EXHIBIT 10.31
ISLE OF CAPRI CASINOS, INC.
2005 DEFERRED COMPENSATION PLAN
ISLE OF CAPRI CASINOS, INC.
2005 DEFERRED COMPENSATION PLAN
Index
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PAGE
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ARTICLE
I - PURPOSE
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1
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ARTICLE
II - DEFINITIONS
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1
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ARTICLE
III - ELIGIBILITY AND PARTICIPATION
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3
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ARTICLE
IV - DEFERRALS
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3
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Deferral
of Base Compensation
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3
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Deferral
of Bonus
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4
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Short
Term Deferrals
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4
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Excess
Deferrals
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4
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Form
of Deferral Election; Effectiveness
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5
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Authority
of the Committee
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5
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ARTICLE
V - COMPANY CONTRIBUTIONS
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5
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Company
Contributions
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5
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Vesting
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5
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ARTICLE
VI - MAINTENANCE AND INVESTMENT OF DEFERRED
BENEFIT
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ACCOUNTS
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5
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Establishment
of Accounts
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5
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Status
of Accounts
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6
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Investment
Policy
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6
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Predecessor
Account
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6
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Accounting
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7
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Investment
in Company Stock Units
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7
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Valuation
Notice
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8
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ARTICLE
VII - RETIREMENT BENEFITS
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8
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Payment
Procedures
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8
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Alternative
Forms of Distribution
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8
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Alternative
Benefit Commencement Date
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8
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Amount
of Retirement Benefit
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8
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Schedule
A
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9
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Manner
of Payment
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9
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Small
Payment
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9
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Construction
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10
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ARTICLE
VIII - DEATH BENEFITS
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10
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Beneficiary
Designation
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10
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Member’s
Death Before Benefit Commencement Date
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10
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Member’s
Death After Benefit Commencement Date
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10
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Death
of Beneficiary
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10
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Small
Payment
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11
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Manner
of Payment
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11
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ARTICLE
IX - SHORT TERM DEFERRALS; HARDSHIP WITHDRAWALS;
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OTHER
DISTRIBUTIONS
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11
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Short
Term Deferrals
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11
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Hardship
Withdrawals
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11
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Benefits
Payable on Termination for Cause
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11
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Disability
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12
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ARTICLE
X - PLAN ADMINISTRATION
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12
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Powers
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12
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Payments
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13
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Delegation
of Administrative Authority
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13
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Claims
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13
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ARTICLE
XI - PARTICIPANTS’ RIGHTS
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14
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Spendthrift
Provision
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14
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No
Continued Employment
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14
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Offset
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14
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Obligation
for Benefit Payments
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14
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Taxes
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15
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Company’s
Protection
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15
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ARTICLE
XII - MISCELLANEOUS
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15
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Termination
of Plan
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15
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Funding
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15
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Inurement
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16
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No
Effect on Other Benefits
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16
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Amendment
and Modification
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16
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Governing
Law
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16
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Predecessor
Accounts
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16
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Exhibit
A - Participating Affiliates
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18
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ISLE OF CAPRI CASINOS, INC.
2005 DEFERRED COMPENSATION PLAN
Isle
of Capri Casinos, Inc., a corporation organized and existing
under the laws of the State of Delaware (the “
Company ”),
hereby amends and restates, in its entirety, the plan of deferred
compensation adopted by Casino America, Inc., its predecessor,
which plan was first effective as of June 1, 1995 (the
“
Predecessor Plan ”),
such amendment and restatement to be effective with respect to
deferrals made on or after January 1, 2005 (the “
Effective Date ”).
ARTICLE I
PURPOSE
The
Plan is intended to be an unfunded deferred compensation
arrangement for the benefit of key management officers and
employees of the Company and its Affiliates (as defined
below), within the meaning of the Employee Retirement Income
Security Act of 1974, as amended (“
ERISA ”).
As such, this Plan is not intended to constitute an employee
benefit plan under ERISA, which is subject to the provisions of
Parts 2, 3 and 4 of Title I of ERISA. In accordance with such
intent, any obligation of the Company or its Affiliates to pay
benefits hereunder shall be deemed to be an unsecured promise, and
any right of a Member (as defined below) or Beneficiary (as defined
below) to enforce such obligation shall be solely as a general
creditor of the Company. The Plan is not intended to constitute a
qualified employee benefit plan within the meaning of Section
401(a) of the Internal Revenue Code of 1986, as amended (the
“
Code ”).
ARTICLE II
DEFINITIONS
2.1
Affiliate means
any corporation or other form of entity of which the Company owns,
directly or indirectly, 80% or more of the total combined voting
power of all classes of stock or other equity interests, provided
that such entity is designated by the Committee as a participating
entity hereunder. The initial Affiliates designated as
participating entities hereunder are set forth on Exhibit A
hereto.
2.2
Base Compensation means
the base salary paid by the Company or an Affiliate to a Member for
services rendered during a calendar year, but determined before
reduction for compensation deferred pursuant to this Plan or any
other plan of deferred compensation maintained by the Company or an
Affiliate, including any such plan maintained in accordance with
Code Section 401(k) or 125. For this purpose,
Base Compensation shall
not include the amount of any long-term disability benefit or any
form of retirement or deferred compensation payment distributed
from a plan or arrangement sponsored by the Company or an Affiliate
or any form of severance benefit paid by the Company or an
Affiliate.
