Exhibit 10(i)

 

 

 

 

 

BERGEN BRUNSWIG

THIRD AMENDED AND RESTATED

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN 

(As Of September 24, 1998)

 

 

 

**TABLE OF CONTENTS   **Page  
ARTICLE I PLAN HISTORY
1  
ARTICLE II DEFINITIONS
2 
2.1
"Accrued Benefit"
2 
2.2
"Beneficiary"
3 
2.3
"Bergen 401(k) Plan"
4 
2.4
"Bergen Brunswig Corporation"
4 
2.5
"Board of Directors"
5 
2.6
"Break in Service" 
5 
2.7
"Capital Accumulation Plan"
5 
2.8
"Code"
5 
2.9
"Compensation"
5 
2.10
"Credited Service"
6 
2.11
"Employee"
6 
2.12
"Employer"
7 
2.13
"Employment"
7 
2.14
"Equivalent"
7 
2.15
"ERISA"
8 
2.16
"Executive Benefits"
8 
2.17
"Key Management Benefits"
8 
2.18
"Normal Benefit Form"
8 
2.19
"Normal Retirement Age"
9 
2.20
"Optional Benefit Form"
9 
2.21
"Participant"
9 
2.22
"Plan"
9 
2.23
"Plan Administrator"
9 
2.24
"Plan Rules"
9 
2.25
"Plan Year"
9 
2.26
"Service"
9 
2.27
"Spouse"
10 
2.28
"Trust"
11 
2.29
"Vested"
11 
2.30
"Vesting Service"
11    
ARTICLE III PARTICIPATION
11 
3.1
Requirements for Participation
11 
3.2
Former Participants
13    
ARTICLE IV AMOUNT OF BENEFIT
13 
4.1
Determination of Benefit Amount
13    
ARTICLE V VESTING
17 
5.1
Vesting of Accrued Benefit
17 
5.2
Forfeiture of Benefits
22    
ARTICLE VI PAYMENT OF BENEFITS
22 
6.1
Benefits on Termination of Employment
22 
6.2
Death Benefits
22 
6.3
Joint and Survivor Annuities
22 
6.4
Optional Benefit Forms
24 
6.5
Funeral Benefit
25 
6.6
Delay in Distribution
25 
6.7
No Suspension of Benefits
26 
6.8
Release Required
26    
ARTICLE VII ADMINISTRATION OF THE PLAN
26 
7.1
Duties of the Plan Administrator
26 
7.2
Delegation of Administrative Responsibility
27 
7.3
Compensation, Expenses and Indemnity
28 
7.4
Claims Procedure
29 
7.5
Effect of Plan Administrator Action
32    
ARTICLE VIII AMENDMENT AND TERMINATION OF THE PLAN
33 
8.1
Amendments
33 
8.2
Termination of Plan
34    
ARTICLE IX FUNDING OF BENEFITS
34 
9.1
Plan is Unfunded
34 
9.2
Trust
34 
9.3
Interrelationship of the Plan and the Trust
35    
ARTICLE X MISCELLANEOUS PROVISIONS
35 
10.1
Payments
35 
10.2
Consolidation or Merger of Companies
36 
10.3
Adoption of Plan to Cover Other Companies, Facilities or Groups
36 
10.4
Termination of Employment
37 
10.5
Determination of Hours of Service
40 
10.6
Alienation
40 
10.7
Division of Benefits by Domestic Relations Orders
40 
10.8
Legal Costs; Increased Benefit
43 
10.9
Duty to Provide Data
44 
10.10
Limitation on Rights of Employees
45 
10.11
Restrictions
45 
10.12
Service of Process
46 
10.13
Spouse's Interest
46 
10.14
Distribution in the Event of Taxation
46 
10.15
Governing Law
46 
10.16
Plurals
46 
10.17
Titles
47 
10.18
References
46 
10.19
Entire Agreement
46 
10.20
Severability
47 
10.21
Withholding
47

 

