SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Published on March 27, 2001
Exhibit 10.23
CALIFORNIA WATER SERVICE COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
As Amended and Restated
Effective January 1, 2001
California Water Service Company
Supplemental Executive Retirement Plan
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Table of Contents
Page
PURPOSE .................................................................1
ARTICLE 1 DEFINITIONS......................................................1
1.1 "Actuarial Equivalent".......................................1
1.2 "Administrative Committee" ..................................2
1.3 "Average Annual Earnings" ...................................2
1.4 "Basic Retirement Plan" .....................................2
1.5 "Board" .....................................................2
1.6 "Change in Control" .........................................2
1.7 "Claimant" ..................................................4
1.8 "Code" ......................................................4
1.9 "Company" ...................................................4
1.10 "Deferred Retirement" .......................................4
1.11 "Early Retirement" ..........................................4
1.12 "Earnings" ..................................................4
1.13 "Employer(s)" ...............................................5
1.14 "ERISA" .....................................................5
1.15 "Normal Retirement" .........................................5
1.16 "Participant" ...............................................5
1.17 "Plan" ......................................................5
1.18 "Plan Year" .................................................5
1.19 "Pre-retirement Survivor Benefit" ...........................5
1.20 "Retirement" or "Retires" ...................................6
1.21 "Surviving Spouse" ..........................................6
1.22 "SERP Benefit" ..............................................6
1.23 "Termination of Employment" .................................6
1.24 "Trust" .....................................................6
1.25 "Vested" ....................................................6
1.26 "Years of Service" ..........................................6
ARTICLE 2 ELIGIBILITY......................................................7
2.1 Selection by Administrative Committee........................7
2.2 Commencement of Participation................................7
2.3 Termination of Participation.................................7
2.4 Recommencement of Participation..............................8
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ARTICLE 3 VESTING..........................................................8
3.1 Vesting in Benefits..........................................8
ARTICLE 4 RETIREMENT DATES.................................................8
4.1 Normal Retirement............................................9
4.2 Early Retirement.............................................9
4.3 Deferred Retirement..........................................9
ARTICLE 5 BENEFITS.........................................................9
5.1 Normal Retirement Benefits...................................9
5.2 Early Retirement Benefits...................................11
5.3 Deferred Retirement Benefit.................................11
5.4 Change in Control...........................................12
5.5 Form of Benefit.............................................12
5.6 Application for Retirement..................................13
5.7 Withdrawal Election.........................................13
5.8 Pre-Retirement Death Benefit................................14
5.9 Missing Person Forfeiture and Reinstatement.................15
ARTICLE 6 TERMINATION, AMENDMENT OR MODIFICATION OF THE PLAN..............16
6.1 Termination.................................................16
6.2 Amendment...................................................17
ARTICLE 7 OTHER BENEFITS AND AGREEMENTS...................................17
7.1 Coordination with Other Benefits............................17
ARTICLE 8 ADMINISTRATION OF THE PLAN......................................17
8.1 Administrative Committee Duties.............................18
8.2 Agents......................................................18
8.3 Binding Effect of Decisions.................................18
8.4 Indemnity of Administrative Committee.......................18
8.5 Employer Information........................................19
ARTICLE 9 CLAIMS PROCEDURES...............................................19
9.1 Presentation of Claim.......................................19
9.2 Notification of Decision....................................19
9.3 Review of a Denied Claim....................................20
9.4 Decision on Review..........................................21
9.5 Legal Action................................................21
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ARTICLE 10 FUNDING.........................................................21
10.1 Establishment of the Trust..................................22
10.2 Interrelationship of the Plan and the Trust.................22
ARTICLE 11 MISCELLANEOUS...................................................22
11.1 Unsecured General Creditor..................................22
11.2 Employer's Liability........................................22
11.3 Nonassignability............................................23
11.4 Not a Contract of Employment................................23
11.5 Furnishing Information......................................24
11.6 Terms.......................................................24
11.7 Captions....................................................24
11.8 Governing Law...............................................24
11.9 Notice......................................................24
11.10 Successors..................................................25
11.11 Spouse's Interest...........................................25
11.12 Incompetent.................................................26
11.13 Court Order.................................................26
11.14 Distribution in the Event of Taxation.......................27
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Purpose
The purpose of this Plan is to provide specified benefits to a select group of
management and highly compensated employees of California Water Service Company,
a California corporation, and its subsidiaries, if any, that sponsor this Plan.
