Second Amended and Restated Retirement Plan



 






Exhibit 10.1




HUGHES SUPPLY, INC.

SECOND AMENDED AND RESTATED

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN




(effective as of October 19, 2005)




 






     THIS HUGHES SUPPLY, INC. SECOND AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(the “Plan”), made effective as of October 19, 2005, by HUGHES SUPPLY, INC., a corporation
organized and existing under the laws of the State of Florida (the “Company”).



W I T N E S S E T H:




     WHEREAS, the Company implemented this Plan for the purpose of providing an unfunded
supplemental executive retirement arrangement for the benefit of a select group of its management
or highly compensated employees, subject to certain conditions and pursuant to the terms and
provisions specified in this Plan; and



     WHEREAS, the Company now desires to amend and restate this Plan to address recent changes in
the law and to modify certain other provisions.



     NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, the
Company hereby amends and restates this Plan, in its entirety, pursuant to the following terms and
provisions.



ARTICLE 1




DEFINITIONS




     1.1 “Accelerating Termination” shall have the meaning specified in Section 2.4(b) hereof.



     1.2 “Administrative Committee” shall mean the administrative committee appointed by the
Compensation Committee pursuant to Section 3.1 to perform the administrative duties specified in
Article 3 hereof.



     1.3 “Affiliate” shall mean an entity that directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with, the Company.



     1.4 “Average Compensation” shall mean the average of the Compensation paid by the Company and
its Affiliates to the Participant for the 3 full Plan Years of employment with the Company and its
Affiliates (or, if the Participant has been employed with the Company and its Affiliates for less
than three full Plan Years, the actual number of the Participant’s full Plan



 









 




Years of employment) during which the Participant’s Compensation was the highest, considering
only the 10 full Plan Years which immediately precede the date on which the Participant’s
employment with the Company and its Affiliates terminates.




     1.5 “Beneficiary” shall mean the person or persons designated by a Participant, upon such
forms as shall be provided by the Company, to receive payments of the Participant’s benefits
hereunder, if any, in the event of the Participant’s death. If the Participant shall fail to
designate a Beneficiary, or if for any reason such designation shall be ineffective, or if such
Beneficiary shall predecease the Participant or die simultaneously with him, then the Participant’s
Beneficiary shall be the Participant’s spouse, so long as such spouse shall live, and thereafter to
such person or persons including such spouse’s estate as may be appointed under such spouse’s last
will and testament making specific reference hereto. If the Participant is not survived by a
spouse, or if the Participant’s spouse shall fail to so appoint, then said payments shall be made
to the then living children of the Participant, if any, in equal shares, for their joint and
survivor lives, and if none, or after their respective joint and survivor lives, any balance
thereof to the Participant’s estate as a lump sum payment.



     1.6 “Benefit Percentage” shall mean that benefit percentage designated on Exhibit B
attached hereto that is applicable to the Participant, based upon the Participant’s status on the
date on which the Participant’s employment with the Company and its Affiliates terminates (or on
such other date as the Compensation Committee shall determine); provided, however, if the
Participant satisfies the Rule of 80 and terminates employment with the Company and its Affiliates
prior to age 55, the benefit percentage applicable at age 55 shall apply to the Participant.



     1.7 “Board” shall mean the board of directors of the Company.



     1.8 “Cause” shall have the meaning specified in Section 2.4(c)(ii) hereof.



     1.9 “Change in Control” shall have the meaning specified in Section 2.4(c)(i) hereof.



     1.10 “Change in Control Benefit” shall have the meaning specified in Section 2.4(c)(iv)
hereof.



     1.11 “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.



     1.12 “Company” shall mean Hughes Supply Inc., a Florida corporation, and its successors and
assigns.



     1.13 “Compensation” shall mean the base salary, and any annual cash incentive bonuses approved
by the Compensation Committee, that are paid by the Company and its Affiliates to the Participant
for a Plan Year. For these purposes, base salary and cash bonus amounts shall be calculated before
reduction for compensation deferred pursuant to all qualified, nonqualified and Code Section 125
plans maintained by the Company and its Affiliates.



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     1.14 “Compensation Committee” shall mean the Compensation Committee of the Board.



     1.15 “Death Benefit” shall mean the benefits, if any, payable under this Plan to the
Participant’s Beneficiary pursuant to Section 2.3 hereof in the event of the Participant’s death.



     1.16 “Disability” shall mean any injury, illness or condition that constitutes a disability
within the meaning of Section 409A(a)(2)(C) of the Code and the regulations thereunder.
Notwithstanding the foregoing, a Disability shall not be deemed to have been incurred for purposes
of this Plan, however, if it is the result of a willful and intentionally self-inflicted injury or
was incurred in connection with the willful and intentional commission of a felony. All
determinations relating to whether a Participant has suffered a Disability shall be made by the
Administrative Committee.



     1.17 “Disability Retirement Age” shall mean age 65, or such younger age not earlier than age
55 as may be approved for the Participant by the Compensation Committee.



