AMENDMENTS
TO THE
EXECUTIVE INCOME DEFERRAL PLAN
The
Executive Income Deferral Plan (the “Plan”) shall be
amended by inserting the following two new Sections at the end of
the Plan, effective as of January 1, 2009, or as of the date
otherwise specifically provided below:
“13.
Section 409A Requirements . Notwithstanding any other
provision of the Plan to the contrary, effective as of
January 1, 2009, the terms of this Section 13 shall apply
to the deferral of income elected on or after January 1, 2005
(the “409A Deferrals”), and the payment of such
amounts. This Section 13 is intended to ensure that the terms
of the Plan comply with Section 409A of the Internal Revenue
Code of 1986, as amended, and the regulations and other guidance
issued thereunder (“Section 409A”).
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(a)
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Creation of 409A Accounts
. Effective as of January 1, 2005, each participant’s
Income Deferral Account shall be divided into two separate accounts
as follows: (i) a “409A Account,” which shall
consist of all 409A Deferrals and the earnings thereon; and
(ii) a “Grandfathered Account,” which shall
consist of all Deferred Awards credited to a participant’s
Income Deferral Account before January 1, 2005 (the
“Grandfathered Deferrals”). Except as specifically
provided in this Section 13, all references in this Plan to Income
Deferral Accounts shall include the 409A Account and the
Grandfathered Account, and all references to Deferred Awards shall
include the 409A Deferrals and the Grandfathered
Deferrals.
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(b)
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Election of 409 Deferrals
: No participant may elect to defer any portion of any dividend
equivalents that are payable under the Company’s CEC Plan on
or after January 1, 2009. Effective as of January 1,
2005, each participant may elect (i) to defer any
non-performance-based compensation, incentive payment, or dividend
equivalent monies for services performed during a taxable year,
provided such election is made on or before the end of the taxable
year preceding the year in which services are rendered; and
(ii) to defer any performance based compensation (as defined
in Treasury Regulations Section 1.409A-1(e)) on or before the
date that is six months before the end of the performance period,
provided that in no event may such election be made after such
compensation has become readily ascertainable. The Company shall
establish procedures applicable to the form and timing of such
deferral elections in accordance with the provisions of this
Section 13(b).
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(c)
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Payment of 409A Accounts
. The value of a participant’s 409A Account shall be payable
only upon the occurrence of a 409A Payment Event. The Company shall
pay the value of a participant’s 409A Account in a single
lump sum as soon as practicable after the later of (i) the
expiration of the six-month period specified in
Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986,
as amended, (the “Code”) and the regulations
thereunder, and (ii) January 15 of the year immediately
following the year of the 409A Payment Event. The participant shall
have no influence on any determination as to the tax year in which
the payment is made.
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(d)
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409A Payment Event
. For purposes of this Plan, the term “409A Payment
Event” shall mean the date on which one of the following
occurs with respect to a participant (or a date related to the
occurrence of one of the following):
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i)
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Separation from Service (within the meaning of Treasury Regulations
Section 1.409A-1(h) and other applicable rules under
Section 409A);
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ii)
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Death; or
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iii)
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Disability (within the meaning of Code Section 409A(a)(2)(C)
and the regulations thereunder).
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With respect to a participant who is placed on “long-term
disability,” the Company shall determine whether a Separation
from Service has occurred with respect to the participant based on
the facts and circumstances for purposes of establishing the time
of payment for the participant’s 409A Account. The
Company’s determi
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