Exhibit 10.1
Siebel Systems, Inc.
Nonqualified Deferred Compensation Plan
Effective September 1, 2004
1.
Purpose and
Definitions. Siebel
Systems, Inc. hereby adopts this Siebel Systems, Inc. Nonqualified
Deferred Compensation Plan. The Plan was established for the
purpose of providing the Company's eligible employees with a
program for deferring compensation that otherwise would be earned
during employment.
It is
intended that the Plan and its related Trust shall constitute an
unfunded deferred compensation arrangement for the benefit of a
select group of management or highly compensated employees of the
Company and its subsidiaries for purposes of the federal income tax
laws and ERISA, and all documents, agreements or instruments made
or given pursuant to the Plan shall be interpreted so as to effect
such intent.
Capitalized terms used in this Plan shall be
defined as follows:
A.
"401(k) Plan" means the
Siebel Systems, Inc. 401(k) Salary Deferral Plan, as it may be
amended from time to time.
B.
"Account" means the
bookkeeping Account established on behalf of a Participant into
which Deferred Compensation and Company Contributions, plus
earnings and losses thereon, are recorded.
C.
"Base Pay" means a
Participant's basic salary without regard to bonuses, commissions
and other incentive compensation.
D.
"Board of Directors"
means the Board of Directors of Siebel Systems, Inc.
E.
"Change in Control
Election" means the Participant election with respect to a Change
in Control permitted under Section 7.
F.
"Change in Control" means
any event described in Section 7.
G.
"Code" means the Internal
Revenue Code of 1986, as amended from time to time.
H.
"Company Contributions"
means contributions to the Plan made by the Company, if any,
pursuant to Section 3.E.
I.
"Company" means Siebel
Systems, Inc. and its affiliates.
J.
"Compensation Committee"
means the Compensation Committee of the Board of Directors of the
Company.
K.
"Deduction Limitation"
means the limitations on payment of an Account described in Section
6.F.
L.
"Deferred Compensation"
means the amount of Total Compensation or Base Pay, as applicable,
that a Participant elects to defer into the Plan.
M.
"Disability" means that
the Participant has a mental or physical disability as determined
by the Plan Committee in accordance with the standards and
procedures used for determining Disability under the Company's
broad-based regular long-term disability plan, if any, under which
the Participant is a participant. At any time that the Company does
not maintain such a long-term disability plan, "Disabled" or
"Disability" shall mean the inability of a Participant, as
determined by the Plan Committee, substantially to perform such
Participant's regular duties and responsibilities due to a
medically determinable physical or mental illness which has lasted,
or can reasonably be expected to last, for a period of six (6)
consecutive months, but only to the extent that such definition
does not violate the Americans with Disabilities Act.
N.
"Election Form" means the
form provided by the Plan Committee on which a Participant may
elect to defer his or her Total Compensation or Base Pay for a Plan
Year and elect the time and form of distributions from the
Plan.
O.
"ERISA" means the
Employee Retirement Income Security Act of 1974, as amended from
time to time.
P.
"Fixed Date Payout" means
the in-service withdrawal permitted under Section 6.B.
Q.
"Investment Funds" means
the investment funds described under Section 5.A.
R.
"New Employee" means an
employee who first performs services for the Company after the
first day of a Plan Year, or for the first Plan Year, who first
performs services for the Company on or after January 1, 2003
and on or before August 31, 2004.
S.
"Normal Retirement Age"
means the date on which the Participant attains fifty-nine and
one-half (59 ½) years of age.
T.
"Participant" means each
common-law employee on the United States payroll of the Company who
is designated by the Compensation Committee, in accordance with the
Plan terms, as an eligible employee who may elect to participate in
the Plan.
U.
"Plan Committee" means
the Plan Administrative Committee established under Section
10.
V.
"Plan" means this Siebel
Systems, Inc. Nonqualified Deferred Compensation Plan, as it may be
amended from time to time.
W. "Plan Year" means the calendar year. The first
Plan Year shall be the short period from September 1, 2004 to
December 31, 2004.
X.
"Termination of
Employment" means the termination of the Participant's employment
with the Company for any reason other than retirement at or
following attainment of Normal Retirement Age.
Y.
"Total Compensation"
means a Participant's compensation for purposes of the 401(k) Plan,
but without limitation under Section 401(a)(17) of the Code,
including Base Pay and Variable Pay, but excluding stock option
earnings.
Z.
"Trust" means the Siebel
Systems, Inc. Nonqualified Deferred Compensation Trust established
in conjunction with this Plan.
AA.
"Variable Pay" means a
Participant's commissions and bonuses and any other incentive
compensation.
2.
Eligibility. Each common-law employee of the Company and its
principal subsidiaries who is on the United States payroll and who
is designated by the Compensation Committee as an eligible employee
may participate in the Plan for a Plan Year.
Unless
otherwise determined by the Compensation Committee, the following
classes of employees may elect to be Participants in the Plan. An
election to participate in the Plan shall be made by completing and
filing the Election Form described in Section 3.A.
