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EXHIBIT 10.85
PANAMSAT CORPORATION
DEFERRED COMPENSATION PLAN
Effective January 1, 1997
Amended and Restated as of January 1, 2002
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TABLE OF CONTENTS
-----------------
Article 1
Definitions.......................................................2
Article 2 Selection, Enrollment,
Eligibility................................5
2.1
Selection.........................................................5
2.2 Enrollment
Requirements...........................................5
2.3
Eligibility; Commencement of
Participation........................5
2.4
Termination of Participation and/or
Deferrals.....................5
Article 3 Deferral
Commitments/Crediting/Taxes..............................6
3.1 Minimum
Deferrals.................................................6
3.2 Maximum
Deferrals.................................................6
3.3 Election
to Defer; Effect of Election Form........................6
3.4
Withholding of Annual Deferral
Amounts............................7
3.5
Vesting...........................................................7
3.6
Crediting/Debiting of Account
Balances............................7
3.7 FICA and
Other Taxes..............................................8
3.8 Taxation
of Distributions.........................................8
Article 4 Unforeseeable Financial
Emergencies; Withdrawal or In-Service
Distribution
Elections............................................8
4.1 Withdrawal
Payout/Suspensions for Unforeseeable Financial
Emergencies.......................................................8
4.2 Early
Withdrawal..................................................8
4.3 In-Service
Distributions..........................................9
Article 5 Termination Benefit; Layoff
Benefit..............................10
5.1
Termination
Benefit..............................................10
5.2 Payment of
Termination Benefit...................................10
5.3
Participant
Modifications.........................................9
5.4 Committee
Modifications..........................................10
Article 6 Disability
Waiver................................................11
6.1 Waiver of
Deferral...............................................11
6.2 Return to
Work...................................................11
Article 7 Beneficiary
Designation..........................................11
7.1
Beneficiary......................................................11
7.2
Beneficiary Designation;
Change..................................11
7.3
Acknowledgment...................................................11
7.4 No
Beneficiary
Designation.......................................11
7.5 Doubt as
to Beneficiary..........................................12
7.6 Discharge
of Obligations.........................................12
Article 8 Leave of
Absence.................................................12
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8.1 Paid Leave
of Absence.............................................12
8.2 Unpaid
Leave of Absence...........................................12
Article 9 Termination, Amendment or
Modification............................12
9.1
Termination.......................................................12
9.2
Amendment.........................................................13
9.3 Plan
Agreement....................................................13
9.4 Effect of
Payment.................................................13
Article 10
Administration...................................................13
10.1 Committee
Duties..................................................13
10.2
Delegation........................................................13
10.3 Binding Effect
of Decisions.......................................13
10.4 Indemnity of
Committee............................................14
10.5 Employer
Information..............................................14
Article 11 Other Benefits and
Agreements....................................14
Article 12
Trust............................................................14
12.1 Establishment of
Trust............................................14
12.2
Interrelationship of the Plan and the
Trust.......................14
12.3 Distributions
from the Trust......................................14
12.4 Investment of
Trust Assets........................................14
Article 13
Miscellaneous....................................................15
13.1 Status of
Plan....................................................15
13.2 Unsecured
General Creditor........................................15
13.3 Employer's
Liability..............................................15
13.4
Nonassignability..................................................15
13.5 Not a Contract
of Employment......................................15
13.6 Furnishing
Information............................................16
13.7
Terms.............................................................16
13.8
Captions..........................................................16
