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SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN 2000
EXHIBIT 10(h)
21st CENTURY INSRUANCE GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
21ST CENTURY INSURANCE GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
1. Purpose
-------
The principal objective of this Supplemental Executive Retirement Plan (the
"Plan") is to ensure the payment of a competitive level of retirement income in
order to attract, retain and motivate selected executives. The Plan is designed
to provide a benefit which, when added to other retirement income of the
executive, will meet the objective described above. The Plan is intended and
designed to constitute an unfunded arrangement, described in Section 4(b)(5) of
the Employee Retirement Income Security Act of 1974, maintained for the purpose
of providing benefits for certain employees in excess of the limitations on
contributions and benefits imposed by Section 415 of the Internal Revenue Code
of 1986. Eligibility for participation in the Plan shall be limited to
executives selected by a committee of the Board of Directors. This instrument
represents an amendment and restatement of the 21st Century Insurance Group
Executive Financial Security Plan For Executive Management, as adopted effective
___________________ and amended and restated effective January 1, 2000.
2. Definitions
-----------
The following definitions, set forth in alphabetical order, are used
throughout the Plan. Whenever words or phrases have initial capital letters in
the Plan, a special definition for those words or phrases is set forth below.
(a) "Compensation" means base salary and cash bonus.
(b) "Beneficiary" means the person, persons or entity last
designated in accordance with the provisions of Section 6(b) to receive
distribution of survivor benefits under the Plan in the event of the death of
the Executive or Participant, or if there is no properly designated Beneficiary
surviving, the person, persons or entity designated in Section 6(b) to receive
the distribution of survivor benefits under the Plan.
(c) "Board of Directors" means the Board of Directors of 21st
Century Insurance Group.
(d) "Change in Control" means, after the effective date of this
Plan:
(i) There shall be consummated (A) any consolidation or
merger of the Company in which the Company is not the continuing or surviving
corporation or pursuant to which shares of the Company's common stock would be
converted into cash, securities or other property, other than a merger of the
Company in which the holders of the Company's common stock immediately prior to
the merger have the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (B) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company; or
(ii) The stockholders of the Company approve a plan or
proposal for the liquidation or dissolution of the Company; or
1
(iii) Any "person" (as defined in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) other than
a person owned by or directly or indirectly managed by the Company, shall become
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of 25 percent or more of the Company's outstanding
common stock; or
(iv) During any period of two consecutive years, individuals
who at the beginning of such period constitute the entire Board of Directors of
the Company shall cease for any reason to constitute a majority thereof unless
the election, or the nomination for election by the Company's stockholders, of
each new director was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of the period.
(e) "Code" means the Internal Revenue Code of 1986, as in effect
on the date of execution of this Plan document and as thereafter amended from
time to time.
(f) "Committee" means the 21st Century Insurance Group Company
Nonqualified Supplemental Benefit Committee.
(g) "Company" means 21st Century Insurance Group and any other
entity selected by the Board of Directors for inclusion in the Plan.
(h) "Disabled Participant" means an Executive who the Committee
determines is unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment. An individual's
disabled status shall be determined by the Committee, based on such evidence as
the Committee determines to be sufficient, including, but not limited to,
examination at the Company's expense by a physician of the Company's choice.
(i) "Early Retirement Date" means any retirement date following
the Participant's 55th birthday provided that the Participant has at least 10
Years of Service and such retirement date is before the Normal Retirement Date.
(j) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
(k) "Executive" means officers of the Company or management or
highly compensated employees of the Company who have been specifically
designated by the Board of Directors as eligible to become a Participant in this
Plan, such designation not having been revoked. The Board of Directors shall
have the power to make or revoke such designation in its sole discretion, and
any designation or revocation by the Board of Directors shall be binding and
final upon all employees, Beneficiaries and other interested persons. If an
individual's designation as an Executive is revoked, the individual shall cease
to be an Executive for all purposes of this Plan, without regard to whether such
individual may be an executive for any other purpose relating to his/her
employment or other benefits.
(l) "Final Average Compensation" means the average annual
Compensation during the 3 year period preceding retirement or death.
(m) "Normal Retirement Benefit" means the normal retirement
benefit provided under the Qualified Plan.
