Exhibit 10.53
Execution Copy
NEW YORK STOCK EXCHANGE AND
SUBSIDIARY COMPANIES
SUPPLEMENTAL EXECUTIVE SAVINGS
PLAN
(Formerly, the New York Stock
Exchange, Inc.
Supplemental Executive Savings
Plan)
Amended and
Restated
Effective as of January 1,
2008
New York Stock Exchange and
Subsidiary Companies
Supplemental Executive Savings
Plan
(Formerly, the New York Stock
Exchange, Inc.
Supplemental Executive Savings
Plan)
(a) Background; Purpose of
Plan . The New York
Stock Exchange, Inc. Supplemental Executive Savings Plan
(“Plan”) was adopted effective as of September 7,
1989 in order to provide deferred compensation to a select group of
management or highly compensated employees. The Plan was
subsequently amended and restated effective as of August 1,
1997 to form three (3) separate plans (Plans A, B and C) that
were encompassed within the same plan document. The Plan was
amended and restated effective as of January 1, 2005 to comply
with Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”). The Plan was subsequently amended
effective January 1, 2007 to provide for a unified, single
plan structure going forward.
The Plan, as set forth herein, is
amended and restated effective as of January 1, 2008, in order
to reflect the merger of the Securities Industry Automation
Corporation Supplemental Executive Savings Plan (“SIAC
SESP”) with and into the Plan effective as of such date. In
addition, effective as of January 1, 2008, the Plan has been
re-named to be the “New York Stock Exchange and Subsidiary
Companies Supplemental Executive Savings Plan.” The benefits
of any participant in the SIAC SESP who does not perform an
“Hour of Service,” as defined in the New York Stock
Exchange and Subsidiary Companies Employee Savings Plan, on or
after January 1, 2008 shall be governed by the provisions of
the SIAC SESP which covered such participant and was in effect on
the date that the participant terminated employment. The accounts
of individuals who were participants in the SIAC SESP on
December 31, 2007 will be transferred to the Plan effective as
of January 1, 2008 as part of the plan merger. These accounts
will be maintained under the Plan in accordance with the terms and
provisions set forth herein.
The purpose of the Plan continues to
be to provide deferred compensation to a select group of management
or highly compensated employees of NYSE Group, Inc. and
subsidiaries that have adopted the Plan.
(b) Section 409A of the
Code . As indicated
above, the Plan was amended and restated effective as of
January 1, 2005, to comply with Section 409A of the Code.
As part of the restatement, the Plan was bifurcated into
grandfathered and non-grandfathered component plans. Deferrals made
prior to January 1, 2005 and earnings thereon are
grandfathered for purposes of Section 409A of the Code and
governed by the terms and conditions of the Plan in effect prior to
the January 1, 2005 restatement, which is referred to as the
“Grandfathered Plan.” Deferrals made on and after
January 1, 2005 and earnings thereon are not grandfathered for
purposes of Section 409A of the Code and are governed by the
terms and conditions of the Plan as amended and restated effective
as of January 1, 2005 and as may be amended thereafter.
Recordkeeping for the Grandfathered Plan and the Plan is done
separately.
This Plan is intended to comply with
the applicable requirements of Section 409A of the Code and
shall be limited, construed and interpreted in accordance with such
intent. To the extent that any payment or benefit hereunder is
subject to Section 409A of the Code, it shall be paid in a
manner that will comply with Section 409A of the Code,
including all regulations, whether proposed or final, or any other
guidance issued by the Secretary of the Treasury and the Internal
Revenue Service with respect thereto.
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2.
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Definitions . For
purposes of this Plan, the following definitions apply:
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(a)
“Account” means, to the extent applicable, a
Participant’s Supplemental Account, Special RAP Contributions
Account and SIAC SESP Grandfathered Account.
(b) “Active
Participant” means
a Participant who is currently having book entry contributions made
to one of his Accounts hereunder.
(c) “Adopting
Subsidiary” means
any Subsidiary, while such a Subsidiary, that has adopted and
participates in the Savings Plan, and which adopts the Plan as a
participating employer with the approval of the Board.
(d) “Annual
Bonus” means the
portion of the discretionary annual bonus payable to an Employee in
cash, if not deferred under the Plan.
