Senior Executive Restrictive Covenant and Retention Plan – Omnicom Group Inc.
OMNICOM
GROUP INC.
SENIOR EXECUTIVE RESTRICTIVE COVENANT AND RETENTION PLAN
ARTICLE I
PREAMBLE
1.1 The purpose of this Senior Executive Restrictive Covenant and Retention
Plan (the “Plan”) is to secure non-competition, non-solicitation,
non-disparagement and consulting agreements with Executive Officers and Key
Employees for a significant period of time, and strengthen the retention aspect
of Executive Officers153 and Key Employees153 total compensation.
1.2 This Plan may be amended at any time and from time to time by the
Committee to comply with the requirements of Section 409A of the Internal
Revenue Code (“Section 409A”), and regulations and interpretations issued
thereunder. Notwithstanding Section 10.1 of the Plan, any such amendment may be
made without the consent of any Participant or Beneficiary, regardless of
whether such amendment adversely affects any benefits or rights of a Participant
or Beneficiary arising under the terms of the Plan.
1.3 This Plan became effective as of December 15, 2006, and was previously
amended on December 4, 2008, May 19, 2009 and March 29, 2010.
ARTICLE II
DEFINITIONS
The following terms shall have the meaning set forth below:
2.1 “Annual Cap” means $1,500,000 for the first payment to any Participant;
provided, however, that the Annual Cap shall be adjusted annually (beginning
with the second annual payment to the Participant) by the most recent
Cost-of-Living Adjustment used by the United States Social Security
Administration. Notwithstanding anything else to the contrary, the Annual Cap
shall not be increased by more than 2.5% per calendar year.
2.2 “Beneficiary” means any person, persons, entity or entities designated in
writing by the Participant to the Company to receive payment, if any, to be made
hereunder following the death of the Participant, and in the absence of such
designation, means (i) the Participant153s surviving spouse, while living, and
(ii) if there be no surviving spouse or upon the death of the surviving spouse,
then to the estate of the Participant.
2.3 “Board” means the Board of Directors of the Company.
2.4 “Cause” means a termination of employment hereunder upon:
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(i) |
the Participant153s having been convicted of, or having entered a plea bargain |
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(ii) |
the Participant153s having been the subject of any order, judicial or |
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until the order becomes final after the exhaustion of all appeals related to
the order, or in the absence of an appeal, the exhaustion of all applicable
appeal periods related to the order; or
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(iii) |
the Participant153s having been convicted of, or having entered a plea bargain |
If the Company or one of its Subsidiaries desires to terminate the
Participant153s employment for Cause in accordance herewith, it shall provide the
Participant with a notice of termination, and allow the Participant 90 days
following the date of such notice to fully remedy, cure or rectify, if possible,
the situation giving rise to the allegations of Cause. The cessation of
employment of the Participant shall not be deemed to be for Cause unless and
until there shall have been delivered to the Participant a copy of a resolution
duly adopted by the affirmative vote of a majority of the entire membership of
the Board (excluding the Participant, if the Participant is a member of the
Board) at a meeting of the Board (after reasonable notice is provided to the
Participant and the Participant is given an opportunity, together with counsel
for the Participant, to be heard before the Board), finding that, in the good
faith opinion of the Board, the Participant is guilty of the conduct described
above, and specifying the particulars thereof in detail.
2.5 “Committee” means the Compensation Committee of the Board, or if there
should be no Compensation Committee, means a committee of not less than three
members of the Board none of whom shall, while serving as a member of the
Committee, be eligible to receive a benefit under the Plan from the Company.
2.6 “Company” means Omnicom Group Inc., a New York corporation.
2.7 “Disability” means the inability of the Participant, by reason of
physical condition, mental illness or accident, to perform substantially all of
the duties of the position at which he or she was employed by the Employer when
such disability commenced, provided that such disability constitutes a
“disability” within the meaning of Treasury Regulation Section 1.409A-3(i)(4) or
any successor regulation. The Committee shall make all determinations as to
“Disability,” after a hearing at which the Participant shall be entitled to be
present with counsel of his or her choice and be heard by the Committee, and the
determination by the Committee shall be final and conclusive.
