Exhibit 10.9
DIRECTORS’ DEFERRED
COMPENSATION PLAN I
Amended and Restated
effective
January 1, 2005
ARTICLE I
Definitions
As used in this Plan, the following
terms shall have the meanings herein specified:
1.1 95% Withdrawal - shall
have the meaning provided herein at Section 7.1.
1.2 Business Combination -
shall have the meaning provided herein at
Section 1.4(c).
1.3 Cash Unit - shall mean
the entry in a Deferred Compensation Account of a credit equal to
One Dollar ($1.00).
1.4 Change in Control - shall
mean the occurrence of any of the following events:
(a) The acquisition by any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act of 1934, as
amended) (a “Person”) of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of
20% or more of either (1) the then-outstanding shares of
common stock of the Company (the “Outstanding Company Common
Stock”) or (2) the combined voting power of the
then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding
Company Voting Securities”); provided , however
, that, for purposes of this Section (a), the following
acquisitions shall not constitute a Change in Control: (A) any
acquisition directly from the Company, (B) any acquisition by
the Company, (C) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any
company controlled by, controlling or under common control with the
Company, or (D) any acquisition by any entity pursuant to a
transaction that complies with Sections (c)(1), (c)(2) and (c)(3)
of this definition;
(b) Individuals who, as of
September 6, 2001, constitute the Board of Directors (the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board of Directors; provided ,
however , that any individual becoming a director subsequent
to the date hereof whose election, or nomination for election by
the Company’s shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member
of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of
an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board of Directors;
(c) Consummation of a
reorganization, merger, statutory share exchange or consolidation
or similar corporate transaction involving the Company or any of
its subsidiaries, a sale or other disposition of all or
substantially all of the assets of the Company, or the
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acquisition of assets or stock of
another entity by the Company or any of its subsidiaries (each, a
“Business Combination”), in each case unless, following
such Business Combination, (1) all or substantially all of the
individuals and entities that were the beneficial owners of the
Outstanding Company Common Stock and the Outstanding Company Voting
Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 60% of the
then-outstanding shares of common stock and the combined voting
power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including,
without limitation, a corporation that, as a result of such
transaction, owns the Company or all or substantially all of the
Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership immediately prior to such Business Combination of the
Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (2) no Person (excluding any
corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 20% or more of, respectively, the
then-outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting
power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior
to the Business Combination, and (3) at least a majority of
the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board
at the time of the execution of the initial agreement or of the
action of the Board of Directors providing for such Business
Combination; or
(d) Approval by the shareholders of
the Company of a complete liquidation or dissolution of the
Company.
1.5 Change in Control
Election - shall have the meaning provided herein at
Section 7.1
1.6 Committee - shall mean
the Governance Committee of the Board of Directors of Sunoco,
Inc.
1.7 Company - shall mean
Sunoco, Inc., a Pennsylvania corporation. The term
“Company” shall include any successor to Sunoco, Inc.,
any subsidiary or affiliate which has adopted the Plan, or a
corporation succeeding to the business of Sunoco, Inc., or any
subsidiary or affiliate by merger, consolidation, liquidation or
purchase of assets or stock or similar transaction.
1.8 Compensation - shall mean
those fees and retainers payable by the Company to a Participant in
consideration for his or her service as a Director.
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1.9 Deferred Compensation
Account - shall mean, with respect to any Participant, the
total amount of the Company’s liability for payment of
voluntary deferred compensation to the Participant under this Plan,
including any accumulated interest and/or Dividend
Equivalents.
1.10 Deferred Payment Election
Form - shall mean and refer to the written election by a
Participant, in the form prescribed by the Committee, to
voluntarily defer the payment of all or a portion of such
Participant’s Compensation under this Plan pursuant to
Article II hereof.
1.11 Director - shall mean a
member of the Board of Directors of Sunoco, Inc.
1.12 Dividend Equivalent -
shall mean the entry in a Deferred Compensation Account or a
Restricted Deferred Compensation Account of a dividend credit with
respect to a Share Unit, each Dividend Equivalent being equal to
the dividend paid from time to time on a Share.
1.13 Form of Continuing
Deferral - shall mean and refer to the written commitment by a
Participant, in the form prescribed by the Committee, to
mandatorily defer the payment of all of the Yearly Credit awarded
to such Participant under this Plan pursuant to Article IV
hereof.
1.14 Incumbent Board - shall
have the meaning provided herein at Section 1.4(b).
1.15 Interest Equivalent -
shall mean the entry in a Deferred Compensation Account of an
interest credit with respect to a Cash Unit, compounded on the
basis of the balance in the Participant’s Deferred
Compensation Account, applying the interest factor approved by the
Committee each year for such purpose.
1.16 Outstanding Company Common
Stock - shall have the meaning provided herein at
Section 1.4(a).
