to and does not comply Section 409A of the Code, the Company shall
have the right to adopt such amendments to this Plan or adopt 


 


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other policies or procedures
(including amendments, policies and procedures with retroactive effect), or
take any other commercially reasonable actions necessary or appropriate to
comply with the requirements of Section 409A of the Code and related
Department of Treasury guidance; provided, that in no event shall any provision
of this Plan be construed to constitute an indemnification of any Participant
by the Company for a violation of Section 409A of the Code.  In addition, the Company reserves the right,
after additional guidance is issued with respect to Code Section 409A and
on a uniform basis, by amendment or otherwise, to permit new or modified
Participant elections, to declare Participant elections void or to take any
other actions the Company deems necessary or desirable in order to conform such
Participant elections to guidance issued pursuant to Code Section 409A or
to achieve the goals of the Plan without having an adverse tax impact on
Participants under Code Section 409A.


 


8.3           Upon termination of the
Plan, the Company shall continue to pay benefits hereunder as they become due
pursuant to Article 4 as if the Plan had not terminated, provided that,
the Company may terminate the Plan and make lump sum distributions of the
benefits of Participants only in any circumstances permitted under Code Section 409A.  After Participants and their Beneficiaries
are paid the Plan benefits to which they are entitled, the obligations of the
Company shall be satisfied and Participants and their Beneficiaries shall have
no further claims against the Plan, the trust (if any), the Company or any
Affiliated Company.


 


ARTICLE 9 - GENERAL PROVISIONS


 


9.1           Except as may be
required by law, no benefit payable under the Plan is subject in any manner to
anticipation, assignment, garnishment, or pledge; and any attempt to 


 


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anticipate, assign, garnish or
pledge the same shall be void.  No such
benefits will in any manner be liable for or subject to the debts, liabilities,
engagement, or torts of any Participant or other person entitled to receive the
same, and if such person is adjudicated bankrupt or attempts to anticipate,
assign, or pledge any such benefits, the Committee shall have the authority to
cause the same or any part thereof to be held or applied to or for the benefit
of such Participant, his spouse, children or other dependents, or any of them,
in such manner and in such proportion as the Committee may deem proper.  Notwithstanding the preceding sentences:


 


(a)           If
a Participant becomes entitled to a distribution of benefits under the Plan and
if at such time the Participant has outstanding any debt, obligation or other
liability representing an amount owing to the Company, the Company may, to the
maximum extent permitted under applicable law, offset such amount owed to it
against the amount of benefits otherwise distributable from the Plan.  Such determination shall be made by the
Committee after notification from the Company.


 


(b)           The
Committee shall establish such procedures as it deems appropriate with respect
to domestic relations orders, as defined in Code Section 414(p)(1)(B),
pertaining to the Plan.  No payment shall
be made under such a domestic relations order unless the order complies with
the procedures established by the Committee.


 


9.2           To the extent permitted
by law, the Company shall indemnify the members of the Committee from all
claims for liability, loss or damage (including payment of expenses in
connection with the defense against such claim) arising from any act or failure
to act 


 


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under the Plan, provided any
such member shall give the Company an opportunity, at its own expense, to
handle and defend such claims.  The
provisions of this Section 9.2 shall survive the termination of the Plan.


 


9.3           If a Participant or
Beneficiary entitled to receive any Supplemental Benefit is a minor or is
deemed by the Committee or is adjudged to be legally incapable of giving valid
receipt and discharge for such benefits, payment of such Supplemental Benefit
will be made to the duly appointed legal guardian or representative of such
minor or incompetent or to such other legally appointed person as the Committee
may designate.  Such payment shall, to
the extent made, be deemed a complete discharge of any liability for such
payment under the Plan.


 


9.4           The Company shall have
the right to deduct from any Supplemental Benefit payments any taxes required
to be withheld with respect to such payments.


 


9.5           Nothing contained in
the Plan shall be construed as a contract of employment between an Affiliated
Company and any Participant, or as a right of any Participant to be continued
in the employment of an Affiliated Company, or as a limitation on the right of
an Affiliated Company to terminate the employment of any of its employees, with
or without cause, and with or without notice, at any time, at the option of an
Affiliated Company.


 


9.6           Any masculine personal
pronoun shall be considered to mean also the corresponding female or neuter
personal pronoun, as the context requires.


 


9.7           The provisions of this
Plan shall be construed in accordance with the internal substantive laws (and
not the choice of law rules) of the State of Delaware, except to the extent
pre-empted by ERISA.


 


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