2.8 “Employee” means any person who is a full-time employee of an Employer.
2.9 “Employer” means the Company or a Subsidiary.
2.10 “Executive Officer” means, as determined by the Board on an annual
basis, the Company153s president, any vice president of the Company in charge of a
principal business unit, division or function (such as sales, administration or
finance), any other officer who performs a policy making function or any other
person who performs similar policy making functions for the Company. Executive
Officers of Subsidiaries may be deemed Executive Officers of the Company if they
perform such policy making functions for the Company.
2.11 “Employer Group” means the Company and all Subsidiaries.
2.12 “Final Average Pay” means the Participant153s average annual Pay
determined using the highest three (3) years of Pay during the Employee153s
employment with the Employer, unless otherwise defined by the Participant153s
Senior Executive Restrictive Covenant and Retention Plan Agreement. For this
purpose, only full years of employment will be taken into account and partial
years of employment will be disregarded.
2.13 “Key Employee” means any Employee specifically designated as a
“Participant” by the Board.
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2.14 “Participant” means a person who participates in the Plan in accordance
with Article V below.
2.15 “Plan” means this Omnicom Group Inc. Senior Executive Restrictive
Covenant and Retention Plan, as may be amended from time to time.
2.16 “Pay” means the base salary plus bonus and other incentive compensation
earned in respect of any calendar year by the Participant, whether or not paid
to the Participant or waived or deferred by the Participant, excluding all other
forms of compensation, such as severance pay, contributions under benefit plans,
and the compensatory elements of stock awards.
2.17 “Percentage” means 5% plus 2% per Year of Executive Service, unless
otherwise defined by the Participant153s Senior Executive Restrictive Covenant and
Retention Plan Agreement. Unless otherwise limited by the Participant153s Senior
Executive Restrictive Covenant and Retention Plan Agreement, in no event may the
Percentage exceed 35%.
2.18 “Separation from Service” means a Participant153s “separation from
service” with the Employer Group as such term is defined in Treasury Regulation
Section 1.409A-1(h) and any successor provision thereto.
2.19 “Senior Executive Restrictive Covenant and Retention Plan Agreement”
means a written agreement containing terms and conditions that are deemed
appropriate by the Committee.
2.20 “Subsidiary” means any company in which the Company holds, directly or
indirectly, 50% or more of its outstanding voting stock.
2.21 “Vested Participant” means a Participant who has completed seven Years
of Service.
2.22 “Year of Executive Service” means each complete or partial Year of
Service during which the Participant was an Executive Officer or Key Employee.
2.23 “Year of Service” means each consecutive period of 365 days the
Participant is in the continuous employ of a member or members of the Employer
Group. For purposes of this Section, “continuous employ of a member or members
of the Employer Group” means consecutive employment by members of the Employer
Group without interruption by reason of self-employment or employment by a third
party employer, except as provided in Section 2.19(b) of the Plan.
The Participant shall be in the employ of the Employer regardless of absences
by reason of:
(a) sick leave, vacation leave, or other special leave approved by the
Employer which does not exceed six months, provided the Participant returns to
work for the Employer not later than the expiration date of the authorized leave
of absence; and
(b) time spent in the service of others at the request of, or with the
approval of, the Employer, provided the Participant returns to work for the
Employer within fifteen (15) days following cessation of work for such other
party.
