Exhibit 10.1
DOLLAR FINANCIAL CORP.
DEFERRED COMPENSATION PLAN
AMENDED AND RESTATED
EFFECTIVE AS OF JANUARY 1, 2009
DOLLAR FINANCIAL
CORP.
DEFERRED
COMPENSATION PLAN
In order to make certain design
changes and to reflect final regulations under IRC Section 409A,
Dollar Financial Corp., a Delaware corporation (the
“Company”), hereby amends and restates the Dollar
Financial Corp, Deferred Compensation Plan (the
“Plan”), effective as of January 1, 2009.
The Plan was originally adopted by
the Company effective December 31, 2004 and was established,
and continues to exist, for the purpose of attracting high quality
executives and promoting in its key executives increased efficiency
and an interest in the successful operation of the Company. The
Company reserves the right to amend the Plan, either retroactively
or prospectively, in whatever manner is required to achieve and
maintain compliance with the requirements of applicable law.
The Plan is an unfunded program and
has been established by the Company for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees.
ARTICLE 1
Definitions
1.1 Account(s) shall mean the
Retirement Account and Scheduled Distribution Accounts, and any
additional accounts established by the Administrator for
administrative convenience or otherwise for one or more
Participants pursuant to ARTICLE 3 of the Plan. Deferrals shall be
allocated to the Retirement Account or the Scheduled Distribution
Account, as elected by the Participant. Company Contributions under
Section 2.5 shall be allocated to the Retirement Account.
Company Discretionary Contributions under Section 2.6 shall be
allocated to the Retirement Account or the Scheduled Distribution
Account, as elected by the Participant.
1.2 Administrator shall mean
the Company. From time to time the Chief Executive Officer of the
Company shall delegate to one or more individuals or to a committee
the responsibilities of the Administrator under the Plan.
1.3 Affiliate shall mean any
company that (i) is included as a member with the Company in a
controlled group of corporations, within the meaning of IRC
Section 414(b); (ii) is a trade or business (whether or
not incorporated) included with the Company in a group of trades or
business under common control, within the meaning of IRC
Section 414(c); or (iii) is required to be aggregated
with the Company pursuant to IRC Section 414(m) or 414(o) and
regulations thereunder.
1.4 Base Salary shall mean the
Participant’s base annual salary excluding incentive and
discretionary bonuses and other non-regular forms of compensation,
before reductions for contributions to or deferrals under any
pension, deferred compensation or benefit plans sponsored by the
Company.
1.5 Beneficiary shall mean the
person(s) or entity designated as such in accordance with
Article 11 of the Plan.
1.6 Bonus shall mean amounts
paid to the Participant by the Company annually in the form of a
discretionary or incentive compensation or any other bonus
designated by the Administrator before reductions for contributions
to or deferrals under any pension, deferred compensation or benefit
plans sponsored by the Company.
1.7 Change in Control shall
mean a change in ownership or effective control of the Company, or
in the ownership of a substantial portion of the assets of the
Company, as described in Treasury regulation sections
1.409A-3(i)(5)(v), (vi) and (vii).
1.8 Company shall have the
meaning given to such term in the introductory paragraph of the
Plan.
1.9 Company Contribution shall
mean the contributions by the Company to the Participant’s
Accounts pursuant to ARTICLE 2 of the Plan.
1.10 Contribution Limitations
shall mean any reductions in contributions made on behalf of a
participant to the Qualified Plan due to the application of IRC
Section 401(k) or (m) or due to an election to defer Base
Salary or Bonus under the Plan, but excluding any reductions
arising from the dollar limit under IRC Section 402(g)(1); the
limit on compensation taken into account under IRC
Section 401(a)(17) in calculating employer or employee
contributions for the Qualified Plan; or the maximum allocations
permitted under the Qualified Plan under IRC Section 415(c).
The impact of such limits on the Participant for purposes of this
Plan shall be determined by the Administrator based upon reasonable
estimates, and after taking into account amounts distributed from
the Qualified Plan to the Participant as a result of the
application of the 401(k) and (m) testing, and shall be final
and binding as of the date the Company Contribution is credited to
the Participant’s Account. No subsequent adjustments shall be
made to increase Company Contribution under this Plan as a result
of any adjustments ultimately required under the Qualified Plan due
to actual employee contributions or other factors.
