Exhibit 10.2
AMERICAN INTERNATIONAL GROUP, INC.
NON-QUALIFIED RETIREMENT INCOME PLAN
(Amended and Restated effective July 31, 2020)
TABLE OF CONTENTS
|
Page |
|
ARTICLE 1 |
DEFINITIONS.................................................................................................. |
1 |
ARTICLE 2 |
PARTICIPATION............................................................................................ |
6 |
ARTICLE 3 |
RETIREMENT AND OTHER BENEFITS...................................................... |
7 |
ARTICLE 4 |
EXCESS RETIREMENT INCOME................................................................. |
10 |
ARTICLE 5 |
VESTING.......................................................................................................... |
16 |
ARTICLE 6 |
MODES OF BENEFIT PAYMENT................................................................. |
17 |
ARTICLE 7 |
DEATH BENEFITS......................................................................................... |
20 |
ARTICLE 8 |
LIABILITY OF THE COMPANY................................................................... |
23 |
ARTICLE 9 |
ADMINISTRATION OF THE PLAN.............................................................. |
24 |
ARTICLE 10 |
AMENDMENT OR TERMINATION OF THE PLAN................................... |
30 |
ARTICLE 11 |
GENERAL PROVISIONS............................................................................... |
31 |
SCHEDULE A |
........................................................................................................................... |
33 |
APPENDIX A |
RESTORATION OF RETIREMENT INCOME PLAN FOR CERTAIN |
|
|
EMPLOYEES PARTICIPATING IN THE RESTATED AMERICAN |
|
|
GENERAL RETIREMENT PLAN.................................................................. |
A-1 |
APPENDIX B |
THE HARTFORD STEAM BOILER EXCESS RETIREMENT BENEFIT |
|
|
PLAN................................................................................................................ |
B-1 |
APPENDIX C |
20TH CENTURY INDUSTRIES SUPPLEMENTAL PENSION PLAN |
|
|
(RESTATEMENT NO. 1)................................................................................ |
C-1 |
APPENDIX D |
TREATMENT OF EMPLOYEES TRANSFERRING WITH THE SALE OF |
|
|
UNITED GUARANTY CORPORATION....................................................... |
D-1 |
APPENDIX E |
TREATMENT OF EMPLOYEES TRANFERRING WITH THE SALE OF |
|
|
FORTITUDE GROUP HOLDINGS, INC........................................................ |
E-1 |
i
PREAMBLE
The American International Group, Inc. Non-Qualified Retirement Income Plan (hereinafter referred to as the “Plan”) shall become effective on April 1, 2012 and shall constitute an amendment, restatement and continuation of the “American International Group, Inc. Excess Retirement Income Plan”, as amended and in effect on March 31, 2012.
The purpose of the Plan is to permit certain Employees of the Employer to receive additional retirement income benefits from the Employer when benefits cannot be paid from the American International Group, Inc. Retirement Plan due to the limitations of Sections 401(a)(17) and, prior to April 1, 2012, 415 of the Internal Revenue Code.
The Plan is intended to comply with Section 409A of the Internal Revenue Code. Effective as of the end of the business day on December 31, 2015, the Plan is frozen and no benefits shall increase thereafter, except for amounts related to Interest Credits (as defined in the American International Group, Inc. Retirement Plan) that are reflected under the American International Group, Inc. Retirement Plan or this Plan. Service will be recognized after that date only for purposes of vesting and eligibility for early retirement benefits.
The following words and phrases as used herein shall have the following meanings, and the masculine, feminine and neuter gender shall be deemed to include the others and the singular shall include the plural, and vice versa, when appropriate, unless a different meaning is plainly required by the context:
1
(a) the Account to which the Participant would have been entitled under the Qualified Plan, if such benefit were calculated under the Qualified Plan without giving effect to the limitations imposed by the application of Code Sections 401(a)(17) and if such Account were calculated using Compensation as defined herein including, where provided for a Participant pursuant to a written agreement with the Company, compensation paid after Separation from Service;
(b) the Account payable to the Participant under the Qualified Plan and any predecessor thereof after the limitations imposed by the application of Code
2
Sections 401(a)(17) disregarding, except as provided otherwise for a Participant pursuant to a written agreement with the Company, compensation (as defined in the Qualified Plan) paid after the Participant’s Separation from Service.
3
4
5
Effective as of April 1, 2012, Employees who are members of the Qualified Plan and whose benefits under the Qualified Plan are limited by reason of the application of the limitations imposed by Section 401(a)(17) of the Code shall become Participants in this Plan. Prior to April 1, 2012, Employees who are members of the Qualified Plan and whose benefits under the Qualified Plan are limited by reason of the application of the limitations imposed by Section 401(a)(17) of the Code or Section 415 of the Code shall become Participants in this Plan. A Participant who, prior to April 1, 2012, became a Participant in the Plan solely by reason of the application of the limitations imposed by Section 415 of the Code and who, on and after April 1, 2012, no longer meets the eligibility requirements of the Plan, shall not accrue a benefit under the Plan on and after April 1, 2012 until such time (if ever) that he again meets the eligibility requirements under the Plan.
Unless otherwise specified in an applicable stock or asset purchase or sales agreement between the Company and another entity, the accruals for any Participant who is an Employee or former Employee of an entity divested by or sold by the Company or any of its subsidiaries shall cease, and such individual shall not accrue additional benefits, or additional service for determining eligibility for any normal or early retirement benefit under Article 4, thereafter, unless he shall later become eligible upon rehire to participate in the Plan.
For clarity, effective April 1, 2012, an individual employed by VALIC as a Field Sales Employee, Regional Manager (including Assistant Regional Manager, Associate Regional Manager, District Manager, Branch Manager, and Unit Manager) or Client Services Specialist became eligible to participate in the Qualified Plan and therefore became eligible to participate in the Plan, subject to the additional participation requirements of this Article 2 and the Plan.
No individual shall become a Participant after December 31, 2015.
6
Article 3
Retirement and Other Benefits
7
The AG Restoration Plan is attached as Appendix A to the Plan. Appendix A is only operational to the extent referenced in the Plan (exclusive of Appendix A) or incorporated by reference in the Plan (exclusive of Appendix A).
Notwithstanding the foregoing or Article 5, a Participant shall be vested in his benefit accrued under the AG Restoration Plan to the extent provided in the AG Restoration Plan as set forth in Appendix A.
The HSB Excess Plan is attached as Appendix B to the Plan. Appendix B is only operational to the extent referenced in the Plan (exclusive of Appendix B) or incorporated by reference in the Plan (exclusive of Appendix B).
Notwithstanding the foregoing or Article 5, a Participant shall be vested in his benefit accrued under the HSB Excess Plan to the extent provided in the HSB Excess Plan as set forth in Appendix B.
The 20th Century Supplemental Plan is attached as Appendix C to the Plan. Appendix C is only operational to the extent referenced in the Plan (exclusive of Appendix C) or incorporated by reference in the Plan (exclusive of Appendix C).
8
Notwithstanding the foregoing or Article 5, a Participant shall be vested in his benefit accrued under the 20th Century Supplemental Plan to the extent provided in the 20th Century Supplemental Plan as set forth in Appendix C.