13.9 Governing
Law.....................................................16
13.10
Notice............................................................16
13.11
Successors........................................................16
13.12
Validity..........................................................16
13.13
Incompetent.......................................................17
13.14 Court
Order.......................................................17
13.15 Distribution in the
Event of Taxation.............................17
13.16
Insurance.........................................................17
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PANAMSAT CORPORATION
DEFERRED COMPENSATION PLAN
Effective January 1, 1997,
as amended and restated effective as of
January 1, 2002)
WHEREAS,
effective January 1, 1997, Company adopted the PanAmSat
Corporation Restoration and Deferred
Compensation Plan ("Plan");
WHEREAS, the
Plan provides certain management and highly compensated
employees of the Company and its
subsidiaries ("Eligible Employees") with (i)
the ability to defer certain amounts of
their base salary and annual bonus
payments and (ii) the ability to elect the
benefits that they would otherwise be
provided under the PanAmSat Corporation
Retirement Savings Plan (the "401(k)
Plan"), but for the limitations under
Sections 402(g), 401(a)(17) and 415 of the
Code (the "Restoration Benefits");
WHEREAS,
pursuant to Section 9.2 of the Plan, the Company may amend the
Plan at any time and from time to time;
WHEREAS,
effective as of January 1, 2002, the Company desires to amend
and
restate the Plan to provide, among other
things, that (i) Eligible Employees
will continue to have the ability to defer
the payment of certain amounts of
their base salary and annual bonus payments
under the Plan (which will be
restated as the PanAmSat Corporation
Deferred Compensation Plan) and (ii)
Eligible Employees will no longer have the
ability to elect Restoration Benefits
under the Plan; and
WHEREAS,
effective as of January 1, 2002, the Company adopts the
PanAmSat
Corporation Supplemental Savings Plan (the
"Supplemental Savings Plan") to
provide certain Eligible Employees with the
ability to elect Restoration
Benefits.
NOW THEREFORE,
effective as of January 1, 2002, the Company hereby amends
and restates the Plan as follows:
Purpose
-------
The purpose of
this Plan is to provide specified benefits to a select group
of management and highly compensated
Employees who contribute materially to the
continued growth, development and future
business success of PanAmSat
Corporation, a Delaware 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.
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Article 1
Definitions
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For purposes of
this Plan, unless otherwise clearly apparent from the
context, the following phrases or terms
shall have the following indicated
meanings:
1.1 "Account Balance" shall mean, with
respect to a Participant, a credit
on the records of the Employer equal to the
sum of (i) the Deferral Account
balance and (ii) the balance in any Payment
Election Account. The Account
Balance, and each other specified account
balance, shall be a bookkeeping entry
only and shall be utilized solely as a
device for the measurement and
determination of the amounts to be paid to
a Participant, or his or her
designated Beneficiary, pursuant to this
Plan. Notwithstanding the foregoing, if
such Participant was a participant in the
Plan on or before December 31, 2001,
the sum of the balance (if any) of his or
her Account Balance as of December 31,
2001 that is attributable to such
Participant's Restoration Benefit shall be
credited on the records of the Employer to
the Participant's account balance
under the Supplemental Savings Plan.
1.2 "Anniversary Date" shall mean the
first business day occurring each
January.
1.3 "Annual Bonus" shall mean any
compensation, in addition to Base Annual
Salary relating to services performed
during any calendar year, whether or not
paid in such calendar year or included on
the Federal Income Tax Form W-2 for
such calendar year, payable to a
Participant as an Employee under any Employer's
annual bonus and annual or long term cash
incentive plans and, as may be
determined by the Committee in its sole
discretion, any other incentive
compensation payable to a Participant;
provided, however, that such amounts
shall exclude stock options and any other
awards granted under the PanAmSat
Corporation Long Term Stock Incentive Plan
established in 1997 or any successor
plan.
1.4 "Annual Deferral Amount" shall
mean that portion of a Participant's
Base Annual Salary and Annual Bonus that a
Participant elects to have, and is,
deferred in accordance with Article 3, for
any one Plan Year. In the event of a
Participant's Disability (if deferrals
cease in accordance with Article 6),
death or a Termination of Employment prior
to the end of a Plan Year, such
year's Annual Deferral Amount shall be the
actual amount withheld prior to such
event.
