Attached files
file | filename |
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10-K - ARROW ELECTRONICS INC | v172660_10k.htm |
EX-10.K.V - ARROW ELECTRONICS INC | v172660_ex10kv.htm |
EX-10.K.VI - ARROW ELECTRONICS INC | v172660_ex10kvi.htm |
EX-21 - ARROW ELECTRONICS INC | v172660_ex21.htm |
EX-23 - ARROW ELECTRONICS INC | v172660_ex23.htm |
EX-32.I - ARROW ELECTRONICS INC | v172660_ex32i.htm |
EX-31.I - ARROW ELECTRONICS INC | v172660_ex31i.htm |
EX-31.II - ARROW ELECTRONICS INC | v172660_ex31ii.htm |
EX-32.II - ARROW ELECTRONICS INC | v172660_ex32ii.htm |
EX-10.K.VII - ARROW ELECTRONICS INC | v172660_ex10kvii.htm |
Exhibit
10(i)
ARROW
ELECTRONICS, INC.
SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
(as
amended and restated effective January 1, 2009)
Table of
Contents
Page
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ARTICLE
I
|
Normal
and Early Retirement Benefits
|
2
|
|
ARTICLE
II
|
Payment
of Benefits
|
5
|
|
ARTICLE
III
|
Amendment,
Termination, or Curtailment of Benefits
|
11
|
|
ARTICLE
IV
|
Definitions
|
14
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ARTICLE
V
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Miscellaneous
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18
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ii
ARROW
ELECTRONICS, INC.
SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
(as amended and restated
effective January 1, 2009)
INTRODUCTION
Purpose of
Plan. The Arrow Electronics, Inc. Supplemental Executive
Retirement Plan (“SERP”)
is an unfunded retirement plan for a select group of employees designated as
SERP participants by the Arrow Board of Directors (including the Compensation
Committee of the Board) and who have been so notified in
writing. References below to “you” and the like are to the
participants who have been so notified. The SERP is administered by
Arrow’s Management Pension and Investment Oversight Committee or its delegees,
subject to the ultimate authority of the Board.
Section 409A
Compliance. In order to ensure continued compliance with the Federal
income tax laws applicable to nonqualified deferred compensation, the Company,
without formal amendment of the plan document for the SERP, made such changes in
operation of the SERP as it deemed necessary or advisable for the period from
January 1, 2005 to December 31, 2008 by reason of the enactment of Section 409A
of the Internal Revenue Code of 1986, as amended (“Section 409A”), taking into
account Notice 2005-1 and other guidance thereunder (“Regulations”). The
Plan was amended, generally effective as of December 31, 2008, (i) to require
all benefits under the SERP, other than “Grandfathered Benefits”
described below,” be payable only at a time and manner compliant with Section
409A and the Regulations and (ii) to require that all offsets be determined
under an objective and nondiscretionary formula not under the control of the
Participant and not subject to Company discretion within the meaning of Treas.
Reg. § 1.409A-3(i). By this further restatement, the SERP is
amended to set forth more definitively the benefit formula effective as of
January 1, 2009. In no case will a Participant’s benefit be less than
the benefit accrued under the “old Plan” as of December 31,
2008.
Table of
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“Grandfathered
Benefits.” If you met the requirements for retirement under
the SERP (including disability retirement) on December 31, 2004, your accrued
benefit at that date, calculated under the terms of the Plan in effect on
October 3, 2004 based solely on service and compensation up to December 31, 2004
and in accordance with provisions of the Regulations defining benefits earned
and vested on December 31, 2004, is a “Grandfathered Benefit” and will be
payable in accordance with the terms of the SERP in effect on October 3,
2004. The provisions of the Plan set forth below apply to all
benefits hereunder in excess of the Grandfathered Benefits, hereinafter referred
to as “Section 409A
Benefits.”
Construction. The
SERP is intended to comply and shall at all times be administered in accordance
with the provisions of Section 409A and the Regulations. Any
ambiguities in the language of the SERP shall be resolved, and any terms not
otherwise defined shall be construed, in a manner compliant with, Section 409A
and the Regulations. To the maximum extent permitted by law, no
provision of the SERP inconsistent with Section 409A or the Regulations shall be
valid or given any effect whatever.
ARTICLE
I
Normal and Early Retirement
Benefits
1.1 Normal Retirement
Date. Your normal retirement date is the date on which you
reach age 60, except as the Board may otherwise specify in written notice to you
(which notice shall be part of the SERP).