9
Article 4
Excess Retirement Income
10
If the Participant is not eligible for Early Retirement under the Qualified Plan, the amounts computed under (i) and (ii) shall be the amounts that would be payable at Normal Retirement Date under those sections, but reduced by 6‑2/3% for each year (and a fraction thereof for each full month) that retirement precedes age 65.
11
12
13
14
15
A Participant shall have a nonforfeitable right to Excess Retirement Income under this Plan at such time that he attains his Normal Retirement Date. In addition, a Participant shall have a nonforfeitable right to Excess Retirement Income if he is eligible for Early Retirement pursuant to Section 3.2. Credited Service (as defined in the Qualified Plan), Years of Service or Fraction Thereof, and participation occurring during the Freeze Period as defined in Section 4.6 for a Participant listed on Schedule A shall be included in determining whether a Participant is vested, pursuant to this Article 5. Years of Service or Fraction Thereof occurring after December 31, 2015 shall also be included for determining whether a Participant is vested pursuant to this Article 5. Years of Service or Fraction Thereof with respect to the period of time, if any, during which a Participant who is not covered by the ESP is to receive severance in the form of salary continuation or during which the ESP specifies a Participant who is covered by the ESP must receive credit under this Article 5 shall be included in determining whether a Participant is vested pursuant to this Article 5.
A Participant who terminates employment prior to attaining his Early or Normal Retirement Date, other than by reason of Disability (as provided for in Section 4.5), shall have no rights or claims to Retirement Income under this Plan as of his date of termination. In the case of death, a Participant’s Designated Beneficiary may have a claim for benefits in accordance with Article 3 and Article 7.
16
Article 6
Modes of Benefit Payment
A Participant may elect an optional form of payment on a form provided by the Committee for such purpose. A Participant who has elected an annuity form of payment (or for whom the Normal Form of payment is in effect) may, at any time prior to Separation from Service or, in the case of Disability, prior to Normal Retirement Date, elect another form of annuity payment available under the Qualified Plan provided that such other form of payment is actuarially equivalent based on the actuarial equivalent factors in effect under the Qualified Plan as of the date payment is to be made. In the absence of any such an election, payment shall be made in the Normal Form.
17
If a Participant is described in (i) or (ii) above, but has, however, terminated employment after qualifying for Early, Normal, Postponed or Disability Retirement, such Participant’s Excess Retirement Income shall be paid as specified in Section 6.3, subject to Section 6.4(e).
If a Participant is described in (i) or (ii) above, but has, however, terminated employment after qualifying for Early, Normal, Postponed or Disability Retirement, such Participant’s Excess Retirement Income shall be paid as specified in Section 6.3, subject to Section 6.4(e).
18
If a Participant is described in (i) or (ii) above, but has, however, terminated employment after qualifying for Early, Normal, Postponed or Disability Retirement, such Participant’s Excess Retirement Income shall be paid as specified in Section 6.3, subject to Section 6.4(e).
19
For purposes of (ii) and (iii) above, if the Participant is not eligible for Early Retirement under the Qualified Plan, the amounts computed under (ii) and (iii) shall be the amounts that would be payable at Normal Retirement Date under those sections, but reduced by 6‑2/3% for each of the first 5 years (and a fraction thereof for each full month) that payment precedes age 65 and 3‑1/3% for each year (and a fraction thereof for each full month) that payment precedes age 60.
For a Participant listed on Schedule A whose benefit is determined under Section 7.4(a), for purposes of determining what reduction factors apply for purposes of this Section 7.1, the
20
number of years of Credited Service (as defined in the Qualified Plan) occurring during the Freeze Period shall be disregarded.
21
22
Article 8
Liability of the Company
23
Article 9
Administration of the Plan
24
25
26
The Retirement Board must render its decision on the review of the claim no more than 60 days after the Retirement Board's receipt of the request for review, except that this period may be extended for an additional 60 days if the Retirement Board determines that special circumstances (including, but not limited to, a hearing) require such extension. If an extension of time is required, written notice of the expected decision date and the reasons for the extension will be furnished to the claimant before the end of the initial 60-day period. If a review of a claim is denied, in whole or in part, the claim must receive a written notice containing:
27
In no event will the review be conducted by the person who made the initial determination or by a subordinate of such person. If the initial adverse benefit determination was based in whole or in part on a medical judgment, including determinations with regard to whether a particular treatment, drug, or other item is experimental, investigational, or not medically necessary or appropriate, the Retirement Board shall consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment and who neither was consulted nor is the subordinate of an individual who was consulted in connection with the adverse benefit determination that is the subject of the claimant's request for
28
review. In addition, the reviewer shall provide for the identification of medical or vocational experts whose advice was obtained on behalf of the plan in connection with a claimant's adverse benefit determination, without regard to whether the advice was relied upon in making the benefit determination.
The Retirement Board must render its decision on the review of the claim no more than 45 days after the Retirement Board's receipt of the request for review, except that this period may be extended for an additional 45 days if the Retirement Board determines that special circumstances (including, but not limited to, a hearing) require such extension. If an extension of time is required, written notice of the expected decision date and the reasons for the extension will be furnished to the claimant before the end of the initial 45-day period. If an extension is provided in order to allow the claimant time to provide additional information necessary to review the claim, the response deadlines applicable to the Retirement Board will be tolled until the earlier of the date 45 days after the date of the request for additional information or the date the Retirement Board receives the additional information. If a review of a claim is denied, in whole or in part, the claim must receive a written notice containing:
29
Article 10
Amendment or Termination of the Plan
30
31
32
Restoration of Retirement Income Plan
For Certain Employees Participating
in the
Restated American General Retirement Plan
December 31, 1998 Restatement
(Incorporation November, 1991 Plan and Amendments thereof)
A-1
RESTORATION OF RETIREMENT INCOME PLAN
FOR CERTAIN EMPLOYEES PARTICIPATING IN THE
RESTATED AMERICAN GENERAL RETIREMENT PLAN
The RESTORATION OF RETIREMENT INCOME PLAN FOR CERTAIN EMPLOYEES PARTICIPATING IN THE RESTATED AMERICAN GENERAL RETIREMENT PLAN (hereinafter referred to as the “Restoration Plan”) is hereby restated effective as of December 31, 1998 by AMERICAN GENERAL CORPORATION and its subsidiaries (hereinafter referred to as the “Employer,” jointly and severally). The Restoration Plan has been established to provide for the payment of certain pension and pension-related benefits to certain employees who are participants in the AMERICAN GENERAL RETIREMENT PLAN (hereinafter referred to as the “Basic Plan”). The Employer intends and desires to recognize the value to the Employer of the past and present services of employees covered by the Restoration Plan and to encourage and assure their continued service to the Employer by making more adequate provision for their future retirement security. All terms used in this Restoration Plan shall have the meanings assigned to them under the provisions of the Basic Plan unless otherwise qualified by the context.
1. Incorporation of the Basic Plan
The Basic Plan, with any amendments thereto, shall be attached hereto as Exhibit I and is hereby incorporated by reference into and shall form a part of this Restoration Plan as fully as if set forth herein verbatim. Any amendment made to the Basic Plan by the Employer shall also be incorporated by reference into and form a part of this Restoration Plan, effective as of the effective date of such amendment. The Basic Plan, whenever referred to in this Restoration Plan, shall mean the Basic Plan, as amended, as it exists as of the date any determination is made of benefits payable under this Restoration Plan.
