Excess Benefit Plan - Collins & Aikman Corp.
EXCESS BENEFIT PLAN
OF
COLLINS & AIKMAN CORPORATION
(Amended And Restated as of November 7, 1986)
ARTICLE I
Background and Purpose
Effective as of February 29, 1976, the Collins & Aikman
Corporation (the "Company") established the Excess Benefit Plan
of Collins & Aikman Corporation (the "Plan"). The Plan is hereby
amended and restated effective as of November 7, 1986. The Plan
is intended to provide benefits which would have accrued to any
Company employee under the terms of the Company's Profit-Sharing
Plan or Retirement Plan but for certain restrictions imposed by
certain provisions of the Internal Revenue Code, including
without limitation, Code sections 415 and 401(a)(17), upon the
contributions for, or benefits of, Company employees
participating in the Profit-Sharing Plan and the Retirement Plan.
ARTICLE II
Definitions
The following terms whenever used in the Plan, including the
Preamble, shall have the meanings set forth in this Article II.
2.1 "Beneficiary" means the Participant's beneficiary under
the Profit-Sharing Plan or Retirement Plan, as the case may be,
or such other beneficiary as is designated in writing to the
Committee by the Participant.
2.2 "Board of Directors" means the Board of Directors of
the Company as constituted from time to time.
2.3 "Code" means the Internal Revenue Code of 1954, as
amended, or, effective January 1, 1987, the Internal Revenue Code
of 1986, as amended.
2.4 "Committee" means the Pension Plan and Profit-Sharing
Plan Committee appointed by the Board of Directors which shall be
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responsible for the administration of the Plan in accordance with
Article VI.
2.5 "Company" means Collins & Aikman Corporation or any
successor thereto.
2.6 "Excess Profit-Sharing Account" means the bookkeeping
account established to reflect a Participant's total excess
profit-sharing benefit under the Plan as determined in accordance
with Ssection 4.1.
2.7 "Excess Retirement Benefit" means a Participant's
retirement benefit under the Plan determined in accordance with
Section 4.2.
2.8 "Fund" or "Funds" means the fund or funds in which
contributions to the Profit-Sharing Plan may be invested.
2.9 "Participant" means a Participant in this Plan as
defined in Article III.
2.10 "Plan" means the Excess Benefit Plan of Collins &
Aikman Corporation, as amended and restated as of November 7,
1986.
2.11 "Plan Year" means the 52 or 53 week period ending in
each year on the Saturday nearest to or coinciding with the last
day of February (or such other period as may be specified by the
Committee).
2.12 "Profit-Sharing Account" means the separate account or
combination of accounts established and maintained for each
Participant under the Profit-Sharing Plan.
2.13 "Profit-Sharing Plan" means the Employees Profit-
Sharing Plan of Collins & Aikman Corporation, as amended through
March 2, 1986, and as may be amended from time to time
thereafter.
2.14 "Retirement Plan" means the Collins & Aikman
Corporation Salaried Employees' Retirement Plan, as amended and
restated effective March 3, 1985, and as may be amended from time
to time thereafter.
2.15 "Retirement Plan Benefit" means the annual retirement
benefit payable to or on account of a Participant pursuant to the
Retirement Plan.
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2.16 "Valuation Date" means the last business day of each
Plan Year, and such other dates as the Committee under the
Profit-Sharing Plan may from time to time designate as "valuation
dates".
ARTICLE III
Participants
Any salaried employee who is a participant in the Profit-
Sharing Plan and/or in the Retirement Plan shall be a Participant
in this Plan if the benefit payable to such Participant under the
Profit-Sharing Plan or the Retirement Plan is limited as a result
of restrictions imposed by Code provisions, including, without
limitation, the limitations on contributions and benefits imposed
by Section 415 of the Code, and the limitation on includible
compensation under Section 401(a)(17) of the Code.