1.2 Early Retirement
Date. Your early retirement date is the date on which your
combined years of age and service equal at least 72 and you are at least age 55,
or if applicable, such other date as the Board may specify in written notice to
you (which notice shall be part of the SERP). Fractional years of age
and service shall be combined in determining eligibility for early retirement
(or any similar determination).
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1.3 Retirement Income
Target. In the letter continuing your participation in the
SERP as amended and restated effective December 31, 2008, or admitting you to
participation if you were not previously a participant (which “participation
letter” shall be part of the SERP), the Board will specify the retirement income
target that will be used to determine your retirement pension under the SERP,
subject where applicable to the Other Benefits Formula Offset and Assumed Social
Security Offset to be applied as set forth below. Your retirement
income target may be expressed either as a fixed dollar amount or as an “income
replacement percentage” applied to your Final Average Compensation, and your
retirement income based thereon shall be based on your Years of SERP
Participation.
1.4 Retirement Benefit Based on
Income Replacement Percentage. If your retirement income
target is based on an income replacement percentage, your participation letter
will specify the income replacement percentage assigned to you for purposes of
(i) your normal retirement pension payable on retirement at or after your normal
retirement date, and (ii) the early retirement pension that would be payable to
you on early retirement at first date of eligibility for retirement and at each
later age at which you may be eligible for early retirement, with the percentage
applicable at intervening ages being determined on similar
principles. Your SERP normal or early retirement pension will then be
calculated by multiplying your Final Average Compensation by your applicable
income replacement percentage and then subtracting (i)) the actuarial equivalent
of your Other Benefits Formula Offset as of your actual date of retirement,
calculated based on the Plan Actuarial Assumptions, and (ii) your Assumed Social
Security Offset.
1.5 Other Benefits Formula
Offset. The Other Benefits Formula Offset is the sum of
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(a) an
amount equal to the aggregate employer contributions to the Arrow Electronics
Stock Ownership Plan and its predecessors, and the Arrow Electronics Savings
Plan including its predecessors (excluding participant elective contributions
and voluntary rollovers) taken into account in determining the offset for
defined contribution plan benefits under the Plan in effect prior to January 1,
2009, increased by interest at an annual rate of 7% credited and compounded
annually to December 31, 2008, as definitively determined and recorded in the
records of the Committee as of December 31, 2008, plus
(b) 3%
of the compensation limit applicable under section 401(a)(17) of the Code for
each calendar year beginning on or after January 1, 2009 and ending with the
calendar year in which you retire (whether early, or at or after your normal
retirement date), provided that such limit shall be prorated for such last year
based on the number of completed months therein ending prior to your date of
retirement, increased
by interest at an annual rate of 7% credited and compounded annually from
December 31, 2008 to your retirement date
1.6 Assumed Social Security
Offset. Your Assumed Social Security Offset shall be a monthly
amount equal to fifty percent (50%) of your Assumed Primary Insurance Amount at
age 62 or later date of actual retirement
1.7 Retirement Benefit in a
Fixed Dollar Amount. If your income replacement target is
determined as a fixed dollar amount, the letter advising you of your
participation in the SERP will set forth the amount payable on retirement at or
after your normal retirement and at each age on which you may be eligible for
early retirement.
4
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ARTICLE
II
Payment
of Benefits
Section
409A Benefits shall be payable only upon your (i) Separation from Service after
reaching a retirement date hereunder, (ii) suffering a Change in Control
Termination or (iii) upon your Disability as herein defined. If you
separate from service under any other circumstances, the SERP provides no
benefit to you or your beneficiary.
2.1 Separation from
Service. The terms “retirement” or “termination of employment”
and similar phrases as used in the SERP shall, as applicable, refer to
separation from service within the meaning of the Regulations, other than by
reason of death, determined by reference to the presumptive rule of Treasury
Reg. § 1.409A-1(h)(l)(ii) (under which a reasonable expectation of a
permanent reduction in the level of service to no more than 20% of the average
level during the prior 36-month or other applicable period is presumed to result
in a separation from service), and determined by treating Arrow and all
Subsidiaries as single employer. In addition:
(a) Subsidiary Change in Control
Event. If you are employed by a Subsidiary and are affected by
a Subsidiary Change which occurs after you have reached early or normal
retirement date, distribution shall thereupon be made to you under the rules
herein provided in the event of a Separation from Service, except that no
six-month delay shall be required by reason of your being a specified
employee.
