EXHIBIT 10.1
AMENDMENT NO. 2004-1
TO
CLARK CONSULTING
DEFERRED COMPENSATION PLAN
WHEREAS, Clark, Inc, a Delaware corporation (the "Company"),
maintains
the Clark Consulting Deferred Compensation
Plan (the "Plan"), effective as of
February 1, 2001 and amended and restated
as of December 8, 2003; and
WHEREAS, all capitalized terms used herein have the meanings set
forth
in the Plan unless otherwise indicated in
this amendment; and
WHEREAS, the Plan currently allows Participants to (i) allocate
new
deferrals and new company contributions to
the Clark, Inc. Stock Unit Fund
Measurement Fund, and (ii) re-allocate any
portion of their existing Account
Balances to the Clark, Inc. Stock Unit Fund
Measurement Fund. Further, the Plan
currently allows Participants to
re-allocate any portion of their Account
Balance from the Clark, Inc. Stock Unit
Fund Measurement Fund to any other
Measurement Fund, at any time.
WHEREAS, the Company desires to amend the Plan to provide that
(i)
amounts allocated to the Clark, Inc. Stock
Unit Fund Measurement Fund may not
later be re-allocated to any other
Measurement Fund at any time, and (ii) all
amounts allocated to the Clark, Inc. Stock
Unit Fund Measurement Fund shall be
distributable in actual shares of Stock;
and
WHEREAS, the Company is empowered to amend the Plan pursuant to
Section
13.2 of the Plan.
NOW, THEREFORE, the Company hereby amends the Plan, effective as
of
September 17, 2004 (the "Effective Date"),
as follows:
1.
Section 1.6 shall be replaced in its entirety with the
following language:
"Annual Installment Method" shall be an annual installment
payment over the number of years selected by the Participant
in accordance with this Plan, calculated as follows: (i) for
the first annual installment, the vested Account Balance of
the Participant shall be calculated as of the close of
business on or around the date on which the Participant
Retires, as determined by the Committee in its sole
discretion, and (ii) for remaining annual installments, the
vested Account Balance of the Participant shall be calculated
on every applicable anniversary of the date on which the
Participant Retires. Each annual installment shall be
calculated by multiplying this balance by a fraction, the
numerator of which is one and the denominator of which is the
remaining number of annual payments due the Participant. By
way of example, if the Participant elects a ten (10) year
Annual Installment Method, the first payment shall be 1/10 of
the vested Account Balance, calculated as described in this
definition. The following year, the payment shall be 1/9 of
the vested Account Balance, calculated as described in this
definition. Notwithstanding the above, if a Participant, who
has elected to receive his or her Retirement Benefit pursuant
to an Annual Installment Method in accordance with Article 7,
has allocated any portion of his or her Account Balance to the
Private Equity Fund Measurement
<PAGE>
Fund, Hedge Fund Measurement Fund or other special Measurement
Fund, the Committee may, in its sole discretion, (i) delay
distribution of any amounts payable in a given year, and/or
(ii) adjust the amount of any annual installment(s) by paying
an amount that is greater or less than the annual installment
calculated pursuant to the 1/n formula. However, if a Disabled
Participant is being paid his or her Retirement Benefit in
accordance with Article 9, the Committee shall have no ability
to either (i) delay distribution of any amounts payable in a
given year, or (ii) adjust the amount of any annual
installment(s) by paying an amount that is greater or less
than the annual installment calculated pursuant to the 1/n
formula. Shares of Stock that shall be distributable from a
Participant's Account Balance shall be distributable in shares
of actual Stock in the same manner previously described. Each
annual installment shall be rounded to the closest full share
and subsequent annual installments shall be adjusted
accordingly. If a fractional share remains at the time the
final annual installment is payable, such fractional share
shall be paid in cash.
2.
Section 3.10(a) shall be replaced in its entirety with the
following language:
MEASUREMENT FUNDS. Subject to the restrictions found in
Sections 3.10(c), (d) and (e) below, the Participant may elect
one or more of the measurement funds selected by the
Committee, in its sole discretion, which are based on certain
mutual funds (the "Measurement Funds"), for the purpose of
crediting or debiting additional amounts to his or her Account
Balance. As necessary, the Committee may, in its sole
discretion, discontinue, substitute or add a Measurement Fund.
Each such action will take effect as of the first day of the
first month that begins at least thirty (30) days after the
day on which the Committee gives Participants advance written
notice of such change.
3.
