METAVANTE EXECUTIVE DEFERRED COMPENSATION PLANEmployee Benefits Plan Agreement |
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Exhibit 10.12
METAVANTE
EXECUTIVE DEFERRED COMPENSATION PLAN
ARTICLE I
Introduction
Pursuant to a corporate separation transaction Marshall & Ilsley Corporation, a public company, has been succeeded by two separate unrelated public companies known, after the effective date of the separation transaction (the “Separation Date”), as Metavante Technologies, Inc. and Marshall & Ilsley Corporation. Prior to the separation transaction, Marshall & Ilsley Corporation had sponsored the Marshall & Ilsley Corporation Amended and Restated Executive Deferred Compensation Plan and the Marshall & Ilsley Corporation 2005 Executive Deferred Compensation Plan (the “Prior Plans”). Employees of Metavante Technologies, Inc. and its affiliates had been covered under the Prior Plans before the separation transaction.
Metavante Technologies, Inc. is establishing the Metavante Executive Deferred Compensation Plan as the successor to the Prior Plans with respect to employees of Metavante Technologies, Inc. and its affiliates effective as of the date of closing of the separation transaction described above. The obligation to pay the benefits of employees and former employees of Metavante Technologies, Inc. and its affiliates accrued under the Prior Plans has been transferred to this Plan effective as of the Separation Date. In addition, employee deferrals and employer contributions shall be credited for service rendered to Metavante Technologies, Inc. and its affiliates in accordance with the terms and provisions hereof.
This document is intended to comply with the provisions of Section 409A of the Internal Revenue Code and regulations thereunder and shall be interpreted accordingly. If any provision or term of this document would be prohibited by or inconsistent with the requirements of Section 409A of the Code, then such provision or term shall be deemed to be reformed to comply with Section 409A of the Code. This document describes how this Plan shall be administered for periods from and after the Separation Date. For periods after 2004 and prior to the Separation Date, the Prior Plans have been administered in good faith compliance with applicable provisions of Code Section 409A.
ARTICLE II
Definitions and Construction
As used herein, the following words shall have the following meanings:
2.01 Account . The account maintained for each Participant pursuant to Article V below. The Participant’s Account shall include such subaccounts as the Administrator deems necessary or desirable for purposes of implementing separate Distribution Elections for deferrals and contributions made in separate years and/or for purposes of implementing the Participant’s Investment Election or otherwise. Among the subaccounts in the Plan shall be the SERP Account described in Section 4.06 and the Participant’s Pre-2008 Account.
2.02 Administrator . The Committee.
2.03 Affiliate . Any corporation or other entity which directly or indirectly controls, is controlled by, or under common control with, the referenced entity. Control means the ability to elect a majority of the Board of Directors of the corporation or other entity or, if there is no Board of Directors, a majority of the body which governs the entity.
2.04 Base Salary . The Participant’s Base Salary (prior to deferral by the Participant under this Plan or any other employee benefit plan of the Employer or agreement with the Employer). Only Base Salary earned while an Employee is a Participant in the Plan shall be taken into account. The term “Base Salary” shall not include any short or long term bonus, incentive or award or amount payable under an equity incentive plan or severance or salary continuation payments or any other payment of compensation not denominated as base salary.
2.05 Beneficiaries . Those persons designated by a Participant to receive benefits hereunder or, failing such a designation, the spouse or, if none, the estate of a Participant.
2.06 Bonus . The Participant’s bonus earned by services performed over the period of not more than one Plan Year (prior to deferral by the Participant under this Plan or any other employee benefit plan of the Employer or agreement with the Employer). Only a Bonus earned while an Employee is a Participant in the Plan shall be taken into account. The term “Bonus” shall not include any long term incentive award or amount payable under an equity incentive plan or severance or salary continuation payments.
2.07 Change of Control . “Change of Control” shall have the same meaning as in the Metavante Corporation 2007 Equity Incentive Plan.
2.08 Code . The Internal Revenue Code of 1986, as amended.
2.09 Committee . The Compensation Committee of the Board of Directors of Metavante Technologies, Inc.
2.10 Common Stock . The common stock of Metavante Technologies, Inc.
2.11 Deferral Election . The election by a Participant, from time to time, to defer Base Salary and/or Bonus in accordance with the provisions of this Plan.
