INVESCO LTD.
AMENDED AND
RESTATED
2005 NON-QUALIFIED DEFERRED
COMPENSATION PLAN
(EFFECTIVE AS OF JANUARY 1,
2009)
Table of Contents
ARTICLE I PURPOSE, DEFINITIONS AND
CONSTRUCTION
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1.1
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Purpose of the Plan
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1
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ARTICLE III PARTICIPANTS' DEFERRAL
ELECTIONS
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3.1
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Participant's Deferral Election
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4
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3.2
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Employer Contributions
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5
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3.3
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Establishment of Account
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6
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3.4
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2005 and 2006 Deferral Elections and Prior Plan
Accounts
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6
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ARTICLE IV CREDITING TO ACCOUNTS;
EARNINGS
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4.1
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Crediting to Accounts
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7
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4.2
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Establishment of Trust
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7
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4.3
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Crediting of Earnings, Gains or
Losses
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7
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ARTICLE V PAYMENT OF ACCOUNT
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5.2
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Timing and Form of Payment
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8
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5.3
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Payment at Termination of Service
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10
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5.5
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Payment at Disability
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10
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5.6
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Payment at a Change in Control
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10
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5.7
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Unforeseeable Emergency Distribution
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11
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ARTICLE VI CLAIMS PROCEDURES
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6.1
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Claims for Benefits
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11
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ARTICLE VII PLAN ADMINISTRATOR
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7.3
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Compensation, Indemnity and Liability
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12
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ARTICLE VIII MISCELLANEOUS
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8.1
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Limitation on Participant's Rights
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13
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8.2
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Amendment of the Plan; Merger
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13
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8.3
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Termination of the Plan
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13
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8.4
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Notices to Participants
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14
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ARTICLE I
PURPOSE, DEFINITIONS AND
CONSTRUCTION
Effective as of December 1, 1997,
Invesco Ltd. (f/k/a AMVESCAP PLC) established the AMVESCAP PLC
Non-qualified Deferred Compensation Plan (“Prior Plan”)
to allow certain eligible management employees of U.S. employers to
defer the payment each year of a percentage of their Compensation
to augment such employees’ retirement income in addition to
what is provided for under the tax qualified plans of the Employer.
The law applicable to non-qualified deferred compensation plans was
changed effective January 1, 2005, and as a result, IVZ, Inc.
(f/k/a AVZ, Inc.), a Subsidiary of Invesco Ltd. adopted a new
non-qualified deferred compensation arrangement for eligible
management employees of U.S. employers that are Subsidiaries of
Invesco Ltd. for deferrals occurring on or after January 1, 2005,
which Plan is amended and restated effective as of January 1, 2009
for the purpose of including additional provisions intended to
ensure compliance with Internal Revenue Code Section 409A relating
to deferred compensation. The amounts credited to participants as
of December 31, 2004 under the Prior Plan will remain credited
under the Prior Plan. This Plan is not intended to, and does not,
qualify under Sections 401(a) and 501(a) of the Internal Revenue
Code, and is designed to be exempt generally from the requirements
of the Employee Retirement Income Security Act of 1974, as
amended.
1.2 Definitions
The following terms, when found in
the Plan, shall have the meanings set forth below:
(a)
Account : The records maintained by the Plan Administrator
to determine each Participant’s interest under this Plan.
Such Account may be reflected as an entry in the Company’s
(or Employer’s) records, or as a separate account under a
trust, or as a combination of both. The Plan Administrator may
establish such subaccounts as it deems necessary for the proper
administration of the Plan.
(b)
Annual Valuation Date: December 31 of each year while the Plan is in
effect.
(c)
Beneficiary : The person or persons (or trust or other
entity) last designated in writing by the Participant to receive
the amount in the Participant’s Account in the event of such
Participant’s death; or if no designation shall be in effect
at the time of a Participant’s death or if all designated
Beneficiaries shall have predeceased the Participant, then the
Beneficiary shall be the Participant’s estate or personal
representative.
(d)
Code : The Internal Revenue Code of 1986, as it may be
amended from time to time.
(e)
Company : Invesco Ltd. or its successor or
successors.