Section 3.10(b) shall be replaced in its entirety with the
following language:
ELECTION OF MEASUREMENT FUNDS. Subject to the restrictions
found in Sections 3.10(c), (d) and (e) below, a Participant,
in connection with his or her initial deferral election in
accordance with Section 3.3(a) above, shall elect, on the
Election Form, one or more Measurement Fund(s) (as described
in Section 3.10(a) above) to be used to determine the amounts
to be credited or debited to his or her Account Balance. If a
Participant does not elect any of the Measurement Funds as
described in the previous sentence, the Participant's Account
Balance shall automatically be allocated into the lowest-risk
Measurement Fund, as determined by the Committee, in its sole
discretion. Subject to the restrictions found in Sections
3.10(c), (d) and (e) below, the Participant may (but is not
required to) elect, by submitting an Election Form to the
Committee that is accepted by the Committee, to add or delete
one or more Measurement Fund(s) to be used to determine the
amounts to be credited or debited to his or her Account
Balance, or to change the portion of his or her Account
Balance allocated to each previously or newly elected
Measurement Fund. If an election is made in accordance with
the previous sentence, it shall apply as of the first business
day deemed reasonably practicable by the Committee, in its
sole discretion, and shall continue thereafter for each
subsequent day in which the Participant participates in the
Plan, unless changed in accordance with the previous sentence;
provided, however, an election allocating amounts to and/or
from the Private Equity Fund Measurement Fund,
2
<PAGE>
Hedge Fund Measurement Fund or other special Measurement Fund
or to the Clark, Inc. Stock Unit Fund Measurement Fund, where
applicable, shall be subject to the additional restrictions
described below.
4.
Section 3.10(c)(i) shall be replaced in its entirety with the
following language:
A Participant may elect to allocate any portion of his or her
new deferrals and new company contributions and/or re-allocate
any portion of his or her Account Balance to the Clark, Inc.
Stock Unit Fund Measurement Fund. Notwithstanding the
preceding sentence, the Committee may postpone any allocation
or re-allocation that would otherwise be made in a period in
which the Participant would be prohibited (by Company policy
or otherwise) from acquiring equity securities of the Company
until after such period has expired. However, a Participant
may not re-allocate any portion of his or her Account Balance
from the Clark, Inc. Stock Unit Fund Measurement Fund to any
other Measurement Fund. Amounts allocated to the Clark, Inc.
Stock Unit Fund Measurement Fund shall only be distributable
in actual shares of Stock, except that a fractional share, if
any, shall be paid in cash.
5.
Section 3.10(c)(ii) shall be replaced in its entirety with the
following language:
Any stock dividends, cash dividends or other non-cash
dividends that would have been payable on the Stock credited
to a Participant's Account Balance shall be credited to the
Participant's Account Balance in the form of additional shares
of Stock and shall automatically and irrevocably be deemed to
be re-invested in the Clark, Inc. Stock Unit Fund Measurement
Fund until such amounts are distributed to the Participant.
The number of shares credited to the Participant for a
particular stock dividend shall be equal to (a) the number of
shares of Stock credited to the Participant's Account Balance
as of the payment date for such dividend in respect of each
share of Stock, multiplied by (b) the number of additional
shares of Stock actually paid as a dividend in respect of each
share of Stock. The number of shares credited to the
Participant for a particular cash dividend or other non-cash
dividend shall be equal to (a) the number of shares of Stock
credited to the Participant's Account Balance as of the
payment date for such dividend in respect of each share of
Stock, multiplied by (b) the fair market value of the
dividend, divided by (c) the "fair market value" of the Stock
on the payment date for such dividend.
6.
Section 5.4 shall be replaced in its entirety with the
following language:
WITHDRAWAL ELECTION. A Participant may elect, at any time, to
withdraw all or a portion of his or her vested Account
Balance,
excluding the portion of the Account Balance
allocated to the Clark, Inc. Stock Unit Fund Measurement Fund,
the Private Equity Fund Measurement Fund, the Hedge Fund
Measurement Fund or other special Measurement Fund. For
purposes of this Section 5.4, the value of a Participant's
vested Account Balance shall be calculated as of the close of
business on or around the date on which receipt of the
Participant's election is acknowledged by the Committee, as
determined by the Committee in its sole discretion, less a
withdrawal penalty equal to 10% of the amount withdrawn (the
net amount shall be referred to as the "Withdrawal Amount").
This election can be made at any time, before or after
Retirement or Disability,
3
<PAGE>
and whether or not the Participant is in the process of being
paid pursuant to an installment payment schedule. The
Participant shall make this election by giving the Committee
advance written notice of the election in a form determined
from time to time by the Committee. The Participant shall be
paid the Withdrawal Amount within sixty (60) days of his or
her election. Once the Withdrawal Amount is paid, the
Participant's participation in the Plan shall be suspended for
the remainder of the Plan Year in which the withdrawal is
elected and for one (1) full Plan Year thereafter.