2.12 Distribution Date . In the case of a lump sum distribution, “Distribution Date” means February 15 following the year in which Separation from Service occurs or, if later, the first day of the seventh month following the date of Separation from Service. In the case of an installment distribution, “Distribution Date” means January 1 of the year following the year in which the Participant’s Separation from Service occurs, or, if later, the first day of the seventh month following the date of the Participant’s Separation from Service. Notwithstanding the foregoing, if the Participant has elected an In-Service Payment Date with respect to his Pre-2008 Account, if any, which is earlier than the date of the Participant’s Separation from Service, then the In-Service Payment Date shall be the Distribution Date with respect to his Pre-2008 Account, rather than the date specified in either of the preceding two sentences.
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2.13 Distribution Election(s) . The election(s) by a Participant to choose the method of distribution of his Account. As described in Section 7.02(b), a Participant may have multiple Distribution Elections in effect.
2.14 Disability . A Participant shall be considered to be suffering from a Disability if the Participant is, 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 12 months, either (i) receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Participant’s employer or (ii) unable to engage in any substantial gainful activity.
2.15 Employee . An employee of the Employer.
2.16 Employer . Metavante Technologies, Inc. and each of its Affiliates; provided, however, that for purposes of the power to amend or terminate the Plan or take any other action under or with respect to the Plan, except for the payment of benefits, the term “Employer” shall refer only to Metavante Technologies, Inc.
2.17 Employment . Employment with the Employer.
2.18 Fair Market Value . The closing sale price of the Common Stock on the New York Stock Exchange as reported in the Midwest Edition of the Wall Street Journal for the applicable date; provided that , if no sales of Common Stock were made on said exchange on that date, “Fair Market Value” shall mean the closing sale price of the Common Stock as reported for the next succeeding day on which sales of Common Stock are made on said exchange, or, failing any such sales, such other market price as the Committee may determine in conformity with pertinent law.
2.19 In-Service Payment Date . The date, if any, specified by the Participant pursuant to Section 7.03 as the date upon which distribution of his Pre-2008 Account shall begin. An In-Service Payment Date must be the first day of a month, may be no earlier than December 1, 2008 and shall only apply to a Participant’s Pre-2008 Account.
2.20 Investment Election . The form filed by the Participant from time to time which designates the Participant’s investment choices.
2.21 Participant . An employee who is a key management or highly compensated Employee eligible to participate in the Plan for a Plan Year under Section 3.01 (such person shall be known as an “Active Participant” for such Plan Year) and any person who previously participated in the Plan or one or both of the Prior Plans and is entitled to benefits.
2.22 Plan . The Metavante Executive Deferred Compensation Plan set forth herein and as amended from time to time.
2.23 Plan Year . The Employer’s fiscal year which is the calendar year.
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2.24 Pre-2008 Account . The subaccount in the Plan representing the deferrals and Employer contributions made for the Participant under the Prior Plans and this Plan for services performed in periods prior to 2008, as well as any earnings thereon.
2.25 Separation from Service . “Separation from Service” shall have the meaning set forth in IRS Regulation Section 1.409A-1, the requirements of which are summarized in part as follows:
(a) In General . The Participant shall have a Separation from Service with the Employer if the Participant dies, retires, or otherwise has a termination of employment with the Employer. However, for purposes of this Section 2.25, the employment relationship is treated as continuing intact while the individual is on military leave, sick leave, or other bona fide leave of absence if the period of such leave does not exceed six months, or if longer, so long as the individual retains a right to reemployment with the Employer under an applicable statute or by contract. For purposes of this paragraph (a) of this Section 2.25, a leave of absence constitutes a bona fide leave of absence only if there is a reasonable expectation that the Participant will return to perform services for the Employer. If the period of leave exceeds six months and the individual does not retain a right to reemployment under an applicable statute or by contract, the employment relationship is deemed to terminate on the first date immediately following such six-month period. Notwithstanding the foregoing, where a leave of absence is due to any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than six months, where such impairment causes the Participant to be unable to perform the duties of his or her position of employment or any substantially similar position of employment, a 29-month period of absence may be substituted for such six-month period.