     1.18 “Disability Retirement Benefit” shall mean a monthly benefit, commencing on the first day
of the month coincident with or next following the date on which a Disabled Participant attains his
or her Disability Retirement Age and continuing for 15 years thereafter, equal to the amount, if
any, by which (a) one twelfth of the product of the Participant’s Benefit Percentage (determined as
of the Participant’s Disability Retirement Age) multiplied by the Disabled Participant’s Average
Compensation, exceeds (b) the amount, if any, of any monthly benefit payable to the Participant for
the month in which the Disability Retirement Benefit is paid under any disability insurance policy
or plan of the Company. Notwithstanding anything to the contrary herein, in no event shall the
monthly benefit payable as a Disability Retirement Benefit under this Plan, together with the
monthly benefit payable under any disability insurance policy or plan of the Company for the month
in which the Disability Retirement Benefit is paid, exceed $83,334 (or, as expressed on an
annualized basis, $1,000,000) in the case of a Tier I Participant and (ii) exceed $62,500 (or, as
expressed on an annualized basis, $750,000) in the case of a Tier II Participant.



     1.19 “Disabled Participant” shall mean a Participant whose employment with the Company and its
Affiliates terminates by reason of the Participant’s Disability and who continues to suffer from a
Disability until his or her Disability Retirement Age.



     1.20 “Effective Date” shall mean February 5, 2004.



     1.21 “Effective Date of the Second Amended and Restated Plan” shall mean October 19, 2005.



     1.22 “Employee” shall mean any employee of the Company or any of its Affiliates.



     1.23 “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from
time to time.



     1.24 “Good Reason” shall have the meaning specified in Section 2.4(c)(iii).



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     1.25 “Normal Retirement Age” shall mean age 65, or such younger age that is not earlier than
age 55 as may be approved by the Compensation Committee is satisfied, or as may be modified
pursuant to Sections 1.37 or 2.6.



     1.26 “Normal Retirement Date” shall mean the first day of the calendar month coinciding with
or immediately following the later of (a) the date on which the Participant’s employment with the
Company and its Affiliates terminates (or such other date as the Compensation Committee shall
determine) and (b) the date on which the Participant attains his or her Normal Retirement Age.



     1.27 “Normal Retirement Benefit” means a monthly benefit, commencing on the Participant’s
Normal Retirement Date and continuing for 15 years thereafter, equal to one twelfth of the product
of the Participant’s Benefit Percentage multiplied by the Participant’s Average Compensation.
Notwithstanding anything to the contrary herein, in no event shall (a) the monthly benefit payable
to a Tier I Participant as a Normal Retirement Benefit under this Plan exceed $83,334, or, as
expressed on an annualized basis, $1,000,000, and (b) the monthly benefit payable to a Tier II
Participant as a Normal Retirement Benefit under this Plan exceed $62,500, or, as expressed on an
annualized basis, $750,000.



     1.28 “Participant” shall mean those officers of the Company or any Affiliate designated by the
Compensation Committee as being eligible to participate in the Plan, and shall include the Tier I
Participants and the Tier II Participants. An employee of the Company or an Affiliate shall not be
eligible to be a Participant unless he or she is deemed to be among a select group of management or
highly compensated employees of the Company or its Affiliates within the meaning of Section 201(2)
of ERISA.



     1.29 “Plan” shall mean this Hughes Supply, Inc. Amended and Restated Supplemental Executive
Retirement Plan as herein set forth and as it may be amended from time to time.



     1.30 “Plan Year” shall mean the fiscal year of the Company.



     1.31 “Reduced Disability Retirement Benefit” shall mean an amount equal to the product of (a)
the Disability Retirement Benefit (calculated under Section 1.18 hereof) multiplied by (b) a
fraction, the numerator of which shall be the number of Years of Service the Participant has
completed with the Company and its Affiliates, and the denominator of which shall be (i) 5, in the
case of Tier I Participants, or (ii) 15, in the case of Tier II Participants.



     1.32 “Reduced Normal Retirement Benefit” shall mean an amount equal to the product of (a) the
Normal Retirement Benefit (calculated under Section 1.27 hereof) multiplied by (b) a fraction, the
numerator of which shall be the number of Years of Service the Participant has completed with the
Company and its Affiliates, and the denominator of which shall be (i) 5, in the case of Tier I
Participants, or (ii) 15, in the case of Tier II Participants.



     1.33 “Requisite Years of Service” shall mean (a) with respect to a Tier I Participant, 5 Years
of Service, and (b) with respect to a Tier II Participant, 15 Years of Service.



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     1.34 “Tier I Participant” shall mean those individuals designated as “Tier I Participants” on
Exhibit A, attached hereto and made a part hereof, as modified from time to time by the
Compensation Committee.



     1.35 “Tier II Participant” shall mean those individuals designated as “Tier II Participants”
on Exhibit A, attached hereto and made a part hereof as modified from time to time by the
Compensation Committee.



     1.36 “Trust” shall mean, as to each Participant, the trust created under a separate trust
agreement entered into between the Company and Suntrust Bank, as trustee, to fund the Participant’s
benefits under this Plan, or such successor trust, and with such successor trustee, as the Company
may from time to time establish for that purpose.