ARTICLE III
COMPANY153S PAYMENT OBLIGATION CONDITIONAL ON
PARTICIPANT REFRAINING FROM COMPETITIVE AND OTHER ACTIVITIES AFTER SEVERANCE OF
EMPLOYMENT
3.1 It is a condition of the Company153s obligation to make payments hereunder
that from the date of the Participant153s employment termination described in
Section 6.1 of the Plan that shall have given rise to the obligation to pay and
until the close of the last calendar year in respect of which the Participant is
entitled to receive payments hereunder:
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(a) that the Participant shall not, directly or indirectly, engage in, nor
become employed as an employee or retained as a consultant by any of the top 15
marketing services organizations as reported most recently by Advertising Age
(determined at the time of entering into the Senior Executive Restrictive
Covenant and Retention Plan Agreement), or any of such marketing organizations153
subsidiaries in the United States or any other country (“Protected Business”);
provided, that, nothing shall prohibit the Participant from, directly or
indirectly, engaging in, or becoming employed as an employee or retained as a
consultant, as described in Article IV or otherwise, by a member of the Employer
Group;
(b) that the Participant shall not employ (including to retain, engage, or
conduct business with) or attempt to employ (other than on behalf of a member of
the Employer Group) or assist anyone else to employ any person who is at the
time of the alleged prohibited conduct, or was at any time during the preceding
year, an employee of a member of the Employer Group;
(c) that the Participant shall not make any oral or written statement to any
person or entity which disparages in a material way the business reputation of
the Company or any member of the Employer Group or the top 50 clients of the
Employer Group; and
(d) that the Participant shall not willfully engage in any activity which is
materially harmful to the interests of the Employer Group.
In the event that the Committee determines that the Participant has breached
any of the provisions of Subsections (a) through (d) above, it shall give the
Participant written notice thereof stating in detail the particular act or
failures that constitute such breach and the specific action that the Committee
requires the Participant to take to cure such alleged breach. Any such notice
must be given within ninety (90) days after the Committee first determines that
such acts or failures constitute a breach. The Committee must give the
Participant a reasonable opportunity to cure in all circumstances in which it
alleges that the Participant has breached any of the provisions of Subsections
(a) through (d) above. The Participant shall have ninety (90) days after
receiving such notice to remedy such breach. The determination of (i) whether a
business is in the top 15 marketing services organizations as reported in
Advertising Age, (ii) whether the Participant employed, attempted to employ or
assisted anyone else to employ any employee of the Employer Group, (iii) whether
the Participant made statements which disparages in a material way, and (iv)
whether the Participant willfully engaged in any activity which is materially
harmful, shall be made by the Committee in good faith after a hearing at which
the Participant shall be entitled to be present with counsel of his choice and
be heard by the Committee, and any such determination by the Committee shall be
final and conclusive.
3.2 Nothing herein prohibits or restricts the Participant from engaging in
the Protected Business in the geographic areas described in Subsection 3.1(a) of
the Plan, employing, attempting to employ or assisting anyone else to employ any
employee of a member of the Employer Group, making disparaging statements, or
willfully engaging in activity which is harmful to the interests of the Employer
Group (collectively “Activities”); provided, however, in the event the
Participant chooses to engage in any of such Activities, the Company153s
obligation to make payments hereunder shall forthwith terminate as to payments
which might otherwise have become payable to the Participant in respect of the
calendar year in which such Activity occurred and to the Participant or the
Beneficiary in respect of all calendar years thereafter, but the Participant
shall not be obligated to refund to the Company any payments theretofore paid to
Participant hereunder.
ARTICLE IV
COMPANY153S PAYMENT OBLIGATION CONDITIONAL ON PARTICIPANT153S
AVAILABILITY FOR ADVISORY AND CONSULTATIVE SERVICES AFTER SEVERANCE OF
EMPLOYMENT
4.1 If the Participant has not attained the age of 55 as of the date of his
termination of employment, it is a further condition of the Company153s obligation
to make payments hereunder that, from the date of the Participant153s employment
termination described in Section 6.1 of the Plan that shall have given rise to
the obligation to pay and until the Participant attains the age of 55, the
Participant, if not physically or mentally disabled, shall, as an
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independent contractor and upon not less than thirty (30) days prior written
notice from the Company, make his or her services available to the Company as an
advisor and consultant with respect to activities of the department or unit of
the Company153s business to which the Participant was last assigned; provided,
however, that the Participant shall not be obligated to make his or her services
available (i) for more than forty-five (45) business days in the aggregate in
any one calendar year and for more than seven (7) consecutive business days in
any one calendar year, and (ii) during the period from December 15 through
January 15. Such advisory or consulting services shall be rendered at such times
and places as may be mutually convenient to the Chief Executive Officer of the
Company and the Participant. The scheduling of the Participant153s advisory and
consulting activities shall take into account his or her other business, family
and civic commitments. The Company shall reimburse the Participant for
reasonable traveling, transportation and living expenses necessarily incurred by
the Participant while away from his or her regular place of residence in the
performance of such advisory and consultative services for the Company.
