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8-K - FORM 8-K - WILMINGTON TRUST CORP | c10189e8vk.htm |
Exhibit 10.1
WILMINGTON TRUST CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Amended and Restated
Effective as of January 1, 2010
Effective as of January 1, 2010
Table of Contents
Page | ||||
Article I Purpose and Effective Date |
1 | |||
Article II Definitions |
1 | |||
2.01. Administrator |
1 | |||
2.02. Average Annual Compensation |
1 | |||
2.03. Board |
1 | |||
2.04. Code |
1 | |||
2.05. Company |
1 | |||
2.06. Compensation |
2 | |||
2.07. Early Retirement |
2 | |||
2.08. Eligible Spouse |
2 | |||
2.09. Employee |
2 | |||
2.10. Normal Retirement |
2 | |||
2.11. Participant |
2 | |||
2.12. Pension Plan |
2 | |||
2.13. Plan |
3 | |||
2.14. Plan Year |
3 | |||
2.15. Postponed Retirement |
3 | |||
2.16. Social Security Taxable Wage Base |
3 | |||
2.17. Trust |
3 | |||
2.18. Year of Participation |
3 | |||
Article III Eligibility for and Forfeiture of Plan Participation |
3 | |||
3.01. Commencement of Participation |
3 | |||
3.02. Termination for Cause |
4 | |||
3.03. Competition with Company |
4 | |||
3.04. Board Discretion |
4 | |||
3.05. Change in Control |
4 | |||
Article IV Types of Retirement and Elections |
6 | |||
4.01. Early Retirement |
6 | |||
4.02. Normal Retirement |
6 |
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Page | ||||
4.03. Postponed Retirement |
6 | |||
4.04. Notice of Early, Normal or Postponed Retirement |
6 | |||
4.05. Commencement of Benefits |
6 | |||
4.06. Separation from Service |
7 | |||
4.07. No Accelerations |
7 | |||
Article V Form of Benefits |
7 | |||
5.01. Form of Retirement Benefits |
7 | |||
5.02. Right to Elect |
8 | |||
5.03. Pre-Retirement Death Benefit for Eligible Participants |
8 | |||
5.04. No Death or Disability Benefits For Non-Eligible Participants |
8 | |||
Article VI Computation and Payment of Retirement Benefits |
8 | |||
6.01. Monthly Retirement Benefit |
8 | |||
6.02. Pension Plan Offset |
9 | |||
6.03. Early Retirement Reduction |
9 | |||
Article VII Vesting |
9 | |||
7.01. Vesting Over 15 Years of Participation |
9 | |||
7.02. Vesting At 55 Years of Age and 10 Years of Participation |
9 | |||
Article VIII Plan Administration |
9 | |||
8.01. Appointment of Administrator |
9 | |||
8.02. Authority of Administrator |
9 | |||
8.03. Expenses of Administrator |
10 | |||
8.04. Payment of Benefits |
10 | |||
8.05. Sufficiency of Assets in Trust |
10 | |||
8.06. Contributions to Trust/Investment of Trust Assets |
10 | |||
8.07. Indemnification |
10 | |||
Article IX Contributions |
10 | |||
9.01. Company Contributions |
10 | |||
Article X Maintenance of Accounts |
10 | |||
10.01. Separate Accounts |
10 | |||
10.02. No Interest in Assets |
11 | |||
Article XI Amendment and Termination of the Plan |
11 |
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Page | ||||
11.01. Board Amendment or Termination |
11 | |||
Article XII Claims Procedures |
12 | |||
12.01. Claims Procedure |
12 | |||
12.02. Review Procedures |
12 | |||
Article XIII Miscellaneous |
12 | |||
13.01. Anti-Alienation |
12 | |||
13.02. No Right to Continue Employment |
13 | |||
13.03. Applicable Law |
13 | |||
13.04. Headings |
13 | |||
13.05. Administrative Discretion |
13 |
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WILMINGTON TRUST CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Article I
Purpose and Effective Date
Purpose and Effective Date
The Wilmington Trust Corporation Supplemental Executive Retirement Plan is the former
Wilmington Trust Company Supplemental Executive Retirement Plan as amended and adopted by
Wilmington Trust Corporation. The purpose of this Plan is to provide supplemental retirement
benefits to certain senior management officers of the Company selected for Membership by the
Companys Board of Directors. Benefits provided by this Plan are intended to supplement benefits
provided by the Wilmington Trust Pension Plan. This Plan is intended to be an Excess Benefit Plan
as defined in Section 3(36) of the Employee Retirement Income Security Act of 1974 (ERISA) to the
extent that it provides benefits for selected employees in excess of the limitations on
contributions and benefits imposed by section 415 of the Internal Revenue Code of 1986 on plans to
which that section applies. To the extent that the Plan is not an Excess Benefit Plan, this Plan
is an unfunded deferred compensation plan for a select group of management or highly-compensated
employees of the Company within the meaning of Sections 201(2), 301(a) and 401(a) of ERISA. This
Plan and its attendant Trust were effective January 1, 1989 and the Plan has been amended from time
to time. This amendment and restatement is effective as of January 1, 2010.
