GENERAL CABLE
CORPORATION
DEFERRED COMPENSATION PLAN
As Amended and Restated Effective as of January
1, 2008
GENERAL CABLE CORPORATION
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
1.
DEFINITIONS
1
2.
ADMINISTRATION
9
2.1
Administrative Committee
9
2.2
Plan Administration
9
2.3
Administration Expenses
10
2.4
Liability
10
2.5
Self-Interest
10
2.6
Records
10
2.7
Claims and Claims Review
10
2.8
Denial of Claim
11
2.9
Failure to Comply
11
3.
PARTICIPATION
11
3.1
Termination of Executive Officer’s Participation
11
3.2
Termination of Participation for Executives Other Than Executive
Officers
11
3.3
Waiver of Participation
12
3.4
SERP Participant
12
4.
CONTRIBUTIONS
12
4.1
Deferral Contribution of Compensation and Director’s
Fees.
12
4.2
Right to Make Contributions
13
4.3
Benefit Distribution Election
13
4.4
Change of Benefit Distribution Election
13
4.5
Deferral Contribution of Restricted Stock.
14
4.6
Deferral Contribution of Stock Awards and Stock Units
15
4.7
Director Deferral of Stock Awards.
16
4.8
Change in Deferral Election
17
5.
PRIOR SERP CONTRIBUTION
17
5.1
SERP Contribution
17
5.2
Payment of Benefits
17
6.
BEP COMPONENT
18
6.1
BEP Account.
18
6.2
Offset for Other Supplemental Arrangements
18
6.3
Payment of BEP Account
19
7.
VESTING
19
7.1
Vesting of Contributions
19
7.2
Vesting of BEP Account
19
7.3
Vesting of SERP Account.
19
7.4
Forfeitures
20
8.
SPECIAL TRUST FUND
20
8.1
Special Trust Fund
20
8.2
Investment of Special Trust Fund
20
8.3
Determination of Fair Market Value
20
8.4
Change in Control
20
9.
INDIVIDUALLY DIRECTED INVESTMENTS
21
9.1
No Right to Direct Investments
21
9.2
Right to Make Recommendations
21
10.
BENEFITS
21
10.1
Retirement
21
10.2
Death
22
10.3
Disability
22
10.4
Termination of Participant’s Employment
22
10.5
Failure of Trustee to Pay Benefit
23
ii
10.6
Tax Withholding
23
10.7
Spendthrift Provision
23
10.8
Participants’ Status as General Unsecured Creditors
23
10.9
Director’s Benefits
23
11.
SPECIAL WITHDRAWALS AND DISTRIBUTIONS
24
11.1
Hardship Withdrawals
24
11.2
Required Withdrawals
24
11.3
Mandatory Lump Sum Payment
24
12.
AMENDMENT AND TERMINATION
24
12.1
Amendment
24
12.2
Termination
24
13.
MISCELLANEOUS PROVISIONS
25
13.1
Special Rule for Section 16 Participants if Earnings are Based on
Company Stock Fund 25
13.2
Construction
25
13.3
Limitation of Rights
25
13.4
Return of Contributions or Benefits
26
13.5
Offset
26
13.6
Severability
26
13.7
Representations
26
13.8
Successor Companies
26
13.9
Compliance with Section 409A
26
iii
GENERAL CABLE CORPORATION
DEFERRED COMPENSATION PLAN
W I T N E S S E T H
WHEREAS, effective as of April 1, 1996, General Cable
Corporation established the General Cable Corporation and
Subsidiaries Deferred Compensation Plan, subsequently renamed the
General Cable Corporation Deferred Compensation Plan
(“Plan”), and has amended and restated the Plan from
time to time thereafter, including amendments to reflect the merger
of the Supplemental Executive Retirement Plan of General Cable
Corporation and the General Cable Corporation and Subsidiaries
Benefits Equalization Plan into and with this Plan, effective June
27, 2007 and September 13, 2007, respectively;
WHEREAS , General Cable Corporation intends that any
benefits in pay status under the General Cable Corporation and
Subsidiaries Benefits Equalization Plan as of September 13, 2007
shall be governed by the General Cable Corporation and Subsidiaries
Benefits Equalization Plan document as in effect on that date;
WHEREAS , General Cable Corporation intends that this
deferred compensation plan be (i) a nonqualified deferred
compensation plan for purposes of Section 409A of the Internal
Revenue Code of 1986, as amended, and (ii) an unfunded plan which
is maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated
employees for purposes of Title I of the Employee Retirement Income
Security Act of 1974, as amended;
WHEREAS , the Plan must be amended and restated to
incorporate the requirements of Section 409A of the Internal
Revenue Code of 1986 as amended by the American Jobs Creations Act
of 2004; and
NOW, THEREFORE, effective as of January 1, 2008, the General
Cable Corporation Deferred Compensation Plan is amended and
restated as follows:
1.
