|
Trimble Navigation Limited
Deferred
Compensation Plan
Effective December 30, 2004
(as amended and restated October 19, 2007)
Trimble Navigation Limited
Deferred
Compensation Plan
TABLE OF CONTENTS
| |
|
Page
|
|
ARTICLE 1
|
Definitions
|
1
|
| |
|
|
|
ARTICLE 2
|
Selection, Enrollment, Eligibility
|
7
|
| |
|
|
|
2.1
|
Selection by Committee
|
7
|
|
2.2
|
Enrollment and Eligibility Requirements; Commencement of
Participation
|
7
|
| |
|
|
|
ARTICLE 3
|
Deferral Commitments/Company Contribution Amounts/Company
Restoration Matching Amounts
/Vesting/Crediting/Taxes
|
8
|
| |
|
|
|
3.1
|
Minimum Deferrals
|
8
|
|
3.2
|
Maximum Deferral
|
8
|
|
3.3
|
Timing of Deferral Elections; Effect of Election
Form
|
9
|
|
3.4
|
Withholding and Crediting of Annual Deferral
Amounts
|
10
|
|
3.5
|
Company Contribution Amount
|
10
|
|
3.6
|
Vesting
|
11
|
|
3.6
|
Crediting/Debiting of Account Balances
|
11
|
|
3.8
|
FICA and Other Taxes
|
12
|
| |
|
|
|
ARTICLE 4
|
Scheduled Distributions
|
13
|
| |
|
|
|
4.1
|
Scheduled Distributions
|
13
|
|
4.2
|
Postponing Scheduled Distributions
|
13
|
|
4.3
|
Other Benefits Take Precedence Over Scheduled
Distributions
|
13
|
|
4.4
|
Unforeseeable Emergencies
|
14
|
| |
|
|
|
ARTICLE 5
|
Change In Control Benefit
|
14
|
| |
|
|
|
5.1
|
Change in Control Benefit
|
14
|
|
5.2
|
Payment of Change in Control Benefit
|
14
|
| |
|
|
|
ARTICLE 6
|
Retirement Benefit
|
15
|
| |
|
|
|
6.1
|
Retirement Benefit
|
15
|
|
6.2
|
Payment of Retirement Benefit
|
15
|
| |
|
|
|
ARTICLE 7
|
Termination Benefit
|
16
|
| |
|
|
|
7.1
|
Termination Benefit
|
16
|
|
7.2
|
Payment of Termination Benefit
|
16
|
| |
|
|
|
ARTICLE 8
|
Disability Benefit
|
16
|
| |
|
|
|
8.1
|
Disability Benefit
|
16
|
Trimble Navigation Limited
Deferred
Compensation Plan
|
8.2
|
Payment of Disability Benefit
|
16
|
| |
|
|
|
ARTICLE 9
|
Death Benefit
|
16
|
| |
|
|
|
9.1
|
Death Benefit
|
16
|
|
9.2
|
Payment of Death Benefit
|
16
|
| |
|
|
|
ARTICLE 10
|
Beneficiary Designation
|
16
|
| |
|
|
|
10.1
|
Beneficiary
|
16
|
|
10.2
|
Beneficiary Designation; Change; Spousal
Consent
|
17
|
|
10.3
|
Acknowledgement
|
17
|
|
10.4
|
No Beneficiary Designation
|
17
|
|
10.5
|
Doubt as to Beneficiary
|
17
|
|
10.6
|
Discharge of Obligations
|
17
|
| |
|
|
|
ARTICLE 11
|
Leave of Absence
|
17
|
| |
|
|
|
11.1
|
Paid Leave of Absence
|
17
|
|
11.2
|
Unpaid Leave of Absence
|
18
|
| |
|
|
|
ARTICLE 12
|
Termination of Plan, Amendment or
Modification
|
18
|
| |
|
|
|
12.1
|
Termination of Plan
|
18
|
|
12.2
|
Amendment
|
18
|
|
12.3
|
Plan Agreement
|
18
|
|
12.4
|
Effect of Payment
|
18
|
| |
|
|
|
ARTICLE 13
|
Administration
|
19
|
| |
|
|
|
13.1
|
Committee Duties
|
19
|
|
13.2
|
Administration Upon Change In Control
|
19
|
|
13.3
|
Agents
|
20
|
|
13.4
|
Binding Effect of Decisions
|
20
|
|
13.5
|
Indemnity of Committee
|
20
|
|
13.6
|
Employer Information
|
20
|
| |
|
|
|
ARTICLE 14
|
Other Benefits and Agreements
|
20
|
| |
|
|
|
14.1
|
Coordination with Other Benefits
|
20
|
| |
|
|
|
ARTICLE 15
|
Claims Procedures
|
20
|
| |
|
|
|
15.1
|
Presentation of Claim
|
20
|
|
15.2
|
Notification of Decision
|
20
|
|
15.3
|
Review of a Denied Claim
|
21
|
Trimble Navigation Limited
Deferred
Compensation Plan
|
15.4
|
Decision on Review
|
21
|
|
15.5
|
Legal Action
|
22
|
| |
|
|
|
ARTICLE 16
|
Trust
|
22
|
| |
|
|
|
16.1
|
Establishment of the Trust
|
22
|
|
16.2
|
Interrelationship of the Plan and the Trust
|
22
|
|
16.3
|
Distributions From the Trust
|
22
|
| |
|
