ex10-12.htm


    Exhibit
10.12

    


    


    SALARY
CONTINUATION PLAN

    Amended
and Restated November 14, 2008

    


    


    This
Salary Continuation Plan (“Plan”) has been established by SUPERIOR INDUSTRIES
INTERNATIONAL, INC., a California Corporation (the “Company”), effective March
28, 2008, and amended effective November 14, 2008, based upon the following
facts and circumstances:

    


    A. The
Company wishes to promote in its executive employees and directors increased
efficiency in their work and the strongest possible interest in the successful
operation of the Company and to provide certain executive employees and
directors (each, a “Participant”) and their families with benefits upon the
retirement or death of such directors or employees.

    


    B. The
Company recognizes the valuable services heretofore performed for it by the
Participant and wishes to encourage the Participant’s continued relationship
with the Company.

    


    C. In order
to achieve these goals, the Company is establishing this Plan.

    


    NOW, THEREFORE, IT IS AGREED AS
FOLLOWS:

    


    1.           Definitions.

    1.1            Administrative
Committee.  "Administrative Committee" shall mean the committee
appointed pursuant to Section 5 hereof.

    


    1.2            Affiliate.  “Affiliate”
shall mean all persons with whom the Company would be considered a single
employer under Section 414(b) or Section 414(c) of the Code, except that, for
purposes of determining whether there is a controlled group or common control,
the language “at least 50 percent” is used instead of “at least 80
percent.”

    


    1.3           Agreement.  “Agreement”
shall mean the agreement entered into between the Company and the Participant
evidencing a grant of benefits under the Plan.

    


    1.4            Beneficiary.  "Beneficiary"
shall mean the Beneficiary, or each Beneficiary, designated by the Participant
pursuant to Section 4 hereof.

    


    1.5            Code.  “Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time, and
any successor, along with related rules, regulations, and
interpretations.

    


    1.6            Company.  “Company”
shall mean Superior Industries International, Inc.  Where the context
requires, reference to the Company shall include an Affiliate.

    


    1.7            Compensation.  "Compensation"
shall mean the base salary and any
annual directors' retainer paid or accrued to or for the Participant with
respect to each calendar month for personal services rendered by the Participant
to the Company during such month, but shall not include any commission, bonus,
meeting fee or other payment.

    


    1.8           Disability.  “Disability”
shall mean that a Participant meets one of the following
requirements:

    


    
      	
              (i)  

            	
              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 twelve months;
  or

            


    

    


    
      	
              (ii)  

            	
              if
      the Participant is covered by an accident and health plan covering
      employees of the Company, 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 twelve months, receiving income replacement benefits for a period of
      not less than three months under an accident and health plan covering
      employees of the Company.

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    1.9           Final Average
Compensation. "Final Average Compensation" shall mean the average monthly
Compensation paid to, or accrued for the benefit of, the Participant with
respect to the 36 months of the Participant's employment or service (or the
entire period of the Participant's employment or service if shorter than 36
months) immediately preceding the month in which occurs the Participant's
Separation from Service.

    


    1.10           Retirement Date.
"Retirement Date" shall mean the later of (i) the Participant's sixty-fifth
(65th)
birthday or (ii) the day upon which occurs the Participant's Separation from
Service on or after the Vesting Date.

    


    1.11           Separation from
Service. "Separation from Service" shall mean a separation from services
from the Company and the Company’s Affiliates as defined for purposes of Section
409A(a)(2)(A)(i) of the Code, except that a reduction in level of services
performed by a Participant to a level equal to twenty one (21) percent or less
of the average level of services performed during the immediately preceding
thirty-six (36) months (or such shorter period as the Participant shall have
performed services for the Company) shall be presumed to be a “Separation from
Service.”

    


    1.12           Vesting Date.
"Vesting Date" with respect to the Participant shall mean the earliest to occur
of (a) the date set forth in the Participant’s Agreement; or (b) the date upon
which the Participant becomes Disabled.

    


    2.            Retirement
Benefits.

    


    2.1           Amount of Benefit. If
the Participant's Separation from Service occurs on or after the Vesting Date
for reasons other than his death, the Company shall pay to the Participant a
monthly benefit equal to thirty percent (30%) of the Participant's Final Average
Compensation.