7.
Except as specifically provided in this Amendment, the
remaining provisions of the Plan, as amended, shall remain in
full force and effect.
The Company has caused this Amendment to be signed by a duly
authorized
officer effective as of the Effective
Date.
CLARK, INC.,
a Delaware corporation
By: /s/
Thomas M. Pyra
--------------------------------
Title: Chief Operating Officer
4
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CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
Effective as of February 1, 2001
Amended and Restated as of December 8, 2003
Copyright (C) 2003
By Clark Consulting
Executive Benefits Practice
All Rights Reserved
<PAGE>
CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
....................................................1
ARTICLE 2 Selection,
Enrollment, Eligibility..............................7
2.1
Selection by
Committee..........................................7
2.2
Enrollment
Requirements.........................................7
2.3
Eligibility; Commencement of Participation
.....................7
2.4
Termination of Participation and/or Deferrals
..................8
ARTICLE 3 Deferral
Commitments/Company Contribution Amounts/Supplemental
Matching Amounts/ 401(k) Restoration Matching Amounts/
Vesting/Crediting/Taxes.........................................8
3.1
Minimum
Deferrals...............................................8
3.2
Maximum
Deferral................................................8
3.3
Election to Defer; Effect of Election
Form......................9
3.4
Withholding and Crediting of Annual Deferral
Amounts............9
3.5
Rollover
Amount................................................10
3.6
Company Contribution
Amount....................................10
3.7
Annual 401(k) Restoration Matching Amount
.....................10
3.8
Annual Supplemental Matching
Amount............................11
3.9
Vesting........................................................11
3.10
Crediting/Debiting of Account
Balances.........................12
3.11
FICA and Other
Taxes...........................................15
ARTICLE 4 Deduction
Limitation...........................................16
4.1
Deduction Limitation on Benefit
Payments.......................16
ARTICLE 5 Short-Term
Payout; Unforeseeable Financial Emergencies;
Withdrawal
Election............................................16
5.1
Short-Term
Payout..............................................16
5.2
Other Benefits Take Precedence Over Short-Term
................17
5.3
Withdrawal Payout/Suspensions for Unforeseeable Financial
Emergencies....................................................17
5.4
Withdrawal
Election............................................18
ARTICLE 6 Change In
Control Benefit......................................18
6.1
Change in Control
Benefit......................................18
ARTICLE 7 Retirement
Benefit.............................................18
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CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
7.1
Retirement
Benefit.............................................18
7.2
Payment of Retirement
Benefit..................................18
ARTICLE 8
Termination
Benefit............................................19
8.1
Termination
Benefit............................................19
8.2
Payment of Termination
Benefit.................................19
ARTICLE 9 Disability
Waiver and Benefit..................................19
9.1
Disability
Waiver..............................................19
9.2
Continued Eligibility; Disability
Benefit......................20
ARTICLE 10 Survivor
Benefit...............................................21
10.1
Survivor
Benefit...............................................21
10.2
Payment of Survivor
Benefit....................................21
ARTICLE 11 Beneficiary
Designation........................................21
11.1
Beneficiary....................................................21
11.2
Beneficiary Designation; Change; Spousal Consent
..............21
11.3
Acknowledgement................................................21
11.4
No Beneficiary
Designation.....................................21
11.5
Doubt as to
Beneficiary........................................22
11.6
Discharge of
Obligations.......................................22
ARTICLE 12 Leave of
Absence...............................................22
12.1
Paid Leave of
Absence..........................................22
12.2
Unpaid Leave of
Absence........................................22
ARTICLE 13 Termination,
Amendment or Modification.........................22
13.1
Termination....................................................22
13.2
Amendment......................................................22
13.3
Plan
Agreement.................................................23
13.4
Effect of
Payment..............................................23
ARTICLE 14 Administration
................................................23
14.1
Committee
Duties...............................................23
14.2
Administration Upon Change In
Control..........................23
14.3
Agents.........................................................24
14.4
Binding Effect of
Decisions....................................24
14.5
Indemnity of
Committee.........................................24
14.6
Employer
Information...........................................24
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CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
ARTICLE 15 Other Benefits
and Agreements..................................24
15.1
Coordination with Other
Benefits...............................24
ARTICLE 16 Claims
Procedures..................................................24
16.1
Presentation of
Claim..........................................24
16.2
Notification of
Decision.......................................25
16.3
Review of a Denied
Claim.......................................25
16.4
Decision on
Review.............................................25
16.5
Legal
Action...................................................26
ARTICLE 17 Trust