This Plan shall be unfunded for tax purposes and for purposes of Title I of
ERISA. This Plan was originally effective January 1, 1992 and is restated as set
forth in this document effective January 1, 2001.
ARTICLE 1
Definitions
For purposes hereof, unless otherwise clearly apparent from the context, the
following phrases or terms shall have the following indicated meanings:
1.1 "Actuarial Equivalent" shall mean an actuarial equivalent value of an
amount payable in a different form or at a different date computed on
the basis of the following actuarial assumptions:
Mortality: 1983 Group Annuity Table
Interest Rate: Rate on 30-year treasury securities as
specified by the Commissioner for the month of
November that first precedes the Plan Year.
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As the Plan Administrator deems necessary, in its sole discretion, the
above actuarial assumptions may be adjusted from time to time, and no
Participant shall be deemed to have any right, vested or nonvested,
regarding the continued use of any previously adopted actuarial
assumption.
1.2 "Administrative Committee" shall mean the committee authorized to
administer the Plan pursuant to Article 8.
"Average Annual Earnings" shall have the same meaning as under the Basic
Retirement Plan.
"Basic Retirement Plan" shall mean the Restatement of the California
Water Service Company Pension Plan, as amended from time to time.
"Board" shall mean the board of directors of the Company.
"Change in Control" shall be deemed to take place on the occurrence of any of
the following events:
(a) Any merger or consolidation of the Company or California Water
Service Group ("Target Entity") in which the Target Entity is
not the surviving organization, a majority of the capital
stock of which is not owned by the shareholders of the Target
Entity immediately prior to such merger or consolidation;
(b) A transfer of all or substantially all of the assets of the
Target Entity;
(c) Any other corporate reorganization in which there is a change
in ownership of the outstanding shares of the Target Entity
wherein thirty percent (30%) or more of the outstanding shares
of the Target Entity are transferred to any "person" (as the
term is used in Section 13 and 14(d)(2) of the Securities
Exchange Act of 1934);
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(d) The acquisition by or transfer to a Person (including all
Affiliates or Associates of such Person) of "beneficial
ownership" (as that term is defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of capital stock of Target
Entity if after such acquisition or transfer such Person (and
their Affiliates or Associates) is entitled to exercise thirty
percent (30%) or more of the outstanding voting power of all
capital stock of Target Entity entitled to vote in elections
of directors;
(e) The election to the Board of Directors of Target Entity of
candidates who were not recommended for election by the Board
of Directors of Target Entity in office immediately prior to
the election, if such candidates constitute a majority of
those elected in that particular election; or
(f) Any other corporate reorganization, merger or consolidation
immediately after which thirty percent (30%) or more of the
stock ownership of the surviving company's outstanding shares
is owned by a Person (or their Affiliates and Associates) who
did not own shares of the Target Entity immediately before the
transaction.
"Claimant" shall have the meaning set forth in Section 8.1.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time.
"Company" shall mean California Water Service Company, a California corporation.
"Deferred Retirement" shall have the meaning set forth in Section 4.3.
"Early Retirement" shall have the meaning set forth in Section 4.2.
"Earnings" shall mean the actual annual compensation paid by the Employer to the
Participant, determined as of December 31 of each Plan Year as listed on an
Employer's payroll records. Compensation shall be included for any period of
Participation if the Participant is in the Plan for a portion of any year.
Earnings shall be calculated before reduction for compensation voluntarily
deferred or contributed by the Participant pursuant to all qualified or
nonqualified retirement
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plans of any Employer shall be calculated to include amounts not otherwise
included in the Participant's gross income under Code sections 125 or 402(e)(3)
pursuant to plans established by any Employer; provided, however, that all such
amounts will be included in earnings only to the extent, that had there been no
such plan, the amount would have been payable in cash to the Participant. In the
event a Participant becomes totally and permanently disabled, earnings shall be
deemed to continue for purposes of this Plan at the rate or amount in effect
immediately prior to such disability, as determined within the sole discretion
of the Employer.