(b) Leaves,
etc. Your employment relationship shall be treated as
continuing while you are on military leave, sick leave, or other bona fide leave
of absence (such as temporary employment by the government) if the period of
such leave does not exceed six months, or if longer, so long as your right to
reemployment with the Company is provided either by statute or by
contract. If the period of leave exceeds six months your right to
reemployment is not provided either by statute or by contract, the employment
relationship is deemed to terminate immediately following such six-month
period.
(c) Separation incident to sale
of a division or other substantial assets. Notwithstanding the
foregoing, a separation from service shall not occur for purposes of the SERP to
the extent that the Committee determines otherwise in accordance with Treas.
Reg. § 1.409A-1(h)(4).
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(d) Coordination with employment
agreements. In the event that you have an employment agreement
with the Company that defines termination of employment or separation from
service in a manner consistent with the Regulations, that definition shall
govern for purpose of the SERP unless its application would for any reason (such
as effectively an impermissible change in the time of payment of benefits) be
inconsistent with the Regulations.
2.2 Normal Retirement
Benefit. If you separate from service on or after your normal
retirement date, you will receive a normal retirement pension calculated as
provided in Article I based on (a) your retirement income target, Final Average
Compensation (if such target is based on an income replacement percentage),
Years of SERP Participation and/or other relevant such factors set forth in your
participation letter as of your normal retirement date and (b) if your
retirement income target is based on an income replacement percentage, your
Other Benefits Formula Offset and Assumed Social Security Offset at your actual
retirement date Your normal retirement pension will commence on the
first day of the month following your separation from service, or if you are a
specified employee as of the date of such separation from service, on the first
day of the seventh month following your separation from service. No
adjustment in your retirement income target shall be made by reason of the delay
in commencement of your benefit between your normal retirement date and date of
actual retirement.
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2.3 Early Retirement
Benefit.
(a) Based on Percentage of
Final Average Compensation. If you retire early and your SERP pension is
based on a percentage of Final Average Compensation, your benefit will be
calculated in the same manner as a normal retirement pension, but your income
replacement percentage will be reduced based on the Early Payment Discount
Assumption to reflect the fact that your pension is beginning before normal
retirement. If your Years of SERP Participation at early retirement are fewer
than the maximum number of Years of SERP Participation assumed in determining
your normal retirement pension, your early retirement pension will
be further reduced on a pro-rata basis based on the ratio of your
actual Years of SERP Participant to such maximum The letter admitting you to
participation in the SERP will set forth the percentage of your Final Average
Compensation that would be payable to you on early retirement at each whole age
from your first date of eligibility for retirement to you’re your normal
retirement date. Your actual SERP early retirement benefit will then be
calculated by multiplying your Final Average Compensation at your early
retirement date by the reduced income replacement percentage as so determined
and subtracting the Other Benefits Formula Offset and Assumed Social Security
Offset.
(b) Based on Fixed Dollar
Amount. If your retirement income target is determined as a fixed dollar
amount, the letter advising you of your participation in the SERP will set forth
the amount payable on retirement at each date on which you may be eligible for
early retirement. Because the amount is “fixed” rather than based on a
percentage of Final Average Compensation, the Other Benefits Formula Offset and
Assumed Social Security Offset will not apply
(c) Time of Commencement.
If you separate from service on or after your early retirement date and prior to
your normal retirement date, you will be entitled to an early retirement pension
calculated as provided in Article I based on your Final Average Compensation,
Years of SERP Participation, and/or other relevant factors set forth in your
participation letter, as of your date of separation from
service. Payment of your early retirement pension will commence on
the first day of the month following your separation from service or, if you are
a specified employee on the date of such separation from service, on the first
day of the seventh month following your separation from
service.
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2.4 Six-month delay. If distribution
becomes due under the SERP based on the separation from service of a Participant
who is a specified employee as of the date of such event, such distribution
shall be not be made until the first day of the seventh month after the date of
separation, in an amount actuarially increased to reflect such delay based on
the Plan Actuarial Assumptions.
Choice
of Form of Benefit
Normal
Form of Pension – Single Life Annuity with 60-month Guarantee
Under the
normal form of pension, SERP pension payments are payable for your life
only. However, if you die after your pension payments begin but
before you have received 60 monthly payments, then monthly payments will
continue to your Beneficiary in the same amount you received prior to your
death, until a total of 60 payments have been made. No benefits are
payable under the SERP if you die before your pension payments
begin. The Other Benefits Formula Offset and Assumed Social Security
Offset described above are calculated assuming the normal form of
payment.