.........................................................26
17.1
Establishment of the
Trust.....................................26
17.2
Interrelationship of the Plan and the
Trust....................26
17.3
Distributions From the
Trust...................................26
ARTICLE 18
Miscellaneous..................................................27
18.1
Status of
Plan.................................................27
18.2
Unsecured General
Creditor.....................................27
18.3
Employer's
Liability...........................................27
18.4
Nonassignability...............................................27
18.5 Not a
Contract of Employment...................................27
18.6
Furnishing
Information.........................................27
18.7
Terms..........................................................28
18.8
Captions.......................................................28
18.9
Governing
Law..................................................28
18.10
Notice.........................................................28
18.11
Successors.....................................................28
18.12
Spouse's
Interest..............................................28
18.13
Validity.......................................................28
18.14
Incompetent....................................................28
18.15
Court Order
...................................................29
18.16
Distribution in the Event of
Taxation..........................29
18.17
Insurance......................................................29
18.18
Legal Fees To Enforce Rights After Change in
Control...........29
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<PAGE>
CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
CLARK CONSULTING
DEFERRED COMPENSATION PLAN
Effective as of February 1, 2001
Amended and Restated as of December 8, 2003
PURPOSE
The purpose of this Plan is to provide specified benefits to a
select
group of management or highly compensated
Employees who contribute materially to
the continued growth, development and
future business success of Clark, Inc., 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.
This Deferred Compensation Plan supersedes
in its entirety the Clark/Bardes
Consulting, Inc. Executive Deferred
Compensation Plan (hereinafter, the
"Predecessor Plan") for any and all
participants in the Predecessor Plan who
have complied with the enrollment
requirements set forth in Article 2 of this
Plan. Any and all balances accrued by such
participants under the Predecessor
Plan shall be subject to the terms and
conditions of this Plan and shall be
referred to as the "Rollover Amount."
ARTICLE 1
DEFINITIONS
For the 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, (ii) the Company Contribution Account balance,
(iii)
Supplemental Matching Account balance, and (iv) the 401(k)
Restoration
Matching Account balance. 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.
1.2 "Annual
Bonus" shall mean any compensation, in addition to Base Annual
Salary, Commissions, and Special Incentive Plan Amounts,
attributable
to a Plan Year, as further specified on an Election Form approved
by
the Committee in its sole discretion, under any Employer's annual
bonus
and cash incentive plans, excluding stock options.
1.3 "Annual
Deferral Amount" shall mean that portion of a Participant's
Base Annual Salary, Annual Bonus, Commissions, Special Incentive
Plan
Amounts, Annual Qualified Plan Make-Up Amounts, and the Annual
401(k)
Refund Amounts that a Participant elects to have deferred, and
is
deferred, in accordance with Article 3, for any one Plan Year. In
the
event of a Participant's Retirement, Disability (if deferrals cease
in
accordance with Section 9.1), 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.
1.4 "Annual
401(k) Refund Amount" shall mean an amount equal to any forced
reduction in a Participant's 401(k) deferrals for such Plan Year
(i)
that are refunded to such Participant as a result of the
nondiscrimination testing, and (ii) that a Participant has
affirmatively elected under this Plan to defer from Base Annual
Salary
or Commissions.
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CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
1.5 "Annual
401(k) Restoration Matching Amount" for any one Plan Year shall
be the amount determined in accordance with Section 3.7.
1.6 "Annual
Installment Method" shall be an annual installment payment over
the number of years selected by the Participant in accordance with
this
Plan, calculated as follows: (i) for the first annual installment,
the
vested Account Balance of the Participant shall be calculated as of
the
close of business on or around the date on which the
Participant
Retires, as determined by the Committee in its sole discretion,
and
(ii) for
remaining annual installments, the vested Account Balance of
the Participant shall be calculated on every applicable anniversary
of
the date on which the Participant Retires. Each annual
installment
shall be calculated by multiplying this balance by a fraction,
the
numerator of which is one and the denominator of which is the
remaining
number of annual payments due the Participant. By way of example,
if
the Participant elects a ten (10) year Annual Installment Method,
the
first payment shall be 1/10 of the vested Account Balance,
calculated
as described in this definition. The following year, the payment
shall
be 1/9 of the vested Account Balance, calculated as described in
this
definition. Notwithstanding the above, if a Participant, who
has
elected to receive his or her Retirement Benefit pursuant to an
Annual
Installment Method in accordance with Article 7, has allocated
any
portion of his or her Account Balance to the Private Equity
Measurement
Fund, Hedge Fund Measurement Fund or other special Measurement
Fund,
the Committee may, in its sole discretion, (i) delay distribution
of
any amounts payable in a given year, and/or (ii) adjust the amount
of
any annual installment(s) by paying an amount that is greater or
less
than the annual installment calculated pursuant to the 1/n
formula.