"Employer(s)" shall mean the Company and any subsidiaries or affiliates of the
Company that have been selected by the Board to participate in the Plan.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Normal Retirement" shall have the meaning set forth in Section 4.1.
"Participant" shall mean any employee (i) who is elected as an officer by the
Board and (ii) designated as a "Participant" by the Board.
"Plan" shall mean the Company's Supplemental Executive Retirement Plan, which
shall be evidenced by this instrument and by each Plan Agreement, as amended
from time to time.
"Plan Year" shall begin on January 1 of each year and continue through December
31.
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"Pre-retirement Survivor Benefit" shall mean a benefit provided in Section 5.7.
"Retirement" or "Retires" shall mean, in each instance, Early Retirement or
Normal Retirement, as the case may be.
"Surviving Spouse" shall mean the legally married spouse of a Participant upon
the Participant's death.
"SERP Benefit" shall mean the benefit provided in Article 5 of the Plan.
"Termination of Employment" shall mean a Participant ceasing to be an employee
of all Employers, voluntarily or involuntarily, but shall exclude cessation of
employment with all Employers as a result of Normal Retirement, Early Retirement
or death.
"Trust" shall mean any trust established between the Company and the trustee
named therein, as amended from time to time that may be used to fund benefits
payable under the Plan.
"Vested" shall mean that a Participant's benefits under this Plan are
non-forfeitable as determined in accordance with Article 3 below.
"Years of Service" for eligibility, vesting and benefit accrual shall have the
same meaning as provided in the Basic Retirement Plan, including the maximum
number of Years of Service of 35; except that additional Years of Service may be
granted to a Participant for any purpose by written action of the Board.
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ARTICLE 2
Eligibility
Selection by Administrative Committee. Participation in the Plan shall be
limited to officers of the Employers who have been designated as a Participant
by the Board.
2.1 Commencement of Participation. A Participant shall commence
participation in the Plan on the first day of the month following the
date such individual is designated by the Board as a Participant.
2.2 Termination of Participation. A Participant shall cease participation
in the Plan (i) upon termination of an unvested Participant's
employment for any reason other than Normal Retirement, Early
Retirement or Deferred Retirement (as provided in Article 4), (ii) upon
action in writing by the Board prior to full vesting of a Participant's
SERP Benefit, or (iii) upon complete distribution of all benefits
payable to a Participant or his Surviving Spouse. Pursuant to this
Section 2.3, the Board shall have the authority to amend this Plan at
any time to remove any Participant from further participation in the
Plan. The Board shall provide notice to the Administrative Committee
and any affected Participant of such action. If an unvested Participant
is removed, no further vesting shall occur and the unvested SERP
Benefit shall be forfeited. If a Vested Participant is removed, such
Participant shall have no additional Years of Service or Earnings
recognized under the Plan after the date of removal.
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2.3 Recommencement of Participation. The participation of a terminated
Participant shall recommence in accordance with Section 2.2 upon being
redesignated by the Board in accordance with Section 2.1. Upon
recommencement of participation, Years of Service shall be counted to
the extent counted under the Basic Retirement Plan.
ARTICLE 3
Vesting
3.1 Vesting in Benefits.
(a) General. Except as provided in Sections 3.1(b), each
Participant shall have a non-forfeitable right or Vested
interest in his or her SERP Benefit after at least five (5)
Years of Service as defined for vesting purposes under the
Basic Retirement Plan and including any additional Years of
Service awarded under Section 1.26. A Participant who
terminates his employment with less than five (5) Years of
Service shall forfeit his benefits under the Plan.
(b) Special. Notwithstanding Section 3.1(a) above, a Participant
shall have a non-forfeitable right or Vested interest in the
Participant's SERP Benefit under the Plan upon a Change in
Control.
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ARTICLE 4
Retirement Dates
4.1 Normal Retirement. A Participant shall be eligible to retire on his
normal retirement date which is the first day of the month coinciding
with or next following his 65th birthday. The amount of his normal
retirement benefit shall be determined in accordance with the benefit
formula in Section 5.1.