DEFINITIONS
1.1
“Account” shall mean a Participant’s Deferred
Compensation Account, SERP Account and BEP Account. The
Trustee shall determine the fair market value of the assets of the
Special Trust Fund allocated to each Participant’s Account as
of the last day of each calendar quarter, and a statement of such
fair market value shall be promptly provided to the Participant.
In addition, the Trustee shall determine the Final Valuation
with respect to the fair market value of the assets of the Special
Trust Fund allocated to each Participant’s Account as of the
date immediately
preceding the date of distribution to the Participant or his/her
Beneficiary, as applicable.
1.2
“Administrative Committee” shall mean the committee
appointed by the Board to administer the Plan pursuant to Section
2.1 below.
1.3
“Beneficiary” shall mean the person designated in
writing by a Participant to be entitled to receive the applicable
death benefit in the event of the Participant’s death.
1.4
“Benefit Distribution Election” shall mean the election
by a Participant of a Benefit distribution option pursuant to the
applicable provisions of this Plan.
1.5
“Benefit Equalization Plan” shall mean the General
Cable Corporation and Subsidiaries Benefit Equalization Plan, as
adopted effective July 1, 1992.
1.6
“Benefit” shall mean a benefit payable to a Participant
or Beneficiary pursuant to this Plan.
1.7
"BEP Account" means the account established and maintained for a
BEP Participant, which shall consist of:
(a)
All BEP Contributions; and
(b)
The Participant’s allocable share of income and expenses and
realized and unrealized gains and losses of the Special Trust
Fund.
A Participant’s BEP Account shall be established by the
Company for bookkeeping purposes only, and no separate fund shall
be segregated by the Company for the benefit of the Participant,
except under the terms of the Trust.
1.8
"BEP Contributions" means the amounts contributed to a
Participant's BEP Account pursuant to Section 6.1(c) hereof.
1.9
“BEP Merger Date” means September 13, 2007.
1.10
“BEP Participant” means an Eligible Employee or a
Former Eligible Employee.
1.11
“Board” shall mean the board of directors of the
Company.
1.12
“Bonus” shall mean the annual incentive bonus paid to a
Participant in respect of a Plan Year without taking into account
(i) deferrals made to all
-2-
Company retirement and/or deferred compensation plans and (ii)
deferrals made pursuant to Code Section 125.
1.13
“CEO” shall mean the chief executive officer of the
Company.
1.14
“Change in Control” shall mean an objectively
determined event which impacts the Company for whom the Participant
renders services and shall include:
(a)
the acquisition by any one person, or more than one person acting
as a group, of Stock that, together with Stock held by such person
or group, constitutes more than fifty percent (50%) of the total
fair market value or total voting power of the Stock;
(b)
the acquisition by any one person, or more than one person acting
as a group (or the acquisition during the 12-month period ending on
the date of the most recent acquisition by such person or persons)
of ownership of Stock possessing thirty percent (30%) or more of
the total voting power of the Stock; or (ii) a majority of members
of the Board is replaced during any 12-month period by directors
whose appointment or election is not endorsed by a majority of the
members of the Board prior to the date of the appointment or
election; or
(c)
the acquisition by any one person or more than one person acting as
a group (or the acquisition during the 12-month period ending on
the date of the most recent acquisition by such person or persons)
of assets from the Company that have a total gross fair
market value equal to or more than forty percent (40%) of the total
gross fair market value of all of the assets of the Company
immediately prior to such acquisition or acquisitions.
