Exhibit
10.31
AMENDED AND
RESTATED
MBIA
INC. DEFERRED COMPENSATION AND EXCESS BENEFIT PLAN
(Formerly the
MBIA Inc. 2005 Deferred Compensation and Excess Benefit Plan and
the MBIA
Inc. Pre-2005
Deferred Compensation and Excess Benefit Plan)
WHEREAS, MBIA
Inc. maintains the MBIA Inc. 2005 Deferred Compensation and Excess
Benefit Plan (the “ 2005 Plan ”) and the MBIA
Inc. Deferred Compensation and Excess Benefit Plan (the “
Pre-2005 Plan ”; hereinafter the 2005 Plan and the
Pre-2005 Plan are collectively referred to as the MBIA Inc.
Deferred Compensation and Excess Benefit Plan (the “
Plan ”));
WHEREAS,
Section 409A of the Internal Revenue Code of 1986, as amended
(“Section 409A”), among other things, imposes certain
limitations and restrictions on the times at which certain types of
deferred compensation, including benefits under the Plan, may be
payable and the forms of payment of such deferred
compensation;
WHEREAS, all
documents that provide for the payment of deferred compensation
subject to Section 409A must be brought into written
compliance with the requirements of Section 409A on or before
December 31, 2008, or the employee to whom such compensation
is payable will be subjected to certain adverse tax consequences,
including, but not limited to, having to pay an additional Federal
income tax of 20% on such deferred compensation;
WHEREAS, the
2005 Plan has previously been adopted to provide that amounts
deferred on or after January 1, 2005 be so deferred in
compliance with Section 409A under a plan that is in written
compliance with 409A;
WHEREAS, the
Company has previously amended the Pre-2005 Plan to provide that
all amounts deferred under the Pre-2005 Plan shall be subject to
the terms and provisions of the 2005 Plan and that the operative
terms and provisions of the Pre-2005 Plan shall be deemed amended
to contain the terms and provisions, mutatis mutandis, contained in
the 2005 Plan, as the 2005 Plan may be amended from time to
time;
WHEREAS, the
Board has authorized any of the Company’s Chief Financial
Officer, Chief Administrative Officer and General Counsel (the
“Authorized Officers”), in the name and on behalf of
the Company to execute and deliver such agreements, certificates
and other instruments and documents (including, but not limited
restating and/or merging the 2005 Plan document and the Pre-2005
Plan document), in such form and with such terms and provisions as
any such officer may approve, his, her or their execution and
delivery thereof to be conclusive evidence of such approval, and to
take such other actions as any of them may deem necessary or
appropriate, in each case, to carry out the transactions
contemplated by, and the intent and purposes of, the Board’s
resolutions; and
WHEREAS, the
Authorized Officers desire to restate the Plan to incorporate the
Board’s resolutions;
NOW THEREFORE,
the Company hereby amends and restates the Plan as
follows:
1.
Purpose .
The purpose of
the Plan is to permit selected employees of MBIA Inc. to defer
compensation and to permit all affected employees to receive
benefits, subject to the terms and conditions hereof, which could
not otherwise be provided in accordance with the terms of the Money
Purchase Plan and the 401(k) Plan by reason of the benefit
limitation and nondiscrimination provisions of the Code.
2.
Definitions .
(a) “
Account ” means the account maintained by the Company
for the benefit of any one Participant as described in
Section 4 below. A Participant’s Account shall include,
as may be applicable, any elective deferrals, Discretionary
Contributions, Excess Allocations, and Company Matching
Contributions credited on behalf of such Participant.
(b) “
Beneficiary ” means any person or persons, estate or
trust designated in accordance with Section 7 below, to
receive the amount payable under this Plan upon the death of a
Participant.
(c) “
Board ” means the Board of Directors of the
Company.
(d) “
Change of Control ” shall have the meaning set forth
in Section 4(h).
(e) “
Code ” means the Internal Revenue Code of 1986, as
amended, or any subsequent income tax law of the United States.
References to Code sections shall be deemed to include all
subsequent amendments of those sections or the corresponding
provisions of any subsequent income tax law.
(f) “
Committee ” means the Compensation and Organization
Committee of the Board, as such committee may be constituted from
time to time.
(g) “
Company ” means MBIA Inc., its successors and assigns
and any Subsidiary.
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(h)
“ Compensation ” means the aggregate salary and
annual bonus paid to a Participant in any Plan Year (including
amounts that would have been paid to him but for his election to
defer part or all of such amounts under this or any other plan of
deferred compensation of the Company) for services rendered as an
employee; provided, however, that amounts earned by an employee
before becoming a Participant shall be excluded.
