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CORINTHIAN COLLEGES, INC. DEFERRED COMPENSATION PLAN

Employee Benefits Plan Agreement

CORINTHIAN COLLEGES, INC. DEFERRED COMPENSATION PLAN | Document Parties: CORINTHIAN COLLEGES INC | CORINTHIAN COLLEGES, INC You are currently viewing:
This Employee Benefits Plan Agreement involves

CORINTHIAN COLLEGES INC | CORINTHIAN COLLEGES, INC

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Title: CORINTHIAN COLLEGES, INC. DEFERRED COMPENSATION PLAN
Governing Law: California     Date: 8/26/2009
Industry: Schools     Sector: Services

CORINTHIAN COLLEGES, INC. DEFERRED COMPENSATION PLAN, Parties: corinthian colleges inc , corinthian colleges  inc
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Exhibit 10.74

CORINTHIAN COLLEGES, INC.

DEFERRED COMPENSATION PLAN

 

1.

PURPOSE OF PLAN

The purpose of this Plan is to promote the success of the Company by providing selected management and highly compensated employees an opportunity to defer salary and bonuses as an additional means to attract, motivate and retain such employees.

 

2.

DEFINITIONS

Whenever the following words and phrases are used in this Plan, with the first letter capitalized, they shall have the meanings specified below.

“401(k) Plan” shall mean the Company’s Retirement Savings Plan, as now in effect and as hereafter amended from time to time.

“Account” or “Accounts” shall mean a Participant’s Deferral Account and Company Contributions Account.

“Adjusted Deferrals” shall mean the sum of (i) the Participant’s Maximum 401(k) Deferrals for the applicable Plan Year, plus (ii) the Participant’s Plan Year Deferrals for that Plan Year.

“Beneficiary” or “Beneficiaries” shall mean the person or persons, including a trustee, personal representative or other fiduciary, last designated in writing by a Participant in accordance with procedures established by the Committee to receive the benefits specified hereunder in the event of the Participant’s death. No beneficiary designation shall become effective until it is filed with the Committee, and no beneficiary designation of someone other than the Participant’s spouse shall be effective unless such designation is consented to by the Participant’s spouse on a form provided by and in accordance with the procedures established by the Committee. If there is no Beneficiary designation in effect, or if there is no surviving designated Beneficiary, then the Participant’s surviving spouse shall be the Beneficiary. If there is no surviving spouse to receive any benefits payable in accordance with the preceding sentence, the duly appointed and currently acting personal representative of the Participant’s estate (which shall include either the Participant’s probate estate or living trust) shall be the Beneficiary. In any case where there is no such personal representative of the Participant’s estate duly appointed and acting in that capacity within 90 days after the Participant’s death (or such extended period as the Committee determines is reasonably necessary to allow such personal representative to be appointed, but not to exceed 180 days after the Participant’s death), then “Beneficiary” shall mean the person or persons who can verify by affidavit or court order to the satisfaction of the Committee that they are legally entitled to receive the benefits specified hereunder. In the event any amount is payable under this Plan to a minor, payment shall not be made to the minor, but instead shall be paid (a) to that person’s living parent(s) to act as custodian, (b) if that person’s parents are then divorced, and one parent is the sole custodial parent, to such custodial parent, or (c) if no parent of that person is


then living, to a custodian selected by the Committee to hold the funds for the minor under the Uniform Transfers or Gifts to Minors Act in effect in the jurisdiction in which the minor resides. If no parent is living and the Committee decides not to select another custodian to hold the funds for the minor, then payment shall be made to the duly appointed and currently acting guardian of the estate for the minor or, if no guardian of the estate for the minor is duly appointed and currently acting within 60 days after the date the amount becomes payable, payment shall be deposited with the court having jurisdiction over the estate of the minor.

“Board” shall mean the Board of Directors of the Company.

“Bonus” shall mean any annual cash incentive compensation payable to a Participant by a Participating Affiliate in addition to the Participant’s Salary.

“Code” shall mean the U.S. Internal Revenue Code of 1986, as amended.

“Committee” shall mean a committee appointed by the Board to administer this Plan as provided in Section 9.

“Company” shall mean Corinthian Colleges, Inc., and any successor entity.

“Company Contributions” shall mean amounts credited to a Participant’s Company Contributions Account in accordance with Section 5.