2. Administration
This Restoration Plan shall be administered by the administrative committee (hereinafter referred to as the “Committee”) under the Basic Plan which shall administer it in a manner consistent with the administration of the Basic Plan, as from time to time amended and in effect, except that this Restoration Plan shall be administered as an unfunded plan that is not intended to meet the qualification requirements of section 401 of the Internal Revenue Code of 1986, as amended (the “Code”). The Committee shall have full power and authority to interpret, construe and administer this Restoration Plan. No member of the Committee shall be liable to any person for any action taken or omitted in connection with the interpretation and administration of this Restoration Plan unless attributable to his own willful misconduct or lack of good faith. Members of the Committee shall not participate in any action or determination regarding their own benefits hereunder.
A-2
3. Eligibility
Employees, excluding Career Agents, who are Highly Compensated Participants who are participating in the Basic Plan, and either (1) whose pension or pension-related benefits under the Basic Plan are limited pursuant to section 401(a)(17) or section 415 of the Code or (2) who are eligible to participate in the American General Corporation Deferred Compensation Plan, shall be eligible for benefits under this Restoration Plan. In no event shall an employee who is not eligible for benefits under the Basic Plan be eligible for a benefit under this Restoration Plan.
4. Amount of Benefit
The benefit payable to an eligible employee or his beneficiary under this Restoration Plan shall be the Actuarial Equivalent of the excess, if any, of (a) over (b):
(a) the benefit that would have been payable to such employee or on his behalf under the Basic Plan if such benefit were determined without regard to the maximum amount of benefit limitations of section 415 of the Code, without regard to the considered compensation limitations of section 401(a)(17) of the Code, as if the definition of Compensation under the Basic Plan as in effect on March 21, 1985 were applicable for the period January 1, 1985 through March 20, 1985 and as if the definition of Compensation included executive deferred compensation;
(b) the benefit which is in fact payable to such employee or on his behalf under the Basic Plan, as in effect from time to time.
5. Payment of Benefits
The benefit payable under this Restoration Plan on account of an eligible employee’s death shall be paid to the same beneficiary or beneficiaries and in the same form and at the same time or times as the limited benefits are payable to the employee’s beneficiary under the Basic Plan. The benefit payable under this Restoration Plan for any reason other than on account of an eligible employee’s death shall be payable in the form of a benefit for the life of the employee, beginning at his age sixty-five or, if later, his termination of employment with the Employer. Notwithstanding the foregoing, however, the Committee may, in its sole discretion, direct that the benefit payable under this Restoration Plan shall be paid in the same form as, and coincident with, the payment of the limited benefit payments made to the eligible employee or on his behalf to his beneficiary or beneficiaries under the Basic Plan. Further, notwithstanding any of the foregoing provisions of this Section 5, if an eligible employee becomes entitled to a lump sum payment under Section 2.6 (or a successor section) of the American General Corporation Supplemental Executive Retirement Plan, the employee shall receive the benefit payable under this Restoration Plan in the form of a lump sum amount, in cash, equal to the actuarial equivalent of such benefit. Such lump sum amount shall be paid within the five (5) business days immediately following termination of the employee’s employment.
6. Employee’s Rights
Except as otherwise specifically provided, an employee’s rights under this Restoration Plan, including his rights to vested benefits, shall be the same as his rights under the Basic Plan.
A-3
Benefits payable under this Restoration Plan shall be a general, unsecured obligation of the Employer to be paid by the Employer from its own funds, and such payments shall not (i) impose any obligation upon the Trust Fund under said Basic Plan; (ii) be paid from the Trust Fund under said Basic Plan; or (iii) have any effect whatsoever upon the Basic Plan or the payment of benefits from the Trust Fund under said Basic Plan. No employee or his beneficiary or beneficiaries shall have any title to or beneficial ownership in any assets which the Employer may earmark to pay benefits hereunder.
7. Amendment and Discontinuance
This Restoration Plan may be amended from time to time, or terminated and discontinued at any time, in each case at the discretion of the Board of Directors of American General Corporation. Notwithstanding the foregoing, no amendment shall be made, nor shall this Restoration Plan be terminated in a manner which would reduce the benefits or rights to benefits of any employee accrued under the Restoration Plan (determined on the basis of each employee’s presumed termination of employment as of the date of such amendment or termination) prior to the later of the adoption or the effective date of such amendment or termination.
8. Restrictions on Assignment
The interest of an employee or his beneficiary or beneficiaries may not be sold, transferred, assigned, or encumbered in any manner, either voluntarily or involuntarily, and any attempt so to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be null and void; neither shall the benefits hereunder be liable for or subject to the debts, contracts, liabilities, engagements, or torts of any person to whom such benefits or funds are payable, nor shall they be subject to garnishments, attachment, or other legal or equitable process nor shall they be an asset in bankruptcy.
9. Nature of Agreement
This Restoration Plan is intended to constitute an unfunded “excess benefit plan” within the meaning of sections 3(36) and 4(b)(5) of the Employee Retirement Income Security Act of 1974, as amended, with respect to a part of the Restoration Plan and an unfunded “deferred compensation plan” for a select group of management or highly-compensated employees within the meaning of sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended, with respect to the remainder of the Restoration Plan. The adoption of this Restoration Plan and any setting aside of amounts by the Employer with which to discharge its obligations hereunder shall not be deemed to create a trust; legal and equitable title to any funds so set aside shall remain in the Employer, and any recipient of benefits hereunder shall have no security or other interest in such funds. Any and all funds so set aside shall remain subject to the claims of the general creditors of the Employer, present and future. This provision shall not require the Employer to set aside any funds, but the Employer may set aside such funds if it chooses to do so. Notwithstanding the provisions of Sections 6 and 11 hereof and the foregoing provisions of this Section 9, American General Corporation may, in its discretion, establish a trust to pay amounts becoming payable pursuant to this Restoration Plan, which trust shall be subject to the claims of the general creditors of American General
A-4
Corporation in the event of its bankruptcy or insolvency. Notwithstanding any establishment of such a trust, the Employer shall remain responsible for the payment of any amounts so payable which are not so paid by such trust.
10. Continued Employment
Nothing contained herein shall be construed as conferring upon any employee the right to continue in the employ of the Employer in any capacity.
11. Binding on Employer, Employees and Their Successors
This Restoration Plan shall be binding upon and inure to the benefit of the Employer, its successors and assigns and the employee and his heirs, executors, administrators and legal representatives. The provisions of this Restoration Plan shall be applicable with respect to each Employer separately, and amounts payable hereunder shall be paid by the Employer of the particular employee.
12. Employment with More Than One Employer
If any employee shall be entitled to benefits under the Basic Plan on account of service with more than one Employer, the obligations under this Restoration Plan shall be apportioned among such Employers on the basis of time of service with each, except that an Employer from whose employ such employee was transferred prior to his retirement, death or disability shall be obligated with respect to employment prior to such transfer only to the extent of an amount based on assumed pay increases in accordance with the scale used for computing the actuarial cost under the Basic Plan for the year of the transfer. If obligations are so limited, the remaining obligations shall be borne by the last Employer.
13. Laws Governing
This Restoration Plan shall be construed in accordance with and governed by the laws of the State of Texas.