Optional
Joint and 50% or 66-2/3% Surviving Spouse Annuity
Under
this optional form of pension, your monthly pension will still be payable for
your lifetime, but in an actuarially reduced amount calculated based on the Plan
Actuarial Assumptions and without the guarantee of 60 monthly payments The
surviving spouse’s pension will be equal to either 50% or 66-2/3% of the reduced
monthly benefit you were receiving, whichever you elect.
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Your
election to take a surviving spouse pension must be made before your pension
begins and cannot be changed after the pension begins. If you elect
this benefit form, no benefits will be payable after the death of both you and
your spouse. If you start to receive a reduced monthly pension under
this form and your spouse then dies before you, you will continue to receive the
reduced benefit for the remainder of your life. If you start to
receive a reduced monthly pension under this form and you then die before your
spouse, 50% or 66-2/3% of the reduced benefit (as you elected) will be paid to
your surviving spouse for the remainder of his or her life.
Your
"spouse" for purposes of the above means and is limited to the individual to
whom you are legally married on your retirement date. For example,
that spouse may become entitled to the survivorship pension under this option
even if the marriage should later end by divorce; and a new spouse whom you
marry after a divorce, or after your "spouse" as defined above may die, will not
be entitled to benefits under this optional form.
Your
election of an optional benefit form can be revoked by you (without the consent
of your spouse or any other person) at any time prior to the date as of which
payment is to begin, but not thereafter. If you elect a Joint and
Surviving Spouse Annuity and your spouse dies (or you become divorced) before
your retirement, your election will automatically be revoked and your benefit
will then be payable in the normal form.
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Early
Payment Upon Certain Events
Change
in Control Termination
(1) If
there is a Change in Control of Arrow, and within 24 months after such Change in
Control you separate from service either (a) involuntarily other than for Cause
or Disability or (b) voluntarily for Good Reason, your separation from service
is considered to be a “Change in Control Termination.” For this
purpose, “Change of Control of Arrow” shall mean a change in control event as
defined in the Regulations that also qualifies as a “Change in Control” under
the definition contained in Arrow’s standard form of change in control
agreement, and “Cause” shall have the meaning given in such
agreement. If the definition in Arrow's standard form
of such agreement shall subsequently be revised or there shall cease to be
a standard form of such agreement, the definition in the prior
sentence shall continue to govern for purposes of this Agreement unless
the Committee shall otherwise direct and the change in such definition
is permitted to be given effect under the Regulations.
(2) If
you incur a “Change in Control Termination” after attaining age 50 and prior to
either your early retirement date or normal retirement date, then except as
otherwise provided in paragraph 3 below, you will receive your Section 409A
Benefit accrued to your date of termination in the form of a normal retirement
pension beginning on the first day of the month coincident with or next
following the date you attain age 60, calculated based on your Years of SERP
Participation as of your date of termination as if your date of termination were
an early retirement hereunder but without any discount for early
payment.
(3) If
you were a participant in the SERP and had attained age 50 and completed 15
years of SERP participation prior to January 1, 2002, and thereafter incur a
“Change in Control Termination,” paragraph 2 above will not apply and you will
receive beginning on the first day of the month following the termination (in
addition to any Grandfathered Benefit payable), the greater of (i)
the normal retirement benefit you would have received under the terms of the
SERP as in effect on December 31, 2001 based on your aggregate service to
December 31, 2008, less the amount of any Grandfathered Benefit payable, or (ii)
your Section 409A Benefit calculated based on your Years of SERP Participation
as of your termination date as if your termination were an early retirement
hereunder and reduced for payment prior to normal retirement date based on the
Early Payment Discount Assumption, in lieu of any other benefit under
the Plan.
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Disability.
If you
incur Disability prior to either your early retirement date or normal retirement
date or change of control termination, your Section 409A Benefit accrued to your
date of Disability, calculated based on your Years of SERP Participation as if
your Disability were an early retirement hereunder and reduced for payment.
Prior to normal retirement date based on the Early Payment Discount Assumption,
will be become payable on the first day of the month following your normal
retirement date; provided, that any SERP pension payments will be reduced by the
full amount of any disability benefits you receive for the same period that are
attributable to Company contributions. “Disability” for purposes
hereof shall mean the Participant’s inability to perform each and every duty of
his or her occupation or position of employment as a result of a medically
determinable physical or mental impairment that can be expected to result in
death or to last for a continuous period of not less than 12 months, provided
that the Participant by reason thereof either (a) is unable to engage in any
substantial gainful activity or (b) receives income replacement benefits for a
period of not less than 3 months under an accident and health plan maintained by
the Employer or a Subsidiary. Notwithstanding the foregoing, a
determination of total disability by the Social Security Administration shall be
conclusive proof of Disability.