ARTICLE IV
Benefits
4.1 Excess Profit-Sharing Account.
A Participant's Excess Profit-Sharing Account shall be equal
to the total amounts credited to such account as follows:
(a) As of the last day of each Plan Year (commencing
with the Plan Year ended February 29, 1976), each
Participant's Excess Profit-Sharing Account shall be
credited with an amount equal to the difference between (i)
and (ii) (the "Excess Contributions") where (i) equals the
contribution which would have been made to the Participant's
Profit-Sharing Account for such Plan Year had the limitation
imposed by Section 415 of the Code not been in effect, and
had the amount of compensation used in calculating the
contribution to the Participant's Profit-Sharing Account
under the terms of the Profit-Sharing Plan not been
curtailed by Section 401(a)(17) of the Code, and (ii) equals
the actual contribution made to
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the Participant's Profit-Sharing Account as of the end of
such Plan Year; and
(b) As of each Valuation Date, each Participant's
Excess Profit-Sharing Account shall be credited or debited,
as the case may be, with an amount equal to the income,
dividend, expense, gain, loss or other appreciation or
depreciation in value (the "Investment Credit") which would
have been earned on the Participant's Excess Profit-Sharing
Account as of such Valuation Date had such account been
invested in such Funds and in such proportions in each Fund
as elected by the Participant in accordance with
subparagraph (c) hereof.
(c) Each Participant may file a written election with
the Committee prior to the last day of each Plan Year, in
accordance with procedures established by the Committee, to
have the Investment Credit allocable to his Excess
Contributions for such Plan Year determined as if such
Excess Contributions were invested in such Funds, and in
such proportions in each Fund, as designated by the
Participant. A Participant's investment designation shall
be applied to future Excess Contributions unless, prior to
the end of any Plan Year for which Excess Contributions are
credited to such Participant's Excess Profit-Sharing
Account, the Participant files a new investment designation
with respect to Excess Contributions for such Plan Year. A
Participant may change the investment designation as to
existing amounts credited to his or her Excess Profit-
Sharing Account on such dates and in accordance with such
conditions as may be specified by the Committee.
If a Participant fails to file an investment
designation with the Committee in accordance with this
subparagraph (c), the election as to Fund investment filed
by the Participant under the Profit-Sharing Plan shall be
applied to his Excess Profit-Sharing Account, and any
investment direction or transfer between Funds pursuant to a
request which has been approved in accordance with the
Profit-Sharing Plan shall be
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similarly applied to the Participant's Excess Profit-Sharing
Account.
4.2 Excess Retirement Benefit
A Participant's Excess Retirement Benefit shall be equal to
the difference between (a) and (b) where
(a) equals the benefit the Participant would have
received under the Retirement Plan on a single life annuity
basis (i) had the limitation imposed by Section 415 of the
Code not been in effect, (ii) had the amount of compensation
used in calculating the Participant's Retirement Plan
Benefit under the terms of the Retirement Plan not been
curtailed by Section 401(a)(17) of the Code, and (iii) in
the case of Donald F. McCullough, had such Participant's
Retirement Plan Benefit been computed without regard to any
actuarial reduction by reason of his retirement prior to
attaining age 65; and
(b) equals the actual Retirement Plan Benefit on a
single life annuity basis payable to the Participant.
4.3 Vesting of Benefits
A Participant shall become vested in his or her Excess
Profit-Sharing Account and Excess Retirement Benefit in
accordance with the same schedule and rules as are applicable in
determining when he or she becomes vested in his or her Profit-
Sharing Account or Retirement Plan Benefit, respectively.
ARTICLE V
Payment of Benefits
5.1 Excess Profit Sharing Account
A Participant's Excess Profit-Sharing Account shall be paid
in the form of a lump-sum, at such time as the Participant would
be entitled to receive a lump-sum payment under the Profit
Sharing Plan. Upon the death of a Participant, the balance in
his Excess Profit Sharing Account shall be paid to his
Beneficiary in a lump-
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sum as soon as practicable, and in any event no later than one
year, after a Participant's death.
5.2 Payment of Excess Retirement Benefit
A Participant's Excess Retirement Benefit shall be paid
under the same circumstances, in the same form and at the same
time as such Participant's benefits under the Retirement Plan,
and shall cease when benefits under the Retirement Plan cease,
unless a Participant elects otherwise in accordance with this
Article V. For purposes of determining such circumstances, form
and time, all relevant provisions of the Retirement Plan shall be
applied hereunder, including, without limitation, the provisions
that relate to payments to the Participant's Beneficiary under
such plan. A Participant may elect in writing prior to
commencement of benefits under the Plan to receive payment of his
or her Excess Retirement Benefit in an alternative form of
benefit payment provided under the Retirement Plan, regardless of
the form in which benefits under such plan are paid.