A.
Except as specified in
Section 2.B below, employees on the United States payroll of
the Company whose Total Compensation in the immediately preceding
calendar year (the "look back year") was equal to or in excess of
One Hundred Seventy-Five Thousand Dollars ($175,000);
B.
With respect to New
Employees, (i) for the year of hire, an employee whose Base Pay on
an annualized basis is at least One Hundred Fifty Thousand Dollars
($150,000) in his or her year of hire and (ii) for the year
following the year of hire, an employee whose Base Pay on an
annualized basis in the look back year was at least One Hundred
Fifty Thousand Dollars ($150,000).
3.
Election to Defer
Compensation. A
Participant may elect to defer receipt of a specified percentage,
from one percent (1%) to eighty percent (80%), of the Participant's
Base Pay and/or from one percent (1%) to one hundred percent (100%)
of the Participant's Variable Pay. In determining the amount of
Base Pay eligible for deferral under this Plan, an amount of Base
Pay must remain undeferred such that the Participant's
contributions under the 401(k) Plan, other premiums and
contributions for benefits elected by the Participant and/or
required by the Company, as well as withholdings from pay for
benefits, repayments to the Company previously agreed to by the
Participant, and taxes may be made. In determining the amount of
Variable Pay eligible for deferral under this Plan, an amount of
Variable Pay must remain undeferred such that any draws, or other
repayments to the Company previously agreed to by the Participant,
may be made. The Company may adjust a Participant's deferral
election in order to cause the election to meet the requirements of
this paragraph.
A.
Election
Form. Each Participant
may elect to defer receipt of his or her Total Compensation or Base
Pay, as applicable, by filing with the Company:
i.
For the first Plan Year,
the Election Form provided by the Plan Committee at any time on or
before August 31, 2004, for Total Compensation to be paid for
services rendered after August 31, 2004;
ii.
For subsequent Plan
Years, the Election Form provided by the Plan Committee at any time
prior to December 31 preceding the first day of the relevant Plan
Year with respect to Total Compensation to be earned in such
subsequent Plan Year;
iii.
For New Employees, the
Election Form provided by the Plan Committee within thirty (30)
days following the date the New Employee is notified in writing by
the Compensation Committee, or its designee, that the New Employee
is eligible to participate in the Plan for Base Pay earned after
the date the Election Form is filed with the Company.
The
Election Forms shall specify the form in which payments from the
Plan shall be paid to the Participant and, subject to the
limitations of Section 6, the time at which such payments shall
commence. The elections shall be delivered to the Plan Committee,
or its designee, in such form as may be permitted by the Plan
Committee, including electronic or telephonic
communication.
B.
Effect of No Election
to Defer. If a
Participant makes no election to defer Total Compensation or Base
Pay under the Plan for a Plan Year, any Total Compensation or Base
Pay that the Participant is entitled to receive for the Plan Year
shall be paid to the Participant at such time, in such manner and
in such amounts as is consistent with the normal payroll practices
of the Company or as provided in the relevant incentive
compensation plan or commission program.
C.
Leave of
Absence. If a Participant
is authorized by the Company for any reason to take a paid leave of
absence from the employment of the Company, the Participant shall
continue to be considered employed by the Company and the Deferred
Compensation shall continue to be withheld during such paid leave
of absence in accordance with this Section 3. For purposes of
clarity, payment of short-term, long-term or state sponsored
disability payments to Participant do not constitute a "paid leave
of absence" for purposes of this Plan; however, any Company paid
maternity benefit will constitute a "paid leave of absence" for
purposes of this Plan.
If a
Participant is authorized by the Company for any reason to take an
unpaid leave of absence from the employment of the Company, or if a
Participant is on leave of absence as a result of his or her
Disability, the Participant shall continue to be considered
employed by the Company and the Participant shall be excused from
making deferrals from the date the unpaid leave of absence begins
until the earlier of the date the leave of absence expires or the
Participant returns to a paid employment status. Upon such
expiration or return, as the case may be, deferrals shall resume
for the remaining portion of the Plan Year in which the expiration
or return occurs, based on the deferral election, if any,
previously made by the Participant for that Plan Year.
D.
Irrevocable Election
to Defer. Following a
Participant's filing of an Election Form with the Company pursuant
to Section 3.A above, such election to defer compensation shall be
irrevocable with respect to the Plan Year to which it relates, and
the Participant shall not be permitted to change such deferral
election for the remainder of the Plan Year for which the deferral
election is in effect, except as otherwise set forth herein.
Notwithstanding the foregoing, the election may be terminated with
respect to Total Compensation or Base Pay not yet earned by mutual
agreement in writing between the Participant and the Plan
Committee. Such termination, if approved, shall be effective
beginning with Total Compensation or Base Pay to be earned during
the period following the execution of such mutual
agreement.
E.