Article II
Definitions
Definitions
The terms used in this Plan shall have the same meaning as ascribed to them in the Pension
Plan unless they are specifically defined differently below.
2.01. Administrator
means the group or individual appointed by the Company pursuant to Section 8.01.
2.02. Average Annual Compensation
for the purposes of Section 2.06 means a Participants Compensation for the highest paid
five (5) years of the final ten (10) years of the Participants employment with the Company.
2.03. Board
means the Board of Directors of Wilmington Trust Corporation and any designated committee
thereof to which it delegates its authority and discretion hereunder.
2.04. Code
- means the Internal Revenue Code of 1986 as amended from time to time.
2.05. Company
means Wilmington Trust Corporation, a Delaware Corporation, and any wholly-owned subsidiary
of Wilmington Trust Corporation.
2.06. Compensation
means the salary or wages and bonuses and incentive payments, including but not limited to
one-hundred percent (100%) of all awards under the
Wilmington Trust Company Participant Incentive Compensation Plan, of a Participant paid by the
Company as reported on Form W-2 or any substitute therefore, increased by any amounts deferred by
the Participant under the Wilmington Trust Thrift Savings Plan and increased by amounts
attributable to salary reduction under the Wilmington Trust Best Plan to the extent such amount is
not included in taxable income, and reduced by (i) any imputed amounts under the Code, and
regulations issued pursuant thereto, and (ii) amounts attributable to moving and travel expenses,
and tuition payments.
Compensation shall also include the Value of all restricted common stock of the Company
(Restricted Stock) that is granted to the Participant as a bonus, whether or not the Participant
recognizes any taxable income from the grant of Restricted Stock in the year of the grant and
regardless of whether the Participant is vested in such Restricted Stock. The Value of the
Restricted Stock for purposes of this Plan shall be the closing price of the Companys common stock
on the national exchange on which the Companys common stock is traded on the date that such
Restricted Stock is granted to a Participant. The restrictions on the Restricted Stock shall not
be taken into account when determining the Value of a Participants Restricted Stock for purposes
of this Plan. If a Participant subsequently forfeits any of the Restricted Stock granted to him or
her, the Value of the forfeited Restricted Stock as of the date of grant shall be deducted from the
Participants Compensation in the year in which the Restricted Stock that is forfeited was granted
to the Participant.
In the year in which a Participants employment terminates, any bonuses or incentive payments
(other than the Value of Restricted Stock) paid to the Participant after the Participants
employment terminates shall be attributed to the Participants last month of employment. Vacation
time that has been accrued but not taken shall not be taken into account for either service or
Compensation purposes.
2.07. Early Retirement
means the earliest date on which a Participant is eligible to receive early retirement
benefits under the Pension Plan.
2.08. Eligible Spouse
means the person who is legally married to the Participant throughout the one-year period
ending on the earlier of the date of such Participants death or on the date such Participants
benefits commence. A spouse shall not be considered an Eligible Spouse if at the time that the
spouses right to benefits otherwise would be determined or the spouse would be entitled to waive
benefits hereunder, it is established to the satisfaction of the Company that the spouse cannot be
located.
2.09. Employee
means any individual employed by the Company in a senior policy making position.
2.10. Normal Retirement
means the date on which a Participant attains age sixty-two (62) and completes at least five
(5) years of participation in the Plan.