1.5 "Base Annual Salary" shall mean
the annual cash compensation relating
to services performed during any calendar
year, whether or not paid in such
calendar year or included on the Federal
Income Tax Form W-2 for such calendar
year, excluding bonuses, commissions,
overtime, fringe benefits, stock options,
relocation expenses, incentive payments,
non-monetary awards, directors' fees
and other fees, automobile and other
allowances paid to a Participant for
employment services rendered (whether or
not such allowances are included in the
Employee's gross income). Base Annual
Salary shall be calculated before
reduction for compensation voluntarily
deferred or contributed by the
Participant pursuant to all qualified or
non-qualified plans of any Employer and
shall be calculated to include amounts not
otherwise included in the
Participant's gross income under Code
Sections 125, 402(e)(3), 402(h), or 403(b)
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pursuant to plans established by any
Employer; provided, however, that all such
amounts will be included in compensation
only to the extent that, had there been
no such plan, the amount would have been
payable in cash to the Employee.
1.6 "Beneficiary" shall mean one or
more persons, trusts, estates or other
entities, designated in accordance with
Article 7, that are entitled to receive
benefits under this Plan upon the death of
a Participant.
1.7 "Beneficiary Designation Form"
shall mean the form established from
time to time by the Committee that a
Participant completes, signs and returns to
the Committee to designate one or more
Beneficiaries.
1.8 "Board" shall mean the board of
directors of the Company.
1.9 "Code" shall mean the Internal
Revenue Code of 1986, as it may be
amended from time to time.
1.10
"Committee" shall mean
the Compensation Committee of the Company.
1.11
"Company" shall mean
PanAmSat Corporation, a Delaware corporation,
and any successor to all or substantially
all of the Company's assets or
business or stock.
1.12
"Deduction Limitation"
shall mean the following described limitation
on a benefit that may otherwise be
distributable pursuant to the provisions of
this Plan. Except as otherwise provided,
this limitation shall be applied to all
distributions that are "subject to the
Deduction Limitation" under this Plan. If
an Employer determines in good faith that
there is a reasonable likelihood that
any compensation paid to a Participant for
a taxable year of the Employer would
not be deductible by the Employer solely by
reason of the limitation under Code
Section 162(m), then to the extent deemed
necessary by the Employer to ensure
that the entire amount of any distribution
to the Participant pursuant to this
Plan is deductible, the Employer may defer
all or any portion of a distribution
under this Plan. Any amounts deferred
pursuant to this limitation shall continue
to be credited/debited with additional
amounts in accordance with Section 3.6
below, even if such amount is being paid
out in installments. The amounts so
deferred and amounts credited thereon shall
be distributed to the Participant or
his or her Beneficiary (in the event of the
Participant's death) at the earliest
possible date, as determined by the
Employer in good faith, on which the
deductibility of compensation paid or
payable to the Participant for the taxable
year of the Employer during which the
distribution is made will not be limited
by Section 162(m).
1.13
"Deferral Account"
shall mean (i) the sum of all of a Participant's
Annual Deferral Amounts, plus (ii) amounts
credited in accordance with all the
applicable crediting provisions of this
Plan that relate to the Participant's
Deferral Account, less all distributions
made to the Participant or his or her
Beneficiary pursuant to this Plan that
relate to his or her Deferral Account.
1.14
"Disability" shall
mean any time during which the Participant is
unable substantially to discharge the
responsibilities for which he or she is
employed by reason of physical illness or
incapacity, whether arising out of
sickness, accident or otherwise, and must
be
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evidenced by the written determination of a
qualified medical doctor acceptable
to the Committee and the Participant (or in
the event of the Participant's
incapacity to designate a doctor, the
Participant's legal representative), which
determination shall specify the date on
which the Disability commenced and that
it has continued uninterrupted for at least
180 days.
1.15
"Election Form" shall
mean the form established from time to time by
the Committee that a Participant completes,
signs and returns to the Committee
to make an election under the Plan.
