Exhibit 10.33
FAMILY DOLLAR
COMPENSATION DEFERRAL
PLAN
(as amended and restated
effective January 1, 2005)
1.
Name:
This plan shall be known as the
“Family Dollar Compensation Deferral Plan” (the
“Plan”).
2.
Purpose and
Intent:
Family Dollar Stores, Inc. and
Family Dollar, Inc. (collectively, the
“Corporation”) established this Plan effective
March 30, 2003 for the purpose of providing certain of its
associates with the opportunity to defer payment of certain base
salary and annual bonuses in accordance with the terms and
provisions set forth herein. The Corporation is hereby
amending and restating the Plan effective as of January 1,
2005 (the “Restatement Date”) to reflect certain design
changes in order for the Plan to comply with the requirements of
Section 409A of the Internal Revenue Code of 1986, as amended,
and to otherwise meet current needs. It is the intent of the
Corporation that amounts deferred under the Plan by an associate
shall not be taxable to the associate for income tax purposes until
the time actually received by the associate. The provisions of the
Plan shall be construed and interpreted to effectuate that
intent.
3.
Definitions:
For purposes of the Plan, the
following terms have the following meanings:
“ Account ” means
the account established to record a Participant’s interest
under the Plan attributable to amounts credited to the Participant
pursuant to the Plan. The Account 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 Beneficiary, pursuant to the Plan.
“ Annual Bonus ”
means, with respect to a Participant, any annual bonus payable to
the Participant pursuant to any bonus compensation plan of a
Participating Employer approved for purposes of this Plan by the
Plan Committee, provided that any such plan shall provide for
“performance-based compensation” within the meaning of
Code Section 409A.
“ Associate ”
means an individual employed by a Participating
Employer.
“ Beneficiary ”
means any person or trust designated by a Participant in accordance
with procedures adopted by the Plan Committee to receive the
Participant’s Account in the event of the Participant’s
death. If the Participant does not designate a Beneficiary, the
Participant’s Beneficiary is his or her spouse, or if not
then living, his or her estate.
“ Board ” means
the Board of Directors of Family Dollar
Stores, Inc.
“ CEO ” means the
Chief Executive Officer of Family Dollar
Stores, Inc.
“ Class Year
Deferrals ” means, for each Plan Year beginning on or
after January 1, 2006, the deferrals under Paragraph
5(b) below of a Participant’s base salary for the Plan
Year plus the deferral of any portion of the Participant’s
Annual Bonus earned for services rendered during the fiscal year of
the Corporation ending during such Plan Year, including any related
adjustments for deemed investments in accordance with Paragraph
5(d) below.
“ Code ” means
the Internal Revenue Code of 1986, as amended from time to time,
and includes any valid and binding governmental regulations, court
decisions and other regulatory and judicial authority issued or
rendered thereunder.
“ Compensation
Committee ” means the committee of individuals who are
serving from time to time as the Compensation Committee of the
Board.
“ Disability ”
means “disability” as defined under applicable laws for
purposes of receiving Social Security benefits. A “
Disabled ” Participant means a Participant suffering
from a Disability. A Participant’s “ Date of
Disability ” is the date that the Plan Committee is first
notified that the Participant is Disabled.
“ Eligible Associate
” means an Associate designated as an Eligible Associate
pursuant to Paragraph 5(a).
“ Participant ”
means an Eligible Associate who has elected to defer compensation
under the Plan as provided in Paragraph 5(b).
“ Participating
Employer ” means the Corporation and any other
incorporated or unincorporated trade or business that adopts the
Plan.
“ Payment Sub-Account
” means a portion of a Participant’s Account
established by the Plan Committee to facilitate the administration
of distributions under the Plan, including without limitation
Payment Sub-Accounts representing (i) each separate set of
Class Year Deferrals and (ii) each separate set of
deferrals related to Plan Years before January 1,
2006.
“ Plan Committee
” means the administrative committee under the Savings
Plan.
“ Plan Year ”
means the calendar year.
“ Savings Plan ”
means the Family Dollar Employee Savings and Retirement Plan and
Trust, as in effect from time to time.
“ Separation from
Service ” means a Participant’s “separation
from service” with the Participating Employers within the
meaning of Code Section 409A.
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4.