(b) Termination of Employment . Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Employer and Participant reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Participant would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than 20 percent of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or, the full period of services to the Employer if the Participant has been providing services to the Employer less than 36 months). Facts and circumstances to be considered in making this determination include, but are not limited to, whether the Participant continues to be treated as an employee for other purposes (such as continuation of salary and participation in employee benefit programs), whether similarly situated service providers have been treated consistently, and whether the Participant is permitted, and realistically available, to perform services for other service recipients in the same line of business. The Participant is presumed to have Separated from Service where the level of bona fide services performed decreases to a level equal to 20 percent or less of the average level of services performed by the Employee during the immediately preceding 36-month period. The Participant will be presumed not to have Separated from Service where the level of bona fide services performed continues at a level that is 50 percent or more of the average level of service performed by the Participant during the immediately preceding 36-month period. No presumption applies to a decrease in the level of bona fide services performed to a level that is more than 20 percent and less than 50 percent of the average level of bona fide
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services performed during the immediately preceding 36-month period. The presumption is rebuttable by demonstrating that the Employer and the Participant reasonably anticipated that as of a certain date the level of bona fide services would be reduced permanently to a level less than or equal to 20 percent of the average level of bona fide services provided during the immediately preceding 36-month period or the full period of services to the Employer if the Participant has been providing services to the Employer less than 36 months (or that the level of bona fide services would not be so reduced). For example, the Participant may demonstrate that the Employer and the Participant reasonably anticipated that the Participant would cease providing services, but that, after the original cessation of services, business circumstances such as termination of the Participant’s replacement caused the Participant to return to employment. Although the Participant’s return to employment may cause the Participant to be presumed to have continued in employment because the Participant is providing services at a rate equal to the rate at which the Participant was providing services before the termination of employment, the facts and circumstances in this case would demonstrate that at the time the Participant originally ceased to provide services, the Employer reasonably anticipated that the Participant would not provide services in the future. For purposes of this paragraph (b), for periods during which the Participant is on a paid bona fide leave of absence (as defined in paragraph (a) of this Section 2.25) and has not otherwise terminated employment pursuant to paragraph (a) of this Section 2.25, the Participant is treated as providing bona fide services at a level equal to the level of services that the Participant would have been required to perform to receive the compensation paid with respect to such leave of absence. Periods during which the Participant is on an unpaid bona fide leave of absence (as defined in paragraph (a) of this Section 2.25) and has not otherwise terminated employment pursuant to paragraph (a) of this Section 2.25, are disregarded for purposes of this paragraph (b) of this Section 2.25 (including for purposes of determining the applicable 36-month (or shorter) period).
(c) Asset Purchase Transactions . Where as part of a sale or other disposition of assets by the Employer as seller to an unrelated service recipient (buyer), a Participant of the Employer would otherwise experience a Separation from Service with the Employer, the Employer and the buyer may retain the discretion to specify, and may specify, whether a Participant providing services to the Employer immediately before the asset purchase transaction and providing services to the buyer after and in connection with the asset purchase transaction has experienced a Separation from Service, provided that the asset purchase transaction results from bona fide, arm’s length negotiations, all service providers providing services to the Employer immediately before the asset purchase transaction and providing services to the buyer after and in connection with the asset purchase transaction are treated consistently (regardless of position at the Employer) for purposes of applying the provisions of any nonqualified deferred compensation plan, and such treatment is specified in writing no later than the closing date of the asset purchase transaction. For purposes of this paragraph (c), references to a sale or other disposition of assets, or an asset purchase transaction, refer only to a transfer of substantial assets, such as a plant or division or substantially all the assets of a trade or business.
(d) Dual Status . If a Participant provides services both as an employee of the Employer and as an independent contractor of the Employer, the Participant must separate from service both as an employee and as an independent contractor to be treated as having Separated from Service. If a Participant ceases providing services as an independent contractor and begins providing services as an employee, or ceases providing services as an employee and begins
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providing services as an independent contractor, the Participant will not be considered to have a Separation from Service until the Participant has ceased providing services in both capacities. Notwithstanding the foregoing, if a Participant provides services both as an employee of the Employer and a member of the board of directors of the Employer, the services provided as a director are not taken into account in determining whether the Participant has a Separation from Service as an employee for purposes of this Plan unless this Plan is aggregated with any plan in which the Participant participates as a director under IRS Regulation Section 1.409A-1(c)(2)(ii).
2.26 Vesting Service . As to each Participant, the period during which he has been employed by the Employer, including such period of time that he was employed by a predecessor in interest to the Employer, which is credited under the Employer’s tax qualified retirement plan.