1.16
"Employee" shall mean
a person who is an employee of any Employer.
1.17
"Employer(s)" shall
mean the Company and/or any of its subsidiaries
(now in existence or hereafter formed or
acquired) that have been selected by
the Board to participate in the Plan and
have adopted the Plan as a sponsor.
1.18
"ERISA" shall mean the
Employee Retirement Income Security Act of
1974, as it may be amended from time to
time.
1.19
"Participant" shall
mean any Employee (i) who is selected to
participate in the Plan, (ii) who elects to
participate in the Plan, (iii) who
signs a Plan Agreement, an Election Form
and a Beneficiary Designation Form (all
of which may be incorporated into a single
form as prescribed by the Committee),
(iv) whose signed Plan Agreement, Election
Form and Beneficiary Designation Form
are accepted by the Committee, (v) who
commences participation in the Plan, and
(vi) whose Plan Agreement has not
terminated.
1.20
"Payment Election"
shall mean an election by a Participant in
accordance with Section 4.3 to receive an
in-service distribution of such
Participant's credit balance in his or her
Payment Election Account.
1.21
"Payment Election
Account" shall mean each of the separate accounts
which the Company is required to establish
and maintain with respect to a
Participant in accordance with the
provisions of Section 4.3(b)."
1.22
"Plan" shall mean the
PanAmSat Corporation Deferred Compensation
Plan, which shall be evidenced by this
instrument and by each Plan Agreement, as
they may be amended from time to time.
1.23
"Plan Agreement" shall
mean a written agreement, as may be amended
from time to time, which is entered into by
and between an Employer and a
Participant. Each Plan Agreement executed
by a Participant and the Participant's
Employer shall provide for the entire
benefit to which such Participant is
entitled under the Plan; should there be
more than one Plan Agreement, the Plan
Agreement bearing the latest date of
acceptance by the Employer shall supersede
all previous Plan Agreements in their
entirety and shall govern such
entitlement. The terms of any Plan
Agreement may be different for any
Participant, and any Plan Agreement may
provide additional benefits not set
forth in the Plan or limit the benefits
otherwise provided under the Plan;
provided, however, that any such additional
benefits or benefit limitations must
be agreed to by both the Employer and the
Participant.
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1.24
"Plan Year" shall,
except for the first Plan Year, mean a period
beginning on January 1 of each calendar
year and continuing through December 31
of such calendar year.
1.25
"Prior Plan" shall
mean the PanAmSat Corporation Restoration and
Deferred Compensation Plan, which shall be
evidenced by this instrument and by
each Plan Agreement, as they may be amended
from time to time.
1.26
"Termination Benefit"
shall mean the benefit set forth in Section
5.1.
1.27
"Termination of
Employment" shall mean, as determined in the sole
discretion of the Committee, the severing
of employment and the termination of
services (or, in the case of a
non-employee, termination of services) with
PanAmSat Corporation, its subsidiaries and
any affiliated companies for any
reason, including retirement, Disability
and death.
1.28
"Trust" shall mean one
or more trusts which may be established
pursuant to Article 12.
1.29
"Unforeseeable
Financial Emergency" shall mean an unanticipated
emergency that is caused by an event beyond
the control of the Participant that
would result in severe financial hardship
to the Participant resulting from (i)
a sudden and unexpected illness or accident
of the Participant or a dependent of
the Participant, (ii) a loss of the
Participant's property due to casualty, or
(iii) such other extraordinary and
unforeseeable circumstances arising as a
result of events beyond the control of the
Participant, all as determined in the
sole discretion of the Committee.
Article 2
Selection, Enrollment, Eligibility
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2.1 Selection. Participation in the
Plan shall be limited to a select
group of management and highly compensated
Employees of the Employers, as
determined by the Committee. From that
group, the Committee, after
recommendation of such Employees to the
Committee by the President and Chief
Executive Officer of the Company, shall
select, in its sole discretion,
Employees to participate in the Plan.
