“Adjusted Annual Compensation” means a Covered Employee’s “Annual Compensation” under the Scripps Pension Plan, but determined without regard to any limitations imposed by reason of Section 401(a)(17) of the Code on the maximum amount that may recognized as Annual Compensation. A Covered Employee’s Adjusted Annual Compensation also shall include (to the extent not already included in Annual Compensation) the following amounts, which shall be added to the Covered Employee’s compensation for the taxable year in which such amounts are earned:
Payments in the nature of deferred compensation which have been designated by the Pension Board as includable in an employee’s Adjusted Annual Compensation for purposes of this Plan; and
Other forms of executive compensation or incentive compensation which have been designated by the Pension Board as includable in an employee’s Adjusted Annual Compensation for purposes of this Plan.
“Beneficiary” means a Covered Employee’s “Beneficiary” under the Scripps Pension Plan.
“Code” means the Internal Revenue Code of 1986, as amended.
“Covered Employee” means a management or highly compensated employee of a Participating SERP Employer (a) who is eligible to receive a vested benefit under the Scripps Pension Plan that is limited by reason of Section 401(a)(17) and/or Section 415 of the Code, and (b) who has not been expressly excluded from participation in the SERP by agreement with his/her Participating SERP Employer. For purposes of clarity, no Former Scripps Nonqualified Plan Participant shall be treated as a Covered Employee for purposes of the Plan after the Distribution Time (or after the Transition Period End Date, as applicable with respect to a Transition Period Services Provider who becomes a Former Scripps Nonqualified Plan Participant after the Newspaper Merger Effective Time).
“Effective Date” means immediately prior to the Newspaper Merger Effective Time as such term is defined in the Master Transaction Agreement.
“Employee Matters Agreement” means the Employee Matters Agreement, by and among The E.W. Scripps Company, Desk Spinco, Inc., Desk NP Operating, LLC, Journal Communications, Inc., Boat Spinco, Inc., and Boat NP Newco, Inc., dated as of July 30, 2014.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“EWSCO” means The E.W. Scripps Company, or any successor.
“Master Transaction Agreement” means the Master Transaction Agreement, by and among The E. W. Scripps Company, Scripps Media, Inc., Desk Spinco, Inc., Desk NP Operating, LLC, Desk NP Merger Co., Desk BC Merger, LLC, Journal Communications, Inc., Boat Spinco, Inc., Boat NP Merger Co., and Boat NP Newco, Inc., dated as of July 30, 2014.
“Participating SERP Employer” means a “Participating Employer” under the Scripps Pension Plan that is in the EWSCO control group under Section 414(b) or 414(c) of ERISA, or any other
“Pension Board” means the “Pension Board” under the Scripps Pension Plan.
“Scripps Pension Plan” or “Pension Plan” means the document entitled Scripps Pension Plan, as the same may be amended and restated from time to time, including the tax qualified pension plan provided for thereunder.
“Separation from Service” means a termination of employment in such a manner as to constitute a “separation from service” as defined under Section 409A of the Code and shall include terminations due to death. Upon a sale or other disposition of the assets of EWSCO or any member of its controlled group to an unrelated purchaser, the Pension Board reserves the right, to the extent permitted by Section 409A of the Code, to determine whether Covered Employees providing services to the purchaser after and in connection with the purchase transaction have experienced a Separation from Service.
“SERP” or “Plan” means this document, as the same may be amended from time to time, including the nonqualified pension plan provided for hereunder.
“SERP Benefit” means any benefit payable under the SERP to or on behalf of a Covered Employee.
“TEFRA” shall have the meaning specified in Section 1.2 hereof.
In addition to the foregoing, in the case of any terms which are used in the SERP and not defined herein but which are defined in the Scripps Pension Plan, the Employee Matters Agreement or the Master Transaction Agreement, such terms shall have the meanings set forth in the Scripps Pension Plan, the Employee Matters Agreement or the Master Transaction Agreement, as applicable.
Whenever appropriate, words used herein in the singular may be read as the plural and the plural may be read as the singular. Unless otherwise clear from the context, words used herein in the masculine shall also be deemed to include the feminine.
BENEFITS PAYABLE; TIME AND FORM OF PAYMENT
The Covered Employee’s “normal retirement benefit” under the Scripps Pension Plan, and
If the date the Covered Employee Separates from Service occurs on or after the date he/she has both attained age 55 and completed at least 10 years of service, 0.4167% for each month by which the commencement of benefit payments precedes the Covered Employee’s 62nd birthday; or
In all other cases, 0.5% for each month, if any, by which the commencement of benefit payments precedes the Covered Employee’s 65th birthday.
The “Surviving Spouse’s Benefit” under the Scripps Pension Plan, and
PAYMENT OF SERP BENEFITS
ERISA and Governing Law. The Plan is a combination of an excess benefit plan, as defined in Sections 3(36) and 4(b)(5) of ERISA, and an unfunded deferred compensation plan for a select group of management or highly compensated employees, as defined in Section 201(2) and 401(a)(1) of ERISA. As such, the Plan is expressly excluded from all, or substantially all, of the provisions of ERISA, including but not limited to Parts 2 and 3 of Title I thereof. None of the statutory rights and protections conferred on participants by ERISA are conferred under the terms of this Plan, except as expressly noted or required by operation of law. To the extent not superseded by federal law, the laws of the State of Ohio shall control in any and all matters relating to the Plan.