EXECUTED as of the 31st day of December, 1998.
AMERICAN GENERAL CORPORATION
By:
Mark S. Berg
Executive Vice President and General Counsel
A-5
THE HARTFORD STEAM BOILER
Excess Retirement Benefit Plan
As Amended and Restated October 23, 1989
B-1
TABLE OF CONTENTS
ARTICLE I PURPOSE................................................................................................................. |
B-3 |
ARTICLE II ELIGIBILITY.......................................................................................................... |
B-3 |
ARTICLE III AMOUNT AND PAYMENT OF BENEFIT......................................................... |
B-3 |
ARTICLE IV UNFUNDED OBLIGATIONS, TRUST AGREEME........................................... |
B-4 |
ARTICLE V TERMINATION AND MODIFICATION............................................................. |
B-4 |
ARTICLE VI EFFECTIVE DATE............................................................................................... |
B-4 |
ARTICLE VII CHANGE IN CONTROL..................................................................................... |
B-4 |
ARTICLE VIII ASSIGNMENT AND ALIENATION................................................................ |
B-5 |
B-2
ARTICLE
I
PURPOSE
The purpose of the Plan is to provide benefits that would have been provided under The Hartford Steam Boiler Inspection and Insurance Company Retirement Plan (hereinafter the “Retirement Plan”) but for the provisions of Section 415 of the Internal Revenue Code as referenced in Article IX of the Retirement Plan.
Eligibility to participate in this Plan shall be determined in accordance with the participation requirements contained in the Retirement Plan.
ARTICLE III
AMOUNT AND PAYMENT OF BENEFIT
The provisions of Articles I, II, III and VI of the Retirement Plan and any future amendments thereto are incorporated herein by reference and apply to the benefit provided herein insofar as they are not in conflict with the specific provisions contained under this Plan.
If a participant, except a Vested Terminated Participant (as defined under Section 1.36 of the Retirement Plan), has a spouse at the time benefit payments hereunder are scheduled to commence, benefits shall be paid to him in accordance with the Employee/Spouse Income Option described under Section 4.02(a) of the Retirement Plan.
If a Vested Terminated Participant has a spouse at the time benefit payments are scheduled to commence, benefits shall be paid to him in accordance with the Qualified Joint and Survivor Annuity described under Section 4.02(b) of the Retirement Plan.
If a participant, including a Vested Terminated Participant, does not have a spouse at the time benefit payments are scheduled to commence, benefits shall be paid to him in accordance with the Employee Only Income Option described under Section 4.03 of the Retirement Plan.
This Plan will provide a retirement benefit in an amount equal to the amount by which the retirement income, calculated in accordance with Article III of the Retirement Plan without regard to Article IX of the Retirement Plan, is reduced after applying the limitations of Article IX.
For a participant, other than a Vested Terminated Participant or a Disabled Participant, benefits shall commence on the first day of the month following participant’s actual retirement date. For a Vested Terminated Participant or a Disabled Participant benefits shall commence on the first day of the month following such participant’s Normal Retirement Date (as defined in the Plan).
B-3
ARTICLE IV
UNFUNDED OBLIGATIONS, TRUST AGREEMENT
The Company will pay from its general assets all payments to be made hereunder. However, the Company may in its discretion establish a trust, escrow agreement or similar arrangement in order to aid the Company in meeting its obligations hereunder.
Any assets transferred by the Company into any such arrangement shall remain at all times assets of the Company and subject to the claims of the Company’s general creditors in the event of bankruptcy or insolvency of the Company. No security interest in such assets shall be created in a participant’s favor and a participant’s rights under this Plan and under any such arrangement shall be those of a general unsecured creditor of the Company.
ARTICLE V
TERMINATION AND MODIFICATION
The Board of Directors of the Company may at any time terminate or from time to time modify or suspend, and if suspended, may reinstate any or all of the provisions of this Plan except that no modification or termination of this Plan may reduce any benefit that has accrued under this Plan as of the date of modification or termination.
The effective date of this Plan shall be January 1, 1984.
In the event of a Change in Control of the Company this Plan shall continue to be binding upon the Company, any successor in interest to the Company and all persons in control of the Company or any successor thereto and no transaction or series of transactions shall have the effect of reducing or eliminating the benefits payable to a participant that have not been distributed unless consented to in writing by such affected participant. A “Change in Control” as referred to under this Section shall be deemed to have occurred if:
(a) any “person” (as defined in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing twenty-five percent (25%) or more of the combined voting power of the Company’s then outstanding securities;
B-4
(b) during any period within two (2) consecutive years there shall cease to be a majority of the Board of Directors comprised as follows: individuals who at the beginning of such period constitute the Board of Directors and any new director(s) whose election by the Board of Directors or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved; or
(c) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (i) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 80% of the combined voting power of the voting securities of the Company (or such surviving entity) outstanding immediately after such merger or consolidation or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no “person” (as hereinabove defined) acquires more than 25% of the combined voting power of the Company’s then outstanding securities; or
(d) the shareholders of the Company approve (i) a plan of complete liquidation of the Company or (ii) the sale or other disposition of all or substantially all the Company assets.
ARTICLE VIII
ASSIGNMENT AND ALIENATION
Benefits under this Plan may not be anticipated, assigned (either at law or in equity), alienated, or subjected to attachment, garnishment, levy, execution or other legal or equitable process. If any participant or beneficiary under this Plan becomes bankrupt or attempts to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge any benefit under this Plan, such benefit shall, in the discretion of the Committee, cease and terminate, in which event the Committee may hold or apply the same or any part thereof for the benefit of such participant, his beneficiary, his spouse, children, other dependants or any of such individuals, in such manner and in such proportion as the Committee may deem proper.