However, if a Disabled Participant is being paid his or her
Retirement
Benefit in accordance with Article 9, the Committee shall have
no
ability to either (i) delay distribution of any amounts payable in
a
given year, or (ii) adjust the amount of any annual installment(s)
by
paying an amount that is greater or less than the annual
installment
calculated pursuant to the 1/n formula.
1.7 "Annual
Qualified Plan Make-Up Amounts" shall mean an amount equal to
any qualified plan make-up amounts for such Plan Year (i) that
are
currently made on behalf of the Participant as a result of such
Participant's participation in a past or current qualified plan
other
than the 401(k) Plan, and (ii) that a Participant has
affirmatively
elected to defer under this Plan.
1.8 "Annual
Supplemental Matching Amount" shall mean, for any one Plan
Year, the amount determined in accordance with Section 3.8.
1.9 "Base
Annual Salary" shall mean the annual cash compensation relating
to services performed during any calendar year, excluding
bonuses,
commissions, overtime, fringe benefits, stock options,
relocation
expenses, incentive payments, non-monetary awards, director fees
and
other fees, and 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) 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.
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CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
1.10 "Beneficiary"
shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 11, that are
entitled
to receive benefits under this plan upon the death of a
Participant.
1.11 "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.
1.12 "Board" shall
mean the board of directors of the Company.
1.13 "Change in
Control" shall mean:
(a) With
respect to all Participants, a "Change in Control" shall
mean the first to occur of any of the following events:
(i) Any
"person" (as that term is used in Section 13 and
14(d)(2) of the Securities Exchange Act of 1934
("Exchange Act")) becomes the beneficial owner (as
that term is used in Section 13(d) of the Exchange
Act), directly or indirectly, of fifty percent (50%)
or more of the Company's capital stock entitled to
vote in the election of directors;
(ii)
During any period of not more than two consecutive
years, not including any period prior to the adoption
of this Plan, individuals who, at the beginning of
such period constitute the board of directors of the
Company, and any new director (other than a director
designated by a person who has entered into an
agreement with the Company to effect a transaction
described in clause (i), (iii), (iv) or (v) of this
Section 1.13) whose election by the board of
directors or nomination for election by the Company's
stockholders was approved by a vote of at least
three-fourths (3/4ths) of the directors then still in
office, who either were directors at the beginning of
the period or whose election or nomination for
election was previously so approved, cease for any
reason to constitute at least a majority thereof;
(iii) The
shareholders of the Company approve any
consolidation or merger of the Company, other than a
consolidation or merger of the Company in which the
holders of the common stock of the Company
immediately prior to the consolidation or merger hold
more than fifty percent (50%) of the common stock of
the surviving corporation immediately after the
consolidation or merger;
(iv)
The shareholders of the Company approve any plan or
proposal for the liquidation or dissolution of the
Company; or
(v) The
shareholders of the Company approve the sale or
transfer of all or substantially all of the assets of
the Company to parties that are not within a
"controlled group of corporations" (as defined in
Code Section 1563) in which the Company is a member.
(b) With
respect to those Participants employed by a division of
the Company, a subsidiary or a division of a subsidiary, which
is affected by either (i) or (ii) described below, "Change in
Control" shall
mean the first to occur of either of the
following events:
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CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
(i) The
shareholders of the Company approve any plan or
proposal for the liquidation or dissolution of the
division of the Company, the subsidiary or the
division of the subsidiary.
(ii)
The shareholders of the Company approve the sale or
transfer of all or substantially all of the assets of
the division of the Company, the subsidiary or the
division of the subsidiary to parties that are not
within a "controlled group of corporations" (as
defined in Section 1563 of the Code) in which the
Company is a member.
1.14 "Change in
Control Benefit" shall have the meaning set forth in Article
6.
1.15 "Claimant" shall
have the meaning set forth in Section 16.1.
1.16 "Code" shall
mean the Internal Revenue Code of 1986, as it may be
amended from time to time.
1.17 "Commissions"
shall mean the cash commissions in excess of Draw
attributable to a Plan Year, as further specified on an Election
Form
approved by the Committee in its sole discretion, such excess
being
determined by the Committee, in its sole discretion.
1.18 "Committee"
shall mean the Committee described in Article 14.