     1.37 “Year of Service” shall mean each complete twelve-month period during which a Participant
was employed by the Company, including authorized leaves of absence and periods prior to the
Effective Date, any Years of Service that may be credited by the Compensation Committee pursuant to
Section 2.6 below (but excluding such credited Years of Service for purposes of the Rule of 80).



ARTICLE 2




RETIREMENT BENEFITS




     2.1 Normal Retirement Benefit.



          (a) After Attaining Normal Retirement Age and Completing Requisite Years of Service, or
Meeting the Rule of 80. A Participant, whose employment with the Company and its Affiliates
terminates for any reason other than by the Company or any of its Affiliates for Cause after (i)
the Participant has attained his or her Normal Retirement Age and has completed his or her
Requisite Years of Service, or (ii) the sum of the Participant’s actual age and actual Years of
Service is at least 80 (“Rule of 80”), shall be entitled to receive the Participant’s Normal
Retirement Benefit commencing on the Participant’s Normal Retirement Date or, if the Participant
has satisfied the Rule of 80, the later of the date the Participant attains age 55 or the date the
Participant terminates employment with the Company and its Affiliates.



          (b) After Attaining Normal Retirement Age and Prior to Completing Requisite Years of
Service. If a Participant’s employment with the Company or its Affiliates terminates for any
reason (other than by the Company or any of its Affiliates for Cause) after attaining his or her
Normal Retirement Age but prior to the completion of his or her Requisite Years of Service, such
Participant shall be entitled to receive the Participant’s Reduced Normal Retirement Benefit
commencing on the Participant’s Normal Retirement Date.



          (c) Prior to Attaining Normal Retirement Age, Termination of Tier I Participant’s
Employment Without Cause. If a Tier I Participant is terminated by the Company or an Affiliate
without Cause prior to attaining his or her Normal Retirement Age or satisfying the Rule of 80, the
Company shall pay to the Tier I Participant his or her (i) Normal Retirement Benefit, if Tier I
Participant has completed his or her Requisite Years of Service, or (ii) Reduced



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Normal Retirement Benefit, if Tier I Participant has not completed his or her Requisite Years
of Service. For purposes of subsections (c)(i) and (ii) above, the Tier I Participant’s Benefit
Percentage shall be determined as if his or her employment had been terminated after attaining the
later of (A) age 55 or (B) the actual age of the Tier I Participant on the date of termination of
employment.




     2.2 Disability Retirement Benefit.



          (a) After Disability and Completing Requisite Years of Service. A Participant, whose
employment with the Company and its Affiliates terminates on account of his or her Disability after
the Participant (i) has attained his or her Disability Retirement Age, and (ii) has completed his
or her Requisite Years of Service, shall be entitled to receive the Participant’s Disability
Retirement Benefit commencing on the first day of the calendar month coincident with or next
following the date on which the Participant attains his or her Disability Retirement Age.



          (b) After Disability and Prior to Completing Requisite Years of Service. If a
Participant’s employment with the Company and its Affiliates terminates on account of his or her
Disability after attaining his or her Disability Retirement Age but prior to the completion of his
or her Requisite Years of Service, such Participant shall be entitled to receive the Participant’s
Reduced Disability Retirement Benefit commencing on the first day of the calendar month coincident
with or next following the date on which the Participant attains his or her Disability Retirement
Age.



     2.3 Death Benefit.



          (a) After Commencement of Payment of Normal Retirement Benefit or Disability Retirement
Benefit. If a Participant dies after payment of his or her Normal Retirement Benefit or
Disability Retirement Benefit has commenced, but before payment of all Normal Retirement Benefits
or Disability Retirement Benefits have been made to the Participant, the Company shall continue to
pay the monthly benefits that the Participant would have received during the remainder of the
15-year period if the Participant had survived to the Participant’s Beneficiary, at such times and
in such manner as such benefits would have been paid to the Participant if the Participant had
survived.



          (b) Prior to Commencement of Payment of Normal Retirement Benefit or Disability Retirement
Benefit.



                    (i) After Completion of Requisite Years of Service. If a Participant dies while in
the employ of the Company or an Affiliate or during any period of continuing Disability up to age
65 that commenced while the Participant was in the employ of the Company or any Affiliate, and the
Participant had completed his or her Requisite Years of Service as of the date of death, the
Company shall pay to the Participant’s Beneficiary a monthly benefit, commencing on the first day
of the second calendar month following the Participant’s death and continuing for 10 years
thereafter, equal to one twelfth of the product of the Participant’s Benefit Percentage, determined
as if the Participant had died after attaining the later of age 55 or the



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actual age of the Participant on the date of the Participant’s death, multiplied by the
Participant’s Average Compensation.