2.11. Participant
- means those Employees selected by the Board for participation in this Plan.
2.12. Pension Plan
means the Wilmington Trust Pension Plan, as amended from time to time.
2
2.13. Plan
means the Wilmington Trust Corporation Supplemental Executive Retirement Plan.
2.14. Plan Year
means the period beginning on January 1 and ending on December 31 of each year.
2.15. Postponed Retirement
means the date after a Participants Normal Retirement on which the Participant can elect to
receive retirement benefits from the Pension Plan.
2.16. Social Security Taxable Wage Base
means the amount of earnings, as determined each year under the Social Security Act, subject
to the Social Security OASDI tax for Old Age, Survivors and Disability Income benefits.
2.17. Trust
means the depository adopted by the Company to hold the assets used to pay Plan benefits.
2.18. Year of Participation
means, for any Participant, each twelve (12) month
period during which the Employee is participating in the Plan, measured from the date that the
Employee initially becomes a Participant in the Plan or, if removed from the Plan by the Board
after participating in the Plan, the date that the Employee re-commences participation in the Plan,
and each anniversary thereafter. If an Employee who is participating in the Plan is removed from
participation in the Plan by the Board for any reason other than Termination for Cause under
Section 3.02(b) and is then designated by the Board to participate in the Plan once again, the
Board may, at its sole and absolute discretion, count the Years of Service during the period that
the Employee was not a Participant in the Plan after being removed by the Board from participation
in the Plan and before being designated by the Board to re-commence participation in the Plan.
Article III
Eligibility for and Forfeiture of Plan Participation
Eligibility for and Forfeiture of Plan Participation
3.01. Commencement of Participation. An Employee shall become a Participant in this Plan if designated for participation by the
Board, in its sole and absolute discretion. The Board shall document the selection of an Employee
as a Participant in the Plan by a written resolution of the Board. An Employee who has terminated
participation in the Plan pursuant to Section 3.02(a) of this Plan may, at the sole and absolute
discretion of the Board, be re-designated for participation in the Plan. If the Board
re-designates an Employee for participation in the Plan, the Board may, pursuant to Section 2.17 of
the Plan, grant to such Employee credit for the Years of Service following the Employees
termination of participation and before the Employees re-commencement of participation in the
Plan.
3
3.02. Termination for Cause.
(a) For any Reason. A Participant shall cease to be a Participant but shall retain any right
to benefits the Participant has earned under the Plan until such participation ends if the Board,
in its sole discretion, determines that the Employee shall no longer participate in the Plan
for any reason other than for Cause, as provided in paragraph (b) of this Section 3.02,
including but not limited to if the duties and responsibilities of the Employees position with the
Company no longer warrant the Employees participation in the Plan.
(b) For Cause. An Employee shall cease to be a Participant and shall forfeit the right to any
benefits under this Plan if the employment of the Participant with the Company is terminated for
Cause. For purposes of this Plan, a Participants employment is terminated for Cause if the
Participant (a) engaged in gross misconduct, dishonesty, or deliberate and premeditated acts
against the interest of the Company, (b) is convicted of a felony whether related or unrelated to
employment by the Company, or (c) repeatedly and substantially failed to perform the Participants
obligations and duties of employment after written or oral demands for such performance are given
to the Participant by the Company.
3.03. Competition with Company. Participation in this Plan shall also cease and all rights to any benefits under this Plan
shall be forfeited when a Participant, after Early, Normal, or Postponed Retirement, becomes an
employee, officer or a director of a competitor of the Company without consent of the Board. The
Board, in its sole and absolute discretion, shall determine if another entity or person is a
competitor for the purposes of this section.
3.04. Board Discretion. The Board shall have broad, sole and absolute discretion in making any determination under
Sections 2.17, 3.01, 3.02, and 3.03 hereof.
3.05. Change in Control.
(a) Nonforfeitability Upon Change in Control. Notwithstanding anything to the contrary
contained in this Article III, Article VII, or any other portion of this Plan, when a Change in
Control (as defined below) occurs, rights to receive benefits under this Plan for each Employee who
is a Participant in the Plan on the date such change occurs shall become fixed and one-hundred
percent (100%) vested and shall not be subsequently divested by the Board. All discretion of the
Board regarding the payment of benefits under this Plan shall be eliminated upon such Change in
Control or ownership. This Section 3.05 shall not be considered to create in the Plan Participants
any greater rights in the assets of the Company or the Trust than the Participants had before the
Change in Control occurred.