Company
Contribution. The
Company, in its sole discretion, may make such contributions to the
Accounts of Participants as the Company may determine. If the
Company elects to make Company Contributions for a Plan Year, such
Company Contributions shall be in the amount determined by the
Company for the relevant Plan Year and shall be allocated to the
Accounts of such Participants as shall be determined by the
Company. Nothing in this Section 3.E requires the Company to
make Company Contributions for any Plan Year, nor, if Company
Contributions are made, to allocate such Company Contributions in
an equal or proportional manner among Participant Accounts. If
Company Contributions are made by the Company, such contributions
shall be bookkeeping entries and shall not be subject to investment
direction by the Participant. The Company also reserves the right
to impose a vesting schedule on any Company Contribution made for
any Plan Year. Company Contributions, if made, shall be subject to
the same terms, conditions and restrictions as apply to Deferred
Compensation under this Plan.
4.
Crediting of Deferred
Compensation and Any Company Contributions. All amounts of a Participant's Deferred
Compensation pursuant to Section 3 and Company Contributions,
if any, made to the Plan on behalf of a Participant shall be
credited to such Participant's Account and may be contributed to
the Trust. Such Accounts shall be bookkeeping entries only and
shall be credited with earnings and losses in accordance with
Section 5. Except as otherwise provided in Section 6, the
amount to be paid to a Participant from the Plan in accordance with
Section 6 shall be an amount equal to the balance of the
Participant's Account at the time of payment.
5.
Investment of Deferred
Compensation and Company Contributions.
A.
Investment
Funds. The Investment
Funds referred to in this Section 5 shall be selected by the
Plan Committee and may (but need not) be the same Investment Funds
in which investments under the 401(k) Plan are invested. Any
amounts held under this Plan shall be segregated from the amounts
held under the 401(k) Plan and shall be administered in accordance
with the terms and conditions of this Plan and shall not be
administered under the terms and conditions of the 401(k)
Plan.
B.
Deemed
Investments. In
accordance with and subject to the rules and procedures that are
established from time to time by the Plan Committee, in its sole
discretion, amounts shall be credited or debited to a Participant's
Account in accordance with the following rules:
i.
A Participant, in
connection with his or her deferral election shall elect, on the
Election Form, one or more Investment Funds to be used to determine
the additional amounts to be credited (or charged, as the case may
be) to his or her Account. The Participant also may, from time to
time, by submitting an Election Form to the Plan Committee, or its
designee, change the portion of his or her Account allocated to
each Investment Fund. If an investment election is made in
accordance with the previous sentence, it shall become effective as
soon as administratively practicable and shall continue thereafter
until changed in accordance with the previous sentence. Changes may
be made to investment elections at any time during the Plan Year.
Any investment election from a Participant under this
Section 5 shall be delivered to the Plan Committee, or its
designee, in such form as permitted by the Plan Committee,
including electronic or telephonic communication.
ii.
In making any election
described in this Section 5, the Participant shall specify, in
increments of whole percentage points, the percentage of his or her
Account to be allocated to an Investment Fund (as if the
Participant were making an investment in that Investment Fund with
that portion of his or her Account). Such election may be made in
any form permitted by the Plan Committee, including electronic or
telephonic communication.
iii.
The investment results
(either earnings or losses) to be credited to a Participant's
Account will be determined by the Plan Committee, in its sole
discretion, based on the actual performance of the Investment
Funds. A Participant's Account shall be credited or debited as
frequently as is administratively feasible, but no less often than
monthly, based on the performance of each Investment Fund selected
by the Participant, as determined by the Plan Committee in its sole
discretion. For purposes of determining such performance, the
Investment Funds will be valued as of the close of each business
day that the New York Stock Exchange is open for
trading.
iv.
Notwithstanding any other
provision of this Plan that may be interpreted to the contrary, the
Investment Funds are to be used for measurement purposes only, and
a Participant's election of any Investment Fund, the allocation to
his or her Account thereto, the calculation of additional amounts
and the crediting or debiting of such amounts to a Participant's
Account shall not be considered or construed in any manner as an
actual investment of his or her Account in any such Investment
Fund. In the event that the Company, in its sole discretion,
decides to invest funds in any or all of the Investment Funds, no
Participant shall have any rights in or to such investments
themselves. Without limiting the foregoing, a Participant's Account
shall at all times be a bookkeeping entry only and shall not
represent any investment made on his or her behalf by the Company
or the Trust; the Participant shall at all times remain an
unsecured creditor of the Company. The Company does not in any way
guarantee any Participant's Account against loss or depreciation,
whether caused by poor investment performance, insolvency of a
deemed investment or by any other event or occurrence, nor does the
Company guarantee that any Participant, other individual or entity
shall be entitled to any particular tax consequence with respect to
the Plan or any credit or payment hereunder.
6.
Payment of Deferred
Compensation. A
Participant shall elect, at the time a Participant first files an
Election Form with the Company, the form in which the Participant's
Account balance shall be paid and, subject to the limitations of
this Section 6, the date at which such distribution shall be made
or commence. Except as further provided in this paragraph, or in
this Section 6 or in Section 7, the Participant's election of
the date of commencement of distribution or the form of
distribution shall be irrevocable. Notwithstanding the
forego