(e)
“Beneficiary” means, unless otherwise specified by the
Participant in a written election filed with the Committee upon
such form and in such manner as specified by the Committee, the
person or persons (if any) effectively designated by the
Participant under the Savings Plan (or otherwise determined under
the terms of the Savings Plan if no such designation is made) to
receive his benefits under the Savings Plan in the event of the
Participant’s death. In the event that two (2) or more
persons are the Participant’s Beneficiary under the Savings
Plan, then each such person shall be entitled to receive payment
under this Plan in the same proportion as the proportion of
benefits such person is entitled to receive under the Savings Plan,
provided, however, that if any such person has been designated
under the Savings Plan to receive a stated dollar amount, then such
amount shall be paid from this Plan (in the priority order set
forth below) only to the extent that the Participant’s
accounts in the Savings Plan are insufficient to pay such amount
consistent with the provisions of the Savings Plan. To the extent
applicable with respect to a Participant who participated in Plan
A, B, and C, amounts paid from this Plan pursuant to the foregoing
sentence shall be paid first from Plan A, and to the extent the
funds held under Plan A are insufficient, from Plan B, and to the
extent the funds held under Plan B are insufficient, from Plan C.
Such person or persons designated under the Savings Plan to receive
a stated dollar amount shall be otherwise disregarded in
determining benefit allocations under this Plan among persons who
are the Participant’s Beneficiary.
(f)
“Board” means
the Board of Directors of NYSE Group, Inc.
(g) “Code”
means the Internal Revenue Code of
1986, as amended. Reference to any section or subsection of the
Code includes reference to any comparable or succeeding provisions
of any legislation that amends, supplements or replaces such
section or subsection.
(h)
“Committee” means the Committee of at least two
(2) individuals appointed by the Board for purposes of
administering the Plan, or any successor committee. If a
Participant serves on the Committee, such Participant shall not be
authorized to make any determinations or decisions with respect to
his participation hereunder or with respect to payment of
Supplemental Benefits to such Participant hereunder.
(i) “Compensation
Limit” means, with
respect to a Supplemental Plan Year, the amount established by the
Secretary of the Treasury as the applicable limit under
Section 401(a)(17) of the Code.
(j)
“Disability” means (i) the Participant is unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less than 12 months or (ii) an
incapacity for which the Participant is receiving disability
benefits under the Employer’s Long Term Disability Plan (or
would be eligible to receive such benefits if the Participant had
participated in such plan) or for which the Participant is
receiving Social Security disability benefits.
(k)
“Earnings” means, for any Supplemental Plan Year, earnings
on amounts in a Participant’s Account computed in accordance
with Section 7 hereof.
(l) “Election
Period” means the
period established by the Committee during which elections to
participate in the Plan or to change or revoke an existing election
in effect under the Plan are permitted to be made. Except as
provided in Section 3(a) below with respect to an Employee who
first becomes an Eligible Employee during a Supplemental Plan Year,
the Election Period during which elections may be made for a
Supplemental Plan Year shall end no later than the
December 31st of the immediately preceding Supplemental Plan
Year. Elections that are not made within the Election Period shall
not be given any force or effect under the Plan.
(m) “Eligible
Employee” means
(i) an Employee who is an Officer and (ii) an Employee
who is not an Officer provided the sum of such Employee’s
Salary and Annual Bonus for the Supplemental Plan Year immediately
preceding the Supplemental Plan Year for which eligibility is being
determined exceeds the Compensation Limit applicable for such prior
Supplemental Plan Year.
Notwithstanding any other provision
to the contrary, no Employee whose (i) primary place of
employment with the Employer is outside of the United States and
(ii) primary residence was outside of the United States upon
the commencement of his employment with the Employer, unless such
Employee is designated as an Eligible Employee under this Plan by
the Board in writing, and no person who has waived participation in
the Plan under any individual compensation, retirement or other
agreement shall be an Eligible Employee under the Plan. An
individual classified by the Employer at the time services are
provided as either an independent contractor or an individual who
is not classified as an Employee due to the Employer treating any
services provided by him as being provided by another entity which
is providing such individual’s services to the Employer shall
not be eligible to participate in this Plan during the period the
individual is so initially classified even if such individual is
later retroactively reclassified as an employee during all or any
part of such period pursuant to applicable law or
otherwise.