2.3
Beneficiary means
the person, persons, entity or entities designated by a Member in
accordance with Section 8.1 hereof to receive death benefits
hereunder.
2.4
Benefit Commencement Date means
the date on which the payment of a Member’s Retirement
Benefit is paid or first commences.
Initial Benefit Commencement Date shall
mean be the first business day of the calendar month that coincides
with or immediately follows the sixth month after a Member’s
employment with the Company and its Affiliates ceases, for any
reason. Such date may be modified by a Member on Schedule A hereto
in accordance with the provisions of Section 7.5
hereof.
2.5
Board or Board of Directors means the Board of
Directors of the Company.
2.6
Bonus means
an amount payable to a Member as an annual cash bonus under a
separate plan, policy or program maintained by the Company or an
Affiliate, provided such plan, policy or program is designated by
the Committee as a source for deferrals hereunder.
Incentive Bonus means
a Bonus that (a) is designated as such by the Committee, and (b) is
properly characterized as performance based compensation payable
with respect to services rendered over a performance period of not
less than 12 months within the meaning of Code Section
409A.
2.7
Committee means
the Compensation Committee of the Board, which shall act as the
administrator of this Plan.
2.8
Company Contributions means
the amount credited to a Member’s Deferred Benefit Account,
if any, in accordance with Section 5.1 hereof.
2.9
Company Stock means
the Company’s $0.01 par value common stock.
Company Stock Units means
bookkeeping units, each representing a share of Company
Stock.
2.10
Deferred Benefit Account or
Account means
one or more accounts maintained on the books of the Company with
respect to each Member hereunder, which is credited with amounts
deferred on or after the Effective Date within the meaning of Code
Section 409A.
2.11
Determination Date means
the Annual Determination Date and such other dates as may be
designated, from time to time, by the Committee.
Annual Determination Date means
the last day of the Plan Year. The designation of such
Determination Dates need not be uniform as to all Deferred Benefit
Accounts maintained hereunder.
2.12
Disabled or
Disability means
that a Member by reason of a medically determinable physical or
mental impairment that can be expected to result in death or last
for a continuous period of not less than 12 months (a) has been
receiving income replacement benefits for a period of not less than
three months under a separate long-term disability plan or policy
maintained by the Company or an Affiliate, or (b) is unable to
engage in any substantial gainful employment.
2.13
Financial Hardship means
the occurrence of a severe financial hardship; such hardship shall
be attributable to a sudden and unexpected illness or accident of
the Member or his or her spouse or dependents, the loss of property
due to casualty or similar extraordinary and unforeseeable
circumstances beyond the control of a Member.
2.14
Fiscal Year means
the fiscal year of the Company.
2.15
Member means
an executive officer, manager or other key employee of the Company
or an Affiliate, each of whom is designated in accordance with
Article III hereof.
2.16
Plan means
this Deferred Compensation Plan, as may be amended, restated or
replaced from time to time.
2.17
Plan Year means
the 12-month period beginning each January 1st and ending each
December 31st.
2.18
Predecessor Account means
the Deferred Benefit Account that is funded by a Member’s
interest determined under the Predecessor Plan in accordance with
the provisions of Section 6.4 hereof.
2.19
Retirement Benefit means
a benefit payable as of a Member’s Benefit Commencement Date
in accordance with Article VII hereof, which shall not include any
amount credited to his or her Predecessor Account or the amount of
any Short Term Deferral.
2.20
Schedule A means
one or more written schedules which provide for (a) the deferral of
a Member’s Base Compensation or Bonus, (b) the designation of
a Benefit Commencement Date, and/or (c) an election as to a form of
benefit payment. The terms of any such Schedule A are incorporated
in this Plan by this reference.
2.21
Short Term Deferral means
the deferral of a Member’s Base Compensation or Bonus for a
designated period of not less than 36 months, measured from the
last day of the Plan Year with respect to which such Base
Compensation or Bonus is payable.
2.22
Other Definitions. The
following terms shall have the meanings ascribed below:
“Savings Plan” is
defined in Section 4.4, hereof; “
Fair Market Value ”
is defined in Section 6.5 hereof; and “
Cause ”
is defined in Section 9.3 hereof.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
Members
hereunder shall be executive officers, managers and other key
employees of the Company or an Affiliate, who may be
designated individually or by groups or categories, in the
discretion of the Committee. The Committee shall notify each
executive officer, manager or other key employee of his or her
eligibility to participate in this Plan. Participation shall
commence upon the execution of a Schedule A or similar
agreement as provided herein.
ARTICLE IV
DEFERRALS
4.1
Deferral of Base Compensation. A
Member shall elect to defer his or her Base Compensation in
accordance with the following:
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a.
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During
the 30-day period immediately following receipt of initial notice
from the Committee in accordance with Article III hereof, such
election shall be effective with respect to Base Compensation
payable for services performed after such election is received and
accepted by the Committee; and
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b.
