Exhibit 10.74
CORINTHIAN COLLEGES,
INC.
DEFERRED COMPENSATION
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.
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.
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.
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4.
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ELECTIONS TO
DEFER COMPENSATION
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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:
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(a)
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Any percentage
of Salary up to 75%; and/or
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(b)
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Any percentage
of Bonus up to 100%;
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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.
5.1 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.
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6.
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INVESTMENT
OF ACCOUNTS
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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