In the event that the Committee determines that the Participant has breached
any of the provisions of Section 4.1 above, it shall give the Participant
written notice thereof stating in detail the particular act or failures that
constitute such breach and the specific action that the Committee requires the
Participant to take to cure such alleged breach. Any such notice must be given
within ninety (90) days after the Committee first determines that such acts or
failures constitute a breach. The Committee must give the Participant a
reasonable opportunity to cure in all circumstances in which it alleges that the
Participant has breached any of the provisions of Section 4.1 above. The
Participant shall have ninety (90) days after receiving such notice to remedy
such breach. The determination of whether the Participant has violated any
provision of Section 4.1 above shall be made by the Committee in good faith
after a hearing at which the Participant shall be entitled to be present with
counsel of his choice and be heard by the Committee, and any such determination
by the Committee shall be final and conclusive.
4.2 In the event the Participant chooses not to render advisory and
consultative services to the Company as provided in Section 4.1 of the Plan, the
Company153s obligation to make payments hereunder shall forthwith terminate as to
payments which might otherwise have become payable to the Participant in respect
of the calendar year in which such event occurred and to the Participant or the
Beneficiary in respect of all calendar years thereafter, but the Participant
shall not be obligated to refund to the Company any payments theretofore paid to
Participant hereunder.
ARTICLE V
PARTICIPATION
5.1 The Committee shall select, in its sole discretion, those Employees who
are eligible to become Participants in the Plan.
5.2 An eligible Employee shall become a Participant in the Plan effective
upon the Employee executing and returning to the Company153s Secretary a Senior
Executive Restrictive Covenant and Retention Plan Agreement.
ARTICLE VI
BENEFITS
6.1 Except as otherwise set forth in the Participant153s Senior Executive
Restrictive Covenant and Retention Plan Agreement, in the event the
Participant153s employment with the Employer Group terminates for any reason other
than for Cause after the Participant has completed seven Years of Service and
the Participant incurs a Separation from Service, then the Company, subject to
all the terms and conditions hereof, shall become obligated to pay to the
Participant, or to the Beneficiary if the obligation arises because of the death
of the Participant, each year, for fifteen (15) consecutive calendar years
commencing in the year determined under Section 6.2 of the Plan, an amount equal
to the lesser of (a) the product obtained by multiplying the Participant153s Final
Average Pay by the Percentage; or (b) the Annual Cap (each such annual payment
an “Annual Installment Payment”). Each Annual Installment Payment made pursuant
to this Section 6.1 shall be deemed a separate payment under this Plan for all
purposes.
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6.2 Except as otherwise set forth in the Participant153s Senior Executive
Restrictive Covenant and Retention Plan Agreement, the benefits to be paid under
Section 6.1 of the Plan, if any, shall commence upon the later of (a) the
Participant153s attainment of age 55 (subject to Section 6.3 of the Plan), or (b)
the calendar year following the calendar year in which the Participant dies or
incurs a Separation from Service; provided, however, that the following
exceptions apply:
(i) If the Participant becomes subject to a Disability, then the
Participant153s benefits shall commence in the calendar year following the
calendar year in which such Disability occurs, provided, however, that this
clause (i) shall not be construed so as to delay the commencement of the payment
of the Participant153s benefits beyond the date on which the payment of such
benefits would otherwise have commenced under the terms of this Plan;
(ii) If the Participant dies prior to receiving the first payment of his or
her benefits, then 100% of the benefits that would have been paid to the
Participant had the Participant lived to receive all payments shall be paid to
the Beneficiary in annual payments over the total number of calendar years as to
which the Company would have been obligated to make payments hereunder to the
Participant;
(iii) If the Participant dies after receiving the first payment of his or her
benefits, but before the Participant has received all of the payments in respect
of the total number of calendar years as to which the Company is obligated to
make payments hereunder (“Payment Period”), the Company shall thereafter be
obligated to make annual payments to the Beneficiary during the remainder of the
Payment Period, equal to 100% of the amount which the Company would have been
obligated to pay to the Participant had the Participant lived to receive all
payments; and
(iv) Notwithstanding any provision of the Plan to the contrary, except
pursuant to clause (i) above, no portion of the Participant153s benefits shall be
provided to the Participant prior to the earlier of (i) the expiration of the
six-month period measured from the date of the Participant153s Separation from
Service or (ii) the date of the Participant153s death. Upon the earlier of such
dates, all payments deferred pursuant to this Section 6.2(iv) shall be paid in a
lump sum to the Participant. Thereafter, payments will resume in accordance with
this Plan.