                    (ii) Prior to Completion of Requisite Years of Service. If a Participant dies while
in the employ of the Company or an Affiliate or during any period of continuing Disability up to
age 65 that commenced while the Participant was in the employ of the Company or any Affiliate, but
prior to the completion of his or her Requisite Years of Service as of the date of death, the
Company shall pay to the Participant’s Beneficiary a monthly benefit, commencing on the first day
of the second calendar month following the Participant’s death and continuing for 10 years
thereafter, equal to (1) the monthly benefit that would have been payable to the Beneficiary under
Section 2.3(b)(i) had the Participant completed his or her Requisite Years of Service, multiplied
by (2) a fraction, the numerator of which shall be the number of Years of Service the Participant
has completed with the Company and its Affiliates, and the denominator of which shall be 5, in the
case of Tier I Participants, and 15, in the case of Tier II Participants.



                    (iii) Maximum Benefits. Notwithstanding anything to the contrary herein, in no event
shall (x) the monthly benefit payable to a Tier I Participant as a benefit under this Section
2.3(b) exceed $83,334, or, as expressed on an annualized basis, $1,000,000, and (y) the monthly
benefit payable to a Tier II Participant as a monthly benefit under this Section 2.3(b) exceed
$62,500, or, as expressed on an annualized basis, $750,000.



     2.4 Change in Control.



          (a) After Commencement of Payment of Normal Retirement Benefit or Disability Retirement
Benefit. If a Change in Control occurs after payment of a Participant’s Normal Retirement
Benefit or Disability Retirement Benefit has commenced but before payment of all of the
Participant’s Normal Retirement Benefits or Disability Retirement Benefits have been made, the
Company shall pay the Participant a single lump sum payment, within 30 days after the date on which
the Change in Control occurs, equal to the present value, determined using a five percent (5%)
discount factor per annum, of the remaining benefits payable to the Participant (or his or her
Beneficiary) pursuant to this Plan.



          (b) Prior to Commencement of Payment of Normal Retirement Benefit or Disability Retirement
Benefit.



                    (i) After Completion of Requisite Years of Service. If (1) a Change in Control occurs
before payment of a Participant’s Normal Retirement Benefit or Disability Retirement Benefit has
commenced, and (2) within two years after the Change in Control has occurred, the Participant’s
employment with the Company and its Affiliates is terminated by the Company and its Affiliates
without Cause or by the Participant for Good Reason (any such termination sometimes being referred
to herein as an “Accelerating Termination”), and the Participant had completed his or her Requisite
Years of Service as of the date of the Accelerating Termination, then the Company shall pay the
Participant a single lump sum payment, within 30 days after the date of the Accelerating
Termination, equal to the present value, determined using a five percent (5%) discount factor per
annum, of the Change in Control Benefit.



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                    (ii) Prior to Completion of Requisite Years of Service. If an Accelerating
Termination occurs and the Participant had not yet completed his or her Requisite Years of Service
as of the date of the Accelerating Termination, then the Company shall pay to the Participant a
single lump sum payment, within 30 days after the date of the Accelerating Termination, an amount
equal to (1) the lump sum benefit that would have been payable to the Participant under Section
2.4(b)(i) had the Participant completed his or her Requisite Years of Service, multiplied by (2) a
fraction, the numerator of which shall be the number of Years of Service the Participant has
completed with the Company and its Affiliates, and the denominator of which shall be 5, in the case
of Tier I Participants, and 15, in the case of Tier II Participants.



                    (iii) Maximum Benefits. Notwithstanding anything to the contrary herein, in no event
shall any payment of a Change in Control Benefit under this subsection 2.4(b) exceed $1,000,000 on
an annualized basis for any Tier I Participant, or $750,000 on an annualized basis for any Tier II
Participant.



          (c) For purposes of this Plan:



                    (i) A “Change in Control” shall mean an event or series of events by which:



                              (1) any one person, or more than one person acting as a group, acquires ownership of stock of
the Company that, together with stock held by such person or group, possesses more than 50% of the
total fair market value or total voting power of the common stock of the Company; provided,
however, that if any one person, or more than one person acting as a group, is considered to own
more than 50% of the total fair market value or total voting power of the common stock of the
Company, the acquisition of additional stock by the same person or persons will not be considered a
Change in Control under this Plan. Notwithstanding the foregoing, an increase in the percentage of
stock of the Company owned by any one person, or persons acting as a group, as a result of a
transaction in which the Company acquires its stock in exchange for property will be treated as an
acquisition of stock of the Company for purposes of this clause (1);



                              (2) during any period of 12 consecutive months, individuals who at the beginning of such
period constituted the Board (together with any new or replacement directors whose election by the
Board, or whose nomination for election by the Company’s shareholders, was approved by a vote of at
least a majority 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



                              (3) any one person, or more than one person acting as a group, acquires (or has acquired
during the 12-month period ending on the date of the most recent acquisition by the person or
persons) assets from the Company, outside of the ordinary course of business, that have a gross
fair market value equal to or more than 40% of the total gross fair market value of all of the
assets of the Company immediately prior to such acquisition or acquisitions. For purposes of this
Section 2.4(c)(i)(3), “gross fair market value” means the value of the assets of the Company, or
the value of the assets being disposed of, determined without



