EXHIBIT 10.5
GERBER SCIENTIFIC, INC.
AND
PARTICIPATING SUBSIDIARIES
SUPPLEMENTAL PENSION BENEFIT PLAN
GERBER SCIENTIFIC, INC.
AND
PARTICIPATING SUBSIDIARIES
SUPPLEMENTAL PENSION BENEFIT PLAN
TABLE OF CONTENTS
ARTICLE I Name, Purpose and Effective Date . . . . 1
ARTICLE II Definitions . . . . . . . . . . . . . . 1
ARTICLE III Eligibility . . . . . . . . . . . . . . 4
ARTICLE IV Benefits; Form and Time of Payment . . . 4
ARTICLE V Administration; Amendment and Termination 5
ARTICLE VI Claims Procedure; Dispute Resolution . . 6
ARTICLE VII Miscellaneous Provisions . . . . . . . . 7
GERBER SCIENTIFIC, INC.
AND
PARTICIPATING SUBSIDIARIES
SUPPLEMENTAL PENSION BENEFIT PLAN
Pursuant to a resolution of its Board of Directors GERBER
SCIENTIFIC, INC., a Connecticut corporation (the "Principal
Company"), has adopted this Supplemental Pension Benefit Plan, in
the form as follows:
ARTICLE I
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Name, Purpose and Effective Date
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Section 1.1 Name. This Plan shall be known as the "Gerber
Scientific, Inc. and Participating Subsidiaries Supplemental
Pension Benefit Plan."
Section 1.2 Purpose. The purpose of this Plan is to attract
and retain in the employ of the Company officers and key salaried
employees by increasing their financial security through the
provision of additional retirement benefits that cannot be
provided under the Gerber Scientific, Inc. and Participating
Subsidiaries Pension Plan (the "Pension Plan") due to the
restrictions of section 401(a) (17) or 415 of the Internal
Revenue Code.
Section 1.3 Effective Date. This Plan shall be effective
as of May 1, 1993, and shall apply to Participants and
Beneficiaries whose benefit payments under the Pension Plan
commence on or after May 1, 1993.
ARTICLE II
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Definitions
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Section 2.1 Definitions. Capitalized terms not defined
herein shall have the meanings attributed to them in the Pension
Plan, unless the context requires otherwise. When used in this
Plan, the following terms shall have the meanings set forth below
unless a different meaning is clearly required by the context:
(a) "Beneficiary" means any individual, trust, estate
or other recipient designated by the Participant or otherwise
entitled to receive death benefits under the terms of the Pension
Plan.
(b) "Change of Control" means (i) the acquisition by
any person (including a group within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934
("Exchange Act") but excluding the Company or any of its
subsidiaries or any person who or which was the beneficial owner
on the date the Board adopts the Plan, as reflected in a Schedule
13D or a Schedule 13G filed with the Securities and Exchange
Commission as of such date, of more than 6% of the combined
voting power of the Company's then outstanding voting securities)
of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 30% or more of the
combined voting power of the Company's then outstanding voting
securities; (ii) the first purchase of Common Stock of the
Company pursuant to a tender offer or an exchange offer, other
than an offer by the Company or any of its subsidiaries; or (iii)
approval by shareholders of the Company of a merger,
consolidation, liquidation or dissolution of the Company, or of
the sale of all or substantially all of the assets of the
Company.
(c) "Code" means the Internal Revenue Code of 1986, as
amended.
(d) "Company" means the Principal Company and an
Individual Company or any acquiring or new controlling entity
which has assumed the obligations of the Pension Plan with
respect to its Employees, and unless the context shall require
otherwise, it shall refer to the Individual Company by which the
particular Participant or individual is then employed.
(e) "Employee" means any person employed by the
Company or any member of the Affiliated Group as a common law
employee. A Leased Employee shall be considered an Employee. A
nonresident alien who receives no earned income from the
Affiliated Group which constitutes income from sources within the
United States shall not be an Employee.