The foregoing definition of Change of Control shall be interpreted
consistent with Code Section 409A and the Treasury regulations
issued thereunder.
1.15
“Claimant” shall mean a person making a claim pursuant
to Section 2.7 below.
1.16
“Code” shall mean the Internal Revenue Code of 1986, as
amended from time to time, including regulations thereunder and
successor provisions and regulations thereto.
1.17
“Compensation” shall mean (i) Salary, (ii) Bonus and
(iii) sales incentive compensation, paid to a Participant in
respect of a Plan Year.
-3-
1.18
“Compensation Deferral Limit” shall mean 100 percent of
a Participant’s Compensation with respect to a Plan Year.
1.19
“Company” shall mean General Cable Corporation, a
Delaware corporation, and its Subsidiaries.
1.20
“Deferral Contribution” shall mean the election by a
Deferred Compensation Participant to defer a portion of the
Participant’s Compensation, Restricted Stock and/or
Stock Awards pursuant to Article 4 below. With respect to a
Deferred Compensation Participant who is a Director, Deferral
Contribution shall mean the election to defer, pursuant to Article
4 below, of all or any portion of Director’s Fees payable to
such Director.
1.21
“Deferred Compensation Account” shall mean account
established and maintained for each Deferred Compensation
Participant which shall consist of:
(a)
Deferral Contributions allocable to the Participant; and
(b)
the Participant’s allocable share of the income and expenses
and realized and unrealized gains and losses of the Special Trust
Fund.
Participants’ Deferred Compensation Accounts shall be
established by the Company for bookkeeping purposes only, and no
separate funds shall be segregated by the Company for the benefit
of the Participant, except under the terms of the Trust.
1.22
“Deferred Compensation Participant” means, subject to
Section 4.2 below, (i) each Executive who is a highly compensated
employee described in section 414(q)(1)(B) of the Code; (ii) each
Executive Officer whose participation herein is provided for in the
employment agreement between such Executive Officer and the
Company; (iii) each Executive, other than an Executive who is an
Executive Officer, that has been selected by the CEO, in the
exercise of his or her sole discretion, for participation in the
Plan; and (iv) each Director.
1.23
“Director” shall mean any individual who is a member of
the Board provided that such individual is not an employee of the
Company.
1.24
“Director’s Fees” means payments to a Director as
remuneration for his or her services as a Director.
Director’s Fees shall be paid in the form of Stock
Awards or a combination of Stock Awards, and cash and/or Restricted
Stock. With respect to any fiscal year of the Company,
Director’s Fees shall be paid if the Director attends at
least 75% of the regularly scheduled meetings of the Board of
Directors in such fiscal year.
-4-
In such case, the Director shall be paid Directors’ Fees to
which he or she is entitled in the following fiscal year. If
a Director fails to attend at least 75% of the regularly scheduled
Board meetings, Director’s Fees may be paid only upon the
expressed approval of the Chairman of the Board.
1.25
“Disability” shall mean a disability as defined under
the Company’s then existing long-term disability plan or
program. The above notwithstanding, a Participant
shall not be deemed to have a Disability unless he/she is expected
to be separated from service for a period of at least twelve months
as a direct result of illness or injury, has no reasonable prospect
of returning to service with the Company, and, by reason of such
disability has been receiving income replacement benefits for a
period of not less than 3 months under an accident and health plan
covering employees of the Company.