1.17 Outstanding Company Voting
Securities - shall have the meaning provided herein at
Section 1.4(a).
1.18 Participant - shall mean
a Director who has elected to defer the receipt of compensation or
a Director who is required to defer the receipt of the Restricted
Share Units in accordance with the terms of this Plan.
1.19 Person - shall have the
meaning provided herein at Section 1.4(a).
1.20 Plan - shall mean this
Directors’ Deferred Compensation Plan I, as it may be amended
from time to time pursuant to Articles XI and XIV, and shall be
effective for deferrals of Compensation pursuant to Article III and
crediting of Restricted Share Units pursuant to Article IV, for
periods ending prior to January 1, 2005.
1.21 Restricted Deferred
Compensation Account - shall mean, with respect to any
Participant, the total amount of the Company’s liability for
payment of Restricted Share Units to the Participant under this
Plan.
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1.22 Restricted Share Unit -
shall mean the entry in a Restricted Deferred Compensation Account
of a credit equal to one Share that will be restricted until death,
retirement or termination of Board service.
1.23 Share - shall mean a
share of the Company’s authorized voting Common Stock ($1.00
par value per share) and any share or shares of stock of the
Company hereafter issued or issuable in substitution or exchange
for each such share.
1.24 Share Unit - shall mean
the entry in a Deferred Compensation Account of a credit equal to
one Share.
ARTICLE II
Voluntary Deferral of
Directors’ Compensation
2.1 Election to Defer. Prior
to the beginning of any calendar quarter, a Participant may elect
to defer all or a portion of the Compensation that would otherwise
be paid to the Participant in the next succeeding calendar quarter,
by filing a written notice of election with the Committee on the
form(s) prescribed by the Committee. Any such deferral election
shall apply only to Compensation to be earned on or after the first
day of the calendar quarter following the calendar quarter in which
the election is received by the Committee, but in no event will
apply to Compensation to be earned in calendar quarters beginning
on or after January 1, 2005. An election to defer, made in
accordance with this Article II shall be irrevocable. The deferral
election form(s) also will permit the Participant to
specify:
(a) the percentage of Compensation
to be deferred;
(b) the form of deferral, being
either Cash Units, Share Units, or a combination of the two and the
percentage allocations of such;
(c) the selection of a method of
payment as set forth in Article III; and
(d) the designation of a beneficiary
as set forth in Article V.
Without any further action by
Participant, the choices specified in the Participant’s
Deferred Payment Election Form regarding the percentage of
Compensation deferred, the form of deferral, the designation of a
beneficiary, and the method of payment shall each continue and be
applied from calendar quarter to calendar quarter to amounts yet to
be deferred. Until further express written notification, on a form
prescribed by the Committee, to the contrary, these choices shall
continue to be applied to amounts to be credited to such Deferred
Compensation Account balance prospectively.
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2.2 Change in Method of Payment
Following Commencement of Distribution or Payment . After
payment or distribution of amounts credited to the
Participant’s Deferred Compensation Account has commenced,
the Participant may not change the period of time for which such
amounts are payable. However, the Participant may convert
installment payments to a lump sum distribution subject to a
penalty equal to a five percent (5%) reduction in the balance
of the Participant’s Deferred Compensation Account, which
shall be forfeited to the Company.
2.3 Amount of Deferral . The
amount of Compensation to be deferred shall be designated by the
Participant as a percentage of the Director’s Compensation in
multiples of five percent (5%) but shall not be less than ten
percent (10%).
2.4 Time of Election . Except
as otherwise determined by the Committee in its sole discretion, an
election to defer must be filed and received by the Committee by
the end of the calendar quarter preceding the calendar quarter in
which the Compensation is to be earned. A new Director may also
elect to defer Compensation prior to the commencement of his or her
term in office.
ARTICLE III
Voluntary Deferred Compensation
Accounts
3.1 Creation of Voluntary
Deferred Compensation Accounts . Compensation deferred
hereunder shall be credited to a Deferred Compensation Account
established by the Company for each Participant. The Participant
must elect to convert the deferred compensation to either Cash
Units or Share Units, which shall be credited to a
Participant’s Deferred Compensation Account as set forth in
the Plan.
3.2 Crediting Share Units .
Share Units shall be credited to a Participant’s Deferred
Compensation Account at the time the Compensation would otherwise
have been paid had no election to defer been made. The number of
Share Units to be credited to the Deferred Compensation Account
shall be determined by dividing the Compensation by the average
closing price for Shares as published in the Wall Street Journal
under the caption “New York Stock Exchange Composite
Transactions” for the ten (10) day period prior to the
day on which the Compensation would otherwise have been paid. Any
fractional Share Units shall also be credited to a
Participant’s Deferred Compensation Account. The number of
Share Units in a Deferred Compensation Account shall be
appropriately adjusted by the Committee in the event of changes in
the Company’s outstanding