(f) "Individual Company" means Gerber scientific
Products, Inc., Gerber Optical, Inc., Gerber Garment Technology,
Inc., Gerber Systems Technology, Inc. (until May 1, 1992), The
Gerber Scientific Instrument Company, renamed effective May 1,
1992 Gerber Systems Corporation, or any other member of the
Affiliated Group which shall assume the obligations of the
Pension Plan with respect to its Employees by signing an
Agreement of Participation with the Principal Company and the
Trustee.
(g) "Participant" means, except as provided in Section
7.3, any Employee who is a participant in the Pension Plan,
including any Disabled Participant or Terminated Participant, and
whose benefits under the Pension Plan are reduced due to the
application of section 401(a)(17) or 415 of the Code.
(h) "Pension Plan" means the Gerber Scientific, Inc.
and Participating Subsidiaries Pension Plan, as of its original
effective date and including any subsequent amendments thereto.
Following a Change of Control, "Pension Plan" also means any
other defined benefit plan adopted by the Company.
(i) "Plan" means this Gerber Scientific, Inc. and
Participating Subsidiaries Supplemental Pension Benefit Plan, as
of its original effective date including any subsequent
amendments thereto.
(j) "Plan Administrator" means the person, persons, or
entity serving as plan administrator of the Pension Plan in
accordance with Article XI thereof.
(k) "Plan Year" means the 12-month period beginning on
each May 1.
(1) "Principal Company" means Gerber Scientific, Inc.,
and any acquiring or new controlling entity.
Section 2.2 Usage. The singular form of any word shall
include the plural and the masculine gender shall include the
feminine wherever necessary for the proper interpretation of this
Plan.
ARTICLE III
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Eligibility
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Section 3.1 Eligibility. If at the time a Participant or
Beneficiary's benefits commence or recommence under the Pension
Plan those benefits are reduced due to the application of the
limitations set forth in section 401(a)(17) or 415 of the Code,
such individual shall be entitled to participate and receive
benefits under this Plan, in accordance with the terms hereof.
ARTICLE IV
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Benefits; Form and Time of Payment
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Section 4.1 Benefits. An eligible Participant or Beneficiary
shall be entitled under this Plan to a benefit equal to the
difference, if any, between (a) and (b):
(a) The amount of benefits to which the Participant or
Beneficiary would be entitled under the Pension Plan if such
benefits were computed without giving any effect to the
limitations imposed by section 401(a)(17) or 415 of the Code, as
now or hereafter in effect; less
(b) The amount of benefits to which the Participant or
Beneficiary is entitled under the Pension Plan.
The amount of benefits so determined shall be subject to
such adjustments as the Plan Administrator, from time to time,
deems appropriate to reflect any changes in the level of benefits
that can be provided under the Pension Plan, due to the operation
of the limitations imposed by section 401(a)(17) or 415 of the
Code.
Section 4.2 Payment of Benefits. Benefits under this Plan
shall be paid to each eligible Participant or Beneficiary at the
same time and in the same form and manner as benefits are
provided to such Participant or Beneficiary under the Pension
Plan. Any election made by a Participant or Beneficiary with
regard to the distribution of benefits under the Pension Plan,
including the designation of a Beneficiary, shall be equally
applicable to and binding on such Participant or Beneficiary in
connection with the distribution of benefits under this Plan. Any
Application for Benefits submitted pursuant to Article IX of the
Pension Plan shall be considered to include an application for
benefits under this Plan, as calculated under Section 4.1.
Section 4.3 Effect on Pension Plan. Any benefit payable
under the Pension Plan shall be paid solely in accordance with
the terms and provisions thereof, and nothing in this Plan shall
operate or be construed in any way to modify, amend or affect the
terms and provisions of the Pension Plan.