(n)
“Employee” means any person employed by the
Employer.
(o)
“Employer” means NYSE Group, Inc., NYSE, SIAC and each
Adopting Subsidiary.
(p)
“ERISA” means
the Employee Retirement Income Security Act of 1974, as amended.
Reference to any section or subsection of ERISA includes reference
to any comparable or succeeding provisions of any legislation that
amends, supplements or replaces such section or
subsection.
(q) “Excess
Salary” means the
excess of an Eligible Employee’s Salary over his Recognizable
Salary. Excess Salary Per Pay Period shall mean the Excess Salary
earned in any Pay Period in the Supplemental Plan Year after the
Recognizable Salary limit has been reached.
(r) “Grandfathered
Plan” shall mean
the New York Stock Exchange, Inc. Supplemental Executive Savings
Plan, as in effect immediately prior to January 1,
2005.
(s) “Non-Grandfathered SIAC
SESP Account” means
the account in the Plan that is maintained for a Participant who
was a participant in the SIAC SESP on December 31, 2007 that
reflects all amounts, other than SIAC SESP Special Contributions,
that were credited to such Participant’s
“Non-Grandfathered Plan Account” under the SIAC SESP as
of such date and to which Earnings attributable to periods on and
after January 1, 2008 shall be credited.
(t) “NYSE”
means the New York Stock Exchange
LLC and any successor by merger, consolidation, purchase or
otherwise.
(u)
“Officer” means an officer of the Employer.
(v)
“Participant” means any Eligible Employee who shall have
become an Active Participant in the Plan and any individual with a
balance in his Accounts.
(w) “Pay
Period” means the
Employer’s pay period applicable to the Employee.
(x) “Plan”
means the New York Stock Exchange
and Subsidiary Companies Supplemental Executive Savings Plan, as
amended and restated effective as of January 1, 2008 and as
may be amended from time to time thereafter.
(y) “Prior
Plan” means the New
York Stock Exchange, Inc. Supplemental Executive Savings Plan as in
effect immediately prior to the effective date of the restatement
of the Plan set forth herein.
(z) “Recognizable
Salary” means an
Eligible Employee’s base salary for the Supplemental Plan
Year, taking into account the limitation on compensation to Two
Hundred and Thirty Thousand Dollars ($230,000), as adjusted for
cost of living adjustments, under Section 401(a)(17) of the
Code. Recognizable Salary Per Pay Period shall mean the amount of
Recognizable Salary earned in each Pay Period prior to reaching the
Recognizable Salary limit.
(aa)
“Salary” means an Eligible Employee’s base salary
for the Supplemental Plan Year, without regard to the limitation on
compensation to Two Hundred and Thirty Thousand Dollars ($230,000),
as adjusted for cost of living adjustments, under
Section 401(a)(17) of the Code.
(bb) “Salary Reduction
Agreement” means an
agreement entered into between an Active Participant and the
Employer to authorize the Employer to reduce the Active
Participant’s Salary or Annual Bonus and contribute the
amount of such reduction to the Plan.
(cc) “Savings
Plan” means the New
York Stock Exchange and Subsidiary Companies Employee Savings Plan,
as amended from time to time.
(dd)
“SIAC” means
Securities Industry Automation Corporation and any successor by
merger, consolidation, purchase or otherwise. The term SIAC shall
include all of SIAC’s wholly-owned subsidiaries while such
subsidiaries.
(ee) “SIAC
SESP” means the
Securities Industry Automation Corporation Supplemental Executive
Savings Plan, as amended and restated effective as of April 1,
2006 and as amended thereafter.
(ff) “SIAC SESP
Grandfathered Account” means the account (including sub-accounts, if
applicable) maintained for a Participant who was a participant in
the SIAC SESP on December 31, 2007 that reflects such
Participant’s SIAC SESP Grandfathered Benefits determined as
of such date and to which Earnings attributable to periods on and
after January 1, 2008 shall be credited. Amounts (including
earnings) credited to a Participant’s “Grandfathered
Plan Account” and “SERP Account” in the SIAC SESP
shall be maintained in separate sub-accounts in such
Participant’s SIAC SESP Grandfathered Account under the Plan.
All amounts (plus Earnings) credited to a Participant’s SIAC
SESP Grandfathered Account shall be fully vested at all
times.