1.11 Crediting Rate shall mean
the notional gains and losses credited on the Participant’s
Account balance which are based on the Participant’s choice
among the investment alternatives made available by the
Administrator pursuant to ARTICLE 3 of the Plan.
1.12 Disability shall mean
(i) the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve
(12) months, or (ii) by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period
of not less than twelve (12) months, the Participant is receiving
income replacement benefits for a period of not less than three
(3) months under an accident and health plan covering
employees of the Company. The Administrator may require that the
Participant submit to an examination by a competent physician or
medical clinic selected by the Administrator on an annual basis to
confirm Disability. For purposes of the first sentence of
Section 6.1, “Disability” shall mean any medically
determinable physical or mental impairment resulting in the
Participant’s inability to perform the duties of his or her
position or any substantially similar position, when such
impairment can be expected to result in death or can be expected to
last for a continuous period of not less than six
(6) months.
1.13 Deferrals shall mean
contributions elected by the Participant pursuant to ARTICLE 2 of
the Plan.
1.14 Eligible Employee shall
mean an executive of the Company selected by the Administrator to
be eligible to participate in the Plan.
1.15 ERISA shall mean the
Employee Retirement Income Security Act of 1974, as amended,
1.16 IRC shall mean the
Internal Revenue Code of 1986, as amended.
1.17 Financial Hardship shall
mean a severe financial hardship to the Participant resulting from
an illness or accident of the Participant, the Participant’s
spouse, the Participant’s Beneficiary, or the
Participant’s dependent (as defined in IRC
Section 152(a)), loss of the Participant’s property due
to casualty, or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of
the Participant, but shall in all events correspond to the meaning
of the term “unforeseeable emergency” under IRC Section
409A(a)(2)(v) and applicable Treasury Regulations.
1.18 Participant shall mean an
Eligible Employee who has elected to participate and has completed
a Participant Election Form pursuant to ARTICLE 2 of the Plan.
1.19 Participant Election Form
shall mean the written agreement to make a deferral submitted by
the Participant to the Administrator on a timely basis pursuant to
ARTICLE 2 of the Plan. The Participant Election Form may take the
form of an electronic communication followed by appropriate written
confirmation according to specifications established by the
Administrator.
1.20 Performance-Based
Compensation shall mean “performance-based
compensation” within the meaning of Treasury regulation
section 1.409A-1(e).
1.21 Plan Year shall mean the
calendar year.
1.22 Qualified Plan shall mean
an IRC Section 401(k) or other retirement plan qualified under the
Internal Revenue Code which is sponsored by the Company in the
relevant Plan Year and is designated by the Administrator to be
taken into account for purposes of the calculation of Company
Contributions made to this Plan.
1.23 Retirement shall mean
Separation from Service on or after the Retirement Eligibility
Date.
1.24 Retirement Account shall
mean the Account established for amounts payable on or after
Separation from Service pursuant to ARTICLE 3 of the Plan.
1.25 Retirement Eligibility
Date shall mean the date on which the Participant attains age
sixty-five (65).
1.26 Scheduled Distribution
shall mean the distribution date or dates elected by the
Participant pursuant to Article 7 of the Plan.
1.27 Scheduled Distribution
Account shall mean an Account established for amounts payable
in the form of a Scheduled Distribution pursuant to ARTICLES 3 and
7 of the Plan.
1.28 Separation from Service
shall mean the Participant’s termination of employee status
for any reason, including (without limitation) by reason of a
voluntary termination or resignation, an involuntary termination,
or retirement, and shall be determined in accordance with the
applicable standards established pursuant to IRC Section 409A
and the regulations thereunder.