B-5
TABLE OF CONTENTS
ARTICLE I PURPOSE .......................................................................................................................... |
C-4 |
||
ARTICLE II DEFINITIONS.................................................................................................................. |
C-4 |
||
|
2.1 |
"Committee"................................................................................................................... |
C-4 |
|
2.2 |
"Company"..................................................................................................................... |
C-4 |
|
2.3 |
"Compensation".............................................................................................................. |
C-4 |
|
2.4 |
"Early Retirement Date"................................................................................................. |
C-5 |
|
2.5 |
"Effective Date".............................................................................................................. |
C-5 |
|
2.6 |
"Eligible Employee"....................................................................................................... |
C-5 |
|
2.7 |
"Normal Retirement Date"............................................................................................. |
C-5 |
|
2.8 |
"Participant"................................................................................................................... |
C-5 |
|
2.9 |
"Plan".............................................................................................................................. |
C-5 |
|
2.10 |
"Plan Administrator"...................................................................................................... |
C-5 |
|
2.11 |
"Plan Year"..................................................................................................................... |
C-5 |
|
2.12 |
"Qualified Pension Plan"................................................................................................ |
C-5 |
|
2.13 |
"Separation from Service".............................................................................................. |
C-5 |
ARTICLE III ELIGIBILITY AND PARTICIPATION......................................................................... |
C-6 |
||
|
3.1 |
Eligibility to Participate.................................................................................................. |
C-6 |
|
3.2 |
Certain Enrollment Procedures....................................................................................... |
C-6 |
ARTICLE IV CALCULATION OF BENEFITS................................................................................... |
C-6 |
||
|
4.1 |
Benefits under this Plan.................................................................................................. |
C-6 |
|
4.2 |
Benefit Formula.............................................................................................................. |
C-6 |
|
4.3 |
Offset of Benefit under the 20th Century Industries Supplemental Executive Retirement Plan.............................................................................................................. |
C-7 |
|
4.4 |
Benefit Commencement at Early Retirement Date........................................................ |
C-7 |
ARTICLE V VESTING OF BENEFITS............................................................................................... |
C-7 |
||
ARTICLE VI PAYMENT OF BENEFITS............................................................................................ |
C-7 |
||
|
6.1 |
Date of Payment............................................................................................................. |
C-7 |
|
6.2 |
Form of Payment............................................................................................................ |
C-8 |
ARTICLE VII DEATH AND DISABILITY BENEFITS..................................................................... |
C-8 |
||
|
7.1 |
Death Benefit.................................................................................................................. |
C-8 |
|
7.2 |
Disability Benefit........................................................................................................... |
C-9 |
ARTICLE VIII RIGHT TO TERMINATE OR MODIFY PLAN......................................................... |
C-9 |
||
ARTICLE IX NO ASSIGNMENT, ETC............................................................................................... |
C-9 |
||
ARTICLE X THE COMMITTEE.......................................................................................................... |
C-10 |
C-2
ARTICLE XI RELEASE....................................................................................................................... |
C-10 |
||
ARTICLE XII NO CONTRACT OF EMPLOYMENT........................................................................ |
C-11 |
||
ARTICLE XIII COMPANY'S OBLIGATION TO PAY BENEFITS................................................... |
C-11 |
||
ARTICLE XIV CLAIM REVIEW PROCEDURE................................................................................ |
C-11 |
||
ARTICLE XV ARBITRATION............................................................................................................ |
C-12 |
||
ARTICLE XVI MISCELLANEOUS..................................................................................................... |
C-13 |
||
|
16.1 |
Successor and Assigns.................................................................................................... |
C-13 |
|
16.2 |
Notices............................................................................................................................ |
C-13 |
|
16.3 |
Limitations on Liability.................................................................................................. |
C-13 |
|
16.4 |
Certain Small Benefits.................................................................................................... |
C-13 |
|
16.5 |
Governing Law............................................................................................................... |
C-13 |
C-3
ARTICLE I
PURPOSE
1.
The purpose of the 20th Century Industries Supplemental Pension Plan (the “Plan”) is to attract and retain valuable executive employees by making available certain benefits that otherwise would be unavailable under the Company's Qualified Pension Plan.
This Plan is designed to qualify as an unfunded plan of deferred compensation for a select group of management or highly compensated employees described in 29 CFR § 2520.104‑23 and Sections 201(a), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Further, this Plan is a plan described in 4 U.S.C. Section 114 and Section 3121(v)(2)(C) of the Internal Revenue Code (“Code”), established to pay retirement income after termination of employment, and maintained solely for the purpose of providing retirement benefits for employees in excess of the limitations imposed by one or more of Sections 401(a)(17), 401(k), 401(m), 402(g), 403(b), 408(k), or 415 of such Code or any other limitation on contributions or benefits in such Code on plans to which any of such Sections apply.
This instrument amends and restates the provisions of this Plan, this amendment and restatement to be effective as of January 1, 1996.
2.
The following terms shall have the meanings set forth below in this Article II, when capitalized:
means the committee appointed to administer the Plan in accordance with Article X.
means 20th Century Industries, and shall include any corporation that is affiliated with 20th Century Industries, and which, by designation by the Chief Executive Officer of 20th Century Industries, is included within the meaning of the term "Company," with the result that otherwise eligible executives of such entity may participate herein.
means compensation as defined in the Qualified Pension Plan determined, however, without regard to the limitations of Section 401(a)(17) and prior to any reduction for compensation deferrals under the 20th Century Industries 401(k) Supplemental Plan, the 20th Century Industries Savings and Security Plan and any salary reduction pursuant to Code Section 125 or 129.
C-4
2.4 "Early Retirement Date"
means Early Retirement Date as defined in the Qualified Pension Plan.
means January 1, 1996.
means an employee of the Company who on or after the Effective Date has Compensation for a Plan Year in excess of the applicable limit under Section 401(a)(17) of the Internal Revenue Code, except as provided in Section 3.2.
means Normal Retirement Date as defined in the Qualified Pension Plan.
means each Eligible Employee who has commenced to participate in this Plan in accordance with Article III.
means the 20th Century Industries Supplemental Pension Plan, as set forth herein.
means 20th Century Industries. For purposes of Section 3(16)(A) of ERISA, 20th Century Industries shall be the "plan administrator" and shall be responsible for compliance with any applicable reporting and disclosure requirements imposed by ERISA.
means the fiscal period commencing each January 1 and ending the following December 31.
means the 20th Century Industries Pension Plan, as in effect from time to time.
2.13 "Separation from Service"
means any separation from service of the Company for any reason. In the case of a Participant on disability, Separation from Service shall be deemed to occur when long term disability coverage commences, unless otherwise determined by the Committee.
C-5
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.
3.1 Eligibility to Participate
Subject to the provisions of Section 3.2 below, each Eligible Employee shall become a Participant as of the later of the Effective Date or the date on which person becomes an Eligible Employee.
3.2 Certain Enrollment Procedures
As a condition of participation or continued participation in this Plan the Committee may require an Eligible Employee to deliver to the Committee such properly completed enrollment forms and agreements as the Committee may require. Such forms or agreements may permit an Eligible employee to designate a form of payment applicable to all benefits payable hereunder. Such designation shall be irrevocable, unless the Committee, in its sole discretion, permits an Eligible Employee to change his or her election of payment method to a method providing payments over a longer period of time than originally elected by the Eligible Employee and which will not reasonably result in any increase in the amount otherwise payable in any taxable year of the Participant during which payment would have been made under the method of payment previously elected. No payment option shall be selected by a Participant which is not among a list of payment options generally made available to all Participants by the Committee at the time of such selection. No assurance regarding the tax effects of making such change is provided to a participant who elects to change a form of payment.
Commencement or recommencement of active participation or status as an Eligible Employee following any Separation from Service or other interruption of employment shall be on such terms and under such conditions as the Committee may, in its discretion, provide.
ARTICLE
IV
CALCULATION OF BENEFITS
4.
A Participant's benefits under this Plan shall be calculated as provided in this Article IV, provided, however, that a Participant's eligibility to receive a benefit hereunder shall be subject to succeeding provisions of this Plan.
A Participant's benefit payable under this Plan, expressed in the form of an annual benefit payable commencing at the Participant's Normal Retirement Age and payable for the lifetime of the Participant, shall be equal to (a) minus (b) below where
C-6
(a) equals the benefit payable on the Participant's Normal Retirement Date determined in accordance with the terms of the Qualified Pension Plan (except that for purposes of this Subsection 4.2(a), the Participant's Compensation shall be determined under this Plan), and
(b) equals the benefit payable on the Participant's Normal Retirement Date determined in accordance with the terms of the Qualified Pension Plan.
