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Sunoco - Executive Retirement Plan
Exhibit 10.13
SUNOCO, INC.
EXECUTIVE RETIREMENT PLAN
(Amended and Restated Effective November 1, 2007)
ARTICLE I
Definitions
1.01 95% Withdrawal - shall have the meaning set forth herein at Section 6.04(c).
1.02 Actuarial Equivalent - shall mean, except as otherwise provided in this Section, a benefit of equivalent value to the benefit which would otherwise have been provided to the Participant, determined on the same basis as determined under the Sunoco, Inc. Retirement Plan. Notwithstanding the preceding sentence, for purposes of determining the Actuarial Equivalent lump-sum value for payment of benefits under Section 3.09, the mortality table described in Treasury Regulation Section 1.417(e)-1(d)(2) and the applicable interest rate described in Treasury Regulation Section 1.417(e)-1(d)(3) as specified for the second month preceding the calendar quarter in which the annuity starting date occurs shall be used . For purposes of determining the lump-sum Actuarially Equivalent value of retirement income pursuant to Section 3.02, 3.03, 3.04, 3.05, 3.07 or 3.08, the value of early retirement and survivor benefits under the Plan shall be reflected in such lump-sum amounts. 1.03 Affiliated Company - shall mean:
(a) Any corporation which is included within a " controlled group of corporations" within which Sunoco, Inc., is also included as determined under Section 1563 of the Internal Revenue Code of 1986 without regard to subsections (a)(4) and (e)(3)(C) of said Section 1563;
(b) Any other trades or businesses (whether or not incorporated) which, based on principles similar to those defining a " controlled group of corporations" for purposes of (a) above, are under common control; and (c) Any other organization so designated by the Board Committee. 1.04 Affiliated Company Benefit - shall mean the monthly amount of benefit (or the Actuarial Equivalent of such benefit) to which a Participant and/or Spouse is or was entitled under any qualified or nonqualified defined contribution or defined benefit plan that is or was maintained by an Affiliated Company as the primary source of employer-provided retirement income for participants of such plan, including the Base Plan, calculated without reduction for any offsets for pensions payable by employers not affiliated with Sunoco, Inc.; provided, however , that in the case of a defined contribution plan, the value of such benefit will be determined based on the aggregate contributions made on behalf of the Participant (whether or not subsequently withdrawn by the
Participant), accumulated at a rate or rates of interest as determined by the Plan Administrator, which determination will be made in a uniform and consistent manner.
1.05 Base Plan - shall mean the Sunoco, Inc. Retirement Plan. 1.06 Beneficiary - shall mean the person or persons, other than a contingent annuitant, designated by a Participant or retired Participant pursuant to Article IV.
1.07 Board of Directors - shall mean the Board of Directors of Sunoco, Inc. 1.08 Board Committee - shall mean those individual members of the Board of Directors who have been appointed by the Board of Directors with the powers and responsibilities specified in Article VIII and to which has been delegated any fiduciary responsibilities of the Board of Directors with respect to the Plan.
1.09 Business Combination - shall have the meaning set forth herein at Section 1.10(c).
1.10 Change in Control - shall mean the occurrence of any of the following events:
(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a " Person" ) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (1) the then-outstanding shares of common stock of Sunoco, Inc. (the " Outstanding Company Common Stock" ) or (2) the combined voting power of the then-outstanding voting securities of Sunoco, Inc. entitled to vote generally in the election of directors (the " Outstanding Company Voting Securities" ); provided, however , that, for purposes of this Section (a), the following acquisitions shall not constitute a Change in Control: (A) any acquisition directly from Sunoco, Inc., (B) any acquisition by Sunoco, Inc., (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Sunoco, Inc. or any company controlled by, controlling or under common control with Sunoco, Inc., or (D) any acquisition by any entity pursuant to a transaction that complies with Sections (c)(1), (c)(2) and (c)(3) of this definition;
(b) Individuals who, as of January 1, 2005, constitute the Board of Directors (the " Incumbent Board" ) cease for any reason to constitute at least a majority of the Board of Directors; provided, however , that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the shareholders of Sunoco, Inc., was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent
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Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board of Directors; (c) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving Sunoco, Inc. or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of Sunoco, Inc., or the acquisition of assets or stock of another entity by Sunoco, Inc. or any of its subsidiaries (each, a " Business Combination" ), in each case unless, following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 60% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, as a result of such transaction, owns Sunoco, Inc. or all or substantially all of the assets of Sunoco, Inc. either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (2) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of Sunoco, Inc. or such corporation resulting from such Business Combination or any of their respective subsidiaries) beneficially owns, directly or indirectly, 20% or more of, respectively, the then-outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board of Directors providing for such Business Combination; or
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(d) Approval by the shareholders of Sunoco, Inc. of a complete liquidation or dissolution of Sunoco, Inc.