1.29 Settlement Date shall
mean the date by which a lump sum payment shall be made or the date
by which installment payments shall commence. Unless otherwise
specified, the Settlement Date shall be the last day of January of
the Plan Year following the year in which the event triggering the
payout occurs. In the case of death, the event triggering payout
shall be deemed to occur upon the date the Administrator is
provided with the documentation reasonably necessary to establish
the fact of the Participant’s death. Notwithstanding the
foregoing or any other provision of the Plan, if a Participant is a
Specified Employee and the payment is being made on account of
Separation from Service, payment shall be made or begin promptly
following the earlier of (i) the last day of the sixth (6th)
complete calendar month following the Participant’s
Separation from Service, or (ii) the Participant’s
death.
1.30 Specified Employee shall
mean an employee of the Company or an Affiliate who, at any time
during the 12-month period ending on the identification date
(defined below), is (i) an officer of the Company or an
Affiliate having annual compensation greater than $135,000
(adjusted for inflation as described in IRC Section 416(i)),
(ii) a five percent owner of the Company and its Affiliates,
or (iii) a one percent owner of the Company and its Affiliates
who has annual compensation from the Company and its Affiliates
greater than $150,000. The number of officers who are considered
Specified Employees shall be limited to 50 employees, as described
in IRC Section 416(i), and shall exclude employees who are
nonresident aliens during the entire 12-month period ending on the
identification date. The identification date shall be each
December 31, and the determination of Specified Employees as
of such identification date shall apply for the 12-month period
following April 1 after the identification date. The determination
of who is a Specified Employee shall be made by the Administrator
in accordance with IRC Section 416(i), the “specified
employee” requirements of IRC Section 409A, and
applicable regulations.
1.31 Treasury Regulations
shall mean rules and regulations issued by U.S Department of
Treasury, and to the extent applicable, shall also include IRS
Notice 2005-1, IRS Notice 2006-33, and IRS Notice 2006-79.
1.32 Valuation Date shall mean
the date through which earnings are credited and shall be as close
to the payout or other event triggering valuation as is
administratively feasible but in no event earlier than the last day
of the month preceding the month in which the payout or other event
triggering valuation occurs.
ARTICLE 2
Participation
2.1 Elective Deferral . Each
year a Participant may elect to defer up to fifty percent (50%) of
Base Salary and/or one-hundred percent (100%) of Bonus earned by
the Participant during the Plan Year. The Participant’s
election may take the form of (i) a whole percentage or
specified dollar amount of Base Salary, or (ii) a whole
percentage of Bonus. The Administrator may further limit the
minimum or maximum amount deferred by any Participant or group of
Participants, or waive the foregoing limits for any Participant or
group of Participants, for any reason. Each year a Participant may
elect to defer into this Plan any amounts elected by the
Participant for deferral under the Qualified Plans which the
Administrator determines may not be contributed to the Qualified
Plan due to applicable Statutory Limitations, subject to IRC
Section 409A and applicable Treasury Regulations.
2.2 Participant Election Form
. In order to make a deferral, an Eligible Employee must submit a
Participant Election Form to the Administrator during the
enrollment period established by the Administrator prior to the
beginning of the calendar year in which services are performed to
earn such Base Salary or Bonus. Notwithstanding the foregoing, the
Administrator may permit Eligible Employees hired during a Plan
Year or newly eligible during a Plan Year to defer Base Salary
earned through services performed during the balance of such Plan
Year by submitting a Participant Election Form to the Administrator
within 30 days of such newly Eligible Employee’s date of
hire or the date he or she first becomes eligible to participate in
the Plan. The election to participate shall apply only to the
Eligible Employee’s Base Salary earned after the date of the
election, consistent with IRC Section 409A. The Administrator
may permit Eligible Employees hired during a Plan Year or newly
eligible during a Plan Year prior to July 1 of such Plan Year to
defer Bonus for such Plan Year by submitting a Participant Election
Form to the Administrator during the Plan Year open enrollment
period (but no later than December 31 of such Plan Year). Such
election to participate with respect to the Bonus shall be
effective only if the Administrator determines that the Bonus for
such Plan Year is Performance-Based Compensation. Each Participant
shall be required to submit a new Participant Election Form on a
timely basis in order to change the Participant’s deferral
election for a subsequent Plan Year. If no Participant Election
Form is filed during the prescribed enrollment period, the
Participant shall be deemed to have elected not to make a deferral
of Base Salary or Bonus for such subsequent Plan Year.