(i) “
Corporate Event ” shall have the meaning set forth in
Section 4(h)(iii).
(j) “
Deferral Election ” means the election described in
Section 3(a) below.
(k) “
Disability ” means any medically determined physical
or mental impairment which is expected to last for a continuous
period of not less than 12 months, and which results in the
Participant (i) being absent from work for a continuous period
of not less than 12 months and (ii) receiving income
replacement benefits for a period of not less then 3 months under
an accident and health plan maintained for the Company’s
employees.
(l) “
Discretionary Contribution ” means amounts credited by
the Company to a Participant’s Account pursuant to
Section 3(e) below.
(m) “
Effective Date ” means January 1,
2005.
(n) “
Eligible Employee ” means any employee of the Company
selected by the Committee to participate in the Plan, based on the
office or position held by the employee, the employee’s
degree of responsibility for and opportunity to contribute to the
growth and success of the Company, the employee’s term of
service and such other factors as the Committee may deem proper and
relevant, and who is eligible to make “Elective
Contributions” under the 401(k) Plan. Notwithstanding the
foregoing, with respect to Excess Allocations, the term
“Eligible Employee” shall include each employee whose
benefits under the Money Purchase Plan or the 401(k) plan are
limited by reason of the application of Section 415 of the
Code.
(o) “
Excess Allocation ” shall mean an allocation to a
Participant’s Account pursuant to Section 3(d) in lieu
of a contribution under the Money Purchase Plan.
(p) “
Exchange Act ” means the Securities Exchange Act of
1934, as amended.
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(q)
“ 401(k) Plan ” means the MBIA Inc. Employees
401(k) Plan, as it may be amended from time to time, and any
successor plan thereto or similar plan or plans established by the
Company.
(r) “
Incumbent Directors ” shall have the meaning set forth
in Section 4(h)(ii).
(s) “
Matching Contributions ” means amounts credited by the
Company to a Participant’s Account pursuant to
Section 3(b) below.
(t) “
Maximum Elective Contributions ” shall have the
meaning set forth in Section 3(a)(ii) below.
(u) “
Money Purchase Plan ” means the MBIA Inc. Employees
Pension Plan, as it may be amended from time to time, and any
successor plan thereto or similar plan or plans established by the
Company.
(v) “
Non-Qualified Deferral Percentage ” shall have the
meaning set forth in Section 3(a)(ii), below.
(w) “
Participant ” means any Eligible Employee from and
after the date his Elective Deferrals become effective or with
respect to whom an Account is being maintained. Notwithstanding the
foregoing, the term Participant shall also include any employee who
is an Eligible Employee only with respect to Excess
Allocations.
(x) “
Phantom Fund ” means a mutual fund or other investment
vehicle which shall be used to determine the hypothetical
investment experience of all or a portion of a Participant’s
Account under the Plan.
(y) “
Plan Year ” means the calendar year.
(z) “
Subsidiary ” means a corporation, the majority of the
voting stock of which is owned directly or indirectly by the
Company.
(aa) “
Valuation Date ” means the last day of any calendar
quarter.
(bb) “
Year of Service ” means a Plan Year in which a
Participant works at least 1,000 hours.
3.
Participation .
(a)
Deferred Compensation .
(i) An
Eligible Employee may make an irrevocable election with respect to
any Plan Year to have a portion of his Compensation for such year
deferred under this Plan (a “ Deferral Election
”). Any such election shall be:
(A) made no
later than the end of the Plan Year preceding the Plan Year during
which the services giving rise to the compensation are performed,
to be effective with the first pay period in such subsequent Plan
Year, except as provided in Section 3(a)(iii)or 3(a)(iv)
below; and
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(B) subject to
such other terms and conditions as are determined by the
Committee.
(ii) An
Eligible Employee making a Deferral Election shall indicate the
aggregate percentage of his salary and bonus to be withheld and
deferred under both the 401(k) Plan and this Plan. The portion of
any such deferrals to be contributed under the 401(k) Plan shall be
determined pursuant to Section 4.2 of the 401(k) Plan and the
remaining portion (the “ Non-Qualified Deferral
Percentage ”) shall be deferred under this Plan, by
holding back such Non-Qualified Deferral Percentage from each
payment of the Participant’s salary and bonus during the
applicable Plan Year. With respect to any Plan Year, in no event
shall the actual amount deferred under this Plan pursuant to a
Participant’s Deferral Election exceed the difference between
( A ) the aggregate amount elected for deferral under
this Section 3(a)(ii) and ( B ) the maximum amount
of elective deferrals permitted to be made by such Participant
(including any catch-up contributions) under the 401(k) Plan
pursuant to Section 402(g) of the Code (the “ Maximum
Elective Contributions ”).
