Exhibit 4.1
U.S.I. HOLDINGS
CORPORATION
DEFERRED COMPENSATION
PLAN
Effective January 1,
2005
ARTICLE 1
PURPOSE
In recognition of the services
provided by certain key employees, producers and directors, the
Board of Directors of U.S.I. Holdings Corporation adopted the
U.S.I. Holdings Corporation Deferred Compensation Plan to make
additional retirement benefits and increased financial security
available on a tax-favored basis to those individuals.
ARTICLE 2
DEFINITIONS
“ Affiliate ”
means: (a) any firm, partnership, or corporation that directly or
indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with the Company; (b) any
other organization similarly related to the Company that is
designated as such by the Board; and (c) any other entity 50% or
more of the economic interests in which are owned, directly or
indirectly, by the Company.
“ Beneficiary ”
means the person or persons designated as such in accordance with
Section 8.3.
“ Board ” means
the Board of Directors of U.S.I. Holdings Corporation.
“ Bonus ” means
Compensation that is classified by the Company as bonus.
“ Code ” means
the Internal Revenue Code of 1986, as amended.
“ Committee ”
means the U.S.I. Holdings Corporation Benefits
Committee.
“ Company ” means
U.S.I. Holdings Corporation and each of its subsidiaries, as well
as each Affiliate identified in Appendix A as may from time to time
participate in the Plan by or pursuant to authorization of the
Board and the board of directors of such Affiliate.
“ Compensation ”
means, for any Eligible Employee or Director, for any Plan Year,
the Participant’s total taxable income received from the
Company with respect to such Plan Year, including, but not limited
to, base earnings, regular bonuses, commissions and overtime,
expense allowances, cash-based Board retainer fees, plus pre-tax
contributions and elective contributions that are not includible in
gross income under section 125, 402(a)(8) or 402(h) of the Code,
and excluding income recognized in connection with stock-related
options and payments, reimbursements, fringe benefits (cash and
noncash), moving expenses, deferred compensation and welfare
benefits, and Board committee meeting fees, as determined pursuant
to guidelines established and revised by the Plan Administrator
from time to time and communicated to Eligible Employees and
Directors.
“ Director ”
means a member of the Board who receives remuneration payable for
services as a member of the Board.
“ Disability ”
means a disability as defined in Section 409A(2)(c) of the
Code.
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“ Disabled ”
means having a Disability. The determination of whether a
Participant is Disabled shall be made by the Plan Administrator,
whose determination shall be conclusive.
“ Distribution
Account(s) ” means, with respect to a Participant, the
bookkeeping accounts established on the books of account of the
Company, pursuant to Section 5.1. A new Distribution Account shall
be established for each Plan Year.
“ Earnings Crediting
Options ” means the deemed investment options selected by
the Participant from time to time pursuant to which deemed earnings
or losses are credited or debited, as the case may be, to the
Participant’s Distribution Accounts.
“ Effective Date
” means January 1, 2005.
“ Eligible Employee
” means an Employee from a group of selected management
and/or highly compensated Employees of the Company and who is
designated by the Plan Administrator as eligible to participate in
the Plan.
“ Employee ”
means any individual employed by the Company on a regular,
full-time basis (in accordance with the personnel policies and
practices of the Company) as an Executive or a Producer, including
citizens of the United States employed outside of their home
country and resident aliens employed in the United States;
provided, however , that to qualify as an
“Employee” for purposes of the Plan, the individual
must be a member of a group of “key management or other
highly compensated employees” within the meaning of Sections
201, 301 and 401 of the Employee Retirement Income Security Act of
1974, as amended; provided further , that the following
individuals shall not be eligible to participate in the Plan: (a)
individuals who are not classified by the Company as its employees,
even if they are retroactively recharacterized as employees by a
third party or the Company, (b) individuals for whom the Company
does not report wages on Form W-2 or who are not on an employee
payroll of the Company; and (c) individuals who have entered into
an agreement with the Company which excludes them from
participation in employee benefit plans of the Company (whether or
not they are treated or classified as employees for certain
specified purposes that do not include eligibility in the
Plan).
“ Employer ”
means U.S.I. Holdings Corporation and its Affiliates.
“ Enrollment Agreement
” means the authorization form which an Eligible Employee or
Director files with the Plan Administrator to participate in the
Plan, including, without limitation, one that is completed and/or
sent electronically in a manner specified by the Plan
Administrator.