6.3 Payments hereunder as a result of the Participant attaining age 55 shall
commence as soon as practicable as determined by the Company but no later than
the later of (i) ninety (90) days following the Participant153s attainment of age
55, and (ii) the fifteenth day of the third calendar month following the
Participant153s attainment of age 55 and subsequent payments shall be made in each
calendar year of payment following the Participant153s attainment of age 55 during
the first ninety (90) days of the subject calendar year. Except as otherwise
provided herein, all payments under this Article shall be made by the Company in
each calendar year of payment during the first ninety (90) days of the subject
calendar year.
6.4 The Company may, at any time and from time to time, seek to fund, in
whole or in part, its obligation under the Plan by applying for insurance on the
life of a Participant. Such Participant shall, if requested in writing by the
Company, undergo a physical examination for such purpose by medical examiners
designated by the Company, and if the Participant should refuse to undergo such
physical examination the Company shall have the right to terminate its
obligation under the Plan by giving written notice of such termination to the
Participant.
6.5 For purposes of clarifying the provisions of the Plan, including Article
VI, the Participant shall not be deemed an Employee solely by serving as a
non-executive member or Chairman of the Board (or any similar committee of any
Employer).
ARTICLE VII
DESIGNATION AND IDENTITY OF BENEFICIARY
7.1 A Participant may designate a Beneficiary by signing, dating and filing
with the Secretary of the Company a written instrument setting forth the name(s)
and address(es) of the Beneficiary, and if the Beneficiary be
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more than one person or entity, describing the allocation of the payment
benefit among them. A Participant may change his or her designation of a
Beneficiary and thereby revoke a prior designation of a Beneficiary at any time
and from time to time by filing a new such written instrument with the
Secretary. The Beneficiary named in the last unrevoked designation of
Beneficiary so filed by the Participant prior to his or her death shall be the
Beneficiary for purposes of the Plan. In the absence of a designation of
Beneficiary by the Participant, or in the event the last written designation of
Beneficiary on file with the Secretary has been revoked by the Participant, the
Beneficiary shall be as described in Section 2.1 of the Plan.
7.2 It is a condition of the Company153s obligation to make payments to the
Beneficiary hereunder that (a) in making payments the Company may, in its sole
and absolute discretion, rely upon signed, written declarations, verifying the
identity of a Beneficiary filed with the Secretary of the Company by a person or
entity claiming to be such Beneficiary; (b) any payment made by the Company in
good faith to any claimant, whether or not such declarations shall have been
filed with the Company, shall pro tanto, discharge any obligation the Company
might otherwise have to make payment to any and all other actual or possible
claimants; (c) any person or entity claiming to be entitled to receive payments
hereunder following the death of the Participant shall have recourse only
against the person or entity to whom the Company shall have made payment in good
faith; and (d) in the event the Company, on advice of counsel, delays payment of
any sums becoming due to a Beneficiary by reason of a dispute as to the
legitimacy of the claim of such Beneficiary, no interest, penalty or damage
shall accrue, become payable by or be assessed against the Company by reason of
such delay in payment.