“Company Contributions Account” shall mean the bookkeeping account maintained by the Committee for each Participant that is credited with any Company Contributions hereunder and all investment gains or losses thereon.

“Compensation” shall mean the Salary and Bonus that the Participant is entitled to for services rendered to a Participating Affiliate.

“Deferral Account” shall mean the bookkeeping account maintained by the Committee for each Participant that is credited with amounts equal to (1) the portion of the Participant’s Salary that he or she elects to defer and invest in the manner described in Section 4, (2) the portion of the Participant’s Bonus that he or she elects to defer and invest in the manner described in Section 4, and (3) investment gains or losses thereon.

“Disability” shall mean with respect to a Participant 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, by reason of which impairment the Participant is either unable to engage in any substantial gainful activity or is receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Participant’s employer.

“Effective Date” shall mean August 1, 2008.

“Eligible Employee” shall mean an employee of a Participating Affiliate who is a highly compensated or management level employee and who is selected by the Committee to be eligible to participate in the Plan.


“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

“Fiscal Year” shall mean the Company’s fiscal year.

“Investment Fund” shall mean one or more of the investment funds or portfolios selected by the Committee pursuant to Section 6.1.

“Maximum 401(k) Deferrals” shall mean the maximum amount of a Participant’s compensation that the Participant would be permitted under applicable tax law to elect to defer to the 401(k) Plan for the applicable Plan Year (without giving effect to any limitations on deferrals that may apply to highly compensated employees under the tax law).

“Participant” shall mean any Eligible Employee who is selected for participation in the Plan in accordance with Section 3 and who elects to defer Compensation in accordance with Section 4.

“Participating Affiliates” means, collectively, the Company and each Subsidiary that has elected to adopt this Plan.

“Plan” shall mean this Corinthian Colleges, Inc. Deferred Compensation Plan set forth herein, now in effect, or as amended from time to time.

“Plan Year” shall mean the 12 consecutive month period beginning January 1 each year, except that the Plan Year for 2008 shall be the period commencing on the Effective Date and ending on December 31, 2008.

“Plan Year Deferrals” shall mean, with respect to a Plan Year, the sum of (i) the amount of Salary earned by a Participant during that Plan Year that the Participant elects to defer to his or her Account under this Plan, and (ii) the amount of Bonus earned by the Participant for the Fiscal Year that ends during that Plan Year that the Participant elects to defer to his or her Account under this Plan.

“Salary” shall mean all cash salary, fees, and similar payments (other than Bonuses) paid to a Participant for services rendered to a Participating Affiliate before reduction on account of: (1) any withholding such as income taxes (but excluding social security and health insurance taxes), and (2) any deferrals under this Plan.

“Separation from Service” means, as to a particular Participant, a termination of services provided by the Participant to his or her Employer (as defined below), whether voluntarily or involuntarily, as determined by the Committee in accordance with Section 409A of the Code and Treasury Regulation Section 1.409A-1(h). In determining whether a Participant has experienced a Separation from Service, the following provisions shall apply:

(i) For a Participant who provides services to an Employer as an employee, except as otherwise provided in clause (iii) below, a Separation from Service shall occur when the Participant has experienced a termination of employment with the Employer. A Participant shall be considered to have experienced a termination of employment for this purpose when the facts and


circumstances indicate that the Participant and his or her Employer reasonably anticipate that either (A) no further services will be performed by the Participant for the Employer after the applicable date, or (B) 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 the 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). However, if the 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.

(ii) For a Participant who provides services to an Employer as an independent contractor, except as otherwise provided in clause (iii) below, 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.

(iii) 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 the Employer as both an employee and as an independent contractor, as determined in accordance with the provisions set forth in clauses (i) and (ii) above. Similarly, if a Participant either (A) ceases providing services for an Employer as an independent contractor and begins providing services for such Employer as an employee, or (B) 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 clauses (i) and (ii) above.

Notwithstanding the foregoing provisions of this definition, if a Participant provides services for an Employer as both an employee and as a member of its board of directors, to the extent permitted by Treasury Regulation Section 1.409A-1(h)(5), the services provided by the 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, for purposes of this Plan.