Section 4.4 Tax Withholding. All benefits payable under this
Plan shall be subject to applicable federal, state and local
income, payroll and estate tax withholding requirements and all
other applicable deductions required by this Plan or by law.
ARTICLE V
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Administration; Amendment and Termination
-----------------------------------------
Section 5.1 Plan Administrator. The Plan Administrator shall
administer this Plan and shall have, exercise and perform with
respect to this Plan all the powers, rights, authorities and
duties of the Plan Administrator set forth in the Pension Plan
with the same effect as if set forth in full herein. The
interpretation and construction of any provisions of the Plan by
the Plan Administrator and his exercise of any discretion granted
under the Plan shall be binding and conclusive on all persons who
at any time have or claim to have any interest whatever under
this Plan.
Section 5.2 Amendment and Termination.
(a) Before a Change of Control, the Principal Company
shall have the right to amend or terminate the Plan at any time
and from time to time by resolution of the Board of Directors.
Notwithstanding the foregoing, no amendment or termination shall
(i) adversely affect the right of any Participant or Beneficiary
who was previously receiving benefits under this Plan to continue
to receive the benefits to which he was entitled under Section
4.1 prior to such amendment or termination, or (ii) deprive any
Participant or Beneficiary of the benefits, if any, under Section
4.1 as in effect prior to such amendment or termination
attributable to benefits accrued under the Pension Plan as of the
day preceding the amendment or termination.
(b) If a Change of Control occurs, the Principal
company shall cease to have the right to amend or terminate the
Plan, and Gerber Scientific, Inc. hereby agrees that in the event
that it enters into a transaction that results in a Change of
Control it will obtain the agreement of the acquiring or new
controlling entity to adopt the Plan and abide by the terms of
this Section 5.2(b); provided, however, that if the Pension Plan
is terminated following a Change of Control and another defined
benefit plan is not adopted, the Principal Company shall have the
right to terminate the Plan to the extent that such termination
does not (i) adversely affect the right of any Participant or
Beneficiary who was previously receiving benefits under this Plan
to continue to receive the benefits to which he was entitled
under Section 4.1 prior to such termination, or (ii) deprive any
Participant or Beneficiary of the benefits, if any, under Section
4.1 as in effect prior to such termination attributable to
benefits accrued under the Pension Plan as of the day preceding
the termination.
ARTICLE VI
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Claims Procedure; Dispute Resolution
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Section 6.1 Filing Claim. Any Participant or Beneficiary
who believes he is entitled to benefits under this Plan which he
has not been granted may submit a written claim for such benefits
to the Plan Administrator. The Plan Administrator shall notify
the applicant in writing of the action taken regarding such claim
within 90 days following its receipt. In the event the claim is
denied, the Plan Administrator shall furnish a written
notification which shall include the reasons for the denial,
specific references to the Plan provisions on which the denial is
based, a description of any additional material or information
necessary for the applicant to perfect the claim, including an
explanation of why such material or information is necessary, and
an explanation of the review procedure set forth hereunder.
Section 6.2 Appeal. In the event an applicant has received
a written denial of a claim submitted under Section 6.1, he may
appeal by filing with the Plan Administrator a written request
for review. Such request must be made within 60 days following
the receipt of the written denial. In connection with any request
for review, the applicant may at any time review pertinent
documents and may submit issues and comments in writing. The Plan
Administrator shall notify the applicant of his determination
within 60 days following his receipt of the request for review.
Section 6.3 Dispute Resolution. All disputes as to the
proper amount and/or terms of any payment under this Plan, which
are not resolved in accordance with Sections 6.1 and 6.2, shall
be resolved conclusively by an independent certified public
accounting firm or an enrolled actuary selected by the Company as
promptly as reasonably possible after receipt by the Company of a
written notice from a Participant or Beneficiary setting forth
the nature of the dispute. All other controversies or claims
arising out of or relating to this Plan (including the question
whether any particular matter is arbitrable hereunder), shall be
settled by binding arbitration in the State of Connecticut, in
accordance with the Rules of the American Arbitration Association
then in force. As a condition of the receipt of benefits under
this Plan, all potential Participants and Beneficiaries shall
abide by all awards rendered in such arbitration proceedings and
all such awards may be filed by the prevailing party with a court
having proper jurisdiction as a basis for judgment and the
issuance of execution thereon. All costs of any such arbitration
shall be borne by the Company; provided, however, that each party
shall bear its own legal fees and expenses in connection
therewith.