1.11 Change in Control Election - shall have the meaning set forth in Section 6.04(b). 1.12 Chief Executive Officer Participant - shall mean the Chief Executive Officer of Sunoco, Inc. on January 1, 2003. 1.13 Company - shall mean Sunoco, Inc., and any Affiliated Company.
1.14 Credited Service - subject to the limitations hereinafter described, shall mean the following:
(a) For an Executive Participant, the actual amount, in completed years and months, of the Participant' s Service at the date of termination of Executive status; and (b) For a Principal Officer Participant, the actual amount, in completed years and months, of the Participant' s Executive Service; and
(c) For a Participant retiring on or before January 1, 2003, an additional one month for each full year of such Service completed at the time the determination is being made; provided, however, that:
(1) the maximum number of months credited under this provision will be thirty-six (36);
(2) when the Participant attains his 62nd birthday, the number of months credited under this provision will automatically become thirty-six (36), regardless of the length of the Participant' s Service; and
(3) after the Participant' s 62nd birthday, the number of months credited under this provision will be reduced from month to month so that at any time a determination is being made, the maximum number of months credited under this provision will not exceed the number of months remaining until the Participant' s 65th birthday.
Credited Service will not include any periods of employment with an Affiliated Company before or after it becomes or ceases to be an Affiliated Company. For purposes of determining benefits, each completed month of Service shall equal 1/12 of one year of Service. 1.15 Earnings - shall mean the sum of:
(a) base salary paid or payable to a Participant by Sunoco, Inc. or an Affiliated Company; and
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(b) the actual incentive awards granted to a Participant pursuant to the Sunoco, Inc. Executive Incentive Plan (the " EIP" ) or the equivalent thereof pursuant to an incentive plan sponsored by Sunoco, Inc. or an Affiliated Company.
1.16 Effective Date - shall mean January 1, 1980, and as to any amendment or restatement, the effective date specified by the Board of Directors.
1.17 Employee - shall mean any individual who is employed by Sunoco, Inc. or an Affiliated Company.
1.18 Exchange Act - shall mean the Securities Exchange Act of 1934, as amended.
1.19 Executive - shall mean any Employee who is employed by the Company as a Principal Officer, or in a job which, in accordance with the Company' s job evaluation program, has been assigned 1400 or more Hay points. 1.20 Executive Participant - shall mean an Employee who became a Participant before January 1, 2003. 1.21 Executive Service - shall mean that part of a Participant' s Service rendered while he was an Executive; provided, however, that in the case of a Principal Officer Participant, Executive Service shall include only that part of a Participant' s Service rendered while he was a Principal Officer. In the case of a Participant who is not an Executive or a Principal Officer, Executive Service shall include all periods of participation pursuant to designation by the Board Committee.
1.22 Final Average Earnings - shall mean the arithmetic monthly average of the Participant' s aggregate Earnings during the thirty-six (36) calendar months of the last 120-consecutive calendar month period of Service immediately preceding the earlier of actual retirement or Termination Date (or the actual number of such months if less than thirty-six (36)) which produces the highest average).
1.23 Incumbent Board - shall have the meaning set forth herein at Section 1.10(b).
1.24 Just Cause - shall mean, for any Participant who is a participant in the Sunoco, Inc. Special Executive Severance Plan, " Just Cause" as defined in such plan, and for any other Participant: (a) the willful and continued failure of the Participant to perform substantial