|
|
ARTICLE 17
|
Miscellaneous
|
22
|
| |
|
|
|
17.1
|
Status of Plan
|
22
|
|
17.2
|
Unsecured General Creditor
|
22
|
|
17.3
|
Employer’s Liability
|
23
|
|
17.4
|
Nonassignability
|
23
|
|
17.5
|
Not a Contract of Employment
|
23
|
|
17.6
|
Furnishing Information
|
23
|
|
17.7
|
Terms
|
23
|
|
17.8
|
Captions
|
23
|
|
17.9
|
Governing Law
|
23
|
|
17.10
|
Notice
|
23
|
|
17.11
|
Successors
|
24
|
|
17.12
|
Spouse’s Interest
|
24
|
|
17.13
|
Validity
|
24
|
|
17.14
|
Incompetent
|
24
|
|
17.15
|
Domestic Relations Orders
|
24
|
|
17.15
|
Insurance
|
24
|
|
17.17
|
Distribution in the Event of Income Inclusion Under Code Section
409A
|
24
|
|
17.18
|
Deduction Limitation on Benefit Payments
|
25
|
Copyright © 2004-2007
By Clark Consulting, Inc.
Executive Benefits Practice
All Rights Reserved
TRIMBLE NAVIGATION LIMITED
DEFERRED COMPENSATION PLAN
Effective
December 30, 2004
Purpose
The
purpose of this Plan is to provide specified benefits to
Directors and a select group of management or highly
compensated Employees who contribute materially to the
continued growth, development and future business success of
Trimble Navigation Limited, a California 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.
Except
as otherwise provided below, effective December 30, 2004 (the
“Restatement Date”) the provisions of this Plan
shall amend and restate the plan provisions of the Trimble
Navigation Limited Nonqualified Deferred Compensation Plan
effective February 10, 1994 (“Nonqualified Deferred
Compensation Plan”) with respect to all account balances
credited to the Nonqualified Deferred Compensation Plan;
provided, however , the provisions of this Plan are not
intended to modify or affect the trust provisions that relate
to such account balances.
The
Plan is intended to comply with all applicable law, including
Code Section 409A and related Treasury guidance and
Regulations, and shall be operated and interpreted in
accordance with this intention. In order to
transition to the requirements of Code Section 409A and
related Treasury Regulations, the Committee may make available
to Participants certain transition relief provided under
Notice 2006-79, as described more fully in Appendix A of this
Plan.
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, an entry
on the records of the Employer equal to the sum of the
Participant’s Annual Accounts. The 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.
|
If
a Participant is both an Employee and a Director and
participates in the Plan in each capacity, then separate
Account Balances (and separate Annual Accounts, if applicable)
shall be established for such Participant as a device for the
measurement and determination of the (a) amounts deferred
under the Plan that are attributable to the Participant
’ s status as an Employee, and (b) amounts
deferred under the Plan that are attributable to the
Participant ’ s status as a
Director.
|
1.2
|
“Annual
Account” shall mean, with respect to a Participant, an entry
on the records of the Employer equal to (a) the sum of the
Participant’s Annual Deferral Amount and Company Contribution
Amount for any one Plan Year, plus (b) amounts credited or debited
to such amounts pursuant to this Plan, less (c) all distributions
made to the Participant or his or her Beneficiary pursuant to this
Plan that relate to the Annual Account for such Plan
Year. The Annual 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 designated Beneficiary, pursuant to this
Plan.