2
(n) "Normal Retirement Date" means the first day of the month
coinciding with or next following the Participant's 65th birthday.
(o) "Participant" means an Executive who has been designated by
the Board of Directors to be eligible to qualify for benefits under this Plan.
(p) "Participant's Survivor Benefit" means the benefit payable to
the Beneficiary of a deceased Participant, as described in Section 5.
(q) "Qualified Plan" means the 21st Century Insurance Group
Pension Plan, as amended from time to time, which is a defined benefit pension
plan qualified under Section 401(a) of the Code.
(r) "Retirement Benefit" means the benefit described in Section 3.
(s) "Social Security Benefit" means the estimated primary old age
insurance benefit the Participant is or would be entitled to receive on his/her
retirement date, based on the provisions of the Social Security Act as in effect
at his/her termination of employment, In the case of retirement before the
earliest date the Participant is eligible to receive a Social Security benefit,
"Social Security Benefit" is the benefit payable as of the earliest date the
Participant will be eligible to receive a Social Security benefit, assuming
he/she has no compensation after his/her termination of employment, In the case
of retirement after the earliest date the Participant is eligible to receive a
Social Security benefit, the "Social Security Benefit" is the benefit payable as
of the Participant's actual retirement date.
In the case of a benefit payable to a Beneficiary, the "Social
Security Benefit" is the benefit that is (or would have been) payable to the
Participant as determined under the preceding paragraph.
However, the benefit as determined in Section 3(a) will not be reduced
by such Social Security Benefit until the Participant attains the earliest age
at which he/she is eligible to receive a Social Security benefit. In the case
of a benefit payable to a Beneficiary, the benefit as determined in Section 3(a)
will not be reduced by such Social Security Benefit until the date the
Beneficiary attains the earliest age at which he/she is eligible to receive a
Social Security benefit.
(t) "Year of Service" means a 12-consecutive month period
commencing on the Executive's date of hire by the Company, subsidiary of the
Company or any business entity which became a part of the Company or subsidiary
of the Company.
3. Retirement Income Benefits
--------------------------
(a) Normal Retirement. A Participant who retires on his/her
-----------------
Normal Retirement Date shall be entitled to a Retirement Income Benefit in the
form of a monthly benefit, payable for one hundred eighty (180) months,
commencing at Normal Retirement Date payable to the Participant or his/her
Beneficiary equal to:
(i) 60% of his/her Final Average Compensation provided such
participant has completed 15 Years of Service. In the event such Executive has
not completed 15 Years of Service, such Retirement Income Benefit shall be
3
reduced by 5% for each year of Service less than 15 years of Service. (In no
event shall such benefit be less than fifty percent (50%) of the benefit payable
if the Participant had completed 15 Years of Service;)
(ii) Reduced by the annual amount of the Participant's
benefit under the Qualified Plan calculated as if payment were made as a Single
Life Annuity as defined in the Qualified Plan.
(iii) Further reduced by 50% of the Participants Social
Security Benefit.
(b) Optional Form of Benefit
------------------------
A Participant who is entitled to a Retirement Income Benefit in
accordance with Subsection (a) above, may elect to have his/her benefit payable
in a 100 percent joint and survivor annuity which is the actuarial equivalent of
the benefit described in Subsection (a) above. Such election must be in the
form prescribed by the Committee and no later than 90 days after termination of
employment.
(c) Early Retirement
----------------
A Participant who retires prior to his/her Normal Retirement Date, but
after reaching his/her Early Retirement Date, shall be entitled to a Retirement
Income Benefit payable in the normal form of a monthly benefit, payable for one
hundred eighty (180) months, commencing on his/her Early Retirement Date payable
to the Participant equal to the Retirement Income Benefit as calculated under
Sections 3(a)(i), (ii) and (iii), but reduced by five percent (5%) for each year
retirement occurs prior to the Participant attaining age sixty-five (65)
4. Change in Control
-----------------
(a) Termination of Employment Within Three Years After a Change in
--------------------------------------------------------------
Control
-------
If such Participant's employment terminates for any reason within
three years after a Change in Control but prior to his/her Normal Retirement
Date, such Participant shall be entitled to a Retirement Income Benefit in the
form of a monthly benefit commencing on the first day of the month following
such termination of employment, payable to the Participant for one hundred
eighty months (180) which is calculated in accordance with Section 3(a) and
reduced to reflect early retirement in accordance with Section 3(c).