4.2 Early Retirement. A Participant shall be eligible to retire early on
his early retirement date which is the first day of any month
subsequent to the date of termination after he has attained age 55, but
before his normal retirement date.
Upon termination of employment while eligible for early retirement,
payment of benefits to the Participant shall commence immediately on
the first of the month following his date of termination of employment.
In no event shall a terminated Participant defer commencement of his
early retirement benefits beyond his early retirement date.
The amount of his early retirement benefit shall be determined in
accordance with Section 5.2.
4.3 Deferred Retirement. A Participant shall be eligible to retire on his
or her Deferred Retirement date which is the first day of any month
subsequent to the date of termination of employment after he has
attained his Normal Retirement date described in Section 4.1.
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ARTICLE 5
Benefits
5.1 Normal Retirement Benefits. Upon Normal Retirement pursuant to Section
4.1, a Participant shall receive a monthly retirement allowance in the
form of an annuity equal to (a) minus (b) where:
(a) is a percentage from the following table times the
Participant's Average Annual Earnings divided by 12:
Years of Service Percentage Years of Service Percentage
5 10% 20 40%
6 12% 21 41
7 14% 22 42
8 16% 23 43
9 18% 24 44
10 20% 25 45
11 22 26 46
12 24 27 47
13 26 28 48
14 28 29 49
15 30 30 50
16 32 31 51
17 34 32 52
18 36 33 53
19 38 34 54
35 or more 55
Years of Service are Years of Service for benefit accrual
purposes under the Basic Retirement Plan, but not including
Years of Service accrued after the date of removal from Plan
coverage under Section 2.3 and including any additional Years
of Service awarded by the Board of Directors under Section
1.14.
(b) is the Participant's accrued monthly life annuity benefit from
the Basic Retirement Plan, calculated in accordance with the
provisions under such
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Plan as of the date of retirement under this Plan. Any
subsequent increases to the benefit from the Basic Retirement
Plan, which may become payable to the Participant after his
normal retirement date described in Section 4.1, his early
retirement date described in Section 4.2, or his deferred
retirement date described in Section 4.3, which is applicable
to him, shall not reduce the Participant's benefit under this
Plan.
5.2 Early Retirement Benefits.
(a) If a Participant retires early on or after age 55 and prior to
age 60, the monthly benefit shall be calculated in accordance
with Section 5.1 and reduced to the following amounts:
Age at Retirement Percentage of Monthly Benefits
60 and over 100%
59 95%
58 90%
57 85%
56 80%
55 74%
Reductions according to the above table shall be prorated for
months of age.
(b) If a Participant retires early after a Change in Control and
before age 55, the percentage of monthly benefits shall be
reduced from 74% by an additional 5% for each year below age
55 until such reduction equals or exceeds 100%.
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5.3 Deferred Retirement Benefit. If a Participant retires on his Deferred
Retirement date described in Section 4.3, his monthly benefit shall be
calculated in accordance with Section 5.1, but based on Years of
Service not to exceed 35 and Average Annual Earnings as of his Deferred
Retirement date.
5.4 Change in Control. In addition to 3.1(b), for purposes of calculating a
SERP benefit under this Article 5, immediately upon the date of Change
in Control, each Participant shall be deemed to have the following:
(a) additional years added to his or her age such that he or she
shall be age 55 for purposes of the Plan other than Section
5.2, and
(b) three additional Years of Service for purposes of SERP
Benefits under Article 5.
5.5 Form of Benefit. The annuity benefit shall be paid as follows:
(a) Married Participant. The retirement benefit of a Participant
who is married shall be paid in the form of a 50% spouse joint
and survivor annuity benefit. This form of benefit payment is
a monthly amount described in Section 5.1, 5.2 or 5.3, as
applicable, commencing on the Participant's retirement date
and payable during his lifetime, with 50% of such monthly
amount to continue to his Surviving Spouse from the first day
of the month following the date of his death. The payments
shall end
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with the last payment due on or before the Participant's or
his Surviving Spouse's date of death, whichever occurs later.