(iii)
Notwithstanding anything in Section 3(a)(i) above, subject to
such additional rules as the Committee shall establish from time to
time, an Eligible Employee who, pursuant to the requirements of
Section 409A of the Code is eligible to make a Deferral
Election with respect to compensation that constitutes
“performance-based compensation” within the meaning of
Section 409A of the Code may make a Deferral Election in
respect of such performance-based compensation not later than six
months before the end of the performance period, provided that the
Participant performs services continuously from the later of the
beginning of the performance period or the date the performance
criteria are established through the date the Deferral Election is
made and provided further that, in no event may an election to
defer performance-based compensation be made after such
compensation has become “readily ascertainable” within
the meaning of the regulations promulgated under Section 409A
of the Code.
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(iv) An
employee who does not participate and is not otherwise eligible to
participate in an “Account Balance Plan” of the Company
within the meaning of Section 409A of the Code who first
becomes an Eligible Employee during a Plan Year may make an initial
Deferral Election within 30 days of first becoming eligible to
participate in the Plan. Such election shall be effective only with
respect to compensation in respect of services performed after the
date on which the Eligible Employee makes the election and, with
respect to deferrals of performance-based compensation made after
the performance period has begun, shall apply only to the portion
of the compensation that is attributable on a pro rata basis to the
portion of the performance period that follows such
election.
(v) A Deferral
Election shall be effective for the Plan Year to which it relates
and for each future Plan Year until revoked or changed for future
Plan Years; provided that no Deferral Election may be revoked or
changed after the Plan Year to which it relates has
commenced.
(b)
Matching Contributions . The Company shall make a Matching
Contribution on behalf of any Participant making a Deferral
Election in the amount of one dollar for each dollar deferred
pursuant to his Deferral Election, provided that for any payroll
period the total of the Company’s Matching Contributions
under this Section 3(b) shall not exceed ( i
) five percent of the Participant’s Compensation for
such payroll period minus ( ii ) the amount that would
be contributed on the Participant’s behalf under the 401(k)
Plan had the Participant elected to contribute the Maximum Elective
Contributions ratably from each payroll period over the Plan Year.
Matching Contributions shall be credited to each
Participant’s Account as of the end of the payroll period
with respect to which the corresponding amount is withheld pursuant
to the Participant’s Deferral Election.
(c)
Limitation on Deferrals . For any Plan Year, the amount a
Participant defers under the Plan pursuant to a Deferral Election
shall not exceed the difference of ( A ) thirty percent
of such Participant’s Compensation for such Plan Year minus (
B ) the Maximum Elective Contributions.
(d) Excess
Allocation . Each employee who is eligible to participate in
the Money Purchase Plan and who is credited with contributions
under such Money Purchase Plan for a given Plan Year which are less
than the amount which would have been contributed but for any
limitation imposed under the Code, including, but not limited to,
the provisions of Sections 401(a)(4), 401(a)(17) and 415,
shall have an Excess Allocation credited to his Account at such
time as, and in an amount equal to that amount of, the prohibited
contribution which would have been made under the Money Purchase
Plan but for such limitations.
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(e)
Discretionary Contributions . Notwithstanding anything in
this Plan to the contrary, the Company may make one or more
additional contributions on behalf of any Participant in such
amounts as may be determined by the Committee. Unless the Committee
shall determine that the Participant does not otherwise have a
legally binding right to such contributions (within the meaning of
Section 409A of the Code) at the time the commitment is made
in respect of such contributions, the Participant’s right to
be credited with any such contributions shall be established in a
calendar year prior to the calendar year in which services relevant
to such contributions are to be performed.
4.
Participant Accounts and Allocations .
(a)
Accounts . The Company shall establish and maintain an
Account for each Participant and shall make additions to and
subtractions from such Account as provided in this Section 4.
At the times provided in Sections 3(a)(ii), 3(b), 3(d) and 3(e)
above, each Participant’s Account shall be credited
with:
(i) any amount
withheld and deferred under this Plan pursuant to his Deferral
Election,
(ii) any
Matching Contributions made by the Company,
(iii) any
Excess Allocation creditable for a Plan Year, and
(iv) any
Discretionary Contributions made by the Company.
(b)
Additions to Account . Compensation allocated to a
Participant’s Account pursuant to this Section 4 shall
be credited to such Account as of the date such compensation would
otherwise have been paid to the Participant.
(c)
Designation of Phantom Investment Funds . The Committee
shall select one or more Phantom Funds which shall be used to
determine the hypothetical investment experience of
Participants’ Accounts under the Plan; provided, however,
that unless the Committee otherwise determines, the hypothetical
investment experience for any calendar quarter shall be
b