(b) Termination of Employment at any Time After Change in Control
-------------------------------------------------------------
If such Executive's employment terminates at any time after a Change
in Control, but prior to his/her Normal Retirement Date, such Executive shall be
entitled to a Retirement Income Benefit payable on the first day of the month
following such termination of employment, in the form of a lump sum distribution
actuarially determined to be the present value of the amount calculated in
accordance with Section 3(a) and reduced to reflect early retirement in
accordance with Section 3(c); unless such termination of employment is by the
Company for Cause, as defined in Paragraph (i) below, or by the Executive other
than for Good Reason, as defined in Paragraph (ii) below.
4
(i) Termination by the Company of an Executive's employment
for "Cause" shall mean termination upon (A) the willful and continued failure by
the Executive to substantially perform his/her duties with the Company (other
than any such failure resulting from his/her incapacity due to physical or
mental illness or any such actual or anticipated failure after the issuance of a
notice of termination, by the Executive for Good Reason, as defined in Paragraph
(ii) below), after a written demand for substantial performance is delivered to
the Executive by the Board of Directors, which demand specifically identifies
the manner in which the Board believes that the Executive has not substantially
performed his/her duties, or (B) personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order. For purposes of this
Paragraph (i), no act, or failure to act, on the part of an Executive shall be
deemed "willful" unless done, or omitted to be done, by him/her not in good
faith and without reasonable belief that his/her action or omission was in the
best interest of the Company. Notwithstanding the foregoing, the Executive
shall not be deemed to have been terminated for Cause unless and until there
shall have been delivered to him/her a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters (3/4) of the entire membership
of the Board of Directors at a meeting of the Board called and held for such
purpose (after reasonable notice to the Executive and an opportunity for the
Executive, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board the Executive was guilty of conduct set
forth above in Subparagraph (A) or (B) of the first sentence of this Paragraph
and specifying the particulars thereof in detail.
(ii) An Executive shall be entitled to terminate his/her
employment for Good Reason. For purposes of this Plan Agreement, "Good Reason"
shall mean, without the Executive's express written consent, the occurrence
after a Change in Control of any of the following circumstances unless, in the
case of Subparagraph (A), (E) or (F), such circumstances are fully corrected
prior to the Executive's date of termination notice given in respect thereof:
(A) the assignment to the Executive of any duties
inconsistent with his/her status as a senior executive officer of the Company or
a substantial adverse alteration in the nature or status of his/her
responsibilities from those in effect immediately prior to the Change in
Control;
(B) a reduction by the Company in the Executive's annual
base salary as in effect on the date hereof or as the same may be increased from
time to time except for across-the-board salary reductions similarly affecting
all senior executives of the Company and all senior executives of any person in
control of the Company;
(C) the Company requiring the Executive to be based
anywhere outside the greater Los Angeles Metropolitan Area other than an office
of the Company within a twenty-five (25) mile radius of the Executive's
principal place of employment by the Company on the date of a Change in Control,
except for required travel on the Company's business to an extent substantially
consistent with the Executive's present business travel obligations;
(D) the failure by the Company, without the Executive's
consent, to pay to him/her any portion of his/her current compensation except
pursuant to an across-the-board compensation deferral similarly affecting all
senior executives of the Company and all senior executives of any person in
control of the Company, or to pay to him/her any portion of an installment of
5
deferred compensation under any deferred compensation program of the Company,
within seven (7) days of the date such compensation is due;
(E) the failure by the Company to continue in effect any
compensation plan in which the Executive participates immediately prior to the
Change in Control which is material to the Executive's total compensation,
including but not limited to this Plan, the Qualified Plan or any similar plans
adopted prior to the Change in Control, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been made with
respect to such plan, or the failure by the Company to continue the Executive's
participation therein (or in such substitute or alternative plan) on a basis not
materially less favorable, both in terms of the amount of benefits provided and
the level of the Executive's participation relative to other participants, as
existed at the time of the Change in Control;
(F) the failure by the Company to continue to provide
the Executive with benefits substantially similar to those enjoyed by the
Executive under any of the Company's pension, life insurance, medical, health
and accident, or disability plans in which he/she was participating at the time
of the Change in Control, the taking of any action by the Company which would
directly or indirectly materially reduce any of such benefits or deprive the
Executive of any material fringe benefit enjoyed by such Executive at the time
of the Change in Control, or the failure by the Company to provide the Executive
with the number of paid vacation days to which the Executive is entitled in
accordance with the Company's vacation policy applicable to the Executive at the
time of the Change in Control.