|
|
1.3
|
“Annual
Deferral Amount” shall mean that portion of a Participant's
Base Salary, Bonus, Commissions, Director Fees and LTIP Amounts
that a Participant defers in accordance with Article 3 for any
one Plan Year, without regard to whether such amounts are withheld
and credited during such Plan Year.
|
|
1.4
|
“Annual
Installment Method” shall mean the method used to determine
the amount of each payment due to a Participant who has elected to
receive a benefit over a period of years in accordance with the
applicable provisions of the Plan. The amount of each
annual payment due to the Participant shall be calculated by
multiplying the balance of the Participant’s benefit by a
fraction, the numerator of which is one and the denominator of
which is the remaining number of annual payments due to the
Participant. The amount of the first annual payment
shall be calculated as of the close of business on or around
the Participant’s Benefit Distribution Date,
and the amount of each subsequent annual
payment shall be calculated on or around each anniversary of such
Benefit Distribution Date. For purposes of this Plan,
the right to receive a benefit payment in annual installments shall
be treated as the entitlement to a single payment.
|
|
1.5
|
“Base
Salary” shall mean the cash compensation relating to services
performed during any calendar year, excluding distributions from
nonqualified deferred compensation plans, 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
Salary shall be calculated before reduction for compensation
voluntarily deferred or contributed by the Participant pursuant to
all qualified or nonqualified 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.
|
|
1.6
|
“Beneficiary”
shall mean one or more persons, trusts, estates or other entities,
designated in accordance with Article 10, 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
|
“Benefit
Distribution Date” shall mean the date upon which all or an
objectively determinable portion of a Participant’s
vested benefits will become eligible for
distribution. Except as otherwise provided in the Plan,
a Participant’s Benefit Distribution Date shall be determined
based on the earliest to occur of an event or scheduled date set
forth in Articles 4 through 9, as applicable.
|
|
1.9
|
“Board”
shall mean the board of directors of the Company.
|
|
1.10
|
“Bonus”
shall mean any compensation, in addition to Base Salary,
Commissions and LTIP Amounts, earned by a Participant under any
Employer's bonus and cash incentive plans.
|
|
1.11
|
“Change in Control” shall mean the occurrence of a
“change in the ownership,” a “change in the
effective control” or a “change in the ownership of a
substantial portion of the assets” of a corporation, as
determined in accordance with this Section.
|
In
order for an event described below to constitute a Change in
Control with respect to a Participant, except as
otherwise provided in part (b)(ii) of this Section, the
applicable event must relate to the corporation for which the
Participant is providing services, the corporation that is
liable for payment of the Participant’s Account Balance
(or all corporations liable for payment if more than one), as
identified by the Committee in accordance with Treas. Reg.
§1.409A-3(i)(5)(ii)(A)(2), or such other corporation
identified by the Committee in accordance with Treas. Reg.
§1.409A-3(i)(5)(ii)(A)(3).
In
determining whether an event shall be considered a
“change in the ownership,” a “change in the
effective control” or a “change in the ownership
of a substantial portion of the assets” of a
corporation, the following provisions shall
apply:
|
|
(a)
|
A “change in the ownership” of the applicable
corporation shall occur on the date on which any one person, or
more than one person acting as a group, acquires ownership of stock
of such corporation that, together with stock held by such person
or group, constitutes more than 50% of the total fair market value
or total voting power of the stock of such corporation, as
determined in accordance with Treas. Reg.
§1.409A-3(i)(5)(v). If a person or group is
considered either to own more than 50% of the total fair market
value or total voting power of the stock of such corporation, or to
have effective control of such corporation within the meaning of
part (b) of this Section, and such person or group acquires
additional stock of such corporation, the acquisition of additional
stock by such person or group shall not be considered to cause a
“change in the ownership” of such
corporation.
|
|
|
(b)
|
A
“change in the effective control” of the applicable
corporation shall occur on either of the following
dates:
|
|
|
(i)
|
The
date on which any one person, or more than one person acting as a
group, acquires (or has acquired during the 12-month period ending
on the date of the most recent acquisition by such person or
persons) ownership of stock of such corporation possessing 30% or
more of the total voting power of the stock of such corporation, as
determined in accordance with Treas. Reg.