ARTICLE I
PLAN HISTORY
 

               Bergen Brunswig Corporation, a New Jersey corporation (sometimes hereinafter referred to as the "Company") adopted the Bergen Brunswig Capital Accumulation Plan in1980. The Capital Accumulation Plan was frozen effective October 7, 1987.  To replace the Capital Accumulation Plan, Bergen Brunswig Corporation adopted this Supplemental Executive Retirement Plan, effective January 1, 1991.  The Supplemental ExecutiveRetirement Plan was amended and restated, effective July 28, 1994, and further amended and restated effective as of March 3, 1995 in order to provide the Participants (as hereinafter defined) with certain additional benefits in the event of a Change inControl (as hereinafter defined).  The Company now desires to amend and restate the Supplemental Executive Retirement Plan in order to modify the method used to determine accrued benefits under Article IV and the definition of Compensation (within themeaning of Section 2.9 below) effective with respect to Participants who are Employees (as defined below) on or after September 24, 1998, and such other amendments and modifications.  This Third Amendment and Restatement of the Supplemental ExecutiveRetirement Plan is effective as of September 24, 1998 and incorporates all prior amendments (as amended and restated, the "Plan").

               While the Plan is not intended to qualify under the Code as a qualified plan, the Plan is intended to be a pension benefit plan which, although subject to ERISA, isexempt from Parts 2, 3 and 4 of Title I of ERISA because it is (solely for purposes of ERISA) an unfunded plan that only covers a select group of management or highly compensated employees.  Persons become participants as provided herein.  Benefits underthe Plan become payable on account of a Participant's retirement, termination or death.

 

**ARTICLE II
DEFINITIONS
 

               The following terms, when capitalized, shall have the meaning specified below unless the context clearly indicates a contrary meaning.

               2.1        "Accrued Benefit" of a Participant shall be the individual's benefit under this Plan, accrued as of the time of determination.  A Participant's Accrued Benefit shall only be payable to the extent Vested.  Subject to this limitation, aParticipant's Accrued Benefit shall be the amount by which the product of the amounts described in subsections (a) and (b) of this Section 2.1 exceeds the offsets set forth in Section 4.1(c), all as calculated as of the time of determination:

               (a)        the individual's benefit under Section 4.1 before application of the offsets set forth in Section 4.1(c), and

               (b)        a fraction, the numerator of which is the individual's Credited Service and the denominator of which is the greater of

               (i)        the total Credited Service the individual could earn before his or her Normal Retirement Age, or

               (ii)         the result determined by subtracting from fifteen the individual's years of Service completed prior to performing any services for the Employer in a Credited Service position.

               In no event shall a Participant's fraction under this subsection exceed one.  See Section 4.1(d) for special benefit calculation rules that apply when a Participantis demoted.

               (c)        For all benefit purposes, if a Participant accumulates eighty "points" before his or her fraction in subsection (b) above equals one, his or her fraction in subsection (b) above shall be raised to one.  A Participant shall accumulate 1 "point" for eachyear of age, 1 "point" for each year of Employment prior to becoming employed in a position covered by this Plan and 1.5 "points" for each year of Employment subsequent to becoming employed in a position covered by this Plan.

               (d)        For purposes of this Section, a person shall be considered to have been employed in a position covered by this Plan if the position is a position for which he or she receives Credited Service credit.

               2.2        "Beneficiary" shall mean the person designated by a Participant to receive payments from the Plan due to the Participant's death.  Beneficiary designations and determinations shall be made in accordance with the following rules:

               (a)        Each Participant shall have the right, at any time, to designate his or her Beneficiary (both primary as well as contingent) to receive any benefits payable under the Plan to a Beneficiary upon the death of a Participant.  The Beneficiary designatedunder this Plan may be the same as or different from the Beneficiary designation under any other plan of an Employer in which the Participant participates.  A Participant shall designate his or her Beneficiary by completing and signing a BeneficiaryDesignation Form, in form and substance satisfactory to the Plan Administrator, and returning it to the Plan Administrator for acceptance.  No designation or change in designation of a Beneficiary shall be effective until received, accepted andacknowledged in writing by the Plan Administrator.

               (b)        A Participant shall have the right to change a Beneficiary by completing, signing and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Rules as in effect from time to time.  Upon the acceptance by the Plan Administratorof a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be canceled.  The Plan Administrator shall be entitled to rely on the last Beneficiary Designation Form filed by the Participant and accepted by the PlanAdministrator prior to his or her death.