(gg) “SIAC SESP
Grandfathered Benefits” means the vested book entry contributions that
were made to a Participant’s “Grandfathered Plan
Account” and, if applicable, his “SERP Account”
under the SIAC SESP prior to January 1, 2004 and all earnings
thereon.
(hh) “SIAC SESP Special RAP
Contributions” means, with respect to a Participant who was a
participant in the SIAC SESP on December 31, 2007, the amount
(including earnings) credited to such Participant’s
“Defined Contribution Account” in the SIAC SESP as of
such date. SIAC SESP Special Contributions that were transferred to
the Plan effective as of January 1, 2008 for any such
Participant shall be credited to the Participant’s Special
RAP Contributions Account.
(ii) “Special RAP
Contributions” means the book entry contributions made pursuant
to Section 6 of the Plan that are credited to a
Participant’s Special RAP Contributions Account and includes
Earnings thereon.
(jj) “Special RAP
Contributions Account” means the account to which a Participant’s
Special RAP Contributions, SIAC SESP Special RAP Contributions, if
applicable, and Earnings thereon shall be credited.
(kk)
“Specified Employee” shall mean a Participant who, as
of the date of his Termination of Employment, is a key employee (as
defined under Code Section 416(i)(1)(A)(i), (ii) or
(iii) but determined without reference to Code
Section 416(i)(5)) of the Employer, as determined in
accordance with the rules and procedures specified by the Committee
in accordance with the requirements of Section 409A of the
Code and the Treasury Regulations issued thereunder. The status of
a Participant as a Specified Employee during the Measurement Period
(defined herein) shall be determined annually on
December 31 st of the Plan Year immediately
preceding the Measurement Period (“Identification
Date”). The Measurement Period shall be the twelve
(12) month period beginning on the April 1
st
succeeding the
Identification Date for which it relates and ending on the
March 31 st of the following Plan
Year.
(ll)
“Subsidiary” means any corporation in an unbroken chain of
corporations beginning with NYSE Group, Inc., if each of the
corporations other than the last corporation in the unbroken chain
owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
(mm) “Supplemental
Account” means the
account or accounts, as applicable, to which a Participant’s
Supplemental Benefits shall be credited. To the extent applicable,
a Participant’s Non-Grandfathered SIAC SESP Account shall be
a sub-account in such Participant’s Supplemental
Account.
(nn) “Supplemental
Benefit” means the
book entry contributions made pursuant to Section 4 of the
Plan that are credited to a Participant’s Supplemental
Account and Earnings thereon.
(oo) “Supplemental Plan
Year” means the
period designated as a “Plan Year” under the Savings
Plan.
(pp) “Target Compensation
Limit” means the
Compensation Limit for the Supplemental Plan Year divided by one
(1) minus the percentage of Salary that the Participant elects
to defer on Salary up to such limit.
(qq) “Termination of
Employment” means
the termination of employment of an Employee with all of the
Employers and Subsidiaries for any reason whatsoever, including but
not limited to death, Disability, retirement, resignation or
involuntary termination, provided, that, such employment
termination constitutes a “separation from service”
within the meaning of Section 409(a)(2)(A)(i) of the Code and
the Treasury Regulations issued thereunder.
To the extent not inconsistent with
the foregoing definitions and the terms hereof, any defined terms
used in this Plan shall have the same meaning as in the Savings
Plan.