ARTICLE VII
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Miscellaneous Provisions
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Section 7.1 Spendthrift Clause. No right, title or interest
of any kind in the Plan shall be transferable or assignable by
any Participant or Beneficiary or any other person or be subject
to alienation, anticipation, encumbrance, garnishment,
attachment, execution or levy of any kind, whether voluntary or
involuntary. Any attempt to alienate, sell, transfer, assign,
pledge, garnish, attach or otherwise encumber or dispose of any
interest in the Plan shall be void.
Section 7.2 Rights Against the Company. The establishment of
this Plan shall not be construed as giving to any Participant,
Employee or any person whomsoever, any legal, equitable or other
rights against the Company, or its officers, directors, agents or
shareholders, except as specifically provided for herein, or its
giving to any Participant or Beneficiary any equity or other
interest in the assets, business or shares of the Company or
giving any Employee the right to be retained in the employment of
the Company. All Employees and Participants shall be subject to
discharge to the same extent that they would have been if this
Plan had never been adopted. Subject to the rights of the Company
to terminate this Plan or any benefit hereunder, the rights of a
Participant or Beneficiary hereunder shall be solely those of an
unsecured creditor of the Company.
Section 7.3 Unfunded Plan. It is the Company's intention
that this Plan be a top hat plan, defined as an unfunded plan
maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly
compensated employees, as provided in sections 201(2), 301(a)(3),
and 401(a)(1) of the Employee Retirement Income Security Act of
1974, as amended from time to time. The Company reserves the
right to restrict participation to those Employees who qualify as
"top hat" Employees. The Company may establish and fund one or
more trusts for the purpose of paying some or all of the benefits
promised to Participants and Beneficiaries under the Plan;
provided, however, that (a) any such trust(s) shall at all times
be subject to the claims of the Company's general creditors in
the event of the insolvency or bankruptcy of the Company, and (b)
notwithstanding the creation or funding of any such trust(s), the
Company shall remain primarily liable for any obligation
hereunder. Notwithstanding the establishment of any such
trust(s), the Participants and Beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any
assets of any such trust or of the Company.
Section 7.4 Representations. The Company and the Plan
Administrator shall be discharged from any liability in acting
upon any representation by an Employee or Beneficiary of any fact
affecting his status under this Plan or upon any notice, request,
consent, letter, telegram, or other document believed by them, or
any of them, to be genuine, and to have been signed or sent by
the proper person.
Section 7.5 Governing Law. THE VALIDITY AND EFFECT OF THIS
PLAN AND THE RIGHTS AND OBLIGATIONS OF ALL PERSONS AFFECTED
HEREBY SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CONNECTICUT, WITHOUT REGARD TO ITS OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS, TO THE EXTENT NOT
PREEMPTED BY THE LAWS OF THE UNITED STATES.
Section 7.6 Severability. In the event that any provision of
this Plan shall be declared illegal or invalid for any reason,
said illegal or invalid provision shall not affect the remaining
provisions of this Plan but shall be fully severable, and this
Plan shall be construed and enforced as if said illegal or
invalid provision had never been inserted herein.
Section 7.7 Construction of Plan. The article and section
headings and numbers are included only for convenience of
reference and are not to be taken as limiting or extending the
meaning of any of the terms and provisions of this Plan.
Dated this 30th day of July, 1993.
Witness: GERBER SCIENTIFIC, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President,
Finance