(b) Change in Control Defined. For purposes of this Section 3.05, a Change in Control shall
mean the occurrence of any of the following events, directly or indirectly or in one or more series
of transactions:
(1) A consolidation or merger of Wilmington Trust Company (Bank) or Wilmington Trust
Corporation (Parent) with any third party (which includes a single person or entity or a group of
persons or entities acting in concert) not wholly-owned, directly or indirectly, by Bank or Parent
(a Third Party), unless Bank or Parent is the entity surviving that merger or consolidation;
4
(2) A transfer of all or substantially all of the assets of Bank or Parent to a Third Party or
a complete liquidation or dissolution of Bank or Parent;
(3) A Third Party, without the prior approval of Banks or Parents Board, as the case may be,
directly or indirectly, through one or more subsidiaries or transactions:
(a) Acquires beneficial ownership of fifteen percent (15%) or more of any class of Banks or
Parents voting stock;
(b) Acquires irrevocable proxies representing fifteen percent (15%) or more of any class of
Banks or Parents voting stock;
(c) Acquires any combination of beneficial ownership of voting stock and irrevocable proxies
representing fifteen percent (15%) or more of any class of Banks or Parents voting stock;
(d) Acquires the ability to control in any manner the election of a majority of Banks or
Parents Board; or
(e) Acquires the ability to directly or indirectly exercise a controlling influence over the
management or policies of Bank or Parent;
(4) Any election of persons to Parents Board which causes a majority of Parents Board to
consist of persons other than (a) persons who were members of Parents Board on January 1, 2000
and/or (b) persons who were nominated for election as members of Parents Board by Parents Board
(or a committee thereof) at a time when the majority of Parents Board (or that committee)
consisted of persons who were members of Parents Board on January 1, 2000; provided, however, that
any person nominated for election by Parents Board (or a committee thereof), a majority of whom
are persons described in clauses (a) and/or (b), or are persons who were themselves nominated by
that Board (or a committee thereof), shall for this purpose be deemed to have been nominated by a
Board composed of persons described in clause (a) above; or
(5) A determination is made by any regulatory agency supervising Bank or Parent that a change
in control, as defined in the banking, insurance or securities laws or regulations then applicable
to Bank or Parent, has occurred.
Notwithstanding any provision herein to the contrary, a Change in Control shall not include any
of the events described above if they (i) are related to or occur in connection with the
appointment of a receiver or conservator for Bank or Parent, provision of assistance under Section
13(c) of the Federal Deposit Insurance Act (the FDI Act), the approval of a supervisory merger, a
determination that Bank is in default as defined in Section 3(x) of the FDI Act, insolvent or in an
unsafe or unsound condition to transact business or the suspension, removal and/or temporary or
permanent prohibition by a regulatory agency of a member of the Board from participation in the
conduct of Banks or Parents business; or (ii) are the result of a Third Party inadvertently
acquiring beneficial ownership of or irrevocable proxies for or a combination of both for fifteen
percent (15%) or more of any class of Banks or Parents voting stock, and that Third Party as
promptly as
practicable thereafter divests itself of the beneficial ownership of or irrevocable proxies for a
sufficient number of shares so that Third Party no longer has beneficial ownership or irrevocable
proxies or a combination of both for fifteen percent (15%) or more of any class of Banks or
Parents voting stock.
5
Article IV
Types of Retirement and Elections
Types of Retirement and Elections
4.01. Early Retirement. A Participant shall be eligible for Early Retirement under this Plan if the Participant is
eligible for Early Retirement under the Pension Plan.
4.02. Normal Retirement. A Participant shall be eligible for Normal Retirement under this Plan when the Participant
attains age sixty-two (62) and completes at least five (5) Years of Participation in the Plan.
4.03. Postponed Retirement. A Participant shall be eligible for Postponed Retirement under this Plan if the Participant
was eligible for Normal Retirement under the Pension Plan and, with the approval of the Board,
continues in the employ of the Company.