    


    2.2           Period of Payment.
Payment of the retirement benefit specified in Section 2.1 shall commence on the
first day of the month coinciding with or next following the Participant's
Retirement Date and shall continue on the first day of each month thereafter
through and including the first day of the month coinciding with or next
preceding the Participant’s death.  Notwithstanding the foregoing, if
the Participant is a “specified employee” for purposes of Section 409A of the
Code as of the Participant’s Separation from Service and payment of an amount
that is subject to Section 409A of the Code is otherwise required to be made on
the first day of the month coinciding with or next following the Retirement Date
described in Section 1.10(ii) of the Plan, payments to which the Participant
would otherwise be entitled during the first six months following the date of
Separation from Service shall be accumulated and paid on the first day of the
seventh month following the date of the Separation from Service.

    


    3.            Survivorship
Benefits.

    


    3.1           Death Prior to Separation
from Service. If the Participant's Separation from Service occurs due to
the Participant's death, the Company shall pay to the Participant's Beneficiary
120 monthly payments,
each in an amount equal to thirty percent (30%) of the Participant's Final
Average Compensation. Such payments shall commence within 90 days following the
Participant’s death and shall continue on the first day of each of the 119
months after the first payment.

    


    3.2            Death After Separation from
Service but Prior to Retirement Date. If the Participant's Separation
from Service occurs on or after the Vesting Date for reasons other than his
death and the Participant subsequently dies prior to the commencement of
retirement benefit payments under Section 2.2, the Company shall pay to the
Participant's Beneficiary 120 monthly payments, each in an amount equal to
thirty percent (30%) of the Participant's final Average Compensation. Such
payments shall commence within 90 days following the Participant’s death and
shall continue on the first day of each of the 119 months after the first
payment.

    


    3.3           Death After Commencement of
Retirement Benefits. If the Participant dies after retirement benefit
payments have commenced under Section 2 hereof, but prior to his having received
120 such monthly payments, the Company shall continue such monthly payments to
the Participant's Beneficiary in the same amount and at the same time said
payments would have been paid to the Participant until the total of the monthly
payments made to the Participant, plus the payments made to the Participant’s
Beneficiary, equals 120.

    


    3.4           Death of Beneficiary.
In the event a Beneficiary receiving payments under this Section 3 dies before
receiving all the payments due to such Beneficiary, the Company shall continue
such monthly payments to the Beneficiary's estate in the same amount and at the
same time said payments would have been paid to the Beneficiary until the total
of the monthly payments made to the Participant, plus the payments made to the
Participant’s Beneficiary and the Beneficiary’s estate, equals 120.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    4. Beneficiaries.

    


    4.1           Designation of
Beneficiary. Subject to the limitations specified in Section 4.2, hereof,
the Participant may designate a Beneficiary or Beneficiaries by filing a written
notice of such designation with the Administrative Committee in such form as the
Administrative Committee may prescribe. The Participant may revoke or modify
such designation at any time by a further written designation. The Participant’s
designation of a Beneficiary shall be deemed automatically revoked in the event
that the Beneficiary predeceases the Participant. If no designation shall be in
effect at the time the benefits are payable under this Plan, the Beneficiary or
Beneficiaries shall be the Participant's spouse, or if no spouse is then living,
the Participant's children or the issue of any deceased child by right of
representation or, if none of the foregoing is living, then the Participant's
estate. If more than one Beneficiary becomes entitled to a survivorship benefit
either by designation of the Participant or otherwise, the benefit specified
herein shall be divided equally among such Beneficiaries.

    


    4.2           Limitations on Designation
of Beneficiary. If the Participant's Compensation constitutes community
property, no person other than the Participant's spouse shall be designated as a
Beneficiary unless (i) such spouse shall approve such designation in writing and
(ii) such designation is approved by the Administrative Committee.

    


    4.3           Minors; Persons Declared
Incompetent. In the event a benefit is payable to a minor or to a person
who is declared incompetent the Company may pay such benefit to the guardian,
legal representative or person or persons having the care or custody of such
minor or incompetent. The Administrative Committee may require such proof of
incompetency, minority or guardianship as it may deem appropriate prior to the
distribution of the benefit.  Such distribution shall completely
discharge the Administrative Committee and the Company from all liability with
respect to such benefit.

    


    5. Administrative
Committee

    


     5.1           Appointment of
Committee. The Board of Directors of the Company shall appoint an
Administrative Committee consisting of three (3) or more persons to administer
and interpret this Plan. The interpretation and construction of this Plan by the
Administrative Committee, and any action taken there under, shall be binding and
conclusive upon all parties in interest. No member of the Administrative
Committee shall, in any event, be liable to any person for any action taken or
omitted to be taken in connection with the interpretation, construction or
administration of this Plan, so long as such action or omission to act is made
in good faith. The Administrative Committee may adopt rules and regulations
relating to this Plan as it may deem necessary or advisable.