2.27 Unforeseeable Emergency . A severe financial hardship to a Participant resulting from an illness or accident of the Participant or the Participant’s spouse or dependent (as defined in Section 152(a) of the Code, without regard to Section 151 (b)(1), (b)(2) and (d)(1)(B)), 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, 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. For example, the imminent foreclosure of or eviction from the Participant’s primary residence may constitute an Unforeseeable Emergency. In addition, the need to pay for medical expenses, including non-refundable deductibles, as well as for the costs of prescription drug medication, may constitute an Unforeseeable Emergency. Finally, the need to pay for funeral expenses of a spouse or a dependent (as defined in Code Section 152(a), without regard to Section 151 (b)(1),(b)(2) and (d)(1)(B)) may also constitute an Unforeseeable Emergency. Except as otherwise provided above, the purchase of a home and the payment of college tuition are not Unforeseeable Emergencies. Whether a Participant is faced with an Unforeseeable Emergency is to be determined based on the relevant facts and circumstances of each case.
ARTICLE III
Eligibility
3.01 Conditions of Eligibility . Within a reasonable period of time prior to the beginning of a Plan Year or at any time during a Plan Year, the Administrator shall specify the senior management and highly compensated Employees eligible to participate herein as Group A Participants or Group B Participants. An Employee designated as a Group A Participant for a Plan Year shall remain a Group A Participant until the Employee’s Separation from Service or, if earlier, until the Administrator takes action to terminate such Employee’s Group A participation effective on the first day of any Plan Year subsequent to the date of such action by the Administrator. Each person designated as a Group A Participant for a Plan Year shall be an Active Participant for that Plan Year for all purposes of the Plan, including Section 4.06. In addition, each Employee who is designated as a Group B Participant who is prevented from receiving a contribution under the Employer’s tax qualified retirement plan during a Plan Year because of the limitations of Sections 401(a)(17) and/or 415 of the Code for any Plan Year shall be an Active Participant only for purposes of the second sentence of Section 4.06.
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ARTICLE IV
Deferrals and Other Contributions
4.01 Deferral Elections .
(a) Salary Payments . A Group A Participant may elect to defer up to 80% of his Base Salary for services performed during a Plan Year by completing and filing such forms as required by the Employer prior to the first day of the Plan Year. A Participant may elect that his deferrals shall be taken either at a uniform percentage rate or in a uniform dollar amount from each of his Base Salary payments during the Plan Year. Base Salary deferred shall be retained by the Employer, credited to the Participant’s Account pursuant to Section 5.01 and paid in accordance with the terms and conditions of the Plan. An Employee who is not already a Group B Participant and is not already eligible to participate in any other nonqualified deferred compensation plan of the account balance type who becomes a Group A Participant for the first time during a Plan Year (for example, an Employee designated to be a Group A Participant by the Administrator upon hire or promotion) may within 30 days after the effective date of participation make an election to defer a uniform percentage or uniform dollar amount of Base Salary to be paid to him for services to be performed subsequent to the deferral election (not to exceed 80% of such payments).
(b) Bonus Payments . A Group A Participant may elect to defer a specified percentage or specified dollar amount of his Bonus payments made to him for a Bonus earned for services performed during a Plan Year (not to exceed 100% of such payments) by completing and filing such forms as required by the Employer. To be effective, the deferral election must be filed prior to the beginning of the Plan Year in which are performed the services for which such Bonus is payable. An Employee who is not already a Group B Participant and is not already eligible to participate in any other nonqualified deferred compensation plan sponsored by the Employer of the account balance type who becomes a Group A Participant for the first time during a Plan Year (for example, an Employee designated to be a Participant by the Administrator upon hire or promotion) may, within 30 days after the effective date of participation, make an election to defer a specified percentage or specified dollar amount of any Bonus payment for which the service period has already begun and, in such event, the election shall apply to the portion of Bonus compensation equal to the total Bonus compensation to be paid to the Participant with respect to services performed in the Plan Year multiplied by a fraction of which the numerator is the number of days remaining in the Plan Year and the denominator is the total number of days in the Plan Year.