4.04. Notice of Early, Normal or Postponed Retirement. Sixty (60) days prior to a Participants Early or Normal Retirement, the Participant shall
make a written request to the Board which shall specify his intended Early or Normal Retirement
date. To elect Postponed Retirement, a Participant shall make a written request to the Board sixty
(60) days prior to Normal Retirement requesting Postponed Retirement. If the Participants request
for Postponed Retirement is granted by the Board, a Participant shall, sixty (60) days prior to
this Postponed Retirement date, make a written request to the Board which shall specify the
intended Postponed Retirement date. If the Participants request for Postponed Retirement is
denied by the Board, the Participant shall retire on the Participants Normal Retirement Date. All
requests made under this section shall be irrevocable once approved by the Board.
4.05. Commencement of Benefits. The monthly benefit of a Participant who is eligible for a benefit under this Plan shall be
computed as if such benefit commences on the first day of the month coincident with or next
following the later of the date that the Participant terminates employment or attains age 55 after
termination of employment. However, payments of benefits under this Plan shall not be made to a
Participant earlier than the date that is six (6) months after the date of the termination of the
Participants employment with the Company, or if earlier, the date of his or her death (Deferred
Payment Date). Any benefit payments that would have been paid to a Participant commencing on the
first day of the month coincident with or next following the later of the date that the Participant
terminates employment or attains age 55 after termination of employment but for the requirement
that no payment of benefits under this Plan may be made to a Participant earlier than the Deferred
Payment Date shall be paid to the Participant in one lump sum without interest as soon as
administratively feasible following the Deferred Payment Date.
6
4.06. Separation from Service. No distributions shall be made from this Plan to a Participant unless the Participant has a
Separation from Service. For purposes of this Plan, Separation from Service shall mean:
(a) The occurrence of a Participants death, retirement, or other termination of employment
(as defined in Treasury Regulations §1.409A-1(h)(1)) with the Company (as defined in Treasury
Regulations §1.409A-1(h)(3)).
(b) A Participant does not incur a Separation from Service if the Participant is on military
leave, sick leave, or other bona fide leave of absence if the period of such leave does not exceed
six (6) months or, if longer, the period for which a statute or contract provides the Participant
with the right to reemployment with the Company. If a Participants leave exceeds six (6) months
but the Participant is not entitled to reemployment under a statute or contract, the Participant
incurs a Separation from Service on the next day following the expiration of such six (6) month
period.
(c) A Participant will have incurred a Separation from Service where the Company and the
Participant reasonably anticipate that no further services will be performed after a certain date.
Notwithstanding the above, a Participant is presumed to have Separated from Service (whether as an
Employee or an Independent Contractor), when the level of bona fide services performed decreases to
a level equal to or less than twenty percent (20%) of the services performed by the Participant
during the immediately preceding thirty-six (36)-month period (or the full period of services to
the Company if the Participant has been providing services to the Company for less than thirty-six
(36) months). A Participant will be presumed not to have Separated from Service where the level of
bona fide services performed continues at a level that is fifty percent (50%) or more of the
average level of service performed by the Participant during the immediately preceding the
thirty-six (36)-month period (or the full period of services to the Company if the Participant has
been providing services to the Company for less than thirty-six (36) months).
4.07. No Accelerations. Notwithstanding anything in this Plan to the contrary, neither the Company nor a Participant
may accelerate the time or schedule of any payment or amount scheduled to be paid under this Plan,
except as otherwise permitted by Section 409A. The Company shall deny any change made to an
election if the Company determines that the change violates the requirements of Section 409A.
However, the Company may, in its sole discretion, choose to accelerate certain distributions under
this Plan to the extent permitted under Section 409A.
Article V
Form of Benefits
Form of Benefits
5.01. Form of Retirement Benefits.
(a) Normal Form. The Normal Form of retirement benefits payable under this Plan shall be
monthly payments payable for the Participants lifetime. Upon the Participants death, benefits
paid under this form shall cease.