               (c)        A Participant can designate someone other than his or her Spouse as Beneficiary, but only with written spousal consent.

               (d)        If a deceased Participant has not properly designated a Beneficiary, the Participant's Spouse shall be treated as the Beneficiary.

               (e)        If a deceased Participant is survived neither by a Spouse nor a properly designated Beneficiary, the Participant's estate shall be treated as the Beneficiary.

               (f)        With the Plan Administrator's consent and subject to any conditions which the Plan Administrator may specify, the Participant may designate more than one person to be his or her Beneficiary, provided that one Beneficiary is designated as the "measuringlife" on which the duration and amount of the joint and survivor annuity is to be calculated and the portion of the survivor annuity to be paid to each Beneficiary is specified (e.g., my mother, Jane Doe, and my invalid daughter, Janet Doe, shall shareequally in survivor benefits while they both live; any survivor benefits payable following the death of either my mother, Jane Doe, or my invalid daughter, Janet Doe, shall be paid to the survivor; survivor benefits are to be determined as if only myinvalid daughter, Janet Doe, were the Beneficiary).

               2.3        "Bergen 401(k) Plan" shall mean the Bergen Brunswig Corporation Pre-Tax Investment Retirement Account Plus Employer Contributions Plan, or any successor to that plan.

               2.4        "Bergen Brunswig Corporation" shall mean Bergen Brunswig Corporation, a New Jersey corporation.

               2.5        "Board of Directors" shall mean the Board of Directors of Bergen Brunswig Corporation.

               2.6        "Break in Service" shall mean a period of non-Employment which causes a former Employee to lose credits under this Plan.  A former Employee incurs one Break in Service upon the completion of each three hundred and sixty-five consecutive day periodthroughout which the individual is not an Employee.  This period shall commence on the day following the last day on which the individual was an Employee.  See Section 10.4 for special rules relating to maternity and paternity absences.

               2.7        "Capital Accumulation Plan" shall mean the Bergen Brunswig Corporation Capital Accumulation Plan that was originally effective July 1, 1980, and frozen effective October 7, 1987.

               2.8        "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time.

               2.9        "Compensation" shall mean the average monthly earnings payable to a Participant for the three calendar years, whether or not consecutive, in which the Participant received the highest Compensation during the five calendar years immediatelypreceding the Participant's termination of Employment.  This average shall be computed by dividing the Participant's total "earnings" (as defined in this Section) during the three years in question by thirty-six.  A Participant's "earnings" shall mean thebase salary paid to the Participant during the calendar year in question, (including any salary waived or deferred under any nonqualified deferred compensation or other salary reduction arrangement) but, not including bonuses, noncash payments or cashpayments other than base salary.  Notwithstanding anything in the immediate preceding sentence to the contrary, in the case of a Participant who has the status of an Employee on or after September 24, 1998, a Participant's earnings for the calculation ofa Participant's Compensation and the entire benefit payable under this Plan shall mean to include both the base salary and any bonus paid to the Participant during the calendar year in question (including any salary or bonus waived or deferred under anynonqualified deferred compensation or other salary reduction arrangement) but not including noncash payments or cash payments other than base salary and bonuses.  

               2.10        "Credited Service" shall mean the number of years of Service in which the Participant was employed in the position he or she held at the time he or she was designated by the Plan Administrator to be a Participant or was covered by the CapitalAccumulation Plan, or any position held thereafter, including years before or after the adoption of either plan, but excluding any Service while the Participant was not employed in such a position or positions.  Notwithstanding the above, should aParticipant change positions, the Plan Administrator can, in the exercise of the Plan Administrator's reasonable discretion, determine that the new position should not be considered a position for which such Participant shall receive any Credited Servicecredit.

               2.11        "Employee" shall mean an individual who renders services to the Employer as a common law employee or officer (i.e., a person whose wages from the Employer are subject to federal income tax withholding).  Unless specifically approved by theCompensation/Stock Option Committee of the Board of Directors to provide a consultant with credit as an Employee, a person rendering services to the Employer purportedly as an independent contractor shall not be treated as an Employee before the Employerhas acknowledged that it must withhold federal income taxes from his or her pay.  For purposes of this Plan, an individual shall remain an "Employee" if he or she ceases to work for the Employer for the purposes of taking an Employer arranged job.