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regard to any liabilities associated with such assets. Notwithstanding anything to the
contrary in this Plan, the following shall not be treated as a Change in Control under this Section
2.4(c)(i)(3):





                                        (I) a transfer of assets from the Company to a shareholder of the Company (determined
immediately before the asset transfer) in exchange for shares of the Company’s stock;




                                        (II) a transfer of assets from the Company to an entity, 50% or more of the total value
or voting power of which is owned, directly or indirectly, by the Company;




                                        (III) a transfer of assets from the Company to a person, or more than one person acting
as a group, that owns, directly or indirectly, 50% or more of the total value or voting
power of all the outstanding stock of the Company; or




                                        (IV) a transfer of assets from the Company to an entity, at least 50% of the total
value or voting power of which is owned, directly or indirectly, by a person described in
(III) above.



                    (ii) “Cause” shall mean:



                              (1) acts or omissions by the Participant that constitute intentional misconduct or a knowing
violation of law or policy that materially and adversely affects the Company, its reputation or its
business.



                              (2) a benefit in money, property or services received by the Participant from the Company or
from another person dealing with the Company in violation of applicable law or policy;



                              (3) intentional or grossly negligent breach of Participant’s covenant(s) with the Company
relating to confidential or proprietary information (including without limitation any covenants
contained in any employment, non-competition, non-solicitation, severance or similar agreement);



                              (4) conviction of the Participant of a felony or any crime involving moral turpitude; or



                              (5) gross negligence by the Participant in the performance of his duties to the Company.



                    (iii) “Good Reason” shall mean the occurrence of any one or more of the following events
subsequent to the occurrence of a Change in Control:



                              (1) any reduction by the Company of the Participant’s salary or bonus (which for this purpose
shall be the Participant’s maximum potential annual bonus for any fiscal year, based upon
reasonable goals) or any reduction in benefits provided under material benefit plans in which
Participant participates, which reduction is not generally applicable to all



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participants; provided, that any reduction of benefits under this Plan, as in effect on the
date hereof, shall constitute Good Reason and provided, further that any failure by the Company to
continue in effect any material benefit plan in which the Participant participates on the date
hereof, without providing a reasonable substitute or alternative, shall constitute Good Reason;




                    (2) loss of the Participant’s title or position with the Company by action of the Company or
the Board;



                    (3) significant diminution of the Participant’s duties and responsibilities with the Company
by action of the Company or the Board; provided, that any diminution in duties arising solely from
the Company no longer being an independent, publicly-traded reporting company under the Securities
Exchange Act of 1934 shall not constitute Good Reason; or



                    (4) any requirement that the Participant relocate (other than on a sporadic or intermittent
basis) to adequately perform his or her duties and responsibilities for the Company to a location
which is more than 35 miles from the Company’s current address at One Hughes Way, Orlando, FL 32805
or such other geographic location where such Participant has historically performed such duties and
responsibilities, or any requirement that the Participant perform more of his duties from a
geographic location which is different from the location where he performed most of his duties
prior to the Change in Control.



                    (iv) “Change in Control Benefit” means (a) if at the time of the Accelerating Termination the
Participant was age 65 or older, then the Change in Control Benefit shall be equal to the Normal
Retirement Benefit that the Participant would have been entitled to receive had he or she retired
as of the date of the Accelerating Termination; (b) if at the time of the Accelerating Termination
the Participant was age 55 or older (but younger than 65), then the Change in Control Benefit shall
be equal to the Normal Retirement Benefit that the Participant would have been entitled to receive
had he or she retired as of the date of the Accelerating Termination and such retirement was
approved by the Compensation Committee, and (c) if at the time of the Accelerating Termination the
Participant was younger than age 55, then the Change in Control Benefit shall be equal to the
Normal Retirement Benefit that the Participant would have been entitled to receive had he or she
reached age 55 and retired as of the date of the Accelerating Termination and such retirement was
approved by the Compensation Committee.



     2.5 Forfeiture. Notwithstanding any other provision in the Plan, in the event that
the employment of a Participant is terminated by the Company or an Affiliate for Cause, then no
benefits shall be paid to the Participant or his or her Beneficiary under this Plan. In addition,
in the event that the Participant’s employment is terminated by the Company without Cause or by the
Participant for any reason prior to the earliest of (a) attainment of his or her Normal Retirement
Age (except as provided under Section 2.1(c) above), (b) the Participant’s satisfaction of the Rule
of 80, (b) attainment of his or her Disability Retirement Age, or (c) a Change in Control, then no
benefits shall be paid to the Participant or his or her Beneficiary under this Plan.



     2.6 Waiver. Notwithstanding anything to the contrary herein, the Compensation
Committee may, in its sole and absolute discretion, waive or reduce the requirements of, or grant



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credit for additional, age and Years of Service applicable to benefits that may be payable
under this Plan.