§1.409A-3(i)(5)(vi). If a person or group is
considered to possess 30% or more of the total voting power of the
stock of a corporation, and such person or group acquires
additional stock of such corporation, the acquisition of additional
stock by such person or group shall not be considered to cause a
“change in the effective control” of such corporation;
or
|
|
|
(ii)
|
The
date on which a majority of the members of the applicable
corporation’s board of directors is replaced during any
12-month period by directors whose appointment or election is not
endorsed by a majority of the members of such corporation’s
board of directors before the date of the appointment or election,
as determined in accordance with Treas. Reg.
§1.409A-3(i)(5)(vi). In determining whether the
event described in the preceding sentence has occurred, the
applicable corporation to which the event must relate shall only
include a corporation identified in accordance with Treas. Reg.
§1.409A-3(i)(5)(ii) for which no other corporation is a
majority shareholder.
|
|
|
(c)
|
A
“change in the ownership of a substantial portion of the
assets” of the applicable corporation shall occur on the date
on which any one person, or more than one person acting as a group,
acquires (or has acquired during the 12-month period ending on the
date of the most recent acquisition by such person or persons)
assets from the corporation that have a total gross fair market
value equal to or more than 40% of the total gross fair market
value of all of the assets of the corporation immediately before
such acquisition or acquisitions, as determined in accordance with
Treas. Reg. §1.409A-3(i)(5)(vii). A transfer of
assets shall not be treated as a “change in the ownership of
a substantial portion of the assets” when such transfer is
made to an entity that is controlled by the shareholders of the
transferor corporation, as determined in accordance with Treas.
Reg. §1.409A-3(i)(5)(vii)(B).
|
|
1.12
|
“Code”
shall mean the Internal Revenue Code of 1986, as it may be amended
from time to time.
|
|
1.13
|
“Commissions”
shall mean the cash commissions earned by a Participant during a
Plan Year, as determined in accordance with Code Section 409A and
related Treasury Regulations.
|
|
1.14
|
“Committee”
shall mean the committee described in Article 13.
|
|
1.15
|
“Company”
shall mean Trimble Navigation Limited, a California corporation,
and any successor to all or substantially all of the
Company’s assets or business.
|
|
1.16
|
“Company
Contribution Amount” shall mean, for any one Plan Year, the
amount determined in accordance with Section 3.5.
|
|
1.17
|
“Director
Fees” shall mean the annual fees earned by a Director from
any Employer, including retainer fees and meetings fees, as
compensation for serving on the board of directors.
|
|
1.18
|
“Disability”
or “Disabled” shall mean that a Participant is either
(a) unable to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment that
can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or (b) by reason of
any medically determinable physical or mental impairment that can
be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than 3 months under
an accident and health plan covering employees of the
Participant’s Employer. For purposes of this Plan,
a Participant shall be deemed Disabled if determined to be totally
disabled by the Social Security Administration. A
Participant shall also be deemed Disabled if determined to be
disabled in accordance with the applicable disability insurance
program of such Participant’s Employer, provided that the
definition of “disability” applied under such
disability insurance program complies with the requirements of this
Section.
|
|
1.19
|
“Election
Form” shall mean the form, which may be in electronic format,
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.
|
|
1.20
|
“Employee”
shall mean a person who is an employee of an Employer.
|
|
1.21
|
“Employer(s)”
shall be defined as follows:
|
|
|
(a)
|
Except
as otherwise provided in part (b) of this Section, the term
“Employer” 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.
|
|
1.22
|
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
|
|
1.23
|
“401(k)
Plan” shall mean, with respect to an Employer, a plan
qualified under Code Section 401(a) that contains a cash or
deferral arrangement described in Code Section 401(k), adopted by
the Employer, as it may be amended from time to time, or any
successor thereto.
|
|
1.24
|
“LTIP
Amounts” shall mean any portion of the compensation
attributable to a Plan Year that is earned by a Participant under
any Employer's long-term incentive plan or any other long-term
incentive arrangement designated by the Committee.
|
|
1.25
|
“Participant”
shall mean any Employee or Director (a) who is selected to
participate in the Plan, (b) whose executed Plan Agreement,
Election Form and Beneficiary Designation Form are accepted by the
Committee, and (c) whose Plan Agreement has not
terminated.
|
|
1.26
|
“Performance-Based
Compensation” shall mean compensation the entitlement to or
amount of which is contingent on the satisfaction of
pre-established organizational or individual performance criteria
relating to a performance period of at least 12 consecutive months,
as determined by the Committee in accordance with Treas. Reg.