               2.12        "Employer" shall mean:

               (a)        Adopting Employers.  Bergen Brunswig Corporation, any related company designated by Bergen Brunswig Corporation, any successor entity which continues the Plan or such companies collectively; and

               (b)        Non-Adopting Employers.  Companies that have not adopted the Plan but are related to the adopting Employers as described in subsection (e).

               (c)        All Employees of adopting and non-adopting Employers shall be treated as employed by a single company for all Plan purposes, including Service crediting, except that no person shall be eligible to become a Participant or accrue Credited Service exceptwhile employed by an adopting Employer.

               (d)        In contexts in which actions are required or permitted to be taken or notice is to be given, the Employer shall mean Bergen Brunswig Corporation.

               (e)        A company is a "related company" while it and the Employer are members of a controlled group of corporations or a group of trades or businesses under common control (within the meaning of Code Sections 414(b) and (c)).

               2.13        "Employment" shall mean the period during which an individual is an Employee.  Employment shall commence on the day the individual first performs services for the Employer as an Employee and shall terminate on the day such services cease.

               2.14        "Equivalent" shall mean the actuarial equivalent of a given amount or benefit payable in another manner, at another time or by any other means, determined conclusively by, or under the direction of, the Plan Administrator in accordance withactuarial principles, methods and assumptions which are found to be appropriate by the Plan's actuary.  For purposes of this Plan, equivalencies shall be based on the mortality assumptions included in the indices used by Metropolitan Life InsuranceCompany, or such other nationally recognized insurance company, in quoting a premium to purchase a non-qualified individual annuity with survivor coverage as of the date of the event necessitating the calculation (e.g. retirement, termination ofEmployment, disability, etc.).

               2.15        "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.

               2.16        "Executive Benefits" shall mean the benefits provided under this Plan for officers of Bergen Brunswig Corporation who are Participants.

               2.17        "Key Management Benefits" shall mean the benefitsprovided under this Plan for officers of a subsidiary of Bergen Brunswig Corporation and some directors of corporate department of Bergen Brunswig Corporation who are Participants as designated by the Plan Administrator.

               2.18        "Normal Benefit Form" shall mean the normal form of benefit under the Plan, which shall be the Equivalent of a Participant's Vested Accrued Benefit, payable as a joint and survivor annuity based on the life expectancies of the Participant and themeasuring life Beneficiary at the time payment of the benefit commences, consisting of monthly payments to the Participant commencing as of the first day of the calendar month coincident with or next following the Participant's benefit commencement dateand ending with the payment for the calendar month in which the Participant dies, with the provision that, if the Participant dies and is survived by the Beneficiary, such Beneficiary shall receive monthly payments of, in the case of Executive Benefits,seventy-five percent or, in the case of Key Management Benefits, fifty percent, of the monthly payments that were being made prior to the Participant's death, commencing with the payment for the calendar month following the month in which the Participantdied and ending with the payment for the calendar month in which the Beneficiary dies.

               2.19        "Normal Retirement Age" of a Participant shall mean the date on which the Participant attains age sixty-two.

               2.20        "Optional Benefit Form" shall mean any form of benefit available under the Plan, other than the Normal Benefit Form.

               2.21        "Participant" shall mean any person who is included in the Plan pursuant to Article III.  Any Participant who holds the title of Executive Vice President, Senior Vice President, President, Chief Operating Officer, Chief Executive Officer orChairman of the Board of Bergen Brunswig Corporation and upon the occurrence of a Change in Control (as defined in Section 5.1(b)(ii)) shall be designated an Executive Participant and shall be eligible for the acceleration of benefits set forth in Section5.1(b).  A Participant shall cease to be a Participant at the time determined under Section 3.1(c).

               2.22        "Plan" shall mean this document.  The Plan consists of two components: Executive Benefits and Key Management Benefits, as more fully described in this document.

               2.23        "Plan Administrator" shall mean Bergen Brunswig Corporation, acting through its chief executive officer or such officer's delegate.