4.3 Offset of Benefit under the 20th Century Industries Supplemental Executive Retirement Plan
If a Participant under this Plan is entitled to receive benefits under the 20th Century Industries Supplemental Executive Retirement Plan (the "SERP"), such Participant's benefit under this Plan shall be offset, but not below zero (0) by an amount equal to the actuarial equivalent of the SERP benefit.
4.4 Benefit Commencement at Early Retirement Date
If a Participant's benefit under this Plan commences to be paid on a Participant's Early Retirement Date, the benefit calculated as provided in Section 4.2 shall be reduced to reflect the longer anticipated period of time that such benefit is to be paid, and such reduction shall be determined in the same manner as a reduction is computed under the Qualified Pension Plan in the case of a Participant who retires under such Qualified Pension Plan at an Early Retirement Date.
5.
A Participant's interest in his benefit under this Plan shall become vested and nonforfeitable in accordance with the provisions of the Qualified Pension Plan (including provisions of the Qualified Pension Plan relating to vesting upon termination, partial termination or other vesting event under such plan). Notwithstanding the preceding provisions of this Article V, in the event of a Participant's Separation of Service following a “Change in Control” as such term is defined from time to time in the 20th Century Industries Supplemental Executive Retirement Plan, a Participant's interest in his or her benefits under the Plan shall become fully vested and nonforfeitable.
ARTICLE
VI
PAYMENT OF BENEFITS
6.
Except as otherwise provided in Article VII and subject to the provisions of Article V, a Participant's benefit hereunder, payable on account of a Separation from Service shall commence to be paid as soon as practicable following the later of (a) the date of such
C-7
Separation from Service or (b) the earlier of (i) the date on which the Participant attains (or would have attained if the Participant then were in active employment) Early Retirement Date, or (ii) the Participant's Normal Retirement Date.
(a) Single Life Annuity. The normal form of payment under the Plan for a Participant who is not married on the date of commencement of his or her benefits hereunder shall be a single life annuity providing monthly payments for the life of the Participant, and under which all benefit payments cease as of the date of death of the Participant.
(b) Joint and Survivor Annuity. The normal form of benefit payable to a Participant who is lawfully married to a spouse on the date of commencement of his or her benefits hereunder shall be an actuarially equivalent fifty percent (50%) joint and survivor annuity, providing reduced monthly payments during such Participant's life, and providing continued monthly payments after the Participant's death to the spouse to whom the participant is married on the date of his or her commencement of benefits hereunder. Each such continued monthly payments payable to the surviving spouse shall be fifty percent (50%) of the monthly payment amount payable during the Participant's lifetime. The reduction in the Participant's monthly benefits shall be determined by application of the same reduction factors as are applied for purposes of determining such reduction under the Qualified Pension Plan. Continuing payments to a surviving spouse shall continue during the life of the surviving spouse and shall cease on the date of death of such surviving spouse.
(c) Whenever, under this Plan it becomes necessary to determine the actuarial equivalence of one or more forms of benefits, such determination shall be made by application of such actuarial factors and rates as would then be applied for such purpose under the Qualified Pension Plan.
ARTICLE
VII
DEATH AND DISABILITY BENEFITS
7.
In the event of the death of a Participant prior to commencement of benefit payments hereunder, a death benefit shall be payable to the spouse to whom such Participant is lawfully married on the date of the Participant's death. Such benefit shall consist of monthly payments, each of which is equal to the monthly amount that would have been paid to such spouse (a) had the Participant's Separation from Service occurred on the later of (i) the Participant's date of death, or (ii) the earlier of the Participant's Early Retirement Date or Normal Retirement Date, (b) had the Participant's benefit commenced to be paid as the joint and survivor annuity described in Section 6.2, and (c) had the Participant's death occurred immediately after such commencement of benefits. Such death benefit
C-8
shall begin to be paid as soon as practicable after the latest of (a) the Participant's date of death, (b) the earlier of the Participant's Early Retirement Date or Normal Retirement Date, and (c) the date on which such benefit applications, releases, and other documents as the Committee may require to be given are received by the Committee in form and manner satisfactory to the Committee. Death benefit payments shall cease as of the date of death of the spouse receiving such payments. No benefit shall be payable to any person other than a spouse described in the first sentence of this Section 7.1. This Plan shall not be required to give effect to disclaimers, whether made under state or federal law. This Section 7.1 shall not apply in the case of the death of a Participant after payments have commenced to be made with respect to such Participant.
If a Participant incurs a Total and Permanent Disability, as such term is defined from time to time under Qualified Pension Plan, prior to commencement of benefits hereunder and such Participant at the date of the occurrence of such Total and Permanent Disability is an Eligible Employee, such Participant shall continue to accrue benefits under this Plan in the same manner as provided in the Qualified Plan during the continuation of such Total and Permanent Disability, but not beyond the date determined under the Qualified Pension Plan. Such Participant shall be entitled to receive his/her benefit under this Plan upon attaining his/her Normal Retirement Date.
ARTICLE
VIII
RIGHT TO TERMINATE OR MODIFY PLAN
8.
By action of its Board of Directors, 20th Century Industries may modify or terminate this Plan without further liability to any Eligible Employee or former employee or any other person. Notwithstanding the preceding provisions of this Article VIII, except as expressly required by law, this Plan may not be modified or terminated as to any Participant in a manner that adversely affects the payment of benefits theretofore accrued by such Participant to the extent such benefits have become vested, except that in the event of the termination of the Plan as to all Participants, this Plan may in the sole discretion of the Board of Directors be modified to accelerate payment of benefits to Participants.
ARTICLE
IX
NO ASSIGNMENT, ETC.
9.
Benefits under this Plan may not be assigned or alienated and shall not be subject to the claims of any creditor. A Participant shall not be permitted to borrow under the Plan, nor shall a Participant be permitted to pledge or otherwise use his benefits hereunder as security for any loan or other obligation. No payments shall be made to any person or persons other than expressly provided herein, or on any date or dates other than as expressly provided herein.
C-9
It is each Participant's sole responsibility to obtain such consents, and to take such other actions as may be necessary or appropriate in connection with participation in this Plan, including but not limited to obtaining spousal or other consents, as may be necessary or appropriate to reflect marital property, support, or other obligations arising under contract, order or by operation of law.
10.
(a) The appointment, removal and resignation of members of the Committee shall be governed by the Board of Directors of 20th Century Industries. Subject to change by the said Board, the membership of the Committee shall be the same as the membership of the Committee of the Qualified Pension Plan.
(b) The Committee shall have authority to oversee the management and administration of the Plan, and in connection therewith is authorized in its sole discretion to make, amend and rescind such rules as it deems necessary for the proper administration of the Plan, to make all other determinations necessary or advisable for the administration of the Plan and to correct any defect or supply any omission or reconcile any inconsistency in the Plan in the manner and to the extent that the Committee deems desirable to carry the Plan into effect. The powers and duties of the Committee shall include without limitation, the following:
(i) Resolving all questions relating to the eligibility of select management and highly compensated employees to become Participants; and
(ii) Resolving all questions regarding payment of benefits under the Plan and other questions regarding plan participation.
Any action taken or determination made by the Committee shall be conclusive on all parties. The exercise of or failure to exercise any discretion reserved to the Committee to grant or deny any benefit to a Participant or other person under the Plan shall in no way require the Committee or any person acting on behalf thereof, to similarly exercise or fail to exercise such discretion with respect to any other Participant.