(c) Legal Fees
----------
The Company shall pay to the Executive or his/her Beneficiary legal fees
and expenses incurred by such Executive or his/her Beneficiary in seeking to
obtain or enforce as against the Company any right or benefit provided under
this Section 4 of the Plan after a Change in Control.
5. Death Benefits: Participant's Survivor Benefit
-----------------------------------------------
The Beneficiary of a Participant who dies while a Participant and who has
reached Normal Retirement Date or Early Retirement Date shall be entitled to
receive a Participant's Survivor Benefit consisting of benefits calculated in
accordance with Section 3(a) if such Participant had reached Normal Retirement
Date prior to his/her death or with Section 3(c) if such Participant had reached
Early Retirement Date prior to his/her death.
6. Additional Provisions
---------------------
(a) Benefit Agreement
-----------------
The Committee shall provide to each Executive within 60 days of the
later of the date of execution of the Plan or the date the employee first became
an Executive a form of benefit agreement, which shall set forth the Executive's
acceptance of the benefits provided hereunder and his/her agreement to be bound
by the terms of the Plan.
(b) Designation of Beneficiary
--------------------------
6
(i) A Participant shall designate a primary Beneficiary to
receive any survivor benefits payable under the Plan, and may designate a
contingent Beneficiary to receive any survivor benefits payable under this Plan
in the event of the death of the primary Beneficiary, either before or after
benefits commence to be paid. Notwithstanding the foregoing, a Participant may
authorize a designated Beneficiary to designate a successor Beneficiary to
receive any survivor benefits remaining to be paid to such Beneficiary under the
Plan following the death of such Beneficiary. If a Participant exercises
his/her right to authorize a designated Beneficiary to designate a successor
Beneficiary under the Plan, any prior designation of a contingent Beneficiary
with respect to such benefits shall be invalid.
(ii) Whenever a Participant designates a Beneficiary to
receive benefits under this Plan or authorizes a Beneficiary to designate a
successor Beneficiary to receive benefits under this Plan, such designation or
authorization shall be made by the execution and delivery to the Committee,
prior to the Participant's death, of an instrument in a form satisfactory to the
Committee. If a Participant with a spouse designates as a primary Beneficiary a
person other than or in addition to that spouse, unless such spouse shall
consent to such designation in writing, the primary Beneficiary of the
Participant shall be such spouse. If a deceased Participant shall have failed
properly to designate a Beneficiary, or if the Committee shall be unable to
locate a designated Beneficiary after reasonable efforts have been made, or if
for any reason such designation shall be legally ineffective, or if no
Beneficiary shall have survived the Participant, the designated Beneficiary
shall be the estate of the Participant.
The Beneficiary of a Participant who dies shall receive a
Participant's survivor benefit in accordance with the following schedules:
(i) Retired Participant-Payouts to the Beneficiary shall
continue until payments from the plan to the Participant prior to death and to
the Beneficiary after the Participant's death, for a total of 180 months.
(ii) Participants over age 65 who have not retired-Payouts
shall be made to the Beneficiary for 180 months.
(iii) Participants over age 55 with 10 years of service who have
not reached age 65-Payouts to the Beneficiary shall be made for 180 months,
reduced by 5% for each full year that the Participant's age on date of death
precedes age 65.
(c) Exclusion of Suicide or Self-Inflicted Injury
---------------------------------------------
Notwithstanding any other provision of the Plan, no benefits shall be
paid to any Participant, or spouse or Beneficiary in the event of the death of
the Participant within two years of the later of the date he/she first became a
Participant or the date he/she executed the benefit agreement referred to in
Subsection (a) as the result of suicide or self-inflicted injury.