2.2 Enrollment Requirements. As a
condition to participation, each
selected Employee shall complete, execute
and return to the Committee an
Election Form, a Plan Agreement and any
additional forms deemed necessary by the
Committee, all within 30 days after he or
she is selected to participate in the
Plan. In addition, the Committee shall
establish from time to time such other
enrollment requirements as it determines in
its sole discretion are necessary.
2.3 Eligibility; Commencement of
Participation. Provided an Employee
selected to participate in the Plan has met
all enrollment requirements set
forth in this Plan and required by the
Committee, including returning all
required documents to the Committee within
the specified time period, that
Employee shall commence participation in
the Plan on the day the Employee
completes all enrollment requirements. If
an Employee fails to meet all such
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requirements within the period required, in
accordance with Section 2.2, that
Employee shall not be eligible to
participate in the Plan until the first day of
the Plan Year following the delivery to and
acceptance by the Committee of the
required documents.
2.4 Termination of Participation
and/or Deferrals. If the Committee
determines that a Participant shall no
longer be permitted to participate, the
Committee shall have the right, in its sole
discretion, to (i) terminate any
deferral election the Participant has made
for the remainder of the Plan Year in
which the Participant's membership status
changes, (ii) prevent the Participant
from making future deferral elections
and/or (iii) immediately distribute the
Participant's then vested Account Balance
as a Termination Benefit and terminate
the Participant's participation in the
Plan.
Article 3
Deferral Commitments/Crediting/Taxes
------------------------------------
3.1 Minimum Deferrals. For each Plan
Year, a Participant may elect to
defer, as his or her Annual Deferral
Amount, Base Annual Salary in a whole
percentage of at least 5% or in a stated
dollar amount not less than $5,000, and
Annual Bonus in a whole percentage of at
least 5% or a stated dollar amount not
less than $5,000; provided, however, that
with respect to the first Plan Year,
i.e., the 1997 calendar year, such minimums
shall be 1% or a stated dollar
amount not less than $1,000, rather than 5%
and $5,000, respectively. If an
election is made for less than stated
minimum percentage or dollar amount, or if
no election is made, the amount deferred
shall be zero. Subject to the elections
available under Article 4, the deferral
period for all Deferrals shall be the
period expressly set forth in the Plan
Agreement and/or Election Form.
3.2 Maximum Deferrals.
-----------------
(a) Base Annual Salary and Annual
Bonus. For each Plan Year, a Participant
may elect to defer, in increments of the
minimum percentages or dollar amounts
stated above, Base Annual Salary and Annual
Bonus up to the following maximum
percentages for each deferral elected:
Deferral
Maximum Amount
--------
--------------
Base Annual Salary
50%
Annual Bonus
80%
A Participant's
election to defer Annual Bonus may specify that no deferral
shall be made with respect to the amount of
such Participant's Annual Bonus up
to a dollar amount specified by the
Participant, and that a specified percentage
(up to 100%) shall be deferred to the
extent that the Annual Bonus exceeds such
specified dollar amount.
(b) Notwithstanding the foregoing, if
a Participant first becomes a
Participant after the first day of a Plan
Year, (i) the maximum Annual Deferral
Amount, with respect to Base Annual Salary
shall be limited to the amount of
compensation not yet earned by the
Participant as of the date the Participant
submits a Plan Agreement and Election Form
to the Committee for acceptance, and
(ii) no deferral of the Annual Bonus for
such Plan Year shall be permitted
unless the Participant enrolls on a timely
basis (as determined under Section
2.2) by submitting a Plan Agreement and
Election Form to the Committee for
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acceptance on or before June 30 of such
Plan Year. Notwithstanding the
foregoing, solely with respect to the 1997
Plan Year, an enrollment election
shall be deemed timely filed if it is filed
on or prior to October 30, 1997.
3.3 Election to Defer; Effect of
Election Form.
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(a)