(f) Change in Control :
A Change in Control shall be deemed to occur in the event of any of
the following: (i) a change in the ownership of the Company; (ii) a
change in effective control of the Company; or (iii) a change in
the ownership of a substantial portion of the assets of the
Company. The determinations under (i), (ii) and (iii) above shall
be made by the Plan Administrator in accordance with Treas. Reg.
1.409A-3(i)(5).
(g) Compensation :
Compensation shall be the total cash remuneration paid by the
Employer during each Plan Year, as reported on Form W-2 or its
subsequent equivalent, including salary, bonuses under a
Performance-Based Plan and other incentive bonuses, fees,
commissions,
amounts deferred under Code Sections
401(k) and 125, and amounts deferred under this and any other
non-qualified program of salary reduction. Compensation hereunder
shall not be subject to any limitations applicable to tax-qualified
plans, such as pursuant to Code Sections 401(a)(17) or 415. The
term “Compensation” shall not include income resulting
from this Plan or the Prior Plan, the 2008 Global Equity Incentive
Plan, the Invesco Ltd. Global Stock Plan, the Wholesalers
Non-Qualified Deferred Compensation Plan, the Invesco Ltd.
Executive Share Option Schemes or the Sharesave Plan.
(h)
Disability
: “Disability” as
defined in Treas. Reg. 1.409A-3(i)(4).
(i)
Effective Date
: The effective date of the Plan is
January 1, 2008.
(j) Election Form : The form
or forms prescribed by the Plan Administrator on which a
Participant may specify the amount of his Compensation that is to
be deferred pursuant to the provisions of Article III, the time and
manner of payment of his benefits, and the Performance Options in
which his Account is deemed to be invested.
(k) Eligible Employee : The
following classes or groups of employees of an Employer shall be
eligible to participate in the Plan: Global Partners, Partners and
Associate Partners. In addition, Wholesalers and certain other
management or highly compensated employees shall be eligible to
participate if designated by the Plan Administrator (or its
designee). The Plan Administrator may, in its discretion, establish
guidelines each year for determining the group of Wholesalers or
highly compensated employees that are eligible to participate.
However, participation in the Plan shall be limited to Eligible
Employees who are management or highly compensated employees of the
Employer, as such term is defined by Section 201 of ERISA, and
regulations and rulings promulgated thereunder by the Department of
Labor.
(l)
Employee Deferral
Account : The account
maintained to reflect any Eligible Employee deferrals to the Plan
pursuant to Section 3.1.
(m) Employer : Each Subsidiary of
the Company whose Eligible Employees are authorized to participate
in the Plan (as set forth on Schedule A as it may be amended from
time to time), in accordance with such terms as may be established
by the Company.
(n)
ERISA : The Employee Retirement Income Security Act of
1974, as amended.
(p)
Participant : An Eligible Employee who has met the
requirements of Article II for participation in the Plan and who
has an Account in the Plan.
(q)
Performance-Based Plan : A plan (or part of a plan) that
pays compensation which qualifies as “Performance-based
compensation” within the meaning of . Section
409A, Treas. Reg. 1.409A-1(e) and any rulings
thereunder.
(r)
Performance Option: A
deemed investment fund, elected by the Participant, that will be
used as the basis to calculate earnings, gains and losses on the
amount in the Participant’s Account.
(s)
Plan : The Invesco Ltd. Amended and Restated 2005
Non-Qualified Deferred Compensation Plan, as set forth herein and
as it may be amended from time to time.
(t)
Plan Administrator : The Plan Administrator will be a
committee (or other entity) established by the Plan Sponsor which
has the exclusive and discretionary authority for making all
decisions related to the Plan including determining Plan benefits.
The Plan Administrator will also
be responsible for carrying out the
administrative duties of the Plan. In the absence of the
appointment of such a committee, the Company shall be the Plan
Administrator.
(u)
Plan Sponsor : The Plan Sponsor is IVZ, Inc., a U.S.
Subsidiary of Invesco Ltd. The payments of benefits to Participants
are the primary obligation of the Employers. The Plan Sponsor may
delegate any of its functions hereunder to a corporation or other
entity which it owns or controls.