11.
As a condition to making any payment under the Plan, or to giving effect to any election or other action under the Plan by any Participant or any other person, the Plan Administrator may require such consents or releases as it determines to be appropriate, and further may require any such designation, election or other action to be in writing, in a prescribed form and to be filed with the Committee in a manner prescribed by the Committee. In the event the Committee determines, in
C-10
its discretion, that multiple conflicting claims may be made as to all or a part of a benefit accrued hereunder by a Participant, the Committee may delay the making of any payment until such conflict or multiplicity of claims is resolved.
ARTICLE
XII
NO CONTRACT OF EMPLOYMENT
12.
This Plan shall not be deemed to give any employee the right to be retained in the employ of the Company or to interfere with the right of the Company to discharge or retire any employee at any time, nor shall this Plan interfere with the right of the Company to establish the terms and conditions of employment of any employee.
ARTICLE
XIII
COMPANY'S OBLIGATION TO PAY BENEFITS
13.
Nothing contained in this Plan and no action taken pursuant to the provisions of this Plan shall create or be construed to create a trust of any kind, or a fiduciary relationship between the Company, and any Employee, an Employee's spouse or former spouse or any other person. Funds to provide benefits under the provisions of this Plan shall continue for all purposes to be a part of the general funds of the Company. To the extent that any person acquires a right to receive payments from the Company under this Plan such right shall be no greater than the right of any unsecured general creditor of the Company. Notwithstanding the preceding provisions of this Article XIII, assets may be transferred by the Company to a trust constituting a "rabbi trust," for the purpose of providing benefits described herein.
ARTICLE
XIV
CLAIM REVIEW PROCEDURE
14.
(a) A person who believes that he or she has not received all payments to which he or she is entitled under the terms of this Plan may submit a claim therefor. Within ninety (90) days following receipt of a claim for benefits under this Plan, and all necessary documents and information, the Committee or its authorized delegate reviewing the claim shall, if the claim is not approved, furnish the claimant with written notice of the decision rendered with respect to the application.
(b) The written notice contemplated in (a) above shall set forth:
(i) the specific reasons for the denial, with reference to the Plan provisions upon which the denial is based;
(ii) a description of any additional information or material necessary for perfection of the application (together with an explanation why the material or information is necessary); and
C-11
(iii) an explanation of the Plan's claim review procedure.
(c) A claimant who wishes to contest the denial of his claim for benefits or to contest the amount of benefits payable to him shall follow the procedures for an appeal of benefits as set forth below, and shall exhaust such administrative procedures prior to seeking any other form of relief.
(d) A claimant who does not agree with the decision rendered as provided above in this Article XIV with respect to his application may appeal the decision to the Committee. The appeal shall be made, in writing, within sixty (60) days after the date of notice of such decision with respect to the application. If the application has neither been approved nor denied within the ninety-day (90) period provided in (a) above, then the appeal shall be made within sixty (60) days after the expiration of the ninety-day (90) period.
(e) The claimant may request that his application be given full and fair review by the Committee. The claimant may review all pertinent documents and submit issues and comments in writing in connection with the appeal. The decision of the Committee shall be made promptly, and not later than sixty (60) days after the Committee's receipt of a request for review, unless special circumstances require an extension of time for processing, in which case a decision shall be rendered as soon as possible, but not later than one hundred twenty (120) days after receipt of a request for review. The decision by the Committee on review shall be in writing and shall include specific reasons for the decision, written in a manner calculated to be understood by the claimant with specific reference to the pertinent Plan provisions upon which the decision is based.
15.
A claimant may contest the Committee's denial of his or her appeal only by submitting the matter to arbitration. In such event, the claimant and the Committee shall select an arbitrator from a list of names supplied by the American Arbitration Association in accordance with such Association's procedures for selection of arbitrators, and the arbitration shall be conducted in accordance with the rules of such Association. The arbitrator's authority shall be limited to the affirmance or reversal of the Committee's denial of the appeal, and the arbitrator shall have no power to alter, add to or subtract from any provision of this Plan. Except as otherwise required by the Employee Retirement Income Security Act of 1974, the arbitrator's decision shall be final and binding on all parties, if warranted on the record and reasonably based on applicable law and the provisions of this Plan.
C-12
ARTICLE XVI
MISCELLANEOUS
16.
The Plan shall be binding upon and shall inure to the benefit of the Company, its successors and assigns, and all Participants.
Any notice or other communication required or permitted under the Plan shall be in writing, and if directed to the Company shall be sent to the Committee or its authorized delegate, and if directed to a Participant shall be sent to such Participant at his last known address as it appears on the records of the Company.
(a) The Company does not warrant any tax benefit nor any financial benefit under the Plan. Without limitation to the foregoing, the Company and its officers, employees and agents shall be held harmless by the Participant or Beneficiary from, and shall not be subject to any liability on account of, the federal or state or local income tax consequences, or any other consequences of any deferrals or credits with respect to Participants under the Plan.
(b) The Company, its officers, employees, and agents shall be held harmless by the Participant from, and shall not be subject to any liability hereunder for, all acts performed in good faith.
Notwithstanding any other provision of this Plan to the contrary, in the case of a Participant whose annual benefit hereunder is not in excess of $2,000, the Committee may, in its sole discretion, distribute an amount equal to the actuarial equivalent value of future anticipated benefits, determined in accordance with such actuarial factors and interest rate assumptions utilized from time to time under the Qualified Pension Plan for purposes of making lump sum payments thereunder.
This Plan is subject to the laws of the State of California, to the extent not preempted by ERISA.
C-13
IN WITNESS WHEREOF, 20th Century Industries has caused this instrument to be executed by its duly authorized officers, effective as of the Effective Date set forth hereinabove.
20TH CENTURY INDUSTRIES
By:
By:
C-14
Appendix D
Treatment of Employees Transferring with the Sale of United Guaranty Corporation
With respect to each Participant who is an Active Employee of United
Guaranty Corporation and its Subsidiaries (collectively, “UGC”) as of December
31, 2016 (the “Closing Date”), the date that the sale described in the Stock
Purchase Agreement dated August 15, 2016 between the Company and Arch Capital
Group, Ltd. (“Arch”) (the “Purchase Agreement”) closes (a
“Departing UGC Participant”), the terms and conditions set forth in this
Appendix D shall apply solely with respect to Departing UGC Participants,
effective as of December 31, 2016:
1. Appendix D Definitions
a. Solely for purposes of this Appendix D, an “Active Employee” means each person who as of the Closing Date (a) is an actively employed Employee performing services for UGC and (b) each person who is an Employee of UGC as of the Closing Date who is absent from employment due to illness, vacation, injury, military service or other authorized absence (including each Employee who is “disabled” under the short-term disability program currently in place for UGC, who is on approved leave under the Family and Medical Leave Act or who is on leave due to a workplace injury covered by a workers’ compensation policy or program incurred within the six (6) months prior to the Closing Date) other than Employees on long-term disability or other unpaid medical leave and Employees who are on leave due to a workplace injury covered by a workers’ compensation policy or program incurred more than six (6) months prior to the Closing Date.
b. Solely for purposes of this Appendix D, “Subsidiaries” means those subsidiaries of United Guaranty Corporation that are sold to Arch pursuant to the Purchase Agreement.