1.26
“Eligible Employee” means (a) any person (i) who is a
salaried employee of the Company, (ii) who is a participant in the
Savings Plan and (iii) whose annual additions to, or benefits
payable under the Savings Plan are reduced in any year either by
the Section 415 Limitation or the “Section 401(a)(17)”
Limitation, (b) any person entitled to a benefit under any Appendix
to the Plan and (C) any other person designated by the Board or by
the Administrative Committee with the approval of the
Company’s Chief Executive Officer. Eligible Employee
shall not include any person who (i) is a non-resident alien
(within the meaning of Section 410(b)(3)(C) of the Code) and (ii)
receives no earned income (within the meaning of Section 911(d)(2)
of the Code) from the Company which constitutes sources within the
United States (within the meaning of Section 861(a)(3) of the
Code).
1.27
“Effective Date” shall mean the effective date of this
document, which is as of January 1, 2008. The original
effective date of this Plan was April 1, 1996.
1.28
“ERISA” shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time, including
regulations thereunder and successor provisions and regulations
thereto.
1.29
“Executive” shall mean all Executive Officers and any
other employee of the Company who performs managerial and/or
executive services.
1.30
“Executive Officer” shall mean the Chief Executive
Officer, Chief Financial Officer, Chief Operating Officer and
General Counsel.
1.31
“Exempt Amounts” shall mean Deferral Contributions
which were deferred and vested as of December 31, 2004 and are
otherwise exempt from the requirements of Code Section 409A.
Exempt Amounts shall also include earnings attributable to
such amounts.
-5-
1.32
“Final Valuation” shall mean the fair market value of
the assets of the Special Trust Fund allocated to each
Participant’s Deferred Compensation Account, SERP Account and
BEP Account as of the date of determination.
1.33
“409A Amounts” shall mean Deferral Contributions which
are subject to the requirement of Code Section 409A and earnings
attributable to such Deferral Contributions.
1.34
“Former Eligible Employee” means a person who has a
benefit, payable under Article 6 but who is no longer an Eligible
Employee.
1.35
“Identification Date” means each December 31.
1.36
“Investment Fund” means the investment funds (including
the General Cable Stock Fund) maintained under the Savings Plan
pursuant to the trust agreement under which contributions to the
Savings Plan are made and any other investment funds that the
Committee may, in its discretion, make available.
1.37
“Pay Date” shall mean the date a Participant is paid
Compensation or Director’s Fees in accordance with the
standard payroll practices of the Company.
1.38
“Participant” shall mean a Deferred Compensation
Participant, a SERP Participant or BEP Participant, as
applicable.
1.39
“Plan” shall mean the General Cable Corporation
Deferred Compensation Plan.
1.40
“Plan Year” shall mean the twelve-month period
beginning each January 1 and ending the subsequent December 31.
1.41
“Restricted Stock” shall mean common stock of the
Company which is awarded to an Executive or Director pursuant to
the Stock Incentive Plan subject to restrictions as set forth in
the Executive’s Restricted Stock Agreement.
1.42
“Restricted Stock Agreement” shall mean an agreement
between the Company and an Executive or Director which sets forth
the terms and conditions under which shares of the common stock of
the Company shall be granted to such Executive or Director.
1.43
“Retirement” or “Retires” shall mean a
retirement by the Participant under the Savings Plan.
-6-
1.44
“Retirement Account” means any account or accounts
established for the Participant under the Savings Plan to which the
Company makes contributions (including matching contributions) and
which are not funded by the Participant’s pre-tax or
after-tax contributions.
1.45
“Salary” shall mean the annualized base compensation
paid to a Participant determined as of each November 1
st . A Participant’s Salary is not reduced
by amounts deferred under the Company’s retirement plan(s),
deferred compensation plan(s) and/or plans subject to Code Section
125.
1.46
“Savings Plan” means the General Cable Retirement and
Savings Plan for Salaried Associates, effective January I,
1994.
1.47
“Section 401(a)(17) Limitation” means, with respect to
any Plan Year, the applicable compensation limitation set forth in
section 401(a)(17) of the Code (as adjusted as provided therein),
or any corresponding successor provision.
1.48
“Section 415 Limitation” means, as the case may be, the
limitation on annual additions (in the form of employer and
employee contributions) to the Savings Plan imposed by section 415
of the Code, including all provisions of the Savings Plan that have
been adopted to comply with section 415 of the Code.