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Commencing
as of January 1, 2005, at least 30 days prior to the first day of
each Plan Year (or such shorter period permitted by the Committee);
such election shall be effective with respect to Base Compensation
payable for services rendered during such Plan Year.
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4.2
Deferral of Bonus. As
to any Bonus payable with respect to services rendered during a
Fiscal Year, a Member shall be entitled to elect to defer such
Bonus pursuant to a separate election:
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a.
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During
the 30-day period immediately following receipt of initial notice
from the Committee in accordance with Article III hereof, subject
to any limitation imposed by the Committee or under applicable law;
and
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b.
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At
least 30 days prior to the first day of each Fiscal Year (or such
shorter period permitted by the Committee).
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As
to a Bonus payable with respect to services rendered during a
Plan Year, such Bonus shall be deferred pursuant to a separate
election made at the time or times prescribed under Section
4.1 hereof. As to an Incentive Bonus, such Incentive Bonus
shall be deferred pursuant to a separate election made not
later than six months prior to the expiration of the
performance period with respect to which such Bonus is
calculated.
4.3
Short Term Deferrals. If
permitted by the Committee, a Member may designate all or a portion
of any Base Compensation or Bonus deferred hereunder as a Short
Term Deferral at the time or times prescribed under Section 4.1 or
4.2 hereof, as the case may be, and subject to the following
additional rules:
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a.
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A
Member’s designation of Base Compensation or Bonus defined
hereunder as a Short Term Deferral shall be irrevocable;
and
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b.
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A
Member shall designate the deferral period with respect to such
amount on Schedule A hereto, which period shall not be less than 36
months, measured from the last day of the Plan Year with respect to
the initial year in which Base Compensation or Bonus is otherwise
payable; the designation of such deferral period shall be
irrevocable.
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4.4
Excess Deferrals. If
permitted by the Committee and subject to any limitations imposed
under applicable law, a Member may elect to defer to this Plan any
voluntary deferral to the Company’s Retirement Trust and
Savings Plan (the “
Savings Plan ”)
in excess of the amount permitted under Code Section 401(k),
including earnings thereon, which amount would
otherwise
be subject to distribution from the Savings Plan. Any such election
shall apply to amounts contributed to the Savings Plan during the
Plan Year immediately following the year in which such election is
received and accepted by the Committee. Any such election shall be
made at the time prescribed in Section 4.1 hereof and shall be
irrevocable.
4.5
Form of Deferral Election; Effectiveness.
An
election to defer Base Compensation or Bonus hereunder or an
election made in accordance with Section 4.4 hereof shall be made,
in writing on forms provided by the Committee and shall be
effective upon its receipt and acceptance by the Committee. An
election hereunder shall be irrevocable during the Plan Year,
Fiscal Year or other period with respect to which the election
relates. An election to defer Base Compensation hereunder shall
remain in effect until it is revoked or modified in accordance with
the provisions of Section 4.1 hereof; an election to defer a Bonus
shall be made annually in accordance with the provisions of Section
4.2 hereof.
4.6
Authority of the Committee. The
Committee, in its discretion, may limit the amount of Base
Compensation or Bonus subject to deferral hereunder, may prescribe
a minimum deferral amount, may designate additional forms of
remuneration for deferral under the Plan or adopt such additional
procedures as the Committee deems necessary or appropriate. The
Committee shall notify all affected Members, in writing, of any
such limitations or additional forms of Base Compensation eligible
for deferral. Any such procedures, conditions, limitations or
designations shall be effective as of the January 1st or the first
day of the Fiscal Year, as the case may be, which coincides with or
immediately follows the date on which notice is provided to each
Member hereunder or at such other time as the Committee may
designate.
ARTICLE V
COMPANY CONTRIBUTIONS
5.1
Company Contributions. The
Committee, in its sole discretion, may credit an additional amount
to the Deferred Benefit Account of any Member hereunder. Any such
contribution need not be uniform with respect to all Members, but
may be made with respect to any Member or group of Members in such
amounts and at such times as may be designated by the
Committee.
5.2
Vesting. The
Committee, in its discretion, may establish a vesting schedule with
respect to any Company Contribution hereunder (including earnings,
gains or losses allocable to such amount). The Committee shall
provide written notice of any such schedule to each affected
Member; any such schedule need not be uniform with respect to all
affected Members or each Company Contribution
hereunder.
ARTICLE VI
MAINTENANCE AND INVESTMENT OF DEFERRED BENEFIT
ACCOUNTS
6.1
Establishment of Accounts. The
Company shall establish and maintain one or more Deferred Benefit
Accounts, which shall be credited with a Member’s Base
Compensation or Bonus deferred and Company Contributions made
hereunder. A Deferred Benefit Account may be administered as one or
more subaccounts to facilitate (a) the maintenance of any vesting
schedule imposed hereunder, (b) the administration of Short Term
Deferrals or a Predecessor
Account,
(c) a particular method of crediting income, gain or losses, (d)
deemed investment in Company Stock Units, or (e) for such other
purpose as the Committee may deem necessary or
appropriate.