(a) An Eligible Employee may elect, during the
Election Period on forms prescribed by the Committee (which forms
shall include election forms with respect to the time and form of
distribution of Supplemental Benefits), to become an Active
Participant in the Plan for such Supplemental Plan Year. If, during
a Supplemental Plan Year, an Employee becomes an Eligible Employee,
either as a result of promotion to the position of Officer or
commencement of employment with the Employer as an Officer, such
Eligible Employee may elect to become an Active Participant prior
to the end of the thirty (30) day period following the date
that he becomes an Eligible Employee by completing and filing one
or more Salary Reduction Agreement(s) with the Committee; provided,
however, that, such Salary Reduction Agreement(s) may only provide
for the deferral of Salary and/or Annual Bonus that is earned by
the Eligible Employee subsequent to his enrollment in the Plan The
Participant’s enrollment application shall evidence his
agreement to the terms of the Plan and include up to two Salary
Reduction Agreements. If the Participant is an Officer, he is
eligible to enter into a Salary Reduction Agreement to defer a
percentage of Salary and/or he may enter into a second Salary
Reduction Agreement to defer a percentage of his Annual Bonus, in
each case subject to the limitations set forth below. If the
Participant is not an Officer, he is eligible to enter into a
Salary Reduction Agreement to defer a percentage of his Annual
Bonus, subject to the limitations set forth below. Deferrals
authorized under this Section 3(a) shall be subject to the
following limitations:
(A) A Participant who is an Officer
during the Election Period may elect to contribute to the Plan
amounts from Salary for a Supplemental Plan Year as
follows:
(i) from 1% to 25% of the
Participant’s Salary not in excess of the Target Compensation
Limit, plus
(ii) from 1% to 25% of the
Participant’s Salary in excess of the Target Compensation
Limit;
provided, however, that such
contributions when taken together shall not reduce the
Participant’s Salary below the Compensation Limit. If a
Participant has elected deferral percentages such that his or her
aggregate contributions under this Section 3(a) would reduce
the Participant’s Salary below the Compensation Limit, such
Participant’s deferral percentages applicable to his or her
Salary not in excess of the Target Compensation Limit shall be
reduced as necessary to comply with this
Section 3(a).
(B) Any other Participant who
satisfies the criteria described in this Section 3(a) and is
eligible to receive an Annual Bonus, may elect to contribute to the
Plan from 1% to 25% of such Annual Bonus.
(b) A Participant shall not be permitted to
terminate or change his Salary Reduction Agreement during any
Supplemental Plan Year to which such Salary Reduction Agreement
relates. Elections to terminate or change the terms of an existing
Salary Reduction Agreement with respect to a Supplemental Plan Year
are only permitted to be made during the Election Period applicable
to such Supplemental Plan Year.
(c) Notwithstanding any provision herein to the
contrary, no Employee who has waived participation in the Plan
under any individual compensation, retirement or other agreement,
shall be eligible to become a Participant hereunder.
(d) A Participant shall cease to be an Active
Participant with regard to a Supplemental Plan Year if he is not or
ceases to be an Eligible Employee with regard to the Plan. A
Participant’s classification as an Eligible Employee shall be
determined anew for each Supplemental Plan Year and a new Salary
Reduction Agreement must be made for each Supplemental Plan
Year.
(e) Notwithstanding anything herein, if a
Participant receives a hardship withdrawal under the Savings Plan,
all Salary reductions hereunder shall cease until the end of the
Plan Year in which the suspension period required under the terms
of the Savings Plan or hereunder, as the case may be, has ended.
Following such suspension period, Salary reductions hereunder (and
corresponding book entry contributions) shall resume only if the
Participant is then an Eligible Employee and has entered into a new
Salary Reduction Agreement during the applicable Election
Period.
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4.
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Contributions and Amount of Supplemental
Benefits .
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(a) The Employer shall make a book entry
contribution to the Supplemental Account in the Plan of each Active
Participant as of the last day of each Pay Period equal to the
amount of Salary deferred under the Plan during such period. In
addition, to the extent applicable, the Employer shall make a book
entry contribution to the Supplemental Account in the Plan of each
Active Participant as of the last day of each Pay Period equal to
the amount of Annual Bonus deferred under the Plan during such
period. If a Pay Period spans two Supplemental Plan Years, the
Salary Reduction Agreement, if any, in effect for the Supplemental
Plan Year in which the Pay Period ends shall be controlling as to
the amount, if any, contributed by the Participant for such Pay
Period.
(b) The Participant’s Salary shall be reduced
each Pay Period by the amount specified in such Salary Reduction
Agreement on a pre-tax basis. All salary reduction contributions
made to the Plan on behalf of a Participant shall be based on the
Participant’s Salary Reduction Agreement described in
Section 3 above. All salary reduction contributions made to
the Plan on behalf of a Participant under this Section 4 and
all Earnings thereon, credited as provided in Section 7 below,
shall be fully vested and non-forfeitable.
(c) As of the last day of each Pay Period, the
Employer shall make book entry contributions to the Supplemental
Account (“Matching Contributions”) of each Active
Parti