    


    5.2           Named Fiduciary. The
Administrative Committee is hereby designated as the named fiduciary under this
Plan. The named fiduciary shall have authority to control and manage the
operation and administration of this Plan, and it shall be responsible for
establishing and carrying out a funding policy and method consistent with the
objectives of this Plan.

    


    5.3           Claims Procedure. If
the Participant or a Beneficiary is denied all or a portion of an expected
benefit under this Plan for any reason, he or she may file a claim with the
Administrative Committee within thirty (30) days of such denial. The
Administrative Committee shall notify the claimant within sixty (60) days of
allowance or denial of the claim, unless the claimant receives written notice
from the Administrative Committee prior to the end of the sixty (60) day period
stating that special circumstances require extension of time for decision, which
extension of time shall not exceed an additional sixty (60) days. The notice of
the Administrative Committee's decision shall be in writing, sent by mail to the
claimant's last known address, and, if a denial of the claim, must contain the
following information:

    


    (a) the
specific reasons for denial,

    


    
      	
              (b)  

            	
              specific
      reference to pertinent provisions of this Plan on which the denial is
      based,

            


    

    


    
      	
              (c)  

            	
              if
      applicable, a description of any additional information or material
      necessary to perfect the claim and an explanation of why such information
      or additional material is necessary,
and

            


    

    


    (d) an
explanation of the claims review procedure.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    5.4           Review Procedure. A
claimant is entitled to request a review of any denial of his claim by the
Administrative Committee, which request for review must be submitted in writing
within sixty (60) days of the mailing of the notice of denial. Absent a request
for review within the sixty (60) day period, the claim will be deemed to be
conclusively denied. The claimant or his representative shall be entitled to
review all pertinent documents. The review shall be conducted by the
Administrative Committee, which shall afford the claimant a hearing and the
opportunity to submit issues, records, documents, and comments orally and in
writing. The Administrative Committee shall render a review decision in writing,
all within sixty (60) days after a receipt of a request for review, unless the
claimant receives written notice from the Administrative Committee prior to the
end of the sixty (60) day period stating that special circumstances require
extension of time for decision, which extension of time shall not exceed an
additional sixty (60) days. The claimant shall be given written notice of the
Administrative Committee's review decision, together with specific reasons for
the decision and reference to the pertinent provisions of this
Plan.

    


    5.5           Disability Benefits Claims
and Review Procedures.  If a Participant’s claim is a claim for
disability benefits subject to Department of Labor (“DOL”) regulation §
2560.503-1, the procedures in Sections 5.3 and 5.4 above shall be modified to
comply with the DOL regulations governing disability claims.

    


    6.            Funding.

    


    6.1           No Trust. Nothing
contained in this Plan, and no action taken pursuant to its provisions by either
party hereto, shall create, or be construed to create, a trust of any kind for
the benefit of the Participant, his Beneficiary, or his estate. Payments to the
Participant or his designated Beneficiary hereunder shall be made from assets
which shall continue, for all purposes, to be a part of the general assets of
the Company, and no person, other than the Company, shall have, by virtue of the
provisions of this Plan, any interest in such assets. To the extent that any
person acquires a right to receive payments from the Company under the
provisions hereof, such rights shall be no greater than the rights of any
unsecured general creditor of the Company.

    


    6.2           Life Insurance. The
Company may, in its discretion, apply for and procure as owner and for its own
benefit, insurance or annuity contracts on the life of the Participant in such
amounts and in such forms as the Company may choose. In such event, neither the
Participant nor any Beneficiary shall have any rights whatsoever in such
contract or contracts and the Company shall possess and may exercise all
incidents of ownership therein. At the request of the Company, the Participant
shall submit to medical examinations and shall supply such information and
execute such documents as may be required by the insurance company or companies
to whom the Company has applied for such insurance, including but not limited to
any consents which may be required under the Pension Protection Act or other
applicable laws.

    


    7.            Miscellaneous.

    


    7.1           Assignment. Neither
the Participant nor any Beneficiary shall have any right to assign the right to
receive any benefits hereunder and any attempted assignment or transfer shall
excuse the Company from making any further payments to the purported
assignor.

    


    7.2           No Guarantee of
Employment. Neither this Plan nor any action taken hereunder shall be
construed as giving the Participant the right to be retained as an employee of
the Company for any period.

    


    7.3           Lack of Vesting. No
benefit hereunder shall be paid to, or with respect to the employment or service
of, a Participant whose Separation from Service is for reasons other than death
and occurs before the Vesting Date.