7
(b) Post-Retirement Survivor Option. The alternative form of retirement benefit payable under
this Plan shall be monthly payments payable for the Participants lifetime
and, if the Participant pre-deceases his or her Eligible Spouse while receiving retirement
benefits from this Plan, the Participants surviving Eligible Spouse shall begin to receive a
survivor benefit payable for her the life of the surviving Eligible Spouse. Survivor benefits will
cease upon the death of the surviving Eligible Spouse. This survivor benefit shall be a monthly
payment equal to fifty-percent (50%) of the monthly payment the Participant was receiving prior to
the death of the Participant. Under this benefit option, the Participants normal retirement
benefit under this Plan shall be reduced by the applicable conversion factors specified in Appendix
A of the Pension Plan in order to provide the funding for the survivor benefit.
5.02. Right to Elect. A Participant shall have the right to elect the Normal Form or the Post Retirement Survivor
Option Form of benefit to be received from this Plan within the ninety 90 day period which precedes
the Participants retirement date. The election of benefit form, once made, is irrevocable. The
form of benefit selected shall be made on forms provided by the Administrator and shall be
consented to by the Participants Eligible Spouse as witnessed by a notary public.
5.03. Pre-Retirement Death Benefit for Eligible Participants. If a Participant, who on the date of his death is eligible to terminate employment and receive
a vested monthly benefit under this Plan, dies prior to termination of his employment with the
Company, the Plan shall pay to the surviving Eligible Spouse a monthly survivors benefit equal to
50% of the monthly benefit that would have been payable to the Participant (the Pre-Retirement
Death Benefit), calculated as if the Participant had terminated employment on the day immediately
preceding his date of death. Upon the death of the Eligible Spouse, the Pre-Retirement Death
Benefits shall cease. There shall be no other survivor, death or disability benefits payable to or
on behalf of who Participants are eligible to terminate employment with the Company on the date of
their death or disability and receive a vested benefit under this Plan. The provisions of Section
4.05 of this Plan requiring a Deferred Payment Date shall not be applicable to the Pre-Retirement
Death Benefit; the monthly Pre-Retirement Death Benefit shall commence within thirty (30) days of
the date of the Participants death and shall be retroactive to the first day of the month next
following or coincident with the death of the Participant.
5.04. No Death or Disability Benefits For Non-Eligible Participants. There shall be no survivor, disability or death benefits for any Participant who is not
eligible to terminate employment and receive a monthly benefit under this Plan at the time of his
death or disability.
Article VI
Computation and Payment of Retirement Benefits
Computation and Payment of Retirement Benefits
6.01. Monthly Retirement Benefit. The Monthly Retirement Benefit payable to a Participant under this Plan shall be (a) sixty
percent (60%) of a Participants Average Annual Compensation, (b) multiplied by a fraction the
numerator of which is the Participants Years of Participation in the Pension Plan (not to exceed
thirty (30)) and the denominator of which is thirty (30), (c) divided by twelve (12).
8
6.02. Pension Plan Offset. The amount of a Participants Monthly Retirement Benefit determined under Section 6.01
above shall be reduced by the monthly benefit the Participant is receiving or is eligible to
receive from the Pension Plan.
6.03. Early Retirement Reduction. If a Participant receives an Early Retirement Benefit before age sixty-two (62) under the
Pension Plan, the amounts calculated under Section 6.01 above (before any reduction for the monthly
benefit payable from the Pension Plan) shall be reduced in accordance with the reduction factors
set forth in the Pension Plan.
Article VII
Vesting
Vesting
7.01. Vesting Over 15 Years of Participation. A Participant shall become vested in the Monthly Retirement Benefit determined for the
Participant under Section 6.01 based upon the following schedule:
Year of Participation in the Plan | Vested % | |||
0-5th Year |
0.0 | % | ||
6th Year |
40.0 | % | ||
7th Year |
46.7 | % | ||
8th Year |
53.3 | % | ||
9th Year |
60.0 | % | ||
10th Year |
66.7 | % | ||
11th Year |
73.3 | % | ||
12th Year |
80.0 | % | ||
13th Year |
86.7 | % | ||
14th Year |
93.3 | % | ||
15th and later |
100.0 | % |
7.02. Vesting At 55 Years of Age and 10 Years of Participation. Notwithstanding the provisions of Section 7.01, upon attaining age fifty-five (55) and
completing ten (10) Years of Participation in the Pension Plan, a Participant shall become
one-hundred percent (100%) vested in such Participants Monthly Retirement Benefit.