ARTICLE
III
Amendment,
Termination, or Curtailment of Benefits
Period of
participation. Your participation in the SERP begins on the
date designated by the Board. The Board may act at any time to end
your participation or to suspend your accrual of additional benefits or modify
on a prospective basis the formula for determining your benefits
hereunder.
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Amendment or
Termination. The Board reserves the right to amend or
terminate the SERP at any time. However, no such action may adversely
change any benefit you (or your spouse or beneficiary) are currently receiving,
or in any other case, reduce the amount of your benefit accrued under the Plan
as of the date of such action or adversely affect the right of the participant
(and the participant’s beneficiary or surviving spouse, if applicable) to
receive payment in respect of such amount upon completion by the participant of
the conditions precedent to entitlement to a retirement pension as they exist
under the terms of the SERP in effect immediately prior to such action, and at
the time and on the terms then in effect, except with your consent. A
termination of the Plan shall not cause the acceleration of payments under the
Plan unless the Committee determines, after consultation with counsel, that the
terms and conditions of such termination are within exceptions provided by
applicable regulations to the general Section 409A prohibition against
acceleration. Notwithstanding anything herein to the contrary, the
Board shall have the right and power to adopt any and all such amendments to the
SERP as it shall deem necessary or advisable to ensure compliance with Section
409A and the Regulations, including amendments with retroactive
effect.
Termination
of SERP Benefits/Effect of Competition
When you
become eligible for SERP payments, your annual SERP pension will be paid to you
in monthly installments. Payments will end with the payment for the
month in which you die, except for any benefits payable to your beneficiary on
your death before receiving at least 60 monthly payments, if your pension was
payable in the normal form described above (or for any surviving pension to your
spouse, if your pension was paid as a surviving spouse pension as described
above), or earlier if you compete with Arrow, as defined below.
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You
compete with Arrow if, directly or indirectly, alone, as an employee, agent,
independent contractor, lender, consultant, owner, partner or joint venturer, or
as an officer, director, or stockholder of any corporation, or otherwise, are
employed by, participate in, are engaged in, or are connected with any person or
entity which is engaged in a business of the type and character engaged in, and
competitive with that conducted by Arrow. Ownership of 3% or less of
the stock or other securities of a corporation, the stock of which is listed on
a national securities exchange or is quoted on the NASDAQ National Market, will
not constitute a violation of this provision, so long as you do not in fact have
the power to control, or direct the management of, or are not otherwise
associated with, such corporation.
The
provision terminating SERP benefits if you compete with Arrow as described above
will not be applicable if your payments are made on account of a Change In
Control Termination as defined in Part II hereof, or if your termination of
employment would constitute a Change In Control Termination except for your
failure to have the 15 years of SERP participation required for individuals who
became participants in the SERP prior to January 1, 2002.
Prior
Plan Benefit Protected
If you
were a participant in the SERP as in effect on December 31, 2001, your Section
409A Benefit, when added to your Grandfathered Benefit, will not be less than
the amount you would have received under the SERP as in effect on December 31,
2001 as increased for service through December 31, 2008. Any
additional benefit provided under this paragraph shall be determined by treating
references to retirement or termination of employment under such predecessor
plan as meaning Separation from Service as defined herein and shall be payable
in the time and manner provided for under this amended SERP upon Separation from
Service with vested rights.
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ARTICLE
IV
Definitions:
“Arrow”
means Arrow Electronics, Inc., or any successor thereof by merger,
consolidation, purchase of substantially all of its business and assets, or
otherwise.
“Assumed
Primary Insurance Amount” means the primary
insurance amount calculated to be payable on a monthly basis on your attainment
of age 62 or year of retirement if later (excluding any benefit payable on
behalf of a spouse or other dependent) as provided under the Federal Social
Security Act or any other similar applicable national benefit program as in
effect on such date, determined on the following assumptions, notwithstanding
facts to the contrary:
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(1) Your
salary history will begin with calendar year 1951 or the calendar year you
attain age 22, whichever is later, and end with the calendar year preceding the
later of the calendar year in which you attain age 62 or your calendar year of
retirement, including years in which you were not employed by the Company (the
“Salary History Period”);
(2) If
you retire prior to age 62, the Social Security wage base for each year until
the year you attain age 62 will be assumed to be the Social Security wage base
in effect in your year of retirement;
(3) You
will be deemed to have earned wages in excess of the Social Security Act wage
base during each year of your Salary History Period.