(v)
Plan Year : The twelve month period beginning on January 1
and ending on December 31 each year.
(w)
Prior Plan : The AMVESCAP PLC Non-Qualified Deferred
Compensation Plan, which was established effective as of December
1, 1997, in which certain Participants in the Plan also
participate.
(x)
Prior Plan Elections : The deferral elections under the
Prior Plan made prior to January 1, 2005 for Compensation that will
be paid on or after January 1, 2005, that will be recognized under
this Plan, and pursuant to which amounts will be credited to this
Plan, and the distribution elections under the Prior Plan with
respect to deferrals to the Plan on or after January 1,
2005.
(y)
Prior Plan Transfer Account : The amount credited to a
Participant under the Prior Plan that is transferred to this Plan,
which shall be managed and distributed in accordance with the
provisions of this Plan.
(z) Retirement
or Retired : Termination of Service from all Employers on or
after attaining age 58.
(aa)
Section 409A
: Section 409A of the Code, as it
may be amended from time to time.
(bb)
Specified Employee: The term “Specified Employee” has
the meaning given such term in Section 409A and the final
regulations thereunder, provided, however , that, as permitted in such final regulations,
the Company’s Specified Employees and its application of the
six-month delay rule of Section 409A(a)(2)(B)(i) shall be
determined in accordance with rules adopted by the Board of
Directors of the Company or any committee of the Board, which shall
be applied consistently with respect to all nonqualified deferred
compensation arrangements of the Company, including this
Plan.
(cc)
Subsidiary : Any corporation in an unbroken chain of
corporations, beginning with the Company, if each of the
corporations other than the last corporation in the unbroken chain
owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in
such chain. The term “Subsidiary” shall also include a
partnership in which the Company or a Subsidiary owns 50% or more
of the profits interest or capital interest in the
partnership.
(dd)
Termination of Service : A “separation from
service” with the Employers as defined in Treas. Reg.
1.409A-1(h). A Participant shall not be deemed to have terminated
service during a bona
fide leave of absence,
whether with or without pay, if the period of such leave does not
exceed six months, or if longer, so long as the Participant retains
a right to reemployment under an applicable statute or by
contract.
(ee)
Unforeseeable Emergency : An “unforeseeable
emergency” as defined in Treas. Reg. 1.409A-3(i)(3)(i).
Generally, an unforeseeable emergency is 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; loss of the Participant’s property due to casualty
(including the need to rebuild a home following damage to a home
not otherwise covered by insurance, for example, not as a result of
a natural disaster); or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond
the control of the Participant.
(ff) Valuation
Date : The Annual Valuation Date and any other date(s) selected
by the Plan Administrator as of which the Accounts of Participants
are valued.
1.3
Construction
The
masculine gender, where appearing in the Plan, shall be deemed to
include the feminine gender, and the singular may indicate the
plural, unless the context clearly indicates the contrary. The
words “hereof”, “herein”
“hereunder” and other similar compounds of the word
“here” shall, unless otherwise specifically stated,
mean and refer to the entire Plan, not to any particular provision
or Section. Article and Section headings are included for
convenience of reference and are not intended to add to, or
subtract from, the terms of the Plan.
ARTICLE II
ELIGIBILITY
Prior to the beginning of each Plan
Year, the Plan Administrator (or its designee) shall determine each
employee who is an Eligible Employee (as described in Section
1.2(k) hereof) of a participating Employer and eligible to
participate in the Plan for such following Plan Year. The Plan
Administrator may determine all or part of the Eligible Employee
group by designating a class or group of employees as eligible, by
establishing a compensation level for eligibility or by using such
other method to designate the Eligible Employee group as the Plan
Administrator deems appropriate and consistent with Section 409A
and the rulings and regulations thereunder.
Each such Eligible Employee shall be
provided the deferral election in Article III. Employees who are
newly hired in the eligible group or who move into an eligible
class during the Plan Year will become Eligible Employees (and
first eligible to participate in the Plan) at the next scheduled
enrollment period and will be provided the deferral election in
Article III at such time.