1.19 "Company" shall
mean Clark, Inc., a Delaware corporation, and any
successor to all or substantially all of the Company's assets
or
business.
1.20 "Company
Contribution Account" shall mean (i) the sum of the
Participant's Company Contribution Amounts, plus (ii) amounts
credited
or debited to the Participant's Company Contribution Account in
accordance with this Plan, less (iii) all distributions made to
the
Participant or his or her Beneficiary pursuant to this Plan that
relate
to the Participant's Company Contribution Account.
1.21 "Company
Contribution Amount" shall mean, for any one Plan Year, the
amount determined in accordance with Section 3.6.
1.22 "Deduction
Limitation" shall mean the limitation on a benefit that may
otherwise be distributable pursuant to the provisions of this Plan,
as
set forth in Article 4.
1.23 "Deferral
Account" shall mean (i) that portion of a Participant's
Rollover Amount which is represented by the Participant's
aggregate
deferral contributions described in Sections 4.2.1 and 4.2.2 of
the
Predecessor Plan, as well as any appreciation (or depreciation)
specifically attributable to such deferral contributions
accumulated
under the Predecessor Plan, plus (ii) the sum of all of a
Participant's
Annual Deferral Amounts, plus (iii) amounts credited in accordance
with
all the applicable crediting and debiting provisions of this Plan
that
relate to the Participant's Deferral Account, less (iv) all
distributions made to the Participant or his or her Beneficiary
pursuant to this Plan that relate to his or her Deferral
Account.
1.24 "Disability"
shall mean a determination (i) by the carrier of any
individual or group disability insurance policy, sponsored by
the
Participant's Employer, or (ii) by the Social Security
Administration,
that
a Participant is totally and permanently disabled. Upon request
by
the Employer, the Participant must submit proof of the carrier's
or
Social Security Administration's determination to his or her
Employer.
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CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
1.25 "Disability
Benefit" shall mean the benefit set forth in Article 9.
1.26 "Draw" shall
mean a payment pursuant to an arrangement in which the
Company lends money to a Participant and retains a right to offset
such
payment against future Commissions earned by such Participant.
1.27 "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.
1.28 "Employee" shall
mean a person who is an employee of any Employer.
1.29 "Employer(s)"
shall mean the Company and/or any of its subsidiaries or
affiliates (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.
1.30 "ERISA" shall
mean the Employee Retirement Income Security Act of 1974,
as it may be amended from time to time.
1.31 "First Plan
Year" shall mean the period beginning August 1, 2002 and
ending December 31, 2002.
1.32 "401(k) Plan"
shall be that certain Clark, Inc. 401(k) Savings Plan
(formerly known as the Clark/Bardes, Inc. 401(k) Savings Plan),
dated
September 1, 2001 adopted by the Company.
1.33 "401(k)
Restoration Matching Account" shall mean (i) that portion of a
Participant's Rollover Amount which is represented by the
Participant's
aggregate qualified plan matching contributions described in
Section
4.2.3 of the Predecessor Plan, as well as any appreciation (or
depreciation) specifically attributable to such qualified plan
matching
contributions accumulated under the Predecessor Plan, plus (ii) the
sum
of all of a Participant's Annual 401(k) Restoration Matching
Amounts,
plus (iii) amounts credited in accordance with all the
applicable
crediting and debiting provisions of this Plan that relate to
the
Participant's 401(k) Restoration Matching Account, less (iv)
all
distributions made to the Participant or his or her Beneficiary
pursuant to this Plan that relate to the Participant's 401(k)
Restoration Matching Account.
1.34 "Months of
Service" shall mean (i) each consecutive and complete
calendar month of employment in which a Participant has been
employed
by one or more Employers, and (ii) each consecutive and
complete
calendar month of employment in which a Participant has been
employed
by one of the predecessor employers, identified on Appendix A;
provided, however, such Participant must have been employed by
the
predecessor employer on the date specified on Appendix A and shall
only
receive credit for an uninterrupted period of service which
immediately
precedes the date specified on Appendix A.
1.35 "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, (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. A spouse or former spouse of a Participant shall
not be
treated as a Participant in the Plan or have an account balance
under
the Plan, even if he or she has an interest in the
Participant's
benefits under the Plan as a result of applicable law or
property
settlements resulting from legal separation or divorce.
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CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
1.36 "Plan" shall
mean the Clark Consulting Deferred Compensation Plan,
effective February 1, 2001 (formerly known as the Clark/Bardes
Consulting, Inc. Executive Deferred Compensation Plan and the
Clark/Bardes Consulting Deferred Compensation Plan), which shall
be
evidenced by this instrument and by each Plan Agreement, as they
may be
amended from time to time.