Article VIII
Plan Administration
Plan Administration
8.01. Appointment of Administrator. The Company will appoint an Administrator who shall be responsible for ministerial,
nondiscretionary acts associated with this Plan, including but not limited to determining the
amount and payment of retirement benefits.
8.02. Authority of Administrator. With the consent of the Board, the Administrator may engage such agents and advisors as it
deems necessary to carry out its administrative responsibilities under the Plan.
9
8.03. Expenses of Administrator. The expenses of the Plan shall be borne solely by the Company to the extent such expenses
are not paid from the Trust Fund.
8.04. Payment of Benefits. The Administrator, at the direction of the Company, shall instruct the Trustee as to the
commencement, cessation, amount and payment of benefits due a Participant from the Trust. The
Administrator shall not be required to assure that the Company makes contributions to the Trust at
a level or in an amount sufficient to pay benefits.
8.05. Sufficiency of Assets in Trust. The Company shall have the sole and exclusive responsibility to assure that there are
sufficient assets in the Trust in order to pay Participant benefits when due. To the extent Trust
assets are insufficient to pay Participant benefits, the Company shall contribute the necessary
amounts from its general assets to the Trustee.
8.06. Contributions to Trust/Investment of Trust Assets. The Company shall have the sole and exclusive responsibility for making contributions to
the Trust to provide benefits and for directing the Trustee as to the investment of the assets held
in the Trust.
8.07. Indemnification. The Administrator and the Trustee shall be fully indemnified and held harmless by the
Company for all actions taken pursuant to this Plan at the direction of the Company.
Article IX
Contributions
Contributions
9.01. Company Contributions. The Company shall contribute cash or property to the Trust in such amounts and at such
times as, in its sole discretion, it deems necessary.
Article X
Maintenance of Accounts
Maintenance of Accounts
10.01. Separate Accounts. The Company shall maintain a separate account on its books for amounts held for the benefit
of each Participant in the Trust (the Account) which shall be held, administered and accounted
for separately for each Participant. Separate accounting records shall be maintained so that the
amount held in each Participants Account shall be identifiable at all times. Each Account shall
consist of, and be increased by, contributions made by the Company which are designated by the
Company as the property of such Account and shall be decreased by distributions made therefrom.
The Company shall make contributions to the Trust and credit such Accounts from time to time in its
sole discretion. In addition, the Company shall allocate and credit the Net Income of the Trust to
the Accounts of Participants on the last day of each calendar year (the Allocation Date), pro
rata based on the respective Account balance of each Participant on such date. If, as a result of
the foregoing, all or a portion of any Net Income otherwise allocable to the Account of any
Participant on the Allocation Date cannot be so allocated, such Net Income shall be allocated and
credited to the Accounts of all other Participants pro rata, based on the respective Account
balances of each Participant on such Allocation Date (determined without regard to the allocation
of any Net Income to such Accounts on such date). For purposes of the foregoing, Net Income shall
mean the net gain or loss of the Trust from investments, as reflected
by interest payments, dividends, realized and unrealized gains and losses on securities, other
investment transactions and expenses paid from the Trust. In determining the Net Income of the
Trust as of any date, assets shall be valued on the basis of their then fair market value.
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10.02. No Interest in Assets. Nothing in Section 10.01 shall be construed as creating any right, title or interest in or
to any assets in the Trust or assets of the Company.
Article XI
Amendment and Termination of the Plan
Amendment and Termination of the Plan
11.01. Board Amendment or Termination. The Board reserves the right to amend or terminate this Plan at any time without the
consent of any Participant except, however, that no such amendment or termination will affect the
irrevocability of the Trust or the Companys obligation to pay benefits to Participants.
(a) The Board reserves the right to amend this Plan at any time to comply with Section 409A
and the Regulations thereunder or for any other purpose, provided that such amendment will not
cause the Plan to violate the provisions of Section 409A. Except to the extent necessary to bring
this Plan into compliance with Section 409A no amendment or modification may permit the
acceleration of payments of any installments or deferred amounts as provided in the Plan.