(4) You
will be deemed to have been employed in the United States during each year of
the Salary History Period.
“Board”
means the Board of Directors of Arrow or any duly constituted committee thereof,
including the Compensation Committee.
“Beneficiary”
means your beneficiary is the person (including a trust, estate, foundation, or
other entity) you designate (at such time and in such manner as the Committee
shall authorize) to receive the death benefit (if any) payable upon death after
commencing to receive benefits, and before receiving at least 60
payments. If an individual is designated as beneficiary and dies
prior to becoming entitled to benefits hereunder (or if no valid designation of
beneficiary is in effect for any other reason), your beneficiary shall be your
surviving spouse, if any, and otherwise shall be your estate unless otherwise
provided in the beneficiary designation.
"Code"
means the Internal Revenue Code of 1986, as it may be from time to time amended,
or corresponding provisions of subsequent law.
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“Committee”
means Arrow’s Management Pension and Investment Oversight
Committee.
“Company”
means Arrow and its Subsidiaries and their predecessors.
“Early
Payment Discount Assumption” means interest credited and compounded annually at
an annual rate of 7%.for each year (or fraction thereof in completed months)
between your retirement date and your normal retirement date.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended.
“Final
Average Compensation” means your highest average annual Performance Based
Compensation (base salary plus targeted incentive compensation) for any three
calendar years (which need not be consecutive) in the last five consecutive
calendar years ending prior to your retirement (or such other period as the
Board may specify), determined before reduction by any election to (i) make
401(k) contributions under the Arrow Electronics Savings Plan, (ii) defer
compensation under any other elective deferred compensation plan, or (iii) pay
the cost of health or other benefits with pre-tax contribution, and excluding
all events payments made pursuant to stock appreciation rights, or otherwise
pursuant to any plan for the grant of stock options, stock, or other stock
rights.
“Plan
Actuarial Assumptions” means interest at an annual rate of 7% compounded
annually and the applicable mortality table in effect under section 417(e)(3)(A)
of the Code in November prior to the calendar year in which payment is to
begin.
“Specified
Employee” means “specified employee” as determined in accordance with the
procedures adopted by the Company in accordance with the Regulations for
purposes of its nonqualified deferred compensation plans subject to Section
409A.
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“Subsidiary”
means a subsidiary or affiliate that is a member of the same controlled group as
Arrow within the meaning of section 414(b) or (c) of the Code.
“Subsidiary
Change of Control Event” means a change in control event with respect to a
Subsidiary within the meaning of the Regulations, pursuant to which Arrow ceases
to have direct or indirect ownership of at least fifty-one percent (51%) of the
value of the total equity or total combined voting power in respect of the
Subsidiary.
“Years of
SERP Participation” means your years of participation to your retirement date in
the SERP as amended from time to time and in its predecessor plans, including
the Unfunded Pension Plan for Selected Executives of Arrow Electronics, Inc.
effective January 1, 1990. In addition, the determination of your income
replacement percentage as set forth in the letter or notice your receive as
described in Sections 1.3 and 1.4 may assume a minimum number of such years at
your normal retirement date (which need not be the same as your projected years
of service to normal retirement date). Years of SERP participation will be
calculated in years and fractions of a year in completed months. In
cases where the Board concludes that special circumstances so warrant (such as,
but not limited to, when an executive is hired from a prior employer and after
taking into account benefits accrued and/or lost under the prior employer’s
plans), you
may be granted additional years of SERP participation. Any such grant
shall be evidenced by written notice to the affected
participant.
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ARTICLE
V
Miscellaneous
5.1 Committee.
(a) The
Plan shall be administered by the Committee. The Committee shall have
the responsibility, power and discretion to make all determinations, including
as to matters of fact and construction and interpretation of the SERP,
authorized or required of it by the terms of the SERP or deemed useful in
carrying out its responsibilities hereunder. Except as the
Compensation Committee of the Board may otherwise determine, all such
determinations shall be final and binding on all persons. No member
of the Committee shall be entitled to act on or decide any matter relating
specifically to such member.
(b) The
Committee shall have all powers and discretion necessary or helpful for purposes
of administration of the SERP. Without limiting the generality of the
foregoing, the Committee shall have the power and discretion to determine the
benefits to which any participant, beneficiary, or spouse is or may become
entitled to under the SERP, and to adopt such rules and procedures as it deems
advisable to carry out its responsibilities hereunder.
