Exhibit (3)(10)(ii)
ECHLIN INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
AS AMENDED AND RESTATED AS OF
OCTOBER 25, 1996
Echlin Inc. Supplemental Executive Retirement Plan
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ARTICLE I - Purpose
1.1 There is hereby established the Echlin Inc. Supplemental Executive
Retirement Plan to provide unfunded retirement benefits, to a selected
group of management and highly compensated employees of the Company
whose benefits from the Pension Plan are limited by various limitations
imposed by the Code and applicable regulations.
ARTICLE II - Definitions
Unless the context otherwise indicates, all terms used herein (other
than the Plan) shall have the same meaning as set forth in Article I of
the Pension Plan.
2.1 Applicable Interest Rate shall mean for any month of reference, an
annual interest rate determined from the average of the yields on 10
year U.S. Treasury notes during such month, adjusted for constant
maturity, and as reported by the Federal Reserve Board in the Wall
Street Journal.
2.2 Board of Directors - shall mean the Board of Directors of the Company.
2.3 Company - shall mean Echlin Inc.
2.4 Effective Date - shall mean September 1, 1996 for this amended and
restated Plan.
2.5 Member - shall mean any active executive employee of the Company on the
Effective Date who was a Member of the Plan prior to the Effective Date
and any active executive employee of the Company who works an Hour of
Service on or after the Effective Date and whose benefit from the
Pension Plan is limited by any of the requirements of the Sections
401(a)(17) or 415 of the Code included in the Pension Plan for purposes
of complying with the applicable requirements of the Code.
2.6 Pension Plan - shall mean the Pension Plan for Echlin Inc. Employees as
now in effect or hereafter amended.
2.7 Qualified Spouse - shall mean the legal spouse of a Member, who has
been married to the Member for at least a one year period ending on the
Member's date of death or Termination, if later.
2.8 SERP Earnings - shall have the meaning of Earnings as defined in the
Pension Plan but shall also include any amounts of base salary or
annual bonus deferred by the employee under the Echlin Inc. Unfunded
Non-qualified
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Deferred Compensation Plan or any similar plan established by the
Company.
2.9 Termination - shall mean the later of the date the employment
relationship of the Member with the Company is terminated or the date
the Member stops earning additional Credited Service under the Pension
Plan.
2.10 Trust - shall mean the trust fund established pursuant to the Plan.
2.11 Trustee - shall mean the trustee named in the agreement establishing
the Trust and such successor and/or additional trustees as may be
named pursuant to the terms of the agreement establishing the Trust.
ARTICLE III - Benefits
3.1 Plan Benefit - The Plan Benefit shall be an amount equal to the excess
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of (a) over (b) where both (a) and (b) are determined as monthly
amounts payable at the later of the Member's Normal Retirement Date,
Termination or death prior to Termination as a life annuity and where
(a) is equal to the monthly benefit a Member would have received
from the Pension Plan if (1) the limitations imposed by
Sections 401(a)(17) or 415 or both of the Code and regulations
thereunder had not been included therein and (2) in
calculating a Member's benefit under the Pension Plan, SERP
Earnings are used instead of Earnings; and
(b) is equal to the monthly amount of the Member's Pension Plan
benefit.
Benefit payments shall commence on the first day of the month following
the date of a Member's Termination, and, if the benefit commencement
date precedes the Member's Normal Retirement Date, the Plan Benefit
shall be adjusted for early commencement as follows: (i) for each of
the first 120 months by which such payment commencement date precedes
such Member's Normal Retirement Date, by 1/2 of 1% for each month by
which the commencement date precedes such Member's Normal Retirement
Date; and (ii) for each month in excess of 120 by which such payment
commencement date precedes the Member's Normal Retirement Date an
additional amount that is the "Actuarial Equivalent" of the amount
payable after the adjustment of (i) above. For this purpose "Actuarial
Equivalent" shall mean an equivalent benefit using accepted actuarial
principles and using the 1983 GAM Mortality Tables and the Applicable
Interest Rate determined using the second month preceding the date of a
Member's Termination.
3.2 Method of Payment - Commencing on the first day of the month following
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the date of a Member's Termination, the Member's
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Plan Benefit shall be paid to the Member or her or his Surviving Spouse
or beneficiary in the event of such Member's death prior to such
payment, for twelve (12) months on the first day of each month. On the
first day of the month following twelve months after the Member's
Termination, a final single sum payment shall be paid to the Member or
Surviving Spouse or beneficiary in the event of the death of the Member
prior to such payment. Such single sum payment shall be present value
of the Plan Benefit assuming the Plan Benefit is paid to the Member as
a single life annuity which commences on the date of the single sum
payment. The value of the single life annuity shall be calculated using
the 1983 GAM Mortality Table and the Applicable Interest Rate during
the 11th month after such Member's Termination.