§1.409A-1(e).
|
|
1.27
|
“Plan”
shall mean the Trimble Navigation Limited Deferred Compensation
Plan, which shall be evidenced by this instrument, as it may be
amended from time to time, and by any other documents that together
with this instrument define a Participant’s rights to amounts
credited to his or her Account Balance.
|
|
1.28
|
“Plan
Agreement” shall mean a written agreement in the form
prescribed by or acceptable to the Committee that evidences a
Participant’s agreement to the terms of the Plan and which
may establish additional terms or conditions of Plan participation
for a Participant. Unless otherwise determined by the
Committee, the most recent Plan Agreement accepted with respect to
a Participant shall supersede any prior Plan Agreements for such
Participant. Plan Agreements may vary among Participants
and may provide additional benefits not set forth in the Plan or
limit the benefits otherwise provided under the Plan.
|
|
1.29
|
“Plan
Year” shall mean a period beginning on
January 1 of each calendar year and continuing through December 31
of such calendar year.
|
|
1.30
|
“Retirement,”
“Retire(s)” or “Retired” shall mean with
respect to a Participant who is an Employee, a Separation from
Service on or after the attainment of (a) age sixty-five (65) with
five (5) Years of Service, or (b) age fifty-five (55) with ten (10)
Years of Service; and shall mean with respect to a Participant who
is a Director, a Separation from Service as a Director with the
Company on or after the attainment of age seventy
(70). If a Participant is both an Employee and a
Director and participates in the Plan in each capacity, (a) the
determination of whether the Participant qualifies for Retirement
as an Employee shall be made when the Participant experiences a
Separation from Service as an Employee and such determination shall
only apply to the applicable Account Balance established in
accordance with Section 1.1 for amounts deferred under the Plan as
an Employee, and (b) the determination of whether the Participant
qualifies for Retirement as a Director shall be made at the time
the Participant experiences a Separation from Service as a Director
and such determination shall only apply to the applicable Account
Balance established in accordance with Section 1.1 for amounts
deferred under the Plan as a Director.
|
|
1.31
|
“Separation
from Service” shall mean a termination of services provided
by a Participant to his or her Employer, whether voluntarily or
involuntarily, other than by reason of death or Disability, as
determined by the Committee in accordance with Treas. Reg.
§1.409A-1(h). In determining whether a Participant
has experienced a Separation from Service, the following provisions
shall apply:
|
|
|
(a)
|
For
a Participant who provides services to an Employer as an Employee,
except as otherwise provided in part (c) of this Section, a
Separation from Service shall occur when such Participant has
experienced a termination of employment with such
Employer. A Participant shall be considered to have
experienced a termination of employment when the facts and
circumstances indicate that the Participant and his or her Employer
reasonably anticipate that either (i) no further services will be
performed for the Employer after a certain date, or (ii) that the
level of bona fide services the Participant will perform for the
Employer after such date (whether as an Employee or as an
independent contractor) will permanently decrease to no more than
20% of the average level of bona fide services performed by such
Participant (whether as an Employee or an independent contractor)
over the immediately preceding 36-month period (or the full period
of services to the Employer if the Participant has been providing
services to the Employer less than 36 months).
|
If
a Participant is on military leave, sick leave, or other bona
fide leave of absence, the employment relationship between the
Participant and the Employer shall be treated as continuing
intact, provided that the period of such leave does not exceed
6 months, or if longer, so long as the Participant retains a
right to reemployment with the Employer under an applicable
statute or by contract. If the period of a military
leave, sick leave, or other bona fide leave of absence exceeds
6 months and the Participant does not retain a right to
reemployment under an applicable statute or by contract, the
employment relationship shall be considered to be terminated
for purposes of this Plan as of the first day immediately
following the end of such 6-month period. In
applying the provisions of this paragraph, a leave of absence
shall be considered a bona fide leave of absence only if there
is a reasonable expectation that the Participant will return
to perform services for the Employer.