1.37 "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.
1.38 "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.
1.39 "Retirement",
"Retire(s)" or "Retired" shall mean severance from
employment from all Employers for any reason other than a leave
of
absence, death or Disability on or after the earlier of the
attainment
of (a) age sixty-five (65) or (b) age fifty-five (55) with five
(5)
Years of Service.
1.40 "Retirement
Benefit" shall mean the benefit set forth in Article 7.
1.41 "Rollover
Amount" shall mean the amount determined in accordance with
Section 3.5.
1.42 "Short-Term
Payout" shall mean the payout set forth in Section 5.1.
1.43 "Special
Incentive Plan Amounts" shall mean any compensation
attributable to a Plan Year under any Employer's incentive
arrangement,
which has been designated by the Committee for deferral under
this
Plan, as such compensation is further defined on an Election
Form
approved by the Committee in its sole discretion.
1.44 "Stock" shall mean Clark, Inc.
common stock or any other equity
securities of the Company designated by the Committee.
1.45 "Supplemental
Matching Account" shall mean (i) that portion of a
Participant's Rollover Amount which is represented by the
Participant's
aggregate company matching contributions described in Section 4.3
of
the Predecessor Plan, as well as any appreciation (or
depreciation)
specifically attributable to such matching contributions
accumulated
under the Predecessor Plan, plus (ii) the sum of the
Participant's
Annual Supplemental Matching Amounts, plus (iii) amounts credited
or
debited in accordance with all the applicable crediting and
debiting
provisions of this Plan that relate to the Participant's
Supplemental
Matching Account, less (iv) all distributions made to the
Participant
or his or her Beneficiary pursuant to this Plan that relate to
the
Participant's Supplemental Matching Account.
1.46 "Survivor
Benefit" shall mean the benefit set forth in Article 10.
1.47 "Termination
Benefit" shall mean the benefit set forth in Article 8.
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CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
1.48 "Termination of
Employment" shall mean the severing of employment with
all Employers, voluntarily or involuntarily, for any reason other
than
Retirement, Disability, death or an authorized leave of
absence.
1.49 "Trust" shall
mean one or more trusts established pursuant to that
certain Master Trust Agreement between the Company and the
trustee
named therein, as amended from time to time.
1.50 "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.
1.51 "Years of
Service" shall mean (i) each consecutive twelve (12) month
period in which a Participant has been employed by one or more
Employers, and (ii) each consecutive twelve (12) month period in
which
the Participant was employed by one of the predecessor
employers,
identified on Appendix A; provided, however, such Participant must
have
been employed by the predecessor employer on the date specified
on
Appendix A and shall only receive credit for an uninterrupted
period of
service which immediately precedes the date specified on Appendix
A.
For purposes of this definition, a year of employment shall be a
365
day period (or 366 day period in the case of a leap year) that, for
the
first year of employment, commences on the Employee's date of
hiring
and that, for any subsequent year, commences on an anniversary of
that
hiring date. The Committee shall make a determination as to whether
any
partial year of employment shall be counted as a Year of
Service.
ARTICLE 2
SELECTION, ENROLLMENT, ELIGIBILITY
2.1 SELECTION
BY COMMITTEE. Participation in the Plan shall be limited to a
select group of management and highly compensated Employees of
the
Employer, as determined by the Committee in its sole discretion.
From
that group, the Committee 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 a
Plan
Agreement, an Election Form and a Beneficiary Designation Form,
all
within thirty (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 first day of the month following the month in which the
Employee
completes all enrollment requirements. If an Employee fails to meet
all
such 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.
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CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
2.4
TERMINATION OF PARTICIPATION AND/OR DEFERRALS. If the Committee
determines in good faith that a Participant no longer qualifies as
a
member of a select group of management or highly compensated
employees,
as membership in such group is determined in accordance with
Sections
201(2), 301(a)(3) and 401(a)(1) of ERISA, 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/COMPANY CONTRIBUTION
AMOUNTS/SUPPLEMENTAL MATCHING AMOUNTS/
401(K) RESTORATION MATCHING AMOUNTS/VESTING/CREDITING/TAXES
3.1 MINIMUM
DEFERRALS.
(a) BASE
ANNUAL SALARY, ANNUAL BONUS, COMMISSIONS, ANNUAL
QUALIFIED PLAN MAKE-UP AMOUNTS AND SPECIAL INCENTIVE PLAN
AMOUNTS. As determined by the Committee on an annual basis, a
Participant may elect to defer, as his or her Annual Deferral
Amount, either a percentage or a fixed dollar amount of his or
her Base Annual Salary, Annual Bonus, Commissions, Annual
Qualified Plan Make-Up Amounts and/or Special Incentive Plan
Amounts.