ARTICLE VIII
ADMINISTRATION
8.1 The Plan shall be administered by the Committee. A majority vote of the
Committee members shall control any decision of the Committee. The Committee
shall have all powers necessary to administer the Plan, including the power to:
(a) make and enforce such rules and regulations as it deems necessary or
proper for the administration of the Plan;
(b) interpret the Plan, decide all questions concerning the Plan (whether of
fact or otherwise) and determine the eligibility of any person to receive
payments hereunder, each in its sole discretion; any such interpretation or
determination to be reviewed under an abuse of discretion standard;
(c) appoint such agents, counsel, accountants, consultants, and other persons
as may be required to assist in administering the Plan; and
(d) allocate and delegate its responsibilities under the Plan and to
designate other persons to carry out any of its responsibilities under the Plan,
any such allocation, delegation or designation to be in writing.
8.2 The decision or action of the Committee with respect to any question
arising out of or in connection with the administration, interpretation and
application of the Plan and the rules and regulations promulgated hereunder
shall be final, conclusive and binding upon all persons having any interest in
the Plan.
8.3 The Company shall indemnify and hold harmless the members of the
Committee and the Board, and any of its delegates, against any and all claims,
loss, damage, expense or liability arising from any action or failure to act
with respect to this Plan on account of such member153s service on the Committee
or the Board, or the service of such delegate, except where (i) his or her acts
were committed in bad faith or were the result of his or her active and
deliberate dishonesty and were material to such action; or (ii) he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled.
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ARTCILE IX
CLAIMS PROCEDURE
9.1 If a Participant or Beneficiary (“Claimant”) does not receive a benefit
to which the Claimant believes he or she is entitled, the Claimant may file a
written claim with the Committee. The Claimant153s claim will be processed by the
Committee within ninety (90) days (in special circumstances, this period may be
extended for an additional ninety (90) days by written notice to the Claimant).
If the Claimant153s claim is denied, he or she will be notified in writing, and
such notification will include the reasons for the denial, specific references
to pertinent Plan provisions, a description of any additional material or
information necessary for the Claimant to perfect the claim, together with an
explanation of why the material or information is necessary, and a description
of the Plan153s claim review procedure, described below, including a statement of
the Claimant153s right to bring a civil action under the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”) Section 502(a) following an
adverse benefit determination on review.
9.2 If the Claimant is dissatisfied with the Committee153s determination, the
Claimant may request, in writing, a review by the Board of the Committee153s
determination. The Claimant also has the right to review and obtain copies of
relevant documents and to submit issues and comments in writing. The Claimant
must request a claim review not later than sixty (60) days after the date the
Claimant receives the Committee153s notification. The Board153s review shall take
into account all comments, documents, records, and other information submitted
by the Claimant related to the claim, without regard to whether such information
was submitted or considered by the Committee.
9.3 Within sixty (60) days of receipt of a request for review of the disputed
claim (in special circumstances, 120 days, by written notice to the Claimant),
the Board will review the claim and advise the Claimant, in writing, of its
determination. The writing will include the reasons for the Board153s decision,
specific references to pertinent Plan provisions, a statement that the Claimant
is entitled to receive reasonable access to and copies of all documents, records
and other information relevant to the claim, and a statement of the Claimant153s
right to bring a civil action under ERISA Section 502(a). The Board153s decision
shall be final and conclusive.
ARTICLE X
TERMINATION, SUSPENSION OR AMENDMENT
10.1 The Committee may, in its sole discretion, terminate or suspend the Plan
at any time, in whole or in part only in a manner that complies with Treasury
Regulation § 1.409A-3(j)(4)(ix). The Committee may, in its sole discretion,
amend the Plan or a Participant153s Senior Executive Restrictive Covenant and
Retention Plan Agreement at any time, and from time to time, for any reason. Any
amendment, termination or suspension shall be in writing. Except as provided in
Section 1.2 of the Plan, no amendment, termination, or suspension may adversely
affect the benefits or rights of a Participant arising under the terms of the
Plan or a Senior Executive Restrictive Covenant and Retention Plan Agreement in
a material manner without the consent of such Participant.