ARTICLE VI
Administration of the Plan
6.1 Committee
The Committee shall be responsible for the management,
operation and administration of the Plan and shall have such
implied powers and duties as may be necessary to carry out the
provisions of the Plan, including the power to delegate any of
its administrative responsibilities hereunder as well as any
powers and duties granted to the administrative committees under
the Profit-Sharing Plan and the Retirement Plan.
6.2 Benefit Determination
The Committee shall rely on the records of the Company in
determining the form in which and time at which benefits are
being paid under the Profit-Sharing Plan and the Retirement Plan
and, pursuant to Article V of this Plan, shall pay benefits under
this Plan accordingly.
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6.3 Indemnification
To the extent permitted by law, the Company shall indemnify
the members of the Committee from all claims for liability, loss
or damage (including payment of expenses in connection with
defense against such claim) arising from any act or failure to
act which constitutes a breach of such individual's fiduciary
responsibilities under any applicable law.
ARTICLE VII
Miscellaneous
7.1 Benefits Payable by Company
All benefits payable under this Plan shall constitute an
unfunded obligation of the Company. Payments shall be made, as
due, from the general funds of the Company. The Company may, in
its sole and absolute discretion, establish one or more accounts
or funds to reflect its obligations under the Plan and may make
such investments as it may deem desirable to assist it in meeting
such obligations. Any such accounts or funds shall be assets of
the Company subject to claims of its general creditors. No
person eligible for a benefit under this Plan shall have any
right, title or interest in any such investments.
7.2 Inalienability of Benefits
The right of any person to any benefit or payment under the
Plan shall not be subject to voluntary or involuntary transfer,
alienation or assignment, and, to the fullest extent permitted by
law, shall not be subject to attachment, execution, garnishment,
sequestration or other legal or equitable process. In the event
a person who is receiving or is entitled to receive benefits
under the Plan attempts to assign, transfer or dispose of such
right, or if an attempt is made to subject said right to such
process, such assignment, transfer or disposition shall be null
and void.
7.3 Status of Employment
Nothing herein contained shall be deemed (a) to give any
Participant the right to be retained in the employ of the Company
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or any affiliate, (b) to affect the right of the Company to
discipline, including (but not limited to), the right to
discharge, any Participant at any time, (c) to give the Company
or any affiliate the right to require any Participant to remain
in its employ, or (d) to affect any Participant's right to
terminate his or her employment at any time.
7.4 Payments to Minors and Incompetents
If a Participant or Beneficiary entitled to receive any
benefits hereunder is a minor or is deemed by the Committee or is
adjudged to be legally incapable of giving valid receipt and
discharge for such benefits, they will be paid to the duly
appointed guardian of such minor or incompetent or to such other
legally appointed person as the Committee may designate. Such
payment shall, to the extent made, be deemed a complete discharge
of any liability for such payment under the Plan.
7.5 Amendment or Termination
(a) The Company reserves the right to amend, modify,
restate or terminate the Plan; provided, however, that no such
action by the Company shall reduce a Participant's Excess Profit-
Sharing Account or Excess Retirement Benefit accrued as of the
time thereof.
(b) If the Plan is terminated, a determination shall be
made of each Participant's Excess Profit-Sharing Account and
Excess Retirement Benefit as of the Plan termination date. The
amount of such account or benefits shall be payable to the
Participant or Beneficiary at the time it would have been payable
under Article V if the Plan had not been terminated. Until fully
paid, the accrued and undistributed balance of a Participant's
Excess Profit-Sharing Account shall be credited or debited, as
the case may be, as of the last day of each Plan Year, with an
amount equal to the income, dividend, expense, gain, loss or
other appreciation or depreciation in value on such balance as if
it had been invested in such Funds and in such proportions in
each Fund as the Participant's Profit-Sharing Account for such
Plan Year. No interest shall be credited on an Excess Retirement
Benefit.
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7.6 Governing Law
Except to the extent Pre-empted by federal law, the
provisions of the Plan will be construed according to the laws of
the State of New York.
IN WITNESS WHEREOF, Collins & Aikman Corporation has caused
this amended and restated Plan to be executed effective as of
November 7, 1986.
COLLINS & AIKMAN CORPORATION
By:/s/ Alfred S. Crimmins
President
ATTEST:
/s/ Charles H. Scherer
Secretary
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