Administration:
The Plan Committee shall be
responsible for administering the Plan. The Plan Committee shall
have all of the powers necessary to enable it to properly carry out
its duties under the Plan. Not in limitation of the foregoing, the
Plan Committee shall have the power to construe and interpret the
Plan and to determine all questions that arise thereunder. The Plan
Committee shall have such other and further specified duties,
powers, authority and discretion as are elsewhere in the Plan
either expressly or by necessary implication conferred upon it. The
Plan Committee may appoint any agents that it deems necessary for
the effective performance of its duties, and may delegate to those
agents those powers and duties that the Plan Committee deems
expedient or appropriate that are not inconsistent with the intent
of the Plan. All decisions of the CEO, the Plan Committee and the
Compensation Committee upon all matters within the scope of his or
its authority shall be made in the Chief Executive Officer’s,
Plan Committee’s or Compensation Committee’s sole
discretion and shall be final and conclusive on all persons, except
to the extent otherwise provided by law.
5.
Eligibility, Deferrals and
Account Adjustments:
(a)
Eligibility
. For each Plan Year, (i) the
Compensation Committee shall designate which Associates who are
“named executive officers” in the Corporation’s
annual proxy statement shall be Eligible Associates for the Plan
Year, and (ii) the CEO shall designate which Associates other
than the “named executive officers” shall be Eligible
Associates for the Plan Year; provided , however ,
that the determination of Eligible Associates shall be made
consistent with the requirement that the Plan be a “top
hat” plan for purposes of the Associate Retirement Income
Security Act of 1974, as amended. An Associate designated as an
Eligible Associate with respect to one Plan Year need not be
designated as an Eligible Associate for any subsequent Plan
Year.
(b)
Elections to Defer
. A person who is an Eligible
Associate for a Plan Year may elect to defer a percentage of the
Eligible Associate’s base salary for the Plan Year and a
percentage of any Annual Bonus for performance during the fiscal
year of the Corporation ending during the Plan Year. The Plan
Committee shall establish from time to time the minimum and maximum
percentages for deferral elections, which may be different for
elections to defer base salary and elections to defer Annual
Bonuses and which may vary among groups of Eligible
Associates. Elections to defer base salary or Annual Bonuses
for a Plan Year must be made before the first day of the Plan Year,
provided that a newly hired Eligible Associate who first becomes
eligible to participate in the Plan after the start of the Plan
Year may make such deferral election within thirty (30) days after
first becoming eligible to participate in the Plan as notified by
the Plan Committee. All elections made under this Paragraph
5(b) shall be made in writing on a form, or pursuant to other
non-written procedures, as may be prescribed from time to time by
the Plan Committee and shall be irrevocable for the Plan Year. An
election to defer made by an Eligible Associate with respect to any
base salary or Annual Bonus payable for a Plan Year shall not
automatically apply with respect to any base salary or Annual Bonus
payable for any subsequent Plan Year. Amounts deferred under
the Plan shall not be taken into account for purposes of
determining contributions or allocations under the Savings
Plan.
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(c)
Establishment of
Accounts . A
Participating Employer shall establish (or cause to be established)
an Account for each Participant employed by the Participating
Employer. Each Account shall be designated by the name of the
Participant for whom established. The amount of any base salary or
Annual Bonus deferred by a Participant shall be credited to the
Participant’s Account as of the date the base salary or
Annual Bonus would have otherwise been paid to the
Participant.
(d)
Account Adjustments for Deemed
Investments . The Plan
Committee shall from time to time designate one or more investment
vehicle(s) in which the Accounts of Participants shall be deemed to
be invested. Each Participant may designate the investment
vehicle(s) in which his or her Account shall be deemed to be
invested according to the procedures developed by the Plan
Committee, except as otherwise required by the terms of the Plan.
No Participating Employer shall be under an obligation to acquire
or invest in any of the deemed investment vehicle(s), and any
acquisition of or investment in a deemed investment vehicle by a
Participating Employer shall be made in the name of the
Participating Employer and shall remain the sole property of the
Participating Employer. The Plan Committee shall also establish
from time to time a default investment vehicle into which a
Participant’s Account shall be deemed to be invested if the
Eligible Associate fails to provide investment instructions to the
Plan Committee. Account adjustments shall be applied pro rata
among a Participant’s various Payment
Sub-Accounts.
(e)
Timing of Adjustments
. The adjustments to Accounts for
deemed investments as provided in Paragraph 5(d) shall be made
from time to time at such intervals as determined by the Plan
Committee. The Plan Committee may determine the frequency of
account adjustments by reference to the frequency of Account
adjustments under another plan sponsored by a Participating
Employer. The amount of the adjustment shall equal the amount that
the Participant’s Account would have earned (or lost)
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