     2.7 Section 409A Compliance. The payment of retirement benefits under the Plan other
than in a lump sum after a Change in Control shall be treated as a right to a series of separate
installment payments. Notwithstanding any other provision in the Plan, any benefits otherwise
payable under the Plan upon the separation from service of a “specified employee” (as defined in
Section 409A of the Code) shall be suspended during the first six months following such separation
to the extent required by such Section to avoid the application of the excise tax thereunder and
shall be paid on the first business day after such six-month period.



ARTICLE 3




ADMINISTRATION




     3.1 Committee. The Compensation Committee shall appoint an Administrative Committee
consisting of at least three persons to administer this Plan, provided that the Compensation
Committee may delegate this authority with respect to the Administrative Committee to the Chief
Executive Officer and the Chief Financial Officer of the Company, who shall be required to act
jointly. Any Administrative Committee member may, but need not, be an officer or employee of the
Company or any Affiliate and each shall serve until his successor shall be appointed or until his
earlier resignation or removal. Any member of the Administrative Committee may resign by
delivering his written resignation to the Compensation Committee or its delegate(s). The
Compensation Committee, or its delegate(s), may remove any member of the Administrative Committee
at any time for any reason.



     3.2 Powers and Duties. Except as otherwise determined from time to time by the
Compensation Committee, the Administrative Committee generally shall be responsible for the
discretionary management, operation, interpretation and administration of the Plan and shall:



          (a) Establish procedures for the allocation of responsibilities with respect to the Plan which
are not allocated herein;



          (b) Determine the names of those employees of the Company or its Affiliates who are eligible
to become Participants, subject to the approval of the Compensation Committee, and such other
matters as may be necessary to enable payment under the Plan;



          (c) Construe and interpret all terms, provisions, conditions and limitations of the Plan and
the Trust;



          (d) Correct any defect, supply any omission or reconcile any inconsistency that may appear in
the Plan or the Trust;



          (e) Determine the amount, manner and time of payment of benefits under the Plan and set forth
additional terms or conditions for, and the procedures to be followed by, Participants and
Beneficiaries to obtain benefits;



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          (f) Keep adequate records of all meetings and actions taken by the Administrative Committee
and report to the Compensation Committee at least annually or more frequently as requested by the
Compensation Committee; and



          (g) Perform such other functions and take such other actions as may be required by the Plan or
as may be necessary or advisable to accomplish the purposes of the Plan.


The Company shall furnish the Administrative Committee with all data and information available
which the Administrative Committee may reasonably require in order to perform its functions
hereunder. The Administrative Committee may rely without question upon any such data or
information furnished by the Company. Any interpretation or other decision made by the
Administrative Committee (including without limitation any final determination made by the
Administrative Committee pursuant to Section 3.5 hereof) shall be final, binding and conclusive
upon all persons in the absence of clear and convincing evidence that the Administrative Committee
acted arbitrarily and capriciously.




     3.3 Agents. The Administrative Committee may appoint a Secretary who may, but need
not, be a member of the Administrative Committee, and may employ such agents for clerical and other
services, and such counsel, accountants and other professional advisors as may be required for the
purpose of administering the Plan. The Administrative Committee may rely on all tables,
valuations, reports, certificates and opinions furnished by its agents.



     3.4 Procedures. A majority of the Administrative Committee members shall constitute a
quorum for the transaction of business. No action shall be taken except upon a majority vote of
the Administrative Committee. An individual shall not vote upon or decide any matter relating
solely to himself or vote in any case in which his individual right or claim to any benefit under
the Plan is particularly involved. In any case in which a Administrative Committee member is so
disqualified to act, and the remaining members cannot agree on an issue, the Compensation
Administrative Committee shall appoint a temporary substitute member to exercise all of the powers
of the disqualified member concerning the matter in which he is disqualified.



     3.5 Claims Procedure. In the event that any Participant or Beneficiary claims to be
entitled to benefits under the Plan and the Administrative Committee determines that such claim
should be denied in whole or in part, the Administrative Committee shall, in writing, notify such
claimant within 90 days of receipt of such claim that his claim has been denied, setting forth the
specific reasons for such denial. Such notification shall be written in a manner reasonably
expected to be understood by such Participant or Beneficiary and shall set forth the pertinent
sections of the Plan relied on, and where appropriate, an explanation of how the claimant can
obtain review of such denial. Within 60 days after the mailing or delivery by the Administrative
Committee of such notice, such claimant may request, by mailing or delivery of written notice to
the Administrative Committee, a review and/or hearing by the Administrative Committee of the
decision denying the claim. If the claimant fails to request such a review and/or hearing within
such 60 day period, it shall be conclusively determined for all purposes of this Plan that the
denial of such claim by the Administrative Committee is correct. If such claimant requests a
hearing within such 60 day period, the Administrative Committee shall designate a time (which time
shall not be less than 7 nor more than 60 days from the date of such claimant’s notice to the



12









 




Administrative Committee) and a place for such hearing, and shall promptly notify such
claimant of such time and place. A claimant or his authorized representative shall be entitled to
inspect all pertinent Plan documents and to submit issues and comments in writing. If only a
review is requested, the claimant shall have 60 days after filing a request for review to submit
additional written material in support of the claim. After such review and/or hearing, the
Administrative Committee shall promptly determine whether such denial of the claim was correct and
shall notify such claimant in writing of its determination with 60 days after such review and/or
hearing or after receipt of any additional information submitted.