(c) The
Committee shall adopt procedures for applying for benefits and appealing a
denial of benefits in accordance with applicable regulations under ERISA, under
which the final determination of such appeal shall be made by the Compensation
Committee of the Board.
(d) The
Committee may allocate any of its responsibilities, powers and discretion under
the SERP to one or more members of the Committee and delegate any of such
responsibilities, powers and discretion to persons not members of the Committee
(alone or together with one or more members of the Committee). The
actions taken by any member or members of the Committee or any other such
persons in the exercise of responsibilities, powers and discretion delegated
hereunder shall have the same valid and binding effect under the SERP as action
by the full Committee.
5.2 Direction to pay
benefits. All benefit payments under the SERP shall be upon
and in accordance with the written directions of the Committee or its
agent.
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5.3 Liability limited;
indemnification. The members of the Committee and each of them
shall be free from all liability, joint and several, for their acts and conduct,
and for the acts and conduct of any duly constituted agents. Arrow
shall indemnify and save them harmless from the effects and consequences of
their acts and conduct in such official capacity except to the extent that such
effects and consequences flow from their own willful
misconduct. Under no circumstances will members of the Committee be
personally liable for the payment of SERP benefits.
5.4 Payment to
incompetent. If any participant, beneficiary, or spouse
entitled to benefits under the SERP shall be legally incompetent (or shall be a
minor), such benefits may be paid in one or more of the following ways, as the
Committee in its sole discretion s hall determine:
(a) To
the legal representatives of the participant, beneficiary, or
spouse;
(b) Directly
to such participant, beneficiary, or spouse;
(c) To
the spouse or guardian of such participant, beneficiary, or spouse or to the
person with whom such participant, beneficiary, or spouse resides.
Payment
to any person in accordance with these provisions will, to the extent of the
payment, discharge Arrow, and none of the foregoing or the Committee will be
required to see to the proper application of any such
payment. Without in any manner limiting these provisions, in the
event that any amount is payable hereunder to any legally incompetent
participant, beneficiary, or spouse, the Committee may in its discretion utilize
the procedures described in the following section.
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5.5 Doubt as to right to
payment. If any doubt exists as to the right of any person to
any benefits hereunder or the amount of time of payment of such benefits
(including, without limitation, any case of doubt as to identity, or any case in
which notice has been received from any person claiming any interest in amounts
payable hereunder, or any case in which a claim from other persons may exist by
reason of community property or similar laws), the Committee will be entitled,
in its discretion, to direct that payment of such benefits be deferred until
order of a court of competent jurisdiction, or to pay such sum into court in
accordance with appropriate rules of law in such case then provided, or to make
payment only upon receipt of a bond or similar indemnification (in such amount
and in such form as is satisfactory to the Committee).
5.6 Withholding. All
payments under the SERP shall be subject to any applicable withholding
requirements imposed by any tax or other law.
5.7 Source of
payment. All benefits under the SERP shall be paid by Arrow
out of general assets, and any rights of a participant, beneficiary, or spouse
under the SERP shall be mere unsecured contractual rights. Arrow and
the participants intend that any arrangements made to assist Arrow to meet
obligations under the SERP shall be unfunded for tax purposes and for purposes
of Title I of ERISA, and no trust, security, escrow, or similar account shall be
established in connection with the SERP. Arrow has, however,
established a “rabbi trust” to assist in meeting its obligation to pay benefits
under the SERP, and amounts paid from any such rabbi trust shall discharge the
obligations of Arrow hereunder to the extent of the payments. No
participant, beneficiary, or spouse shall have a preferred claim on or
beneficial ownership interest in the assets of such rabbi trust. If a
participant shall be employed by a subsidiary of Arrow, the subsidiary shall be
jointly and severally liable with Arrow for the payment of benefits hereunder to
that participant, and references to “Arrow” in the preceding provisions of this
Section 5.7 shall include such subsidiary.
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5.8 Spendthrift
clause. Except as otherwise provided by law, no benefit,
distribution, or payment under the SERP may be anticipated, assigned (either at
law or in equity), alienated, or subject to attachment, garnishment, levy,
execution, or other legal or equitable process.
5.9 Reimbursement of legal
expenses. In the event that any dispute shall arise between a
participant and Arrow relating to rights under the SERP, and it is determined by
agreement between the parties, or by a final judgment of a court of competent
jurisdiction that is no longer subject to appeal, that the participant has been
substantially successful in such dispute, reasonable legal fees and
disbursements of the participant in connection with such dispute shall be paid
by Arrow.
5.10 Usage. Whenever
applicable, the singular, when used in the SERP, will include the
plural.