“ Executive ”
means an Eligible Employee who is not a Producer.
“ Key Employee ”
means a “specified employee” as defined in Section
409A(2)(B)(i) of the Code.
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“ Participant ”
means an Eligible Employee or Director who has filed a completed
and executed Enrollment Agreement with the Plan Administrator or
its designee and is participating in the Plan in accordance with
the provisions of Article 4. In the event of the death or
incompetency of a Participant, the term shall mean his or her
personal representative or guardian. An individual shall remain a
Participant until that individual has received full distribution of
any amount credited to the Participant’s Distribution
Accounts.
“ Plan ” means
the U.S.I. Holdings Corporation Deferred Compensation Plan, as
amended from time to time.
“ Plan Administrator
” means the Committee.
“ Plan Year ”
means the 12-month period beginning on each January 1 and ending on
the following December 31.
“ Producer ”
means an Eligible Employee who receives sales-based compensation
and is designated as a “producer” by the Plan
Administrator.
“ Service ” means
the period of time during which an employment relationship exists
between an Employee and the Company, including any period during
which the Employee is on an approved leave of absence, whether paid
or unpaid. “Service” shall not be deemed to have ceased
if an Employee transfers directly between the Company and an
Affiliate. With respect to Directors who are not Employees,
“Service” means the period of time during which the
Director is a member of the Board.
“ Subsequent Election
” means an election made by a Participant in accordance with
Section 4.1(d).
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ARTICLE 3
ADMINISTRATION OF THE PLAN AND
DISCRETION
3.1. The Committee, as Plan
Administrator, shall have full power and authority to interpret the
Plan, to prescribe, amend and rescind any rules, forms and
procedures as it deems necessary or appropriate for the proper
administration of the Plan and to make any other determinations and
to take any other such actions as it deems necessary or advisable
in carrying out its duties under the Plan. All action taken by the
Plan Administrator arising out of, or in connection with, the
administration of the Plan or any rules adopted thereunder, shall,
in each case, lie within its sole discretion, and shall be final,
conclusive and binding upon the Company, the Board, all Employees
and Directors, all Beneficiaries and all persons and entities
having an interest therein. The Committee, may, however, delegate
to any person or entity any of its powers or duties under the Plan.
To the extent of any such delegation, the delegate shall become the
Plan Administrator responsible for administration of the Plan, and
references to the Plan Administrator shall apply instead to the
delegate. Any action by the Committee assigning any of its
responsibilities to specific persons who are directors, officers,
or employees of the Company shall not constitute delegation of the
Committee’s responsibility but rather shall be treated as the
manner in which the Committee has determined internally to
discharge such responsibility.
3.2. The Plan Administrator shall
serve without compensation for its services unless otherwise
determined by the Board. All expenses of administering the Plan
shall be paid by the Company.
3.3. The Company shall indemnify and
hold harmless the Plan Administrator from any and all claims,
losses, damages, expenses (including counsel fees) and liability
(including any amounts paid in settlement of any claim or any other
matter with the consent of the Board) arising from any act or
omission of such member, except when the same is due to gross
negligence or willful misconduct.
3.4. Any decisions, actions or
interpretations to be made under the Plan by the Company, the Board
or the Plan Administrator shall be made in its respective sole
discretion, not as a fiduciary, and need not be uniformly applied
to similarly situated individuals and shall be final, binding and
conclusive on all persons interested in the Plan.
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ARTICLE 4
PARTICIPATION
4.1. Election to Participate
.
(a) Eligibility and Timing of
Election to Participate . Any Eligible Employee or Director may
enroll in the Plan effective as of the first day of a Plan Year by
filing a completed and fully executed Enrollment Agreement with the
Plan Administrator by a date set by the Plan
Administrator.
(i) Filing of Enrollment
Agreement . An executed Enrollment Agreement must be filed by
December 31 of the Plan Year preceding the Plan Year in which such
Compensation is to be earned, or such earlier time as may be
established by the Plan Administrator.
(ii) Revocation of Election .
Once each Plan Year, a Participant may cancel his or her deferral
election with respect to all Compensation, other than Compensation
that is Bonus, provided that such cancellation is communicated to
the Company in writing and shall be effective for all Compensation
(other than Bonus) earned for the remainder of the Plan Year.
Elections with respect to Bonuses are irrevocable.
(b) Amount of Deferral .