(d) Leave of Absence
----------------
Participant who is on an approved leave of absence with salary, or on
an approved leave of absence without salary for a period of not more than six
months, shall be deemed to be a Participant employed by the Company during such
leave of absence, subject to the approval of the Committee. A Participant who
7
is on an approved leave of absence without salary-for a period in excess of six
months shall be deemed to have voluntarily terminated his/her employment, for
purposes of this Plan, as of the end of such six-month period.
(e) Disability
----------
A Disabled Participant shall be eligible to receive a Retirement
Income Benefit calculated in accordance with Section 3(a) if such executive
reached Normal Retirement Date or in accordance with Section 3(c) if such
Participant reached Early Retirement Date.
(f) Monthly Payments
----------------
Periodic payments hereunder shall be paid in equal monthly amounts.
(g) Withholding
-----------
Benefit payments hereunder shall be subject to applicable federal,
state or local withholding for taxes.
7. Funding of Benefits
-------------------
The Plan shall be unfunded. All benefits payable under the Plan shall be
paid from the Company's general assets, and nothing contained in the Plan shall
require the Company to set aside or hold in trust any funds for the benefit of a
Participant or his/her Beneficiary, who shall have the status of a general
unsecured creditor with respect to the Company's obligation to make payments
under the Plan. Any funds of the Company available to pay benefits under the
Plan shall be subject to the claims of general creditors of the Company and may
be used for any purpose by the Company.
8. Administration of the Plan
--------------------------
(a) The Committee
-------------
The appointment, removal and resignation of members of the Committee
shall be governed by the Board of Directors.
The Committee shall administer the Plan and shall keep a written
record of its action and proceedings regarding the Plan and all dates, records
and documents relating to its administration of the Plan.
The Committee is authorized to interpret the Plan, to make, amend and
rescind such rules as it deems necessary for the proper administration of the
Plan, to make all other determinations necessary or advisable for the
administration of the Plan and to correct any defect or supply any omission or
reconcile any inconsistency in the Plan in the manner and to the extent that the
Committee deems desirable to carry the Plan into effect. The powers and duties
of the Committee shall include without limitation, the following:
(i) Resolving all questions relating to the eligibility of
Executives to become Participants;
8
(ii) Determining the amount of benefits payable to
Participants or their Beneficiaries and authorizing and directing the Company
with respect to the payment of benefits under the Plan;
(iii) Construing and interpreting the Plan whenever necessary
to carry out its intention and purpose and making and publishing such rules for
the regulation of the Plan as are not inconsistent with the terms of the Plan;
(iv) Compiling and maintaining all records it determines to
be necessary, appropriate or convenient in connection with the administration of
the Plan; and
(v) Engaging any administrative, actuarial, legal, medical,
accounting, clerical, or other services it may deem appropriate to effectuate
the Plan.
Any action taken or determination made by the Committee shall, except
as otherwise provided in Section 10 below, be conclusive on all parties. No
members of the Committee shall vote on any matter affecting such member.
(b) Expenses of the Committee
-------------------------
The expenses of the Committee properly and actually incurred in the
performance of its duties under the Plan shall be paid by the Company.
(c) Bonding and Compensation
------------------------
The members of the Committee shall serve without bond, and without
compensation for their services as Committee members except as the Board of
Directors may provide in its discretion.
(d) Information to be Submitted to the Committee
--------------------------------------------
To enable the Committee to perform its functions, the Company shall
supply full and timely information to the Committee on all matters relating to
Executives and Participants as the Committee may require, and shall maintain
such other records as the Committee may determine are necessary in order to
determine the benefits due, or which may become due to Participants or their
Beneficiaries under the Plan. The Committee may rely on such records as
conclusive with respect to the matters set forth therein.
(e) Notices, Statements and Reports
-------------------------------
21st Century shall be the "administrator" of the Plan as defined in
Section 3(16)(A) of ERISA for purposes of the reporting and disclosure
requirements imposed by ERISA and the Code. The Committee shall assist 21st
Century, as requested, in complying with such reporting and disclosure
requirements.
(f) Service of Process
------------------
The Committee may from time to time designate an agent of the Plan for
the service of legal process. The Committee shall cause such agent to be
identified in materials it distributes or causes to be distributed when such
identification is required under applicable law. In the absence of such a
9
designation, 21st Century shall be the agent of the Plan for the service of
legal process.