1.49
“SERP” shall mean the Supplemental Executive Retirement
Plan of General Cable Corporation (Amended and Restated Effective
as of June 27, 2007).
1.50
“SERP Account” shall mean the account established and
maintained for each SERP Participant which shall consist of:
(a)
The SERP Contribution made on behalf of such Participant pursuant
to Section 5.1 of this Plan; and
(b)
The Participant's allocable share of income and expenses and
realized and unrealized gains and losses of the Special Trust
Fund.
A Participant's SERP Account shall be established by the Company
for bookkeeping purposes only, and no separate fund shall be
segregated by the Company for the benefit of the Participant,
except under the terms of the Trust.
1.51
“SERP Benefit Distribution Election” shall mean the
benefit distribution election made by a SERP Participant pursuant
to Section 3.2 of the SERP and his/her Acknowledgement of Amendment
of the Supplemental Executive Retirement Plan of General Cable
Corporation.
-7-
1.52
“SERP Contribution” shall mean, with respect to a SERP
Participant, an amount equal to the balance standing to the credit
of such Participant in his/her account under the SERP as of the
date immediately prior to the Merger Date.
1.53
"SERP Merger Date" means June 27, 2007.
1.54
“SERP Participant” shall mean an individual who was a
participant in the SERP immediately prior to the Merger Date.
1.55
“Severance Date” means the date on which a Participant
voluntarily terminates employment or is discharged from service
with the Company, retires or dies.
1.56
“Special Trust Fund” shall mean the assets of the Trust
held by the Trustee under the Trust Agreement that are allocable
to: (i) Deferral Contributions made by the Company to the Trust
pursuant to Section 4 below; (ii) SERP Contributions; (iii) BEP
Contributions; and (iv) income resulting from such
contributions.
1.57
“Specified Employee” means any Participant who is (i)
an officer of the Company and (ii) receives annual compensation
from the Company in excess of $130,000 (or such other amount as
determined pursuant to Code Section 416(i)(1)(A)(i)). The
term Specified Employee shall also include any other individual who
satisfies the definition of specified employee under Code Section
409A. A participant is a Specified Employee if he/she meets
the foregoing requirements at any time during the 12-month period
ending on an Identification Date. If a Participant is a
Specified Employee as of an Identification Date, such Participant
is treated as a Special Employee for the 12-month period beginning
on the first day of the first month following the Identification
Date.
1.58
“Stock” shall mean the common stock of the Company.
1.59
“Stock Award” shall mean common stock of the Company
which is awarded to an Executive or Director.
1.60
“Stock Incentive Plan” shall mean the General Cable
Corporation 1997 Stock Incentive Plan, the General Cable
Corporation 2000 Stock Option Plan and the General Cable
Corporation 2005 Stock Incentive Plan.
1.61
“Stock Unit” shall mean a notional account representing
one share of common stock of the Company.
-8-
1.62
“Subsidiary” shall mean a corporation of which the
Company owns more than 50 percent of such corporation’s
common stock or any other business entity in which the Company
directly or indirectly has an ownership interest of more than 50
percent.
1.63
“Trust” shall mean the General Cable Corporation
Deferred Compensation Plan Trust, as established by the Trust
Agreement.
1.64
“Trust Agreement” shall mean the General Cable
Corporation Deferred Compensation Plan Trust Agreement by and
between General Cable Corporation and Fidelity Management Trust
Company, dated September 10, 2007, as amended from time to
time, or any successor trust agreement.
1.65
“Trustee” shall mean the trustee or trustees designated
as such pursuant to the Trust Agreement.
1.66
“Unforeseen Emergency” shall mean a severe financial
hardship to the Participant resulting from an illness or accident
of the Participant, the Participant’s spouse or a dependent
(as defined in Section 152(a) of the Code) of the Participant, 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.
2.
ADMINISTRATION
2.1
Administrative Committee. The Board shall appoint an
Administrative Committee which shall consist of such number of
persons as shall from time to time be determined by the Board.