(b) If the Board terminates this Plan, such termination must be in accordance with the
following restriction imposed by Section 409A and the Regulations thereunder:
(1) All plans sponsored by the Company that would be aggregated with any terminated
arrangements under Treasury Regulations §1.409A-1(c) are terminated;
(2) No payments, other than payments that would be payable under the terms of this Plan if the
termination had not occurred, are made within twelve (12) months of this Plan termination;
(3) All payments are made within twenty-four (24) months of this Plan termination;
(4) Neither the Company nor any of its affiliates adopts a new plan that would be aggregated
with any terminated plan if the same Participant participated in both arrangements at any time
within three (3) years following the date of termination of this
Plan; and
(5) The termination does not occur proximate to a downturn in the financial health of the
Company.
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Article XII
Claims Procedures
Claims Procedures
12.01. Claims Procedure. The Company shall notify a Participant or a Participants beneficiary in writing, within
ninety (90) days of his or her written application for benefits, of his or her eligibility or
ineligibility for benefits under this Plan. If the Company determines that a Participant or a
Participants beneficiary is not eligible for benefits or full benefits, the notice shall set forth
(a) the specific reasons for such denial; (b) a specific reference to the provisions of the Plan on
which the denial is based; (c) a description of any additional information or material necessary
for the claimant to perfect his or her claim, and a description of why it is needed; and (d) an
explanation of the Plans claims review procedure and other appropriate information as to the steps
to be taken if a Participant or a Participants beneficiary wishes to have the claim reviewed. If
the Company determines that there are special circumstances requiring additional time to make a
decision, the Company shall notify the Participant or Participants beneficiary of the special
circumstances and the date by which a decision is expected to be made, and may extend the time for
up to an additional ninety (90) day period.
12.02. Review Procedures. If a Participant or Participants beneficiary is determined by the Company not to be
eligible for benefits, or if a Participant or a Participants beneficiary believes that he or she
is entitled to greater or different benefits, the Participant or the Participants beneficiary
shall have the opportunity to have such claim reviewed by the Company by filing a written petition
for review with the Company within sixty (60) days after receipt of the notice issued by the
Company. Said petition shall state the specific reasons which the Participant or the Participants
beneficiary believes entitle him or her to benefits or to greater or different benefits. Within
sixty (60) days after receipt by the Company of the petition, the Company shall afford the
Participant or the Participants beneficiary an opportunity to present his or her position to the
Company orally or in writing, and the Participant or the Participants beneficiary shall have the
right to review the pertinent documents. The Company shall notify the Participant or the
Participants beneficiary of its decision in writing within the sixty (60) day period, stating
specifically the basis of its decision, written in a manner calculated to be understood by the
Participant or the Participants beneficiary and the specific provisions of the Plan on which the
decision is based. The Company, in its sole discretion, may elect to hold a hearing before the
Board of Directors or a hearing officer, who will make a recommendation to the Board.
The Claims Procedures of this Article XII shall apply only to those benefits that the
Administrator determines are not Excess Benefits.
Article XIII
Miscellaneous
Miscellaneous
13.01. Anti-Alienation. No right or claim to any portion of the benefits payable under the Plan shall be assignable
or alienable by a Participant nor shall a Participants benefit be subject to garnishment,
attachment, execution or levy.
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13.02. No Right to Continue Employment. Nothing contained herein shall be construed as conferring upon any Employee the right to
continue in the employ of the Company in any capacity whatsoever.
13.03. Applicable Law. To the extent not preempted by federal law, the provisions of this Plan shall be governed
and construed in accordance with Delaware law.
13.04. Headings. The headings in this document are for convenience of reference only and shall have no
effect upon the meanings of the provisions hereof.
13.05. Administrative Discretion. In addition to the discretion granted to the Board under Section 3.04 of this Plan, the
Board shall have the exclusive discretion and authority to establish rules, forms, and procedures
for the administration of the Plan, to construe and interpret the Plan, and to decide any and all
questions of fact, interpretation, definition, computation, or administration arising in connection
with the operation of the Plan, including, but not limited to, the eligibility to participate in
the Plan and amount of benefits payable under the Plan. The rules, interpretations, computations,
and other actions of the Board shall be binding and conclusive on all persons.
IN WITNESS WHEREOF, Wilmington Trust Corporation has caused this amended Plan to be executed
this 22nd day of December, 2010.
ATTEST: | WILMINGTON TRUST CORPORATION | |||||||
/s/ Michael A. DiGregorio
|
By: | /s/ David R. Gibson | ||||||
Corporate Seal |
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