ARTICLE XI
MISCELLANEOUS
11.1 This Plan is an unfunded plan maintained primarily to provide deferred
compensation benefits for a select group of management or highly-compensated
employees within the meaning of Sections 201, 301, and 401 of ERISA, and
therefore is exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA.
11.2 With respect to rights and benefits derived from the existence of the
Plan, Participants shall be unsecured general creditors of the Company, with no
secured or preferential right to any assets of the Company or any other party
for payment of benefits under this Plan. Any property held by the Company for
the purpose of generating the cash flow for benefit payments shall remain its
general, unpledged and unrestricted assets.
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11.3 The Company shall be responsible for the payment of all benefits
provided under the Plan. At its discretion, the Company may establish one or
more trusts, with such trustees as the Board may approve, for the purpose of
providing for the payment of such benefits. Although such a trust shall be
irrevocable, its assets shall be held for payment of all the Company153s general
creditors in the event of insolvency. To the extent any benefits provided under
the Plan are paid from any such trust, the Company shall have no further
obligation to pay them. If not paid from the trust, such benefits shall remain
the obligation of the Company.
11.4 The Company shall withhold from payments hereunder any taxes required to
be withheld from such payments under applicable local, state or federal law.
11.5 The right of a Participant or Beneficiary to receive payments hereunder is
personal, non-assignable and non-transferable by operation of law or otherwise.
The word “otherwise” in the preceding sentence shall include, without
limitation, any execution, levy, garnishment, attachment or seizure by any other
legal process. If at the time the Company is to make a payment to a Participant
or Beneficiary hereunder the Participant or Beneficiary is not entitled to
receive such payment by reason of non-compliance with the provisions of this
Section 11.5, the obligation of the Company to make such payment shall forthwith
terminate.
11.5 Any payment to be made by the Company to a person under the age of 21
years may be made to such person or to a guardian of the property of such person
or to a parent of such person as the Company may, in its sole and absolute
discretion, determine. The Company may delay such payment until the Company has
received notice of the appointment and qualification of a guardian of the
property of such person, and no interest, penalty or damage shall accrue, become
payable by or be assessed against the Company by reason of such delay in
payment.
11.6 Nothing herein contained shall be deemed to give the Participant the
right to remain in the employ of the Employer or to interfere with the right of
the Employer to terminate the Participant153s employment at any time, nor to give
the Employer the right to require the Participant to remain in its employ or to
interfere with the Participant153s right to terminate employment at any time.
11.7 Except as preempted by ERISA, the provisions of this Plan shall be
construed and interpreted in accordance with the laws of the State of New York,
and is subject to all applicable federal, state and municipal laws and
regulations now or hereafter in force.
11.8 If any provision of this Plan shall be held illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining parts
hereof, and this Plan shall be construed and enforced as if such illegal and
invalid provision had never been inserted herein.
11.9 The failure of any party to insist upon strict adherence to any term of
the Plan on any occasion shall not be considered a waiver of any right
hereunder, nor shall it deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of the Plan.
11.10 The provisions of this Plan shall bind and inure to the benefit of the
Company and its successors and assigns, and to the Participants and their
representatives, heirs and estate. The term successors as used herein shall
include any corporate or other business entity which shall, whether by merger,
consolidation, purchase or otherwise acquire all or substantially all of the
business and assets of the Company, and successors of any such corporation or
other business entity.
11.11 It is intended that this Plan shall be limited, construed and
interpreted in accordance with Section 409A of the Code. It is also intended
that to the extent that any payment or benefit described hereunder is subject to
Section 409A of the Code, it shall be paid in a manner that will comply with
Section 409A of the Code, including guidance issued by the Secretary of the
Treasury and the Internal Revenue Service with respect thereto. No provision in
this Plan shall be interpreted or construed to directly or indirectly transfer
any liability for a failure to comply with Section 409A of the Code from a
Participant or other individual to the Company, or any other individual or
entity affiliated with the Company.
As Amended and Restated on July 20, 2010
9
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