If a Participant designates a fixed dollar amount to
be withheld from the payment of Base Annual Salary, Annual
Bonus, Commissions, Annual Qualified Plan Make-Up Amounts
and/or Special Incentive Plan Amounts and such fixed dollar
amount exceeds the amount actually payable to the Participant,
the entire amount of such Base Annual Salary, Annual Bonus,
Commissions, Annual Qualified Plan Make-Up Amounts and/or
Special Incentive Plan Amounts, as applicable, shall be
withheld. If no election is made, the amount deferred shall be
zero.
(b) ANNUAL
401(K) REFUND AMOUNT. For each Plan Year, a Participant
may elect to defer his or her Annual 401(k) Refund Amount. If
a Participant elects to defer his or her Annual 401(k) Refund
Amount, the minimum deferral amount shall be 100%. If no
election is made, the amount deferred shall be zero.
3.2 MAXIMUM
DEFERRAL.
(a) BASE
ANNUAL SALARY, ANNUAL BONUS, COMMISSIONS, SPECIAL INCENTIVE
PLAN
AMOUNTS, ANNUAL QUALIFIED PLAN MAKE-UP AMOUNTS AND ANNUAL 401(K)
REFUND
AMOUNTS. For each Plan Year, a Participant may elect to defer, as
his
or her Annual Deferral Amount, Base Annual Salary, Annual
Bonus,
Commissions, Special Incentive Plan Amounts, Annual Qualified
Plan
Make-Up Amounts and/or Annual 401(k) Refund Amounts up to the
following
maximum percentages for each deferral elected:
DEFERRAL
MAXIMUM AMOUNT
Base Annual Salary
90%
Annual Bonus
90%
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CLARK CONSULTING
Deferred Compensation Plan
Master Plan Document
================================================================================
Commissions
90%
Special
Incentive Plan
90%
Amounts
Annual Qualified
Plan
90%
Make-Up
Amounts
Annual 401(k)
Refund
100%
Amount
(b) SHORT PLAN
YEAR. Notwithstanding the foregoing, if a
Participant first becomes a Participant after the first day of
a Plan Year, the maximum Annual Deferral Amount (i) 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) with respect to
Annual Bonus, Commissions, Annual Qualified Plan Make-Up
Amounts and Special Incentive Plan Amounts shall be limited to
those amounts deemed eligible for deferral, in the sole
discretion of the Committee.
3.3 ELECTION
TO DEFER; EFFECT OF ELECTION FORM.
(a) FIRST PLAN
YEAR. In connection with a Participant's
commencement of participation in the Plan, the Participant
shall make an irrevocable deferral election for the Plan Year
in which the Participant commences participation in the Plan,
along with such other elections as the Committee deems
necessary or desirable under the Plan. For these elections to
be valid, the Election Form must be completed and signed by
the Participant, timely delivered to the Committee (in
accordance with Section 2.2 above) and accepted by the
Committee.
(b) SUBSEQUENT
PLAN YEARS. For each succeeding Plan Year, an
irrevocable deferral election for that Plan Year, and such
other elections as the Committee deems necessary or desirable
under the Plan, shall be made by timely delivering a new
Election Form to the Committee, in accordance with its rules
and
procedures, before the end of the Plan Year preceding the
Plan Year for which the election is made. If no such Election
Form is timely delivered for a Plan Year, the Annual Deferral
Amount shall be zero for that Plan Year. However, if the
Committee, in its sole discretion, determines that, as a
result of material changes to the terms and provisions of the
Plan, an additional enrollment period is necessary for the
particular Plan Year in which such changes occur, the
Committee may provide Participants with an additional Election
Form. If a Participant fails to submit an Election Form during
the additional enrollment period, the Participant's original
elections with respect to such Plan Year, if any, shall remain
in effect.
3.4
WITHHOLDING AND CREDITING OF ANNUAL DEFERRAL AMOUNTS. For each
Plan
Year, the Base Annual Salary portion of the Annual Deferral
Amount
shall be withheld from each regularly scheduled Base Annual
Salary
payroll in equal amounts, as adjusted from time to time for
increases
and decreases in Base Annual Salary. The Annual Bonus,
Commissions,
Annual Qualified Plan Make-Up Amounts and/or Special Incentive
Plan
Amounts portion of the Annual Deferral Amount shall be withheld at
the
time the Annu