(g) Insurance
---------
21st Century, in its discretion, may obtain, pay for and keep current
a policy or policies of insurance, insuring the Committee members, the members
of the Board of Directors and other employees to whom any responsibility with
respect to the administration of the Plan has been delegated against any and all
costs, expenses and liabilities (including attorneys' fees) incurred by such
persons as a result of any act, or omission to act, in connection with the
performance of their duties, responsibilities and obligations under the Plan and
any applicable law.
(h) Indemnity
---------
If 21st Century does not obtain, pay for and keep current the type of
insurance policy or policies referred to in Subsection (g), or if such insurance
is provided but any of the parties referred to in Subsection (g) incur any costs
or expenses which are not covered under such policies, then the Company shall
indemnify and hold harmless, to the extent permitted by law, such parties
against any and all costs, expenses and liabilities (including attorneys' fees)
incurred by such parties in performing their duties and responsibilities under
this Plan, provided that such party or parties were not guilty of willful
misconduct, In the event that such party is named as a defendant in a lawsuit or
proceeding involving the Plan, the party shall be entitled to receive on a
current basis the indemnity payments provided for in this Subsection, provided
however that if the final judgment entered in the lawsuit or proceeding holds
that the party is guilty of willful misconduct with respect to the Plan, the
party shall be required to refund the indemnity payments that it has received.
9. Claims Procedure
----------------
(a) Filing Claim for Benefits
-------------------------
If a Participant or Beneficiary (hereinafter referred to as the
"Applicant") does not receive the timely payment of the benefits which the
Applicant believes are due under the Plan, the Applicant may make a claim for
benefits in the manner hereinafter provided.
All claims for benefits under the Plan shall be made in writing and
shall be signed by the Applicant. Claims shall be submitted to a representative
designated by the Committee and hereinafter referred to as the "Claims
Coordinator." The Claims Coordinator may, but need not, be a member of the
Committee. If the Applicant does not furnish sufficient information with the
claim for the Claims Coordinator to determine the validity of the claim, the
Claims Coordinator shall indicate to the Applicant any additional information
which is necessary for the Claims Coordinator to determine the validity of the
claim.
Each claim hereunder shall be acted on and approved or disapproved by
the Claims Coordinator within 90 days following the receipt by the Claims
Coordinator of the information necessary to process the claim.
10
In the event the Claims Coordinator denies a claim for benefits in
whole or in part, the Claims Coordinator shall notify the Applicant in writing
of the denial of the claim and notify the Applicant of his/her right to a review
of the Claims Coordinator's decision by the Committee. Such notice by the
Claims Coordinator shall also set forth, in a manner calculated to be understood
by the Applicant, the specific reason for such denial, the specific provisions
of the Plan or Agreement on which the denial is based, a description of any
additional material or information necessary to perfect the claim with an
explanation of why such material or information is necessary, and an explanation
of the Plan's appeals procedure as set forth in this Section.
If no action is taken by the Claims Coordinator on an Applicant's
claim within 90 days after receipt by the Claims Coordinator, such claim shall
be deemed to be denied for purposes of the following appeals procedure.
(b) Appeals Procedure
-----------------
Any Applicant whose claim for benefits is denied in whole or in part
may appeal from such denial to the Committee for a review of the decision by the
Committee. Such appeal must be made within three months after the Applicant has
received actual or constructive notice of the denial as provided above. An
appeal must be submitted in writing within such period and must:
(i) Request a review by the Committee of the claim for
benefits under the Plan;
(ii) Set forth all of the grounds upon which the Applicant's
request for review is based on and any facts in support thereof; and
(iii) Set forth any issues or comments which the Applicant
deems pertinent to the appeal.
The Committee shall regularly review appeals by Applicants. The
Committee shall act upon each appeal within 60 days after receipt thereof unless
special circumstances require an extension of the time for processing, in which
case a decision shall be rendered by the Committee as soon as possible but not
later than 120 days after the appeal is received by the Committee.
The Committee shall make full and fair review of each appeal and
any written materials submitted by the Applicant in connection therewith. The
Committee may require the Applicant to submit such additional facts, documents
or other evidence as the Committee in its discretion deems necessary or
advisable in making its review. The Applicant shall be given the opportunity to
review pertinent documents or materials upon submission of a written request to
the Committee, provided the Committee finds the requested documents or materials
are pertinent to the appeal.