Pursuant to said Enrollment Agreement, the Eligible Employee or
Director shall irrevocably elect the percentages by which (as a
result of payroll deduction) an amount equal to any whole
percentage of the Participant’s Compensation will be
deferred; provided that Participants may make a separate election
as to Bonus.
(i) For Executives, between 2
percent and 50 percent of Compensation (exclusive of Bonus) may be
deferred and between 10 percent and 100 percent of Bonus may be
deferred, provided that an Executive may designate a specific
dollar amount to be deferred in lieu of a percentage of such
Compensation.
(ii) For Producers, between 2
percent and 50 percent of Compensation may be deferred.
(iii) For Directors, between 2
percent and 50 percent of Compensation may be deferred.
Deferrals will be made after
required non-deferrable payroll tax deductions and any deductions
elected by the Participant (including, but not limited to,
deductions for payment of health insurance premiums). The Plan
Administrator may establish minimum dollar amounts that may be
deferred under this Section 4.1 and may change such standards from
time to time. Any such limit shall be communicated by the Plan
Administrator to the Participants prior to the commencement of a
Plan Year.
(c) Timing and Form of Payment of
Distribution from Accounts . The Enrollment Agreement filed by
an Eligible Employee must also set forth the Participant’s
election as to the time and form of distribution.
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(i) A Participant may elect to defer
amounts credited to his or her Distribution Account for: (a) a
period of not less than three (3) years from the date such election
is made; or (b) until the attainment of a specified age, which
shall not be a period of less than three (3) years from the date
such election is made.
(ii) Distribution of amounts
credited to a Participant’s Distribution Account may be
distributed in one lump-sum payment or in annual installments over
3, 5 or 10 years.
(d) Subsequent Elections .
Each Participant who has made an election to defer Compensation may
make a Subsequent Election to further defer the time of payment for
any part or all of such Participant’s Distribution
Account(s). A Subsequent Election shall not operate to change the
form of payment originally elected by the Participant. No such
Subsequent Election shall be valid unless it is made twelve months
prior to the originally scheduled payment date applicable to such
Distribution Account and the payment commencement date is deferred
for not less than five (5) years from the originally scheduled
payment date. Each Participant is limited to one Subsequent
Election for each Distribution Account. In the event of the
Participant’s Disability or death after a Subsequent Election
has been made and prior to the rescheduled payment date, the
distribution date shall be accelerated in accordance with Section
6.2. In the event of the Participant’s termination of Service
by the Company prior to the expiration of 12 months from the date
the Subsequent Election is made, the Subsequent Election shall be
of no effect and distribution shall be accelerated in accordance
with Section 6.2(a).
(e) Vesting . All
Compensation deferred by Participants under the Plan are fully and
immediately vested.
4.2. Filing of Elections by New
Eligible Employees and New Directors .
(a) New Eligible Employees .
The Plan Administrator may, in its discretion, permit an Employee
who first becomes an Eligible Employee after the beginning of a
Plan Year to enroll in the Plan for that Plan Year by filing a
completed and fully executed Enrollment Agreement, in accordance
with Section 4.1, as soon as practicable following the date the
Employee becomes an Eligible Employee but, in any event, not later
than 30 days after such date. Notwithstanding the foregoing,
however, any election by an Eligible Employee to defer Compensation
pursuant to this section 4.2 shall apply only to such amounts as
are earned by the Eligible Employee after the date on which such
Enrollment Agreement is filed.
(b) New Directors . A
Director whose election as a member of the Board first becomes
effective in a Plan Year may enroll in the Plan for that Plan Year
by filing a completed and fully executed Enrollment Agreement, in
accordance with Section 4.1, as soon as practicable following the
effective date of such Director’s election but, in any event,
not later than 30 days after the effective date of such election.
Notwithstanding the foregoing, however, any election by a Director
to defer Compensation pursuant to this Section 4.2 shall apply only
to such Compensation earned by the Director after the date on which
such Enrollment Agreement is filed.
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ARTICLE 5
DISTRIBUTION
5.1. Distribution Accounts .
The Plan Administrator shall establish and maintain separate
Distribution Accounts for each Participant. The amount of
Compensation deferred pursuant to Section 4.1 or Section 4.2 shall
be credited by the Company to the Participant’s Distribution
Account, in accordance with the Participant’s Enrollment
Agreement, as soon as reasonably practicable following the close of
the payroll period or payment date for which the deferred
Compensation would otherwise be payable, as determined by the Plan
Administrator in its s