               2.24        "Plan Rules" shall mean rules adopted by the Plan Administrator in accordance with Section 7.1(e) for the administration, interpretation or application of the Plan.

               2.25        "Plan Year" shall mean the fiscal year of the Plan, which is currently the twelve month period ending on December 31.

               2.26        "Service" shall mean an Employee's period of Employment.  Special rules for calculating Service are found in Section 2.10, which explains what Service is counted for benefit accrual purposes, and Section 10.4(d), which deals with maternity andpaternity absences.  Service shall be calculated under the following elapsed time rules:

               (a)        Service shall be measured in days.  Service shall commence with the first day on which an individual performs or resumes performing services for the Employer as an Employee (e.g., the day the individual first performs an "hour of service" for which he orshe is entitled to payment by the Employer).  Except as provided in subsection (b), an Employee's Service shall thereafter end on the day on which his or her Employment ends, as determined under Section 10.4.  An Employee shall be credited with one yearof Service for each three hundred and sixty-five days in his or her period or periods of Service; fractional results shall be rounded up to the nearest whole year.

               (b)        No more than three hundred and sixty-five days of Service will be credited for any continuous period during which an individual is an Employee but performs no duties as an Employee (except as required by law with respect to military leaves and maternityand paternity absences (see Section 10.4(d)).  If an individual's Employment terminates but it resumes within three hundred and sixty-five days (i.e., before he or she incurs a Break in Service), the period between the termination and resumption will beincluded in his or her period of Service.

               (c)        If an individual has more than one period of Service, the periods shall be aggregated.  However, a Participant's prior period of Service shall be ignored if thereafter the Participant completed five consecutive Breaks in Service before he or she hasearned a Vested Accrued Benefit.

               2.27        "Spouse" shall mean the person to whom a Participant is legally married at the time in question under the laws of the state in which the Participant then resides (excluding a common-law spouse).  A person shall cease to be a Spouse when his or hermarriage to the Participant is deemed dissolved or annulled under the laws of the state in which the Participant then resides.

               2.28        "Trust" shall mean the trust established pursuant to that certain Master Trust Agreement, dated as of December 27, 1994, between Bergen Brunswig Corporation and the trustee named therein, as amended from time to time. 

               2.29        "Vested" shall mean nonforfeitable.

               2.30        "Vesting Service" of an Employee shall mean his or her years of Service calculated in accordance with Section 2.26.

 
**ARTICLE III

PARTICIPATION**
 

               3.1        Requirements for Participation.

               (a)        Executive Benefits.  A person shall become a Participant in the Executive Benefits portion of the Plan on the date he or she becomes an officer of Bergen Brunswig Corporation and if such Executive shall become an officer of Bergen BrunswigCorporation for the first time after September 24, 1998, is selected by the Plan Administrator to be a Participant.

               (b)        Key Management Benefits.  A person shall become a Participant in the Key Management Benefits portion of the Plan on the date he or she becomes an officer of a wholly-owned subsidiary of Bergen Brunswig Corporation and if such person shall becomean officer of a wholly-owned subsidiary of Bergen Brunswig Corporation for the first time after September 24, 1998 or becomes a director of a corporate department of Bergen Brunswig Corporation and is selected by the Plan Administrator to be a Participant.

               (c)        Change in Status.  Whenever a Participant is promoted, the Plan Administrator shall determine, in his or her sole discretion, whether such Participant is in a position that is covered by the Executive Benefits portion of the Plan, a positioncovered by the Key Management portion of the Plan or a position that is not covered by the Plan.  If the Plan Administrator makes no such determination within thirty (30) days of the change in position, the Participant shall remain in the portion of thePlan in which he or she was covered prior to the position change. As part of the Plan Administrator's administrative duties, the Plan Administrator, from time to time, shall maintain a list of the Participants in the Executive Benefits and Key ManagementBenefits portions of this Plan and provide a copy of said lists to the Secretary of the Company.