|
|
(b)
|
For
a Participant who provides services to an Employer as an
independent contractor, except as otherwise provided in part (c) of
this Section, a Separation from Service shall occur upon the
expiration of the contract (or in the case of more than one
contract, all contracts) under which services are performed for
such Employer, provided that the expiration of such contract(s) is
determined by the Committee to constitute a good-faith and complete
termination of the contractual relationship between the Participant
and such Employer.
|
|
|
(c)
|
For
a Participant who provides services to an Employer as both an
Employee and an independent contractor , a Separation from
Service generally shall not occur until the Participant has ceased
providing services for such Employer as both as an Employee and as
an independent contractor, as determined in accordance with the
provisions set forth in parts (a) and (b) of this Section,
respectively. Similarly, if a Participant either (i)
ceases providing services for an Employer as an independent
contractor and begins providing services for such Employer as an
Employee, or (ii) ceases providing services for an Employer as an
Employee and begins providing services for such Employer as an
independent contractor, the Participant will not be considered to
have experienced a Separation from Service until the Participant
has ceased providing services for such Employer in both capacities,
as determined in accordance with the applicable provisions set
forth in parts (a) and (b) of this Section.
|
Notwithstanding
the foregoing provisions in this part (c), if a Participant
provides services for an Employer as both an Employee and as a
Director, to the extent permitted by Treas. Reg.
§1.409A-1(h)(5) the services provided by such Participant
as a Director shall not be taken into account in determining
whether the Participant has experienced a Separation from
Service as an Employee, and the services provided by such
Participant as an Employee shall not be taken into account in
determining whether the Participant has experienced a
Separation from Service as a Director.
|
1.32
|
“Trust”
shall mean one or more trusts established by the Company in
accordance with Article 16.
|
|
1.33
|
“Unforeseeable
Emergency” shall mean a severe financial hardship of the
Participant resulting from (a) an illness or accident of the
Participant, the Participant’s spouse, the
Participant’s Beneficiary or the Participant’s
dependent (as defined in Code Section 152 without regard to
paragraphs (b)(1), (b)(2) and (d)(1)(b) thereof), (b) a loss of the
Participant’s property due to casualty, or (c) such other
similar extraordinary and unforeseeable circumstances arising as a
result of events beyond the control of the Participant, all as
determined by the Committee based on the relevant facts and
circumstances.
|
|
1.34
|
“Years
of Service” shall mean the total number of full years in
which a Participant has been employed by one or more
Employers. 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. A
partial year of employment shall not be treated as a Year of
Service.
|
ARTICLE 2
Selection, Enrollment, Eligibility
|
2.1
|
Selection by Committee . Participation
in the Plan shall be limited to Directors and, as determined by the
Committee in its sole discretion, a select group of management or
highly compensated Employees. From that group, the
Committee shall select, in its sole discretion, those individuals
who may actually participate in this Plan.
|
|
2.2
|
Enrollment and Eligibility Requirements; Commencement of
Participation .
|
|
|
(a)
|
As
a condition to participation, each Director or selected Employee
shall complete, execute and return to the Committee a Plan
Agreement, an Election Form and a Beneficiary Designation Form by
the deadline(s) established by the Committee in accordance with the
applicable provisions of this Plan. In addition, the
Committee shall establish from time to time such other enrollment
requirements as it determines, in its sole discretion, are
necessary.
|
|
|
(b)
|
Each
Director or selected Employee who is eligible to participate in the
Plan shall commence participation in the Plan on the date that the
Committee determines that the Director or Employee 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.
|
|
|
(c)
|
If
a Director or an Employee fails to meet all requirements
established by the Committee within the period required, that
Director or Employee shall not be eligible to participate in the
Plan during such Plan Year.
|
ARTICLE 3
Deferral Commitments/Company Contribution
Amounts/
Vesting/Crediting/Taxes
|
3.1
|
Minimum Annual Deferral Amount .