On the basis of its review, the Committee shall make an
independent determination of the Applicant's eligibility for benefits under the
Plan. The decision of the Committee on any claim for benefits shall be final
and conclusive upon all parties thereto.
11
In the event the Committee denies an appeal in whole or in part,
the Committee shall give written notice of the decision to the Applicant, which
notice shall set forth, in a manner calculated to be understood by the
Applicant, the specific reasons for such denial and which shall make specific
reference to the pertinent provisions of the Plan or Agreement on which the
Committee's decision is based.
(c) Arbitration
-----------
Any dispute or controversy arising under or in connection with this
Plan shall be settled exclusively by arbitration in Los Angeles, California in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Executive or his/her Beneficiary shall
be entitled to seek specific performance of his/her right to be paid benefits
under this Plan during the pendency of any dispute or controversy arising under
or in connection with this Plan.
10. Amendment; Termination or Suspension
------------------------------------
(a) The Plan may be amended or terminated by the Board of
Directors at any time. Such amendment or termination may modify or eliminate
any benefit hereunder other than a benefit that is in pay status, or the vested
portion of a benefit that is not in pay status.
(b) Except in the case of a Change of Control, if the Board of
Directors determines that payments under the Plan would have a material adverse
effect on the Company's ability to carry on its business, the Board of Directors
may suspend such payments temporarily for such time as in its sole discretion it
deems advisable, but in no event for a period in excess of one year. The
Company shall pay such suspended payments immediately upon the expiration of the
period of suspension.
(c) The Plan is intended to provide benefits for a select group of
management or highly compensated employees within the meaning of Sections 201,
301 and 401 of ERISA, and therefore to be exempt from the provisions of Parts 2,
3 and 4 of Title 1 of ERISA. Accordingly, the Plan shall terminate and, except
for benefits in pay status, no further benefits shall be paid hereunder in the
event it is determined by a court of competent jurisdiction or by an opinion of
counsel that the Plan constitutes an employee pension benefit plan within the
meaning of Section 3(2) of ERISA which is not so exempt. The preceding sentence
shall be inoperative after a Change in Control has occurred.
11. Miscellaneous
-------------
(a) Participant Rights
------------------
Nothing in the Plan shall confer upon a Participant the right to
continue in the employ of the Company or shall limit or restrict the right of
the Company to terminate the employment of a Participant at any time with or
without cause.
(b) Alienation
----------
Except as otherwise provided in the Plan, no right or benefit under
the Plan shall be subject to anticipation, alienation, sale, assignment, pledge,
encumbrance or charge, and any attempt to anticipate, alienate, sell, assign,
12
pledge, encumber or charge such right or benefit shall be void. No such right
or benefit shall in any manner be liable for or subject to the debts, liability
or torts of a Participant or Beneficiary.
(c) Partial Invalidity
------------------
If any provision in the Plan is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
shall nevertheless continue to be in full force and effect without being
impaired or invalidated in any way.
(d) Choice of Law
-------------
The Plan shall be construed in accordance with ERISA and the laws of
the State of California.
(e) Payment to Minors or Person Under Legal Disability
--------------------------------------------------
If any benefit becomes payable to a minor or to a person under a legal
disability, payment of such benefit shall be made only to the conservator or the
guardian of the estate of such intended recipient appointed by a court of
competent jurisdiction or any other individual or institution maintaining or
having custody of such intended recipient. A release by such conservator,
guardian, individual or institution shall constitute a legal discharge of the
Plan's obligation to the intended recipient.
(f) Gender, Tense and Headings
--------------------------
Whenever any words are used herein in the masculine gender, they shall
be construed as though they were also used in the feminine gender in all cases
where they would so apply. Whenever any words used herein are in the singular
form, they shall be construed as though they were also used in the plural form
in all cases where they would so apply.
Headings of Sections and subsections as used herein are inserted
solely for convenience and reference and constitute no part of the Plan.
Executed at Woodland Hills, California this ____ day of ____________, 2000.
21ST CENTURY INSURANCE GROUP
By:._____________________________
By:._____________________________
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