2. Definition of Disability
For purposes of Section 1.10, the definition of the term “Disability,” for a Departing UGC Participant the word “Company” shall include both UGC and Arch.
D-1
3. Definition of Separation from Service
With respect to Departing UGC Participants, the definition of “Separation from Service” in Section 1.33 of the Plan means the Departing UGC Participant has terminated employment (other than by death or Disability) with Arch and its subsidiaries (including UGC).
4. Vesting
Notwithstanding the first two sentences of Article 5 of the Plan, effective as of December 31, 2016, the Excess Retirement Income of a Departing UGC Participant shall become non-forfeitable, and the first sentence of the second paragraph of Article 5 shall not apply to a Departing UGC Participant.
5. Entitlement to Benefits
For a Departing UGC Participant, Section 3.1 of the Plan shall read as is set forth below:
3.1 Early, Normal, Postponed and Disability Retirement. A Departing UGC Participant in the Plan who has a Separation from Service on or after December 31, 2016 shall be entitled to the Excess Retirement Income described in Article 4 of the Plan. If a Departing UGC Participant incurs a Disability, the Departing UGC Participant shall be entitled to receive the Excess Disability Retirement Income described in Section 4.5.
For a Departing UGC Participant, the first sentence of Section 3.2 shall not apply and shall be replaced with the following sentence:
3.2 A Departing UGC Participant who has a Separation from Service prior to Normal Retirement Date (other than by death or by incurring a Disability) shall be entitled to an Early Excess Retirement Income in accordance with Section 4.3.
6. Benefit
For a Departing UGC Participant, Section 4.3(f) shall read as is set forth below:
D-2
4.3(f) If the Departing UGC Participant is not eligible for Early Retirement under the Qualified Plan, the Frozen Accrued Benefit and the Grandfathered Accrued Benefit shall be the amounts that would be payable at Normal Retirement Date, but reduced by 6-2/3% for each of the first 5 years (and a fraction thereof for each full month) that retirement precedes age 65 and 3-1/3% for each of the next 5 years (and a fraction thereof for each full month) that retirement precedes age 60 and by an actuarial equivalent amount for retirement ages below age 55. With respect to retirement ages prior to age 55, the reduction will be based on an actuarial equivalent of the benefit payable at age 55. Actuarial equivalence will be based on the rate of interest determined under Code section 417(e)(3) as modified in other applicable guidance (including without limitation Revenue Ruling 2007-67) for the third calendar month prior to the calendar year in which benefits are scheduled to commence and the mortality table under Code section 417(e) in effect on the date benefits are scheduled to commence.
7. Death.
In Section 7.2, the following phrase that appears in both the ultimate and penultimate sentences in that Section is eliminated with respect to Departing UGC Participants:
“or , if later, within 90 days after the Participant would have attained age 55”
D-3
Appendix E
Treatment of Employees Transferring with the Sale of Fortitude Group Holdings, LLC
With respect to each Participant who is an Active Employee of Fortitude Group Holdings, Inc. and its Subsidiaries (collectively, “Fortitude”) as of June 2, 2020 (the “Closing Date”), the date that the sale described in the Stock Purchase Agreement dated November 25, 2019 between the Company and Carlyle FRL, L.P. and T&D Capital Co., Ltd. (the “Fortitude Buyers”) (the “Purchase Agreement”) closes (a “Departing Fortitude Participant”), the terms and conditions set forth in this Appendix E shall apply solely with respect to Departing Fortitude Participants, effective as of June 2, 2020:
1. Appendix E Definitions
a. Solely for purposes of this Appendix E, an “Active Employee” means each person who as of the Closing Date (a) is an actively employed Employee performing services for Fortitude and (b) each person who is an Employee of Fortitude as of the Closing Date who is absent from employment due to illness, vacation, injury, military service or other authorized absence (including each Employee who is “disabled” under the short-term disability program currently in place for Fortitude, who is on approved leave under the Family and Medical Leave Act or who is on leave due to a workplace injury covered by a workers’ compensation policy or program incurred within the six (6) months prior to the Closing Date) other than Employees on long-term disability or other unpaid medical leave and Employees who are on leave due to a workplace injury covered by a workers’ compensation policy or program incurred more than six (6) months prior to the Closing Date.
b. Solely for purposes of this Appendix E, “Subsidiaries” means those subsidiaries of Fortitude Group Holdings, Inc. that are sold to the Fortitude Buyers pursuant to the Purchase Agreement.
2. Definition of Disability
For purposes of Section 1.10, the definition of the term “Disability,” for a Departing Fortitude Participant the word “Company” shall include both Fortitude and the Fortitude Buyers.
E-1
3. Definition of Separation from Service
With respect to Departing Fortitude Participants, the definition of “Separation from Service” in Section 1.33 of the Plan means the Departing Fortitude Participant has terminated employment (other than by death or Disability) with the Fortitude Buyers and its Subsidiaries (including Fortitude).
4. Vesting
Notwithstanding the first two sentences of Article 5 of the Plan, effective as of June 2, 2020, the Excess Retirement Income of a Departing Fortitude Participant shall become non-forfeitable, and the first sentence of the second paragraph of Article 5 shall not apply to a Departing Fortitude Participant.
5. Entitlement to Benefits
For a Departing Fortitude Participant, Section 3.1 of the Plan shall read as is set forth below:
3.1 Early, Normal, Postponed and Disability Retirement. A Departing Fortitude Participant in the Plan who has a Separation from Service on or after June 2, 2020 shall be entitled to the Excess Retirement Income described in Article 4 of the Plan. If a Departing Fortitude Participant incurs a Disability, the Departing Fortitude Participant shall be entitled to receive the Excess Disability Retirement Income described in Section 4.5.
For a Departing Fortitude Participant, the first sentence of Section 3.2 shall not apply and shall be replaced with the following sentence:
3.2 A Departing Fortitude Participant who has a Separation from Service prior to Normal Retirement Date (other than by death or by incurring a Disability) shall be entitled to an Early Excess Retirement Income in accordance with Section 4.3.
6. Benefit
For a Departing Fortitude Participant, Section 4.3(f) shall read as is set forth below:
E-2
4.3(f) If the Departing Fortitude Participant is not eligible for Early Retirement under the Qualified Plan, the Frozen Accrued Benefit and the Grandfathered Accrued Benefit shall be the amounts that would be payable at Normal Retirement Date, but reduced by 6-2/3% for each of the first 5 years (and a fraction thereof for each full month) that retirement precedes age 65 and 3-1/3% for each of the next 5 years (and a fraction thereof for each full month) that retirement precedes age 60 and by an actuarial equivalent amount for retirement ages below age 55. With respect to retirement ages prior to age 55, the reduction will be based on an actuarial equivalent of the benefit payable at age 55. Actuarial equivalence will be based on the rate of interest determined under Code section 417(e)(3) as modified in other applicable guidance (including without limitation Revenue Ruling 2007-67) for the third calendar month prior to the calendar year in which benefits are scheduled to commence and the mortality table under Code section 417(e) in effect on the date benefits are scheduled to commence.
7. Death.
In Section 7.2, the following phrase that appears in both the ultimate and penultimate sentences in that Section is eliminated with respect to Departing Fortitude Participants:
“or , if later, within 90 days after the Participant would have attained age 55”
E-3