(b) Unmarried Participant. The retirement benefit of a Participant
who is unmarried shall be a life annuity benefit payable for
the life of the Participant. This form of benefit is a monthly
amount described in Section 5.1, 5.2 or 5.3, as applicable,
commencing on the Participant's retirement date and payable
during his lifetime, ending with the last payment due on or
before his date of death.
5.6 Application for Retirement. To receive benefits under this Plan, a
Participant must file a written response with the Administrative
Committee no less than 30 days, nor more than 90 days, prior to his
Normal Retirement date (specified in Section 4.1), his Early Retirement
date (specified in Section 4.2), or his deferred retirement date
(specified in Section 4.3), whichever is applicable.
If an application is not filed prior to retirement, the amount of
payment required to commence as above will not be ascertainable on the
retirement date; and commencement of retirement benefit payments shall
be delayed until no more than 60 days after the application is filed,
or the amount of such payment is ascertained, at which time a payment
retroactive to the retirement date shall be made.
5.7 Withdrawal Election.
(a) Post Retirement. A Participant may elect, at any time after he
or she commences to receive payments under this Plan, to
receive those payments in a lump sum, based on the actuarial
equivalent of his or her
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remaining Vested SERP Benefit less a 10% penalty (as described
below). No election to partially accelerate benefits shall be
allowed. The Participant shall make this election by giving
the Administrative Committee advance written notice of the
election in a form determined from time to time by the
Administrative Committee. The penalty shall be equal to 10% of
the Participant's remaining Vested SERP Benefit, determined on
an actuarial equivalent basis. The Participant shall be paid
the net of penalty SERP Benefit amount within 60 days of his
or her election. Once the SERP Benefit is paid, the
Participant's participation in the Plan shall terminate and
the Participant shall not be eligible to participate in the
Plan in the future.
(b) Post Change in Control. A Participant may elect, at any time
within six months after a Change in Control, to receive
benefit payments under this Plan in a lump sum, based on the
actuarial equivalent of his or her vested SERP Benefit less a
10% penalty (as described herein). No election to partially
accelerate benefits shall be allowed. The Participant shall
make this election by giving the Administrative Committee
advance written notice of the election in a form approved by
the Administrative Committee. The penalty shall be equal to
10% of the Participant's vested SERP Benefit determined on
actuarial equivalent basis. The Participant shall be paid the
net SERP Benefit amount within sixty days of his or her
election. Once the SERP Benefit is paid, the Participant's
participation in
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the Plan shall terminate and the Participant shall not be
eligible to participate in the Plan in the future.
5.8 Pre-Retirement Death Benefit. Upon the death of a Participant who is
Vested in accordance with Article 3 and who dies prior to his receipt
of benefits under the Plan, the Participant's Surviving Spouse shall be
eligible for a pre-retirement death benefit. For a Participant who is
at least age 55 on his date of death, the Surviving Spouse's
pre-retirement death benefit shall be equal to one-half the benefit
that would have been paid to the Participant if the Participant had
retired as of the date of death.
If the Participant is under age 55 at death, his Surviving Spouse's
pre-retirement death benefit shall be equal to one-half the benefit the
Participant would have received if the Participant had reached age 55
and retired as of the date of death, based on his Earnings and Years of
Service at death.
The Surviving Spouse's benefit shall commence immediately upon the
death of the Participant (or when the Participant would have been age
55, if later) and shall be payable for the life of the Spouse. A
Participant's right to benefits under the Plan shall cease upon the
Participant's death except as provided in this section. No
pre-retirement death benefit will be paid in respect to a Participant
who dies without a Surviving Spouse.
5.9 Missing Person Forfeiture and Reinstatement. A Participant's Vested
retirement benefit and the benefit payable to a Participant's Surviving
Spouse shall be forfeited if the benefit cannot be paid because the
identity or whereabouts of the person entitled to the payment cannot be
ascertained. The Administrative Committee's determination of when such
payment cannot be made shall be final.
Notwithstanding the foregoing, if at any time subsequent to the
forfeiture, the person entitled makes a claim to the Administrative
Committee for such payment,
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the amount of the forfeiture shall be reinstated and the payment made
to such person retroactive to the date benefits would have begun.