ARTICLE III
PARTICIPANTS’ DEFERRAL
ELECTIONS
3.1
Participant’s Deferral
Elections
Each Eligible Employee may elect to
participate for the Plan Year, or part of a Plan Year for which he
is eligible, by delivering to the Plan Administrator a written
notice, in such form as approved by the Plan Administrator,
electing to participate and specifying the dollar amount or
percentage of Compensation he elects to defer for such Plan Year or
part of a Plan Year. The Plan Administrator may provide the
Eligible Employee with a separate election with respect to salary
and bonus (and other forms of Compensation).
Except as otherwise provided below,
an election to defer Compensation, including a bonus payment that
does not qualify as a payment under a Performance Based Plan, shall
be made prior to the commencement of the Plan Year with respect to
which the election to participate is made. The
Participant's deferrals under this
Section 3.1 shall be credited to the Participant's Employee
Deferral Account.
An election to defer any bonus
payment under a Performance Based Plan must be made prior to the
commencement of the Plan Year with respect to which the bonus
payment is earned, unless otherwise determined by the Plan
Administrator as provided in this Section 3.1. The Plan
Administrator may, in its discretion, provide that the election may
be made at a later date, provided that (x) in no event shall such
date be later than the date that is six (6) months before the end
of the performance period with respect to which such bonus payment
is earned or awarded, (y) the Participant must perform services
continuously from the later of the beginning of the performance
period or the date the performance criteria are established through
the date an election is made under this Section 3.1, and (z) in no
event may an election to defer such bonus payment be made after
such compensation has become readily ascertainable.
Deferral elections shall become
irrevocable immediately upon the last date an election may be made
with respect to Compensation. A Participant may not during the Plan
Year terminate an election to defer Compensation or discontinue
future deferrals of Compensation under this Plan, or increase or
decrease the amount of Compensation a Participant elects to defer
during the Plan Year.
At the time a Participant elects to
defer Compensation, the Participant shall elect with respect to
such deferral the time and manner in which the amount deferred (and
any earnings thereon) will be distributed to the Participant, which
the Plan Administrator may provide is a continuing election with
respect to all amounts credited (and to be credited) to the
Participant’s Account. The distribution elections, and any
changes to such elections, shall be made in accordance with Article
V. If the Eligible Employee’s election would result in a
deferral greater than the maximum provided herein, any deferred
amount shall be reduced to the maximum limit.
An election to defer Compensation
must be filed with the Plan Administrator within the time period
prescribed by the Plan Administrator. If a Participant fails to
file a properly completed and duly executed Election Form with the
Plan Administrator by the prescribed time, he will be deemed to
have elected not to defer any Compensation under this Plan for the
Plan Year.
The Participant may designate on an
Election Form a Beneficiary (or Beneficiaries) to receive payment
of amounts in his Account in the event of his death.
The Plan Administrator may establish
a maximum deferral limitation for a Plan Year for each group or
class of Eligible Employees (which may be a dollar amount, a
percentage of Compensation or some other limit) and may change such
limitation from year to year, provided an Eligible Employee shall
not be permitted to reduce his Compensation below the amount
necessary to make required or elected contributions to employee
benefit plans, required federal, state and local tax withholdings,
and any other withholdings deemed necessary by the Plan
Administrator or required by law.
3.2
Employer
Contributions
(a) Effective
January 1, 2006, as soon as practical after the end of each Plan
Year and after the financial results of the Company and its
Subsidiaries for such year have been determined, the Employer shall
credit to a Qualifying Participant’s (as defined in (c)
below) Employer Contribution Account the amount determined in (b)
below. Amounts credited to the Employer Contribution Account shall
be credited to the Participant’s Retirement Account. No
Employer contribution shall be made for any Participant who does
not satisfy the requirements for a Qualifying Participant for a
Plan Year. For Eligible Employees hired before January 1, 2005, all
amounts credited to a Qualifying Participant’s Employer
Contribution Account shall be fully vested; for
Eligible Employees hired on or after
January 1, 2005, the following vesting schedule shall apply to the
Qualifying Participant’s Employer Contribution
Account:
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Years of
Service
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Vested Percentage
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Subject to Forfeiture
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Less than 1
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0%
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100%
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1 but less t
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