3.3 Vesting - A Member shall be vested in his Plan Benefit as the date on
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which he becomes vested under the Pension Plan. In the event of a
Member's Termination prior to his being vested, all benefits under this
Plan shall be forfeited; provided that, in the event of his rehire and
subsequently becoming vested, his Plan Benefits shall be reinstated.
3.4 Death Benefits - In the event of the death of a Member after
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Termination and prior to payment of such Member's full benefit in
accordance with the provisions of Section 3.2, such unpaid amount shall
be paid to the Member's beneficiary designated in a form provided by,
and filed with, the Board of Directors or its designate. If no such
form has been filed, such unpaid benefits shall be paid to the Member's
Qualified Spouse and if there is no such Qualified Spouse, to the legal
representative of the Member's estate.
In the event of the death of a Member prior to Termination who is
survived by a Qualified Spouse, such Qualified Spouse shall be entitled
to 50% of the Member's accrued Plan Benefit Payable according to
section 3.2.
Except as provided in this Section 3.4, no benefits shall be payable
under this Plan as a result of a Member's death.
ARTICLE IV - Change In Control
4.1 If there is an event which constitutes a Change In Control (as
hereinafter defined) of Echlin Inc., and the Board of Directors
declares, in its sole discretion, that such event qualifies or will
qualify as a Change In Control under this Plan, and a Member's
employment is terminated without cause or the Member voluntarily
terminates employment for "good reason" (as hereinafter defined) within
two (2) years after the Change In Control has occurred, the Member
shall be deemed to have 'Terminated Employment Upon Change In Control'.
The Company agrees that it will pay to a Member who is deemed to have
"Terminated Employment Upon Change In
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Control", whether or not vested immediately prior to having "Terminated
Employment Upon Change In Control", his or her Plan Benefit according
to the provisions of Section 3.2 hereof.
Also, if there is an event which constitutes a Change In Control (as
hereinafter defined) of Echlin Inc., and the Board of Directors
declares, in its sole discretion, that such event qualifies or will
qualify as a Change In Control under this Plan, the Company will
contribute to the Trust, as soon as practical after the determination
by the Board of Directors that a Change In Control has occurred, an
amount determined by the Plan's actuary which together with the
existing assets of the Trust is sufficient to insure that all vested
Plan Benefits for all Members as of the date the Board of Directors
determined a Change In Control has occurred can be paid from the Trust.
An event constituting a "Change In Control" shall occur when (and only
when) Echlin Inc. obtains actual knowledge that: (a) any person within
the meaning of Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934 (the '1934 Act'), other than Echlin Inc. or any of its
subsidiaries, has become the beneficial owner, within the meaning of
Rule 13d-3 under the 1934 Act, of thirty percent (30%) or more of the
combined voting power of Echlin Inc.'s then outstanding voting
securities; or (b) the expiration of a tender offer or exchange offer,
other than an offer by Echlin Inc., to which twenty percent (20%) or
more of the combined voting power of Echlin Inc.'s then outstanding
shares of common stock have been purchased; or (c) the stockholders of
Echlin Inc. have approved an agreement to merger or consolidate with or
into another corporation and Echlin Inc. is not the surviving
corporation or an agreement to sell or otherwise dispose of all or
substantially all of Echlin Inc.'s assets (including a plan of
liquidation); or (d) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of Echlin Inc. would cease for any reason to constitute at
least a majority thereof, unless the election or the nomination for the
election by Echlin Inc.'s stockholders of each new director was
approved by a vote of at least two-thirds (2/3) of the directors then
still in office who were directors at the beginning of the period.