Incorporation of Scripps Pension Plan Provisions By Reference. The provisions of the Scripps Pension Plan are hereby fully incorporated by reference, but only to the extent reference is made by the Plan to such provisions or otherwise necessary for the proper administration of the Plan. The eligibility of each Covered Employee for SERP Benefits and the amount of SERP Benefits will be based, in part, upon the interpretations of the Scripps Pension Plan provisions, as made by the fiduciaries thereof and such fiduciaries’ interpretations will be fully binding on this Plan and all parties hereto.
Claims and Appeals Procedure. The claims and appeals procedure set forth in the Scripps Pension Plan shall be equally applicable to claims and appeals under the Plan, and such provisions hereby are incorporated into this Plan by reference.
Benefits Are Nonassignable. No SERP Benefit may be pledged, assigned, anticipated or alienated in any way by any Covered Employee or Beneficiary or personal representative of the foregoing. Moreover, no Covered Employee, Beneficiary or personal representative of the foregoing shall have any right to cause benefits otherwise payable under this Plan to be accelerated or paid on any basis or in any form other than on the basis and in the forms provided for under Article 4.
Amendment, Suspension or Termination of Plan. EWSCO hereby reserves the right and power to amend, suspend or terminate this Plan, in whole or in part, at any time and from time to time. Moreover, EWSCO may amend the Plan at any time in its sole discretion to ensure that the Plan complies with the requirements of Section 409A of the Code or other applicable law. In no event shall any such action by EWSCO eliminate or reduce any benefit that, prior to such action, had already become payable under the Plan without the consent of the Covered Employee, unless EWSCO determines in good faith that such action is necessary to ensure compliance with Section 409A of the Code. Each Participating SERP Employer also has the right to withdraw from the Plan with respect to all employees whose SERP Benefits have not yet become payable under Article 4 hereof prior to such withdrawal. All actions pursuant to this Section 7.5 shall be set forth in a written instrument executed by an appropriate corporate officer.
Delay and/or Discretionary Acceleration of Payments. To the extent permitted under Section 409A of the Code, EWSCO may, in its sole discretion, delay payment of a SERP Benefit in accordance with Treasury Regulation Section 1.409A-2(b)(7). To the extent permitted by Section 409A of the Code, EWSCO may, in its sole discretion, accelerate the time of a payment under the Plan in accordance with Treasury Regulation Section 1.409A-3(j). In the event EWSCO exercises its discretion to delay or accelerate the time of payment under the Plan it shall also determine, in its sole discretion, the manner in which the SERP Benefit shall be calculated as of such delayed or accelerated payment date.
No Guarantee Of Employment. Nothing contained herein shall be construed as a contract of employment between a Participating SERP Employer and any employee, or as a right of any employee to continue in the employment of a Participating SERP Employer, or as a limitation of the right of a Participating SERP Employer to discharge any of its employees, with or without cause, at any time.
Severability. If any provision of this Plan shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining provisions hereof; instead, each provision shall be fully severable and the Plan shall be construed and enforced as if said illegal or invalid provision had never been included herein.
Successor Employer. In the event of the dissolution, merger, consolidation or reorganization of a Participating SERP Employer, the Participating SERP Employer shall have the unilateral right (but not the obligation) to assign or transfer its participation in the Plan, or any liability or other obligation arising thereunder, in whole or in part to a successor, in which case such successor shall be substituted for the former Participating SERP Employer under the Plan. The substitution of a successor shall constitute a full and complete assumption of all associated Plan liabilities by such successor and a full and complete discharge of the former Participating SERP Employer with respect thereto, and the
Compliance with Section 409A of the Code. It is intended that Part Two of the Plan comply with Section 409A of the Code so as to prevent the inclusion in gross income of any amounts deferred hereunder in a taxable year prior to the taxable year or years in which such amounts would otherwise actually be distributed or made available to Covered Employees and their Beneficiaries. The provisions of the Plan shall be construed, administered, and governed in a manner that effects such intent. Although the Pension Board and EWSCO shall use their best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of benefit accruals and payments under SERP is not warranted or guaranteed. Neither EWSCO nor the Pension Board shall be held liable for any taxes, interest, penalties or other monetary amounts owed by any Covered Employee or Beneficiary or other taxpayer as a result of the Plan. Any reference in this Plan to Section 409A of the Code will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section 409A of the Code by the U.S. Department of Treasury or the Internal Revenue Service. For purposes of the Plan, the phrase “permitted by Section 409A of the Code,” or words or phrases of similar import, shall mean that the event or circumstance shall only be permitted to the extent it would not cause an amount deferred or payable under the Plan to be includible in the gross income of a Covered Employee or Beneficiary under Section 409A(a)(1) of the Code.
Limited Cash-Outs. The Pension Board may, in its sole discretion, require a mandatory lump sum payment of amounts deferred under the Plan that do not exceed the applicable dollar amount under Section 402(g)(1)(B) of the Code, provided that the payment results in the termination and liquidation of the entirety of the Covered Employee’s interest under the Plan, including all agreements, methods, programs, or other arrangements which, together with this Plan, are treated as a single non-qualified deferred compensation plan under Section 409A of the Code and provided further that in the event such payment is made to a “specified employee” (as defined in Section 409A of the Code) upon a Separation from Service, such payment shall not be made sooner than 6 months following such Separation from Service. The provisions of this Section 7.11 shall apply to both Part One and Part Two of the Plan.
Covered Employees Deemed to Accept Plan. By accepting any benefit under the Plan, each Covered Employee and each person claiming under or through any such Covered Employee shall be conclusively deemed to have indicated his/her acceptance and ratification of, and consent to, all of the terms and conditions of the Plan and any action taken under the Plan by the Board, the Pension Board or EWSCO or the other Participating SERP Employers, in any case in accordance with the terms and conditions of the Plan.