Members of the Administrative Committee may be employees of
the Company and shall hold office at the pleasure of the Board and
shall serve without compensation unless otherwise directed by the
Board. Any member of the Administrative Committee may resign
by giving notice thereof to the Company and to the Administrative
Committee and such resignation shall become effective at delivery
or at any later date specified therein.
2.2
Plan Administration. The Administrative Committee shall be
charged with overseeing the operation and administration of the
Plan, including making determinations with respect to payment of
benefits and deciding any dispute arising under the Plan. The
Administrative Committee shall have all the powers necessary to
discharge its duties under the Plan, but not by way of limitation,
the power to hire consultants for the Plan and the power to
interpret or construe the Plan. The Administrative Committee
may delegate to any agent such duties and powers, both ministerial
and discretionary, as it deems appropriate; provided, however, that
all disputes arising under the Plan shall be determined by the
Administrative
-9-
Committee. In exercising any discretion, the Administrative
Committee shall have sole, absolute and discretionary authority,
final and binding on all Participants and all other parties to the
maximum extent allowed by law. A majority of the
Administrative Committee then in office shall constitute a quorum
for the transaction of business. Any determination of the
Administrative Committee shall be made by a majority of the members
then in office and such determination shall be final. If
there are only two members and they are unable to agree, any action
required of the Administrative Committee shall be decided by the
Board, and its decision shall be final.
2.3
Administration Expenses. The members of the Administrative
Committee shall be reimbursed by the Company for any necessary
expenditures incurred in the discharge of their duties as members
of the Administrative Committee. The compensation, if any, of
all agents, counsel or other persons retained or employed by the
Administrative Committee shall be subject to the approval of the
Company and shall be paid by the Company.
2.4
Liability. The members of the Administrative Committee and
the Company shall be entitled to rely upon all valuations,
certificates and reports furnished by any trustee,, insurer,
actuary, accountant or physician selected by the Administrative
Committee and approved by the Company, and upon all opinions given
by any legal counsel selected by the Administrative Committee and
approved by the Company or selected by the Company, and the members
of the Administrative Committee and the Company shall be fully
protected with respect to any action taken or suffered by their
having relied in good faith upon such trustee, insurer, actuary,
physician or counsel and all action so taken or suffered shall be
conclusive upon each of them and upon all Participants and former
Participants and their Beneficiaries and all other persons.
2.5
Self-Interest. No member of the Administrative Committee
shall have any right to vote or decide upon any matter relating
solely to himself or herself, or solely to any of his or her rights
or benefits under the Plan, unless such member is the only member
of the Administrative Committee.
2.6
Records. The Administrative Committee shall keep or cause to
be kept a record of all of its proceedings and shall keep or cause
to be kept such other records and data as may be necessary for the
administration of the Plan and to determine the amount of all
Benefits payable hereunder.
2.7
Claims and Claims Review. If any Participant or Beneficiary,
or their legal representative, has a claim for Benefits which is
not being paid, such Claimant may file a written claim with the
Administrative Committee setting forth the amount and nature of the
claim, supporting facts, and the
-10-
Claimant’s address. Written notice of the disposition
of a claim by the Administrative Committee shall be furnished to
the Claimant within 90 days after the claim is filed. In the
event of special circumstances, the Administrative Committee may
extend the period for determination for up to an additional 90
days, in which case it shall so advise the Claimant. If the
claim is denied, the reasons for the denial shall be specifically
set forth in writing, pertinent provisions of the Plan shall be
cited, including an explanation of the Plan’s claim review
procedure, and, if the claim is perfectible, an explanation as to
how the Claimant can perfect the claim shall be provided.
2.8
Denial of Claim. If a Claimant whose claim has been denied
wishes further consideration of his or her claim, he or she may
request the Administrative Committee to review his or her claim in
a written statement of the Claimant’s position filed with the
Administrative Committee no later than 60 days after receipt of the
written notification provided for in Section 2.7 above. The
Administrative Committee shall fully and fairly review the matter
and shall promptly advise the Claimant, in writing, of its decision
within the next 60 days. Due to special circumstances, the
Administrative Committee