For purposes of this Plan, the termination of a Member shall be
considered to be for cause, whether it occurred by resignation or
discharge, if the reason for the termination of employment was the
Member's proven in a court of law or admitted embezzlement, dishonesty,
fraud, conviction on a felonious or other charge involving moral
turpitude, all in connection with the Company's affairs. The Board of
Directors shall make the determination as to whether the termination is
for cause and such determination shall be binding, final and conclusive
on all concerned. For
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purposes of this Plan, a Member's voluntary termination shall be
considered to be for "good reason" if (a) without the express written
consent of the employee, he is assigned any duties substantially
inconsistent with his positions, duties, responsibilities and status
with an employer as in effect before the Change In Control, or his
reporting responsibilities, titles or offices as in effect immediately
prior to the Change In Control are substantially changed or he is
removed from or not re-elected to any of such positions, except as any
such change resulting from his termination of employment for cause, or
of his total and permanent disability or death (for example, without
limiting the generality of the foregoing, should the Chairman of the
Board and Chief Executive Officer not be named as the Chairman and
Chief Executive Officer of the surviving parent corporate entity upon a
qualifying Change In Control, then such Member would have Good Reason
to terminate his or her employment), (b) the compensation or benefit
entitlement of the employee as in effect immediately prior to the
Change In Control is substantially reduced; or (c) the employer
requires the employee without his agreement to be based anywhere other
than the employer's location where the employee is principally employed
or another location that is more than fifty (50) miles from the
location where he is principally employed immediately prior to the
Change In Control, except for required travel on the employer's
business to an extent substantially consistent with his business travel
obligations in effect immediately prior to the Change In Control.
ARTICLE V - Trust and Plan Funding
5.1 The Company will establish a Trust with the Trustee, pursuant to such
terms and conditions as are set forth in the Trust agreement to be
entered into between the Company and the Trustee. The Trust is intended
to be treated as a "grantor" trust under the Code, and the
establishment of the Trust is not intended to cause a Member to realize
income on amounts contributed thereto, and the Trust shall be so
interpreted.
5.2 At the discretion of the Company, Plan Benefits that become payable to
any Member's beneficiary or Qualified Spouse shall first be paid from
the Trust, then to the extent Plan Benefits for any Member are not paid
from the Trust, Plan Benefits shall be paid out of the general assets
of the Company.
ARTICLE VI - Forfeiture of Benefit Entitlement
6.1 Notwithstanding any other provision of this Plan, in the event a
Member's termination is due to his confession to or conviction of theft
or embezzlement from; or any misdemeanor (except a traffic offense) or
felony against the Company; or to dishonesty in connection with matters
as determined to
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exist by the Company; or except as authorized by the Company, or as may
be required by applicable law or a duly constituted administrative
agency, such Member directly or indirectly during his service with the
Company, or thereafter uses or permits the use of any trade secrets,
customers lists, or other information of, or relating to, the Company,
or divulges such trade secrets, customers lists and other information
to any person, firm or corporation, then any benefit entitlement
otherwise provided under this Plan to such Member shall be terminated
and void.
ARTICLE VII - Miscellaneous
7.1 Nothing contained herein shall confer any right on any Member to be
continued in the employ of the Company or any other company or shall
affect the right of the Member to participate in and receive benefits
under and in accordance with any pension, profit sharing, incentive
compensation or other benefit plan or program of the Company.
7.2 This Plan shall continue in force with respect to the Member until the
termination of the right of such Member or his beneficiary to receive
benefits under this Plan and shall be binding upon any successor to
substantially all the assets of the Company. The Board of Directors
shall, however, have the right, at any time to modify, amend or
terminate the Plan in whole or in part provided no such amendment shall
deprive a Member of any vested Plan Benefit accrued hereunder prior to
the date of the amendment.
Notwithstanding the above, the Board may at any time amend this Plan
retroactively or otherwise if and to the extent that such action is
deemed necessary in light of government regulations or other legal
requirements or to ensure that the Plan continues to be characterized
as "top-hat" plan of deferred compensation maintained for a select
group of management or highly compensated employees as described under
ERISA Section 201(2), 301(a)(3), and 401(a)(l).
7.3 No right or interest of the Member and beneficiary under this Plan
shall be subject to voluntary or involuntary alienation, assignment or
transfer of any kind.
7.4 The administration of this Plan shall be the responsibility of the
Board of Directors or such other person or entity as the Board of
Directors shall designate. Decisions of the Board of Directors shall be
final and binding upon the Company which shall have adopted this Plan,
the Member and the Member's beneficiaries.
7.5 This Plan shall be construed, regulated and administered for all
purposes according to the laws of the State of Connecticut and the
United States of America.
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7.6 Any provision of the Plan deemed in violation of any law or regulation
shall be null and void and of no effect and shall not affect the
validity of any other provision thereof.
Issued as of October 25, 1996.
ECHLIN INC.
/s/Milton J. Makoski
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Vice President - Human
Resources
ATTEST:
/s/Jon P. Leckerling
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Secretary
APPROVED BY:
/s/Trevor O. Jones
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Chairman, Compensation
and Management Development
Committee of the Board
of Directors
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