ARTICLE 6
Termination, Amendment or Modification of the Plan
6.1 Termination. Each Employer reserves the right to terminate the Plan at
any time with respect to its participating employees by the actions of
its board of directors. The termination of the Plan shall not adversely
affect any Participant or his or her Surviving Spouse who has become
entitled to the payment of any benefits under the Plan as of the date
of termination; provided, however, that the Employer shall have the
right to accelerate payments by paying the actuarial equivalent value
of such payments. For all other Participants, upon the termination of
the Plan, the actuarial equivalent of a Participant's vested SERP
Benefit shall be paid out in a lump sum.
6.2 Amendment. Any Employer may, at any time, amend or modify the Plan in
whole or in part with respect to its participating employees by the
actions of its board of directors; provided, however, that no amendment
or modification shall be effective to decrease or restrict a
Participant's then vested SERP Benefit, determined on an actuarial
equivalent basis. The amendment or modification of the Plan shall not
affect any Participant or his or her Surviving Spouse who has become
entitled to the payment of benefits under the Plan as of the date of
the amendment or modification; provided, however, that the Employer
shall have the right to accelerate installment payments by paying the
actuarial equivalent value
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of such payments either in a lump sum or in some other accelerated form
of payment. No amendment or modification of the Plan adopted within two
months prior to or following a Change in Control shall be effective to
decrease a Participant's SERP benefit or restrict vesting in a SERP
benefit as compared to the Participant's SERP benefit immediately
following a Change in Control absent such amendment.
ARTICLE 7
Other Benefits and Agreements
7.1 Coordination with Other Benefits. The benefits provided for a
Participant under this Plan are in addition to any other benefits
available to such Participant under any other plan or program for
employees of the Employers. The Plan shall supplement and shall not
supersede, modify or amend any other such plan or program except as may
otherwise be expressly provided.
ARTICLE 8
Administration of the Plan
8.1 Administrative Committee Duties. This Plan shall be administered by an
Administrative Committee which shall consist of three members of the
Board, or such committee as the Board shall appoint. Members of the
Administrative Committee may be Participants under this Plan. The
Administrative Committee shall also have the sole discretion and
authority to (i) make, amend, interpret and enforce all appropriate
rules and regulations for the administration of this Plan,
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(ii) decide or resolve any and all questions including interpretations
of this Plan, as may arise in connection with the Plan, (iii) determine
eligibility of any employer or officer of the Company and to designate
an officer as a Participant, (iv) to determine Year of Service of any
Participant and the amount of SERP Benefit payable under the Plan, and
(v) exercise all other powers necessary to administer the Plan in
accordance with its terms.
8.2 Agents. In the administration of this Plan, the Administrative
Committee may employ agents and delegate to them such administrative
duties as it sees fit, (including acting through a duly appointed
representative), and may from time to time consult with counsel who may
be counsel to any Employer.
8.3 Binding Effect of Decisions. The decision or action of the
Administrative Committee with respect to any question arising out of or
in connection with the administration, interpretation and application
of the Plan and the rules and regulations promulgated hereunder shall
be final and conclusive and binding upon all persons having any
interest in the Plan.
8.4 Indemnity of Administrative Committee. All Employers shall indemnify
and hold harmless the members of the Administrative Committee against
any and all claims, losses, damages, expenses or liabilities arising
from any action or failure to act with respect to this Plan, except in
the case of willful misconduct by the Administrative Committee or any
of its members.
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8.5 Employer Information. To enable the Administrative Committee to perform
its functions, each Employer shall supply full and timely information
to the Administrative Committee on all matters relating to the
compensation of its Participants, the date and circumstances of the
retirement, disability, death or Termination of Employment of its
Participants, and such other pertinent information as the
Administrative Committee may reasonably require.
ARTICLE 9
Claims Procedures
9.1 Presentation of Claim. Any Participant or Surviving Spouse of a
deceased Participant (such Participant or Surviving Spouse being
referred to below as a "Claimant") may deliver to the Administrative
Committee a written claim for a determination with respect to the
amounts distributable to such Claimant from the Plan. If such a claim
relates to the contents of a notice received by the Claimant, the claim
must be made within 60 days after such notice was received by the
Claimant. The claim must state with particularity the determination
desired by the Claimant. All other claims must be made within 180 days
of the date on which the event that caused the claim to arise occurred.