     3.6 Indemnification. The Company shall indemnify each Administrative Committee
member, and each employee who assist the Administrative Committee in connection with his or her
employment duties against any liability or loss sustained by reason of any act or failure to act
made in good faith, including, but not limited to, those in reliance on certificates, reports,
tables, opinions or other communications from any company or agents chosen by the Administrative
Committee in good faith. Such indemnification shall include attorneys’ fees and other costs and
expenses reasonably incurred in defense of any action brought by reason of any such act or failure
to act.



ARTICLE 4




TRUST




     4.1
Establishment of the Trust. In order to provide
assets from which to fulfill the Company’s obligations to the Participants and their Beneficiaries
under the Plan, the Company may establish a Trust by a trust agreement with a third party who shall
serve as the trustee of the Trust. The Company may, in its discretion, contribute cash or other
property, including securities issued by the Company, to the Trust in order to provide for the
benefits payments under the Plan.



     4.2
Interrelationship of the Plan and the Trust. The provisions of the Plan shall govern the rights of the Participants and their
Beneficiaries to receive distributions pursuant to the Plan. The provisions of the Trust, if any,
shall govern the rights of the Company, the Participants and their Beneficiaries and the creditors
of the Company to the assets transferred to the Trust. The Company shall at all times remain
liable to carry out its obligations under the Plan.



     4.3
Distributions From the Trust. The Company’s
obligations under the Plan may be satisfied with Trust assets distributed pursuant to the terms of
the Trust, if any, and any such distribution shall reduce the Company’s obligations under this
Plan.



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ARTICLE 5




MISCELLANEOUS




     5.1 Unfunded Plan. The obligations of the Company under this Plan shall be paid from
the general assets of the Company or from the assets of the Trust. Participants shall have the
status of general unsecured creditors of the Company, and the Plan constitutes a mere promise by
the Company to make benefit payments in the future. It is intended that this Plan shall constitute
an “unfunded” plan for a select group of management or highly compensated employees under the
ERISA. Any assets acquired by the Company relating to this Plan shall be subject to the claims of
the Company’s creditors, and shall not be subject to any claims by any Participant or Beneficiary.
The assets of the Trust also shall be subject to the Company’s creditors in the event of the
Company’s Insolvency, as defined in the Trust Agreement establishing the Trust. Nothing contained
in this Plan shall be interpreted to grant to any Participant or Beneficiary, any right, title or
interest in any assets of the Company or the Trust.



     5.2 Timing of Company Contributions. For each Plan Year, the Company may make
contributions to the Trust in an amount that the Compensation Committee reasonably determines to be
sufficient to fund the benefits that have accrued and have become vested under this Plan during
that Plan Year.



     5.3 Restrictive Covenants. As a condition to a Participant receiving benefits under
this Plan, the Compensation Committee may require that the Participant enter into an agreement
containing such restrictive covenants as the Compensation Committee may require, including without
limitation, covenants relating to the Participant’s non-competition with the business of the
Company or its Affiliates, non-solicitation of customers or employees of the Company or its
Affiliates, and maintenance of confidential information relating to the Company and its Affiliates.
In the event that the Compensation Committee so determines, payment of any benefits under this
Plan to any Participant or Beneficiary shall be expressly conditioned upon the Participant’s
entering into an agreement that contains such restrictive covenants and the Participant’s
compliance with those restrictive covenants, and any determination by the Compensation Committee
that any of those restrictive covenants have been breached by the Participant shall be binding and
conclusive on all parties.



     5.4 Impact on Other Participant Benefits. This Plan shall not be construed to impact
or cause the denial of any benefits to which any Participant may be entitled under any other
welfare or benefit plan of the Company or any Affiliate. This Plan is intended to, and does in
fact, supercede and replace in its entirety, any Supplemental Executive Retirement Plan Agreement
between any Participant and the Company or any Affiliate.



     5.5 Other Plans. Payments made to Participants under this Plan shall not be
includable as salary or compensation for purposes of determining the amount of employee benefits
under any other retirement, pension, profit-sharing or welfare benefit plans of the Company.



14









 





     5.6 Governing Law. To the extent not pre-empted by the laws of the United States, the
construction, validity and administration of the Plan shall be governed by the laws of the State of
Florida without reference to the principles of conflicts of law therein.



     5.7 No Assignment or Other Transfer. The right to receive payment of any benefits
under the Plan shall not be subject in any manner to anticipation, sale, alienation, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors of a Participant or a
Participant’s Beneficiary.



     5.8 Taxes. The Company shall withhold from any payment due under the Plan any taxes
it deems to be required to be withheld under applicable Federal, state or local tax laws or
regulations.



     5.9 Severability. If any provision of this Plan is found, held or deemed to be void,
unlawful or unenforceable under any applicable statute or other controlling law, the remainder of
the Plan shall continue in full force and effect.