               (d)        Termination.  A Participant shall cease to be a Participant when his or her Employment terminates (see Section 2.13), unless the Participant becomes totally and permanently disabled while a Participant, in which case he or she shall remain aParticipant until he or she attains age sixty-two.  (A Participant shall be considered totally and permanently disabled while the Participant is receiving long-term disability benefits under the Bergen Brunswig Long Term Disability Plan (or would receivesuch benefits if the individual were covered by that plan)).  A totally and permanently disabled Participant shall continue to earn Vesting Service during such disability.  However, the individual shall not be granted Credited Service for any period ofdisability.  At the option of the Plan Administrator, the Plan Administrator can terminate the Plan with respect to all the Participants and pay them the Equivalent of his or her Vested Accrued Benefit in an immediate cash lump sum payment or a monthlyannuity for a term of years to be determined by the Plan Administrator, in his or her sole discretion, provided that such term of years shall not exceed the life expectancy of the Participant.  If the Plan Administrator exercises his or her option, theParticipant shall be deemed to be fully Vested, whether or not he or she meets the requirements set forth in Article V.

               3.2        Former Participants.  A former Participant who requalifies for the Plan shall again become a Participant on the date he or she requalifies.

 
**ARTICLE IV

AMOUNT OF BENEFIT
 

               4.1        Determination of Benefit Amount.  The Accrued Benefit payable to a Participant under the Plan shall be calculated as follows (but it shall only be paid to the extent Vested under Section 5.1):

               (a)        Executive Benefits.  A Participant in the Executive Benefits portion of the Plan shall receive a benefit equal to eighty percent (80%) of his or her Compensation, subject to reduction under the fractional accrual rule in Section 2.1 and subject tothe offsets, if any, described in Section 4.1(c) below.  Notwithstanding anything in the foregoing sentence to the contrary, for purposes of determining the entire benefit of a Participant in the Executive Benefits portion of this Plan and who has thestatus of an Employee on or after September 24, 1998, said Participant shall receive a benefit of sixty percent (60%) not eighty percent (80%) of his or her Compensation and the term "Compensation" shall be interpreted to include his or her annual salaryand bonus payments as described in Section 2.9.  

               (b)        Key Management Benefits.  A Participant in the Key Management Benefits portion of the Plan shall receive a benefit equal to sixty-five percent (not eighty percent) of his or her Compensation subject to reduction, if any, under the fractionalaccrual rule in Section 2.1 and subject to the offsets, if any, described in subsections (i), (ii), and (iii) of Section 4.1(c) below.  Notwithstanding anything in the foregoing sentence to the contrary, 	a Participant in the Key Management benefitsportion of the Plan and who has the status of an Employee on or after September 24, 1998, said Participant shall receive a benefit of forty-eight percent (48%) not sixty percent (60%) of his or her Compensation and the term "Compensation" shall beinterpreted to include his or her annual salary and bonus payments as described in Section 2.9.

               (c)        A Participant's benefit (whether an Executive Benefit or a Key Management Benefit) shall be subject to the following offsets (each to be expressed as an Equivalent amount commencing at the Participant's Normal Retirement Age), if applicable:

               (i)        the Participant's primary insurance amount payable at age 62 under the Social Security Act with the assumption that the Participant's benefit payable under the Social Security Act is not reduced because of other income of a Participant;

               (ii)        the Participant's benefit under the Capital Accumulation 		Plan;

               (iii)        the monthly annuity the Participant could have purchased under the Bergen 401(k) Plan, if the Participant had made annual contributions to the Bergen 401(k) Plan of six percent of his or her taxable compensation (but not more than the maximumcontribution, if any, allowable under Code Section 402(g)) and had received an annual matching Employer contribution of fifty percent of that amount or, if different, the amount determined under the table set forth below, from later of (i) the adoption ofthe Bergen 401(k) Plan or (ii) the date of the Participant's fortieth birthday through his or her termination.  The sum of such hypothetical contributions for any calendar year shall not exceed the amount then applicable under Code Section 415(c)(1)(A).Such hypothetical contributions shall be deemed to have been made to the Bergen 401(k) Plan on the last day of each calendar year and shall be credited with earnings at a rate equal to the average yield of the Bergen 401(k) Plan's guaranteed income fund,or successor fund as determined by the Plan Administrator, as of the beginning of the plan year of the Bergen 401(k) Plan.  The matching Employer contribution rate used for the calendar years in question shall be as follows:	

 

Calendar 

Year
Employer Matching********