The claim must state with particularity the determination desired by
the Claimant.
9.2 Notification of Decision. The Administrative Committee shall consider a
Claimant's claim within a reasonable time, and shall notify the
Claimant in writing:
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(a) that the Claimant's requested determination has been made, and
that the claim has been allowed in full; or
(b) that the Administrative Committee has reached a conclusion
contrary, in whole or in part, to the Claimant's requested
determination, and such notice must set forth in a manner
calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim,
or any part of it;
(ii) specific reference(s) to pertinent provisions of the
Plan upon which such denial was based;
(iii) a description of any additional material or
information necessary for the Claimant to perfect the
claim, and an explanation of why such material or
information is necessary; and
(iv) an explanation of the claim review procedure set
forth in Section 9.3 below.
9.3 Review of a Denied Claim. Within 60 days after receiving a notice from
the Administrative Committee that a claim has been denied, in whole or
in part, a Claimant (or the Claimant's duly authorized representative)
may file with the Administrative Committee a written request for a
review of the denial of the claim. Thereafter, but not later than 30
days after the review procedure began, the Claimant (or the Claimant's
duly authorized representative):
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California Water Service Company
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(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Administrative Committee, in
its sole discretion, may grant.
9.4 Decision on Review. The Administrative Committee shall render its
decision on review promptly, and not later than 60 days after the
filing of a written request for review of the denial, unless a hearing
is held or other special circumstances require additional time, in
which case the Administrative Committee's decision must be rendered
within 120 days after such date. Such decision must be written in a
manner calculated to be understood by the Claimant, and it must
contain:
(a) specific reasons for the decision; specific reference(s) to
the pertinent Plan provisions upon which the decision was
based; and
(b) such other matters as the Administrative Committee deems
relevant.
9.5 Legal Action. A Claimant's compliance with the foregoing provisions of
this Article 9 is a mandatory prerequisite to a Claimant's right to
commence any legal action with respect to any claim for benefits under
this Plan.
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ARTICLE 10
Funding
10.1 Establishment of the Trust. The Company may establish a Trust to fund
benefit payments due under the Plan. Contributions shall be made at the
discretion of the Employers and the Employers shall transfer over to
the Trust such assets, if any, as the Employers determine, in their
sole discretion. Benefits not paid by the Trust shall be paid from
general assets of the Employers.
10.2 Interrelationship of the Plan and the Trust. The provisions of the Plan
and the Plan Agreement shall govern the rights of a Participant to
receive distributions pursuant to the Plan. The provisions of any Trust
shall govern the rights of the Employers, Participants and the
creditors of the Employers to the assets transferred to the Trust. Each
Employer shall at all times remain liable to carry out its obligations
under the Plan. Each Employer's obligations under the Plan may be
satisfied with Trust assets distributed pursuant to the terms of the
Trust, and any such distribution shall reduce the Employer's
obligations under this Agreement.
ARTICLE 11
Miscellaneous
11.1 Unsecured General Creditor. A Participant and a Surviving Spouse,
successors and assigns shall have no legal or equitable rights,
interests or claims in any property or assets of an Employer. Any and
all of an Employer's assets shall be,
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Supplemental Executive Retirement Plan
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and remain, the general, unpledged unrestricted assets of the Employer.
An Employer's obligation under the Plan shall be merely that of an
unfunded and unsecured promise to pay money in the future.
11.2 Employer's Liability. An Employer's liability for the payment of
benefits shall be defined only by the Plan. An Employer shall have no
obligation to a Participant under the Plan except as expressly provided
in the Plan.
11.3 Nonassignability. Neither a Participant nor any other person shall have
any right to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber, transfer, hypothecate or convey in
advance of actual receipt, the amounts, if any, payable hereunder, or
any part thereof, which are, and all rights to which are, expressly
declared to be, unassignable and non-transferable. No part of the
amounts payable shall, prior to actual payment, be subject to seizure
or sequestration for the payment of any debts, judgments, alimony or
separate maintenance owed by a Participant or any other person, nor be
transferable by operation of law in the event of a Participant's or any
other person's bankruptcy or insolvency.