For purposes of this definition of “Separation from Service,” the term “Employer” means the Company or subsidiary of the Company that the Participant last performed services for or was employed by, as applicable, on the date of his or her Separation from Service, and all other entities that are required to be aggregated together and treated as the employer under Treasury Regulation Section 1.409A-1(h)(3).

“Subsidiary” means any corporation or other entity a majority of whose outstanding voting stock or voting power is beneficially owned directly or indirectly by the Company.

“Trust” shall mean a grantor trust maintained under the terms of the related Trust Agreement.

“Trust Agreement” shall mean a trust agreement entered into by and between a Participating Affiliate and the related Trustee with respect to this Plan, as amended from time to time.

“Trustee” shall mean the entity which has entered into the related Trust Agreement as trustee of the Trust thereunder, and any duly appointed successor.

“Unforeseeable Emergency” shall have the meaning ascribed to such term in Section 8.6.

 

3.

PARTICIPATION

The Committee shall select from the class of employees those particular Eligible Employees who will be eligible to defer all or a portion of their Compensation in accordance with Section 4. Notwithstanding anything else contained herein to the contrary, the Committee shall limit the Eligible Employees selected to participate in this Plan to a select group of management or highly compensated employees, as set forth in Sections 201, 301 and 401 of ERISA. In order to accomplish the foregoing, the Committee may, at any time and in its sole discretion, terminate the ability of an Eligible Employee or a Participant to defer Compensation (or to defer additional Compensation) under Section 4; provided that such a termination shall not affect deferrals pursuant to any deferral election theretofore made under this Plan.

 

4.

ELECTIONS TO DEFER COMPENSATION

4.1 General Rule . Subject to the minimum deferral provisions in Section 4.2 below, the amount of Compensation a Participant may elect to defer is as follows:

 

 

(a)

Any percentage of Salary up to 75%; and/or

 

 

(b)

Any percentage of Bonus up to 100%;


provided, however, that no election shall be effective to reduce the Compensation payable to a Participant for a calendar year to an amount which is less than the amount that the Company or other Participating Affiliate is required to withhold from such Participant’s Compensation for such calendar year for purposes of federal, state and local (if any) income tax, employment tax (including without limitation Federal Insurance Contributions Act (FICA) tax), and other tax withholdings.

4.2 Minimum Deferrals . For each Plan Year during which a Participant is eligible to participate in and elects to defer Compensation under this Plan, at the time the Participant makes such deferral election the minimum amount that the Participant may elect to defer pursuant to such election (based on the Participant’s Compensation rate then in effect and assuming the Participant remains employed for the entire year) is $5,000; provided, however, that the Committee may establish a lower minimum with respect to any Plan Year that is less than 12 months in duration.

4.3 Salary Deferral Elections .

4.3.1 First Year of Eligibility . An individual who is a Participant as of the Effective Date may elect to defer his or her Salary for the 2008 Plan Year by filing an election with the Committee within thirty (30) days after the Effective Date. An individual who first becomes eligible to participate in this Plan at any time after the Effective Date may elect to defer his or her Salary for the remainder of the Plan Year in which he or she first becomes eligible to participate by filing an election with the Committee within thirty (30) days after he or she first becomes eligible to participate. Any election to defer Salary pursuant to this Section 4.3.1 shall be effective with respect to Salary for services rendered on or after the first day of the first payroll period commencing after such election is received by the Committee.

4.3.2 Subsequent Salary Deferral Elections . Subject to Sections 4.1 and 4.2, a Participant may elect to defer his or her Salary for any Nan Year after the Plan Year in which he or she first becomes eligible to participate in this Plan by filing an election with the Committee on or before the December 31 that precedes that Plan Year (or such earlier deadline as may be prescribed by the Committee). For purposes of this Plan, Salary paid on the first regular payday that occurs during a Plan Year shall be deemed to be Compensation for services rendered during such Plan Year.