2.3 Participant Election
Irrevocable . The election to defer Base Salary or Bonus for a
particular Plan Year shall be irrevocable after the beginning of
the Plan Year except in the event of Separation from Service or as
provided in ARTICLE 6, in the event of Disability, or ARTICLE 8, in
the case of a Financial Hardship. Notwithstanding the foregoing,
the Administrator, in its complete and sole discretion, may allow
Participants to revise deferral elections with respect to a Bonus
at any time prior to the first day of the sixth (6th) month
preceding the end of the performance period over which such Bonus
is earned if the Administrator determines that the Bonus is
Performance-Based Compensation and such revision is permissible
under IRC Section 409A and applicable Treasury
Regulations.
2.4 Elections Regarding Timing and
Form of Payout . Except as provided in ARTICLE 9, at the time
that a Participant makes a deferral election with respect to a Plan
Year, the Participant shall also designate the time and form in
which such Deferral shall be distributed, together with all
notional earnings thereon. A Participant may make one election for
his or her Deferrals under Section 2.1, and a separate
election for Company Contributions under Sections 2.5 and 2.6.
If a Participant is eligible only for Company Contributions under
Sections 2.5, the Participant shall make an election within
30 days of such Eligible Employee’s date of hire, or the
date he or she first becomes eligible to participate in the Plan,
as to whether to have his or her Retirement Account paid in a lump
sum or installments, as provided in Section 4.1. All elections
must provide for distribution to be made at a time and in a form
that is consistent with the distribution options made available
under the Plan and applicable law. An election with respect to the
time and form of benefit distributions may not be changed, except
as expressly provided for herein. A change election may not
accelerate distributions but may delay distributions or change the
form of payment only if all of the following requirements
are met:
(a) the new election, which may
only be made by a Participant while he is employed by the Company
or an Affiliate, does not take effect until at least twelve
(12) months after the date on which the new election is
made;
(b) in the case of payments
made on account of Separation from Service or a Scheduled
Distribution, the new election delays payment for at least five
(5) years from the date that original payment would otherwise
have been made, absent the change election and in the case of a
Scheduled Distribution, satisfies Section 7.1 (c);
(c) in the case of payments
made according to a Scheduled Distribution, the new election is not
made less than twelve (12) months before the date on which
payment would have been made (or, in the case of installment
payments, the first installment payment would have been made)
absent the new election. Election changes made pursuant to this
Section shall be made on written forms provided by the
Administrator, and in accordance with rules established by the
Administrator and shall comply with all requirement of IRC
Section 409A and applicable Treasury Regulations.
2.5 Company Qualified Plan Makeup
Contribution . The Company shall make a Company Contribution on
behalf of the Participant for each Plan Year in which the
Participant makes a deferral under this Plan which shall equal the
maximum Company contributions that would have been provided to the
Participant under the Qualified Plan had the Participant’s
elective deferral been contributed to the Qualified Plan without
regard to any Contribution Limitations. The Company Contribution
for each Plan Year shall be reduced by the amount of Company
Contributions actually credited to the participant under the
Qualified Plan for such Plan Year or paid to the participant in
cash from the Plan. Notwithstanding the foregoing, any changes in
election by the Participant under the Qualified Plan shall not
increase or decrease either the elective deferrals under Section
2.1 or the Company Contributions under this Section 2.5 by an
amount greater than the limit under IRC Section 402(g) in effect
for the year for the Participant, nor shall the Participant’s
action or inaction cause Company Contributions that are matching
contributions to exceed 100 percent (100%) of the matching
amounts that would be provided under the Qualified Plan absent any
restrictions that reflect IRC limits on qualified plan
contributions. All Company Contributions under this
Section 2.5 shall be credited to the Participant’s
Retirement Account.
2.6 Discretionary Company
Contributions . The Company shall have the discretion to make
additional Company Contributions to the Plan on behalf of any
Participant. Company Contributions shall be made in the complete
and sole discretion of the Company and no Participant shall have
the right to receive any Company Contribu