     5.10 Successors. The provisions of this Plan shall bind and inure to the benefit of
the Company and its successors and assigns, and the Participant and the Participant’s Beneficiary.



     5.11 Headings and Subheadings. The headings and subheadings of the Plan are for
reference only. In the event of a conflict between a heading or subheading and the content of an
article or paragraph, the content shall control.



     5.12 Gender. The masculine, as used herein, shall be deemed to include the feminine
and the singular to include plural, except where the context requires a different construction.



     5.13 Amendment and Termination. This Plan may be amended or terminated in any respect
at any time by the Compensation Committee; provided, however, that no amendment or termination of
this Plan shall be effective to reduce any benefits that accrue before the adoption of such
amendment or termination without the prior written consent of the Participants whose benefits would
be reduced. If and to the extent permitted without violating the requirements of Section 409A of
the Code, the Board may require that the benefits accrued on behalf of all Participants and
Beneficiaries (including, without limitation, any remaining benefits payable to Participants or
Beneficiaries receiving distributions in installments at the time of the termination) be
distributed as soon as practicable after such termination, notwithstanding any elections by
Participants or Beneficiaries with regard to form in which their benefits are to be paid. If and
to the extent that the Compensation Committee does not accelerate the timing of distributions on
account of the termination of this Plan pursuant to the preceding sentence, payment of any
remaining benefits under this Plan shall be made at the same times and in the same manner as such
distributions would have been made based upon the most recent elections made by Participants and
Beneficiaries, and the terms of this Plan, as in effect at the time this Plan is terminated



     5.14 No Employment Contract. This Plan does not constitute a contract of employment
or impose on any Participant or the Company or any Affiliate any obligations to retain the
Participant as an employee, to change the status of the Participant’s employment, or to change the
policies of the Company or any Affiliate regarding termination of employment.



15









 





     5.15 No Acceleration of Benefits. In no event shall the acceleration of the time or
schedule of any payment under this Plan be permitted, except to the extent permitted under Section
409A of the Code and the Treasury regulations thereunder.



     IN WITNESS WHEREOF, the Company has caused the Plan to be executed the day and year first
above written.



	 	 	 	 	 
	 	HUGHES SUPPLY, INC.

 	 
	 	By:  	/s/ Jay Romans
 	 
	 	 	Name:  	Jay Romans 	 
	 	 	Title:  	Sr. Vice President of Human Resources 	 



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EXHIBIT A




Participants





	1.	 	Tier I Participants. The following are designated as Tier I
Participants: Tom Morgan, David Bearman,
Neal Keating and David Hughes, and any
successors to the positions of Chief
Executive Officer, Chief Financial Officer,
Chief Operating Officer and Chairman of the
Board of Directors of the Company (and if a
new employee, after one year of service
with the Company ) .
	 
	2.	 	Tier II Participants. The individuals listed below, and any
individuals appointed to the positions of
Senior Vice President of the Company or as
President of any of the Company’s business
units (and if new employee, after one year
of service with the Company ) , are
designated as Tier II Participants:




Steve Benton

Jeff Clyne

Skip Hughes

Bob Machaby

Rick McClure

John Paré

Jay Romans

Mike Stanwood

Tom Starnes

John Steele

Tom Ward

Gradie Winstead

Steve Zepf




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EXHIBIT B




Benefit Percentage





	1.	 	Tier I Participant. If the Participant is a Tier I
Participant, the Benefit Percentage with respect to that
Participant shall be determined in accordance with the
following chart:





	 	 	 	 	 
	Normal Retirement Age*	 	Benefit Percentage
	65
	 	 	60.0	%
	64
	 	 	57.6	%
	63
	 	 	55.2	%
	62
	 	 	52.8	%
	61
	 	 	50.4	%
	60
	 	 	48.0	%
	59
	 	 	45.6	%
	58
	 	 	43.2	%
	57
	 	 	40.8	%
	56
	 	 	38.4	%
	55
	 	 	36.0	%







	2.	 	Tier II Participant. If the Participant is a Tier II
Participant, the Benefit Percentage with respect to that
Participant shall be determined in accordance with the
following chart:





	 	 	 	 	 
	Normal Retirement Age*	 	Benefit Percentage
	65
	 	 	50.0	%
	64
	 	 	48.0	%
	63
	 	 	46.0	%
	62
	 	 	44.0	%
	61
	 	 	42.0	%
	60
	 	 	40.0	%
	59
	 	 	38.0	%
	58
	 	 	36.0	%
	57
	 	 	34.0	%
	56
	 	 	32.0	%
	55
	 	 	30.0	%








 




			
	*	 	This column represents the age on (i) the
Participant’s Normal Retirement Date or (ii) the date on which a Disabled
Participant attains his or her Disability Retirement Age or (iii) solely in the
case of a Participant who satisfies the Rule of 80, the later of the date the
Participant attains age 55 or terminates employment with the Company and its
Affiliates. It should be noted that retirement prior to age 65 requires
approval of the Compensation Committee unless a Participant has satisfied the
Rule of 80.






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