4.4 Bonus Deferral Elections .

4.4.1 First Year of Eligibility . An individual who first becomes eligible to participate in this Plan at any time after June 30, 2008 may elect to defer his or her Bonus for the Fiscal Year in which he or she first becomes eligible to participate by filing an election with the Committee within thirty (30) days after he or she first becomes eligible to participate. Any Bonus deferral election made pursuant to this Section 4.4.1 shall be effective with respect to a prorated portion of any Bonus paid for services rendered during the Fiscal Year in which the election is made, such prorated portion to be


calculated by multiplying (i) the total Bonus paid to the Participant for such Fiscal Year, by (ii) a fraction, the numerator of which is the number of days remaining in such Fiscal Year after the date such election is received by the Committee (or, if later, such individual’s employment commencement date), and the denominator of which is the number of days remaining in such Fiscal Year after the first to occur of such individual first becoming eligible to participate in this Plan or the individual’s date of hire with the Company or any Subsidiary.

4.4.2 Subsequent Bonus Deferral Elections . Subject to Sections 4.1 and 4.2, a Participant may elect to defer his or her Bonus for any Fiscal Year after the Fiscal Year in which he or she first becomes eligible to participate in this Plan by filing an election with the Committee on or before the last day of the Fiscal Year that precedes such Fiscal Year (or such earlier deadline as prescribed by the Committee).

4.4.3 Performance-Based Compensation . Notwithstanding the foregoing provisions, a Participant may file an election to defer a Bonus for a Fiscal Year that is “performance-based compensation” within the meaning of Section 409A of the Code and regulations promulgated thereunder no later than the date that is six (6) months before the end of that Fiscal Year, provided that in no event may an election to defer such performance-based compensation be made after such compensation has become both substantially certain to be paid and readily ascertainable.

4.5 Rules Applicable to Deferral Elections . Any election to defer Compensation pursuant to this Section 4 shall be irrevocable and shall be filed with the Committee, on a form and in a manner prescribed by the Committee, on or before the deadline for making such election set forth above. A Participant’s election to defer Compensation for a Plan Year under this Section 4 shall be effective only with respect to Compensation for services rendered during that Plan Year. A Participant shall be required to timely file a new deferral election with the Committee to defer Compensation for any subsequent Plan Year.

 

5.

COMPANY CONTRIBUTIONS

5.1 Company Matching Contributions . At the conclusion of each Plan Year, unless otherwise provided by the Board or the Committee, the Company shall credit a Company Contribution to the Account of each Participant who has elected under this Plan to defer Salary earned during that Plan Year and/or to defer any Bonus earned with respect to the Fiscal Year that ended during that Plan Year. The amount of the Company Contribution to a Participant’s Account pursuant to this Section 5.1 shall equal (a) one hundred percent (100%) of the Participant’s Adjusted Deferrals for that Plan Year up to two percent (2%) of the Participant’s Compensation for that Plan Year, plus (b) fifty percent (50%) of the Participant’s Adjusted Deferrals for that Plan Year to the extent such Adjusted Deferrals exceed two percent (2%) of the Participant’s Compensation for that Plan Year but do not exceed six percent (6%) of the Participant’s Compensation for that Plan Year, less (c) the amount of the “Employer


Matching Contribution” (as such term is defined in the 401(k) Plan) that the Company would have made to the Participant’s account under the 401(k) Plan for that Plan Year had the Participant made the Maximum 401(k) Deferrals to the 401 (k) Plan for that Plan Year.

5.2 Company Discretionary Contributions . The Committee may determine, in its sole and complete discretion, to credit additional amounts to one or more Participants’ Accounts under this Plan for any Plan Year. Any additional amounts credited under this Section 5.2 need not be credited to all Participants’ Accounts, and such additional amounts as are credited, if any, need not be credited in equal amounts or percentages. The Committee shall have sole and complete discretion in determining the basis for the crediting of additional amounts under this Section 5.2, including, without limitation, the authority to award such amounts on an individual or group basis, on the basis of performance (whether as measured against pre-established criteria or otherwise), or on any other basis whatever. Any amount credited pursuant to this Section 5.2 shall be credited to the Participant’s Company Contributions Account as soon as administratively practicable after the Committee’s determination. Nothing contained in this Section 5.2 shall be deemed to impose or constitute any obligation on the Committee, the Company or any Subsidiary to make any credit hereunder.

 

6.

INVESTMENT OF ACCOUNTS

6.1 Investment Funds . Effective as of the date established by the Committee, separate Investment Funds shall be established under this Plan. The Committee may, in its discretion, terminate any Investment Fund at any time; provided that at least four other Investment Funds (each of different investment style from the others) remain offered under this Plan after such termination (taking into account any replacement I


 
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