11.4 Not a Contract of Employment. The terms and conditions of this Plan
shall not be deemed to constitute a contract of employment between any
Employer and the Participant. Such employment is hereby acknowledged to
be an "at will" employment relationship that can be terminated at any
time for any reason, with or without cause, unless expressly provided
in a written employment agreement.
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Supplemental Executive Retirement Plan
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Nothing in this Plan shall be deemed to give a Participant the right to
be retained in the service of any Employer or to interfere with the
right of any Employer to discipline or discharge the Participant at any
time.
11.5 Furnishing Information. A Participant or his or her Surviving Spouse
will cooperate with the Administrative Committee by furnishing any and
all information requested by the Administrative Committee and take such
other actions as may be requested in order to facilitate the
administration of the Plan and the payments of benefits hereunder,
including but not limited to taking such physical examinations as the
Administrative Committee may deem necessary.
11.6 Terms. Whenever any words are used herein in the masculine, they shall
be construed as though they were in the feminine in all cases where
they would so apply; and wherever any words are used herein in the
singular or in the plural, they shall be construed as though they were
used in the plural or the singular, as the case may be, in all cases
where they would so apply.
11.7 Captions. The captions of the articles, sections and paragraphs of this
Plan are for convenience only and shall not control or affect the
meaning or construction of any of its provisions.
11.8 Governing Law. Subject to ERISA, the provisions of this Plan shall be
construed and interpreted according to the internal laws of the State
of California without regard to its conflict of laws principles.
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California Water Service Company
Supplemental Executive Retirement Plan
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11.9 Notice. Any notice or filing required or permitted to be given to the
Administrative Committee under this Plan shall be sufficient if in
writing and hand-delivered, or sent by registered or certified mail, to
the address below:
Chief Financial Officer
California Water Service Company
1720 North First Street
San Jose, CA 95112
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered,
or sent by mail, to the last known address of the Participant.
11.10 Successors. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns
and the Participant and the Participant's Surviving Spouse.
11.11 Spouse's Interest. The interest in the benefits hereunder of a spouse
of a Participant who has predeceased the Participant shall
automatically pass to the Participant and shall not be transferable by
such spouse in any manner, including but not limited to such spouse's
will, nor shall such interest pass under the laws of intestate
succession.
11.12 Incompetent. If the Administrative Committee determines in its
discretion that a benefit under this Plan is to be paid to a minor, a
person declared incompetent or
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California Water Service Company
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to a person incapable of handling the disposition of that person's
property, the Administrative Committee may direct payment of such
benefit to the guardian, legal representative or person having the care
and custody of such minor, incompetent or incapable person. The
Administrative Committee may require proof of minority, incompetency,
incapacity or guardianship, as it may deem appropriate prior to
distribution of the benefit. Any payment of a benefit shall be a
payment for the account of the Participant and the Participant's
Beneficiary, as the case may be, and shall be a complete discharge of
any liability under the Plan for such payment amount.
11.13 Court Order. The Administrative Committee is authorized to make any
payments directed by court order in any action in which the Plan or
Administrative Committee has been named as a party.
11.14 Distribution in the Event of Taxation. If, for any reason, all or any
portion of a Participant's benefit under this Plan becomes taxable to
the Participant prior to receipt, a Participant may petition the
Administrative Committee for a distribution of that portion of his or
her benefit that has become taxable. Upon the grant of such a petition,
which grant shall not be unreasonably withheld, a Participant's
Employer shall distribute to the Participant immediately available
funds in an amount equal to the taxable portion of his or her benefit
(which amount shall not exceed a Participant's unpaid Account Balance
under the Plan). If the petition is granted, the tax liability
distribution shall be made within 90 days of the date
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California Water Service Company
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when the Participant's petition is granted. Such a distribution shall
affect and reduce the benefits to be paid under this Plan.
IN WITNESS WHEREOF, ____________________ has signed this Plan document
on __________________, 200_.
CALIFORNIA WATER SERVICE
COMPANY, a California corporation
By: _____________________________
Title: __________________________
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