Exhibit 10.12
FIRST
AMENDMENT
TO THE
FUEL SYSTEMS SOLUTIONS, INC.
DEFERRED COMPENSATION PLAN
(AS AMENDED AND RESTATED
EFFECTIVE JANUARY 1, 2008)
THIS FIRST AMENDMENT (this “
Amendment ”) to the Fuel Systems Solutions, Inc.
Deferred Compensation Plan (as amended and restated effective
January 1, 2008) (the “ Plan ”) is
effective as of December 31, 2008.
RECITALS
WHEREAS, Fuel Systems Solutions,
Inc., (the “ Company ”) maintains the Plan,
documentation of which consists of the Adoption Agreement for
Specimen Section 451 Deferred Compensation Plan (the “
Adoption Agreement ”) together with the Specimen
Section 451 Deferred Compensation Plan (the “ Base
Plan ”) and any election forms referred to thereunder;
and
WHEREAS, the Plan provides for the
“deferral of compensation” for purposes of
Section 409A of the Internal Revenue Code of 1986, as amended
(the “ Code ”), with respect to participants
thereunder; and
WHEREAS, the Compensation Committee
of the Board of Directors of the Company (the “
Committee ”) has delegated the power and authority to
officers of the Company to adopt and agree to this first amendment
to the Plan in the name of and on behalf of the Company;
and
1. Section C1 of the Adoption
Agreement is hereby amended to add the following new paragraph at
the end thereof:
“ No Effect on Amounts
Earned and Vested as of December 31, 2004 .
Notwithstanding any provision of this Fuel Systems Solutions, Inc.
Deferred Compensation Plan (as amended and restated effective
January 1, 2008) (the “Plan”) to the contrary, the
provisions of this Plan shall not apply to any amount earned and
vested under the Fuel Systems Solutions, Inc. Deferred Compensation
Plan (either as originally effective July 1, 1996 or as
subsequently amended and restated, most recently effective
July 1, 2004) (the “ Prior Plan ”) as of
December 31, 2004, but instead such amounts shall be subject
only to the applicable provisions of the Prior
Plan.”
2. Section 1.5 of the Base Plan
is hereby deleted in its entirety and replaced with the
following:
“1.5 CHANGE IN CONTROL
means a transaction that constitutes a “change in ownership
or effective control of the corporation, or the ownership of a
substantial portion of the assets of the corporation” for
purposes of Section 409A(a)(2)(A)(v) of the Code and the
regulations promulgated thereunder.”
3. Section 1.23 of the Base Plan is hereby
deleted in its entirety and replaced with the following:
“1.23 SPECIFIED
EMPLOYEE means, with respect to the Plan, a “specified
employee” as such term is defined in
Section 409A(a)(2)(B)(i) of the Code and the regulations
promulgated thereunder.”
4. Section 2.3 of the Base Plan
is hereby deleted in its entirety and replaced with the
following:
“2.3 CHANGE IN EMPLOYMENT
CATEGORY . During any period in which a Participant remains in
the employ of the Employer, but ceases for any reason, in the sole
and absolute discretion of the Plan Administrator, to be an
Eligible Employee, he or she shall not be eligible to
(1) receive any Employer Contribution Credits after the date
he or she ceased to be an Eligible Employee or (2) make any
Compensation Deferrals with respect to any Plan Year commencing on
or after the date he or she ceased to be an Eligible
Employee.”
5. The second and third sentences of
the fourth paragraph of Section 3.1 of the Base Plan are
hereby deleted in their entirety and replaced with the
following:
“Compensation
Deferral elections with respect to a Plan Year are irrevocable as
of the last of the prior Plan Year, or such earlier date as the
Plan Administrator shall provide in accordance with such rules and
procedures as the Plan Administrator may establish with respect to
the Plan. Notwithstanding the foregoing, (1) Compensation
Deferrals are subject to cancellation with respect to a Participant
in accordance with Section 5.2 and (2) Compensation
Deferrals are subject to cancellation with respect to a
Participant, in the sole and absolute discretion of the Plan
Administrator, in the event of the Participant’s
“disability”, provided that such cancellation occurs by
the later of (i) the end of the calendar year that includes
the date on which the Participant incurs a disability or
(ii) the date that is 2 1 / 2 months after the date the
Participant incurs a disability. For this purpose,
“disability” refers to 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, where such impairment can be
expected to result in death or can be expected to last for a
continuous period of not less than six months.”
6. The second paragraph of
Section 5.1 of the Base Plan is hereby deleted in its entirety
and replaced with the following:
“Notwithstanding anything in
the Plan to the contrary, in the event a Specified Employee is
entitled to distribution of any Account under the Plan due to his
or
- 2 -
her Separation from Service (other
than due to death), any amount that otherwise would have been paid
hereunder to such Participant at any time during the first six
months following such Separation from Service shall instead be
accumulated (without adjustment, except for earnings and losses as
provided under Article IV, for later payment) and paid to the
Participant or the Participant’s beneficiary on the earlier
of (i) the first day of the seventh month following the date
of the Participant’s Separation from Service or (ii) the
date of the Participant’s death.”
7. The fourth paragraph of
Section 5.1 of the Base Plan is hereby deleted in its
entirety.
8. Section 5.2 of the Base Plan
is hereby deleted in its entirety and replaced with the
following:
“5.2 UNFORESEEABLE
EMERGENCY DISTRIBUTIONS . If permitted by the Employer in the
Agreement, a Participant may from time to time request, on such
form and in such manner as may be provided by the Plan
Administrator from time to time, that the Plan Administrator
authorize an emergency payment to such Participant due to an
Unforeseeable Emergency (as defined below). Any such distribution
shall not exceed the amount reasonably necessary to satisfy the
Unforeseeable Emergency (after taking into account any additional
compensation that is available upon cancellation of the
Participant’s deferral elections in accordance with the last
sentence of this paragraph) plus amounts necessary to pay taxes
reasonably anticipated as a result of the distribution, after
taking into account the extent to which such hardship is or may be
relieved through reimbursement or compensation by insurance or
otherwise or by liquidation of the Participant’s assets (to
the extent that liquidation of such assets would not itself cause
severe financial hardship) or cessation of deferrals under the
Plan. If an Unforeseeable Emergency payment is authorized, the Plan
Administrator shall distribute to such Participant, within a
reasonable time, an amount determined by the Plan Administrator
pursuant to the above, but in no situation shall such amount be in
excess of the Participant’s Account balance as of such date.
In the event of any payment to a Participant due to Unforeseeable
Emergency hereunder, any deferral election then in place with
respect to the Participant shall be cancelled.
For this purpose, “
Unforeseeable Emergency ” means, in the Plan
Administrator’s sole and absolute discretion, an
“unforeseeable emergency” w