5.11 Data. Any
participant, beneficiary, or spouse entitled to benefits under the SERP must
furnish to the Committee such documents, evidence, or information as the
Committee considers necessary or desirable for the purpose of administering the
SERP.
5.12 Separability. If
any provision of the SERP is held invalid or unenforceable, its invalidity or
unenforceability will not affect other provisions of the SERP, and the SERP will
be construed and enforced as if such provision had not been included
therein.
5.13 Captions. The
captions contained herein are inserted only as a matter of convenience and for
reference and in no way define, limit, enlarge, or describe the scope or intent
of the SERP; nor shall they, in any way, affect the SERP or the construction of
any provision thereof.
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5.14 Name. The
SERP may be known as the Arrow Electronics, Inc. Supplemental Executive
Retirement Plan
5.15 Governing
law. The SERP is intended to constitute an unfunded plan of
deferred compensation 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
ERISA, and no individual shall be eligible to participate in the SERP unless he
is a member of such a group. If an individual formerly so eligible
ceases to be a member of such a group, his participation and accrual of
additional benefits shall be suspended, but benefits previously accrued shall
not be reduced thereby. Except to the extent preempted by federal
law, the SERP shall be construed and governed in all respects according to the
laws of the State of New York, where it is adopted, without regard to principles
of conflict of laws.
5.16 Right of discharge
reserved. The establishment of the SERP shall not be construed
to confer upon an employee or participant any legal right to be retained in the
employ of Arrow or give any employee or any other person any right to benefits,
except to the extent expressly provided hereunder. All employees will
remain subject to discharge to the same extent as if the SERP had never been
adopted, and may be treated without regard to the effect such treatment might
have upon them under the SERP.
5.17 Grantor trust
agreement/change of control. The powers, rights and duties of
the Trustee under any rabbi trust created for the purpose of assisting Arrow in
meeting its obligations under the SERP shall, following a “Change of Control” as
defined in the trust agreement for such Trust, govern and prevail to the extent
inconsistent with any of the provisions of the SERP, including without
limitation SERP provisions making the Committee’s determinations final and
binding (except as determined by the Compensation Committee of the Board), and
provisions giving the Committee power and discretion to invoke the procedures
described in Sections 5.4 and 5.5, to make the determinations and give
directions with respect to the payment of benefits as provided in Section 5.2
above, including adopting a claims procedure as described in Section
5.1(c). Arrow shall make such contributions to such Trust as shall be
required under the terms of such trust agreement, including, without limitation,
such contributions as may be required thereunder upon an individual
participant’s retirement or disability, or as may be required with respect to
all participants upon any Potential Change of Control or Change of Control as
such terms are defined in such trust agreement.
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5.18 Relationship to other
agreements. In the event that an employment or other agreement
with a participant substitutes a different or modified benefit formula or other
provisions for the income replacement target or certain other provisions of the
SERP, the benefits of such participants under the SERP shall be determined based
on the provisions of such agreement to the extent consistent with Section 409A
or the Regulations.
5.19 Acceleration Generally
Prohibited. No acceleration of payments under the SERP shall
be permitted except as authorized by the Regulations. Without
limiting the generality of the foregoing:
(1) Ethics or conflict of
interest requirements. Distribution may be accelerated as may
be necessary to comply with ethics or conflict of interest requirements in
accordance with Treasury Reg. § 1.409A-3(j)(4)(iii).
(2) Payment of employment
taxes. Distribution may be accelerated in order to pay the
Federal Insurance Contributions Act (FICA) tax imposed under section 3101,
section 3121(a) and section 3121(v)(2) of the Code on deferrals under the
SERP (the “FICA Amount”), Federal, state, local or foreign wage withholding
taxes on the FICA Amount, and additional wage withholding taxes attributable to
the pyramiding of wages subject to withholding and
taxes. Acceleration shall be permitted under this paragraph
(2) only to the extent that Committee determines that such tax
obligations cannot be readily met from other sources, and the total payment
under this paragraph (2) shall not exceed the aggregate of the FICA Amount and
related income tax withholding.
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To
evidence the adoption of this amended and restated Arrow Electronics, Inc.
Supplemental Executive Retirement Plan, the undersigned has, pursuant to
direction of the Management Pension and Investment Oversight Committee, under
authority given by the Compensation Committee the Board of Directors, has
executed this Plan document this 10th day of
December, 2009, effective as of January 1, 2009.
/s/ Peter S. Brown
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Senior
Vice President and General
Counsel
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