    


    7.4           Taxes. The Company
shall deduct from all payments made hereunder all applicable federal and state
taxes required by law to be withheld from any such payment.  Taxes
required by law to be withheld at vesting of benefits hereunder shall be
collected from the Participant in the year of vesting.  The Company is
authorized to satisfy any tax withholding obligation at vesting by deducting
such taxes from any other compensation due the Participant, collecting from the
Participant cash or a certified check, or reducing the benefit payable under the
Plan.

    


    7.5           Amendment and
Termination. This Plan may be amended or terminated by the Company;
provided, however, that no such amendment or termination may adversely affect
the rights of individuals who are Participants or Beneficiaries as of the date
of such amendment or termination.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    7.6           Form of
Communication. Any notice, claim, application or other communication
required or permitted to be given under the provisions of this Plan shall be in
writing and in such form as the Administrative Committee may prescribe. If such
communication is made to Participant, it shall be made by personal delivery or
sent by United States certified mail, postage pre-paid, addressed to the
Participant's last known address as shown on the records of the Company. Any
communication to the Company or to the Administrative Committee shall be made by
personal delivery or sent by United States certified mail, postage pre-paid,
addressed to the Company's executive offices at 7800 Woodley Avenue, Van Nuys,
California 91406, or such other address as may be designated in writing by the
Company. The date of mailing shall be deemed the date of any such notice,
consent, application or demand.

    


    7.7          Captions. The
captions at the head of a section or paragraph of this Plan are designed for
convenience of reference only and are not to be used for the purpose of
interpreting any provision of this Plan.

    


    7.8          Construction. This
Plan shall be construed according to the laws of the State of
California.

    


    7.9          Gender and Form. In
this Plan, where appropriate, the masculine gender includes the feminine and
neuter gender and words in the singular form include the plural form, and vice
versa.

    


    7.10          Severability. The
invalidity of any portion of this Plan shall not invalidate the remainder
thereof and said remainder shall continue in force and effect to the fullest
extent permitted by law.

    


    7.11          Binding Agreement.
This Plan shall be binding upon and inure to the benefit of the Company and its
successors and assigns and the Participant and, to the extent its context
permits, to his successors, heirs, executors, administrators and
Beneficiaries.

    


    7.12          Funding.  Notwithstanding
any other provision of this Plan, (a) this Plan constitutes a mere promise by
the Company to make benefit payments in the future; (b) the Participant shall
have no rights to amounts under this Plan or to any specified assets of the
Company; (c) the Participant shall have the status of a general unsecured
creditor of the Company; (d) the Company in no way guarantees any payments under
the Plan; and (e) any and all investments remain the property of the
Company.

    


    7.13          Top Hat
Plan.  This Plan is intended (a) to be unfunded for tax
purposes and (b) to qualify as an unfunded plan maintained primarily for the
purpose of providing deferred compensation for directors and for a select group
of management and highly compensated employees (a “top hat” plan) for purposes
of Title I of the Employee Retirement Income Security Act of 1974, as
amended.

    


    7.14          Existing Agreements,
Effective Date and Section 409A Compliance. For any Participant who is
party to an existing Salary Continuation Agreement as of the date of adoption of
the Plan, such Agreement shall continue to govern unless amended with the
consent of the Company and the Participant (or the Beneficiary, if the
Participant has died).

    


    With the
consent of the Company and the Participant, this Plan shall apply both to
amounts deferred before 2005 (“Grandfathered Amounts”) and to amounts deferred
after 2004 (“Section 409A Amounts”), except that the six-month delay in Section
2.2 of the Plan shall not apply to Grandfathered Amounts.  The Plan
does not represent a material modification of the Salary Continuation Agreements
that were in effect October 3, 2004.  No future amendment of the Plan
shall apply to Grandfathered Amounts to the extent such provision or amendment
would constitute a material modification of such Grandfathered Amounts (unless
the amendment expressly indicates otherwise).  With respect to Section
409A Amounts, the Plan, as amended in November 2008, is intended to conform to
the requirements of Section 409A of the Code and the regulations there under
and, in all respects, shall be administered and construed in accordance with
such requirements.  Prior to amendment in November 2008, the Salary
Continuation Agreements and the Plan were administered in good faith compliance
with Section 409A of the Code.

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


    


    IN
WITNESS WHEREOF, the Company has adopted this amended and restated Plan on
November 14, 2008, effective as of the day and year first above
written.

     

    "Company":                                      SUPERIOR
INDUSTRIES INTERNATIONAL, INC.

     

    


    By: /s/ Steven J.
Borick

     

    
      


    

                                                  Steven J.
Borick

         Chairman, CEO
& President