|
For
each Plan Year, a Participant may elect to defer, as his or
her Annual Deferral Amount, Base Salary, Bonus, Commissions,
LTIP Amounts and/or Director Fees in the following minimum
amounts for each deferral elected:
|
Deferral
|
Minimum Amount
|
|
Base
Salary, Bonus, Commissions and/or LTIP Amounts
|
5%
aggregate
|
|
Director
Fees
|
5%
|
|
|
(a)
|
Annual Deferral Amount . For each Plan
Year, a Participant may elect to defer, as his or her Annual
Deferral Amount, Base Salary, Bonus, Commissions, LTIP Amounts
and/or Director Fees up to the following maximum percentages for
each deferral elected:
|
|
Deferral
|
Maximum Percentage
|
|
Base
Salary
|
90%
|
|
Bonus
|
100%
|
|
Commissions
|
100%
|
|
LTIP
Amounts
|
100%
|
|
Director
Fees
|
100%
|
|
|
(b)
|
Short Plan Year . Notwithstanding the
foregoing, if a Participant first becomes a Participant after the
first day of a Plan Year, then to the extent required by Section
3.3 and Code Section 409A and related Treasury Regulations, the
maximum amount of the Participant’s Base Salary, Bonus,
Commissions, LTIP Amounts or Director Fees that may be deferred by
the Participant for the Plan Year shall be determined by applying
the percentages set forth in Section 3.2(a) to the portion of such
compensation attributable to services performed after the date that
the Participant’s deferral election is made.
|
|
3.3
|
Timing of Deferral Elections; Effect of Election
Form .
|
|
|
(a)
|
General Timing Rule for Deferral Elections
. Except as otherwise provided in this Section 3.3, in
order for a Participant to make a valid election to defer Base
Salary, Bonus, Commissions, Director Fees and/or LTIP Amounts, the
Participant must submit an Election Form on or before the deadline
established by the Committee, which in no event shall be later than
the December 31 st preceding
the Plan Year in which such compensation will be
earned.
|
Any
deferral election made in accordance with this Section 3.3(a)
shall be irrevocable; provided, however, that if the Committee
permits or requires Participants to make a deferral election
by the deadline described above for an amount that qualifies
as Performance-Based Compensation, the Committee may permit a
Participant to subsequently change his or her deferral
election for such compensation by submitting a new Election
Form in accordance with Section 3.3(d)
below.
|
|
(b)
|
Timing of Deferral Elections for Newly Eligible Plan
Participants . A Director or selected
Employee who first becomes eligible to participate in the Plan on
or after the beginning of a Plan Year, as determined in accordance
with Treas. Reg. §1.409A-2(a)(7)(ii) and the “plan
aggregation” rules provided in Treas. Reg.
§1.409A-1(c)(2), may be permitted to make an election to defer
the portion of Base Salary, Bonus, Commissions, Director Fees
and/or LTIP Amounts attributable to services to be performed after
such election, provided that the Participant submits an Election
Form on or before the deadline established by the Committee, which
in no event shall be later than 30 days after the Participant first
becomes eligible to participate in the Plan.
|
If
a deferral election made in accordance with this Section
3.3(b) relates to compensation earned based upon a specified
performance period, the amount eligible for deferral shall be
equal to (i) the total amount of compensation for the
performance period, multiplied by (ii) a fraction, the
numerator of which is the number of days remaining in the
service period after the Participant’s deferral election
is made, and the denominator of which is the total number of
days in the performance period.
Any
deferral election made in accordance with this Section 3.3(b)
shall become irrevocable no later than the 30 th day
after the date the Director or selected Employee becomes
eligible to participate in the Plan.
|
|
(d)
|
Timing of Deferral Elections for Performance-Based
Compensation . Subject to
the limitations described below, the Committee may determine that
an irrevocable deferral election for an amount that qualifies as
Performance-Based Compensation may be made by submitting an
Election Form on or before the deadline established by the
Committee, which in no event shall be later than 6 months before
the end of the performance period.
|
In
order for a Participant to be eligible to make a deferral
election for Performance-Based Compensation in accordance with
the deadline established pursuant to this Section 3.3(d), the
Participant must have performed services continuously from the
later of (i) the beginning of the performance period for such
compensation, or (ii) the date upon which the performance
criteria for such compensation are established, through the
date upon which the Participant makes the deferral election
for such compensation. In no event shall a deferral
election submitted under this Section 3.3(d) be permitted to
apply to any amount of Performance-Based Compensation that has
become readily ascertainable.
|
|
(e)
|
Timing Rule for Deferral of Compensation Subject to Risk of
Forfeiture . With respect
to compensation (i) to which a Participant has a legally binding
right to payment in a subsequent year, and (ii) that is subject to
a forfeiture condition requiring the Participant’s continued
services for a period of at least 12 months from the date the
Participant obtains the legally binding right, the Committee may
determine that an irrevocable deferral election for such
compensation m
|
|