4.02 Continued Effect of Elections .
(a) Salary Payments . A Group A Participant’s deferral election with respect to a Plan Year under Section 4.01(a) shall be irrevocable after the last date upon which it may be filed pursuant to Section 4.01(a) and shall continue in effect each subsequent Plan Year until prospectively revoked or amended in writing. For a revocation or amendment to be effective with respect to salary payments during a Plan Year, it must be filed by the last date for which an effective deferral election is permitted to be filed with respect to those salary payments under Section 4.01(a).
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(b) Bonus Payments . A Group A Participant’s deferral election under Section 4.01(b) with respect to a Bonus shall be irrevocable after the last date upon which it may be filed pursuant to Section 4.01(b) and shall continue in effect with respect to bonuses earned in subsequent Plan Years until prospectively revoked or amended in writing. For a revocation or amendment to be effective for any Bonus payment, it must be filed by the last date for which an effective deferral election is permitted to be filed with respect to that Bonus payment under Section 4.01(b).
4.03 Prior Deferral Elections . Any deferral election made prior to calendar year 2007 in effect under the M & I 2005 Executive Deferral Compensation Plan shall be treated as a deferral election described in Section 4.01(a) and/or Section 4.01(b), as the case may be, and shall continue in effect until modified as described in Section 4.02 above.
4.04 Unforeseeable Emergency . In the event that a Participant makes application for a hardship distribution under Section 7.05 and the Administrator determines that an Unforeseeable Emergency exists, all deferral elections otherwise in effect under this Article IV and any other nonqualified deferred compensation plan of the account balance type sponsored by the Employer shall immediately terminate upon such determination. To resume deferrals thereafter, a Participant must make an election satisfying the provisions of Section 4.01(a) and/or (b), as the case may be, as those provisions apply to someone who is already a Group A Participant in the Plan.
4.05 401(k) Hardship . Any deferral elections in effect under this Article IV shall be cancelled as required due to a hardship distribution described in IRS Regulation Section 1.401(k)-1(d)(3) or any successor thereto. To resume deferrals after the required suspension period, a Participant must make an election satisfying the provisions of Section 4.01(a) and/or (b), as the case may be, as those provisions apply to someone who is already an Active Participant in the Plan.
4.06 Other Contributions . In the event that deferrals made by a Participant pursuant to this Plan cause a reduction in the contributions by the Employer for the benefit of that Participant to any other qualified or nonqualified retirement plan maintained by the Employer, and such reduction is not contributed or credited to any other nonqualified retirement plan, the Employer shall credit to the Participant’s account under this Plan an amount equal to such net reductions in benefits. If, as a result of limitations contained in Sections 401(a)(17) and/or 415 of the Code, or as a result of amounts deferred under the Plan, the contributions made to the profit sharing and/or matching contribution component of the tax-qualified retirement plan of the Employer on behalf of a Participant are reduced, the Employer shall credit an amount equal to such reduction to a separate subaccount (the “SERP Account”) within the Account established for such person. To the extent that the contributions described in this Section 4.06 were not made to the Marshall & Ilsley Corporation 2005 Executive Deferred Compensation Plan for the period beginning January 1, 2007 and ending immediately prior to the Separation Date, contributions for that period shall be made by the Employer under this Section 4.06 as well as for periods beginning from and after the Separation Date.
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ARTICLE V
Accounts and Sub-Accounts
5.01 Credits to Account . Bookkeeping amounts equal to the amounts deferred by a Participant pursuant to Article IV (or contributed by the Employer pursuant to Section 4.06) shall, subject to Section 5.02(b)(vii), be credited to the Participant’s Account as soon as practicable after the deferred compensation would otherwise have been paid to such Participant in the absence of deferral (or, in the case of the contributions pursuant to Section 4.06, after the qualified plan contributions they replace would have been made).
5.02 Valuation of Account .
(a) The Participant’s Account shall be credited or charged with deemed earnings or losses as if it were invested in accordance with paragraph (b) below.
(b) (i) The investment options available hereunder for the deemed investment of the Account shall be the Common Stock option and the other options specified in Section 5.03. However, in no event shall the Employer be required to make any such investment in the Common Stock option or any other investment option and, to the extent such investments are made, such investments shall remain an asset of the Employer subject to the claims of its general creditors.
(ii) On the date deferrals and contributions are credited to the Participant’s Account under Section 5.01, such amounts shall be deemed to be invested in one or more of the investment options designated by the Participant for such deemed investment pursuant to Section 5.03. Once made, the Participant’s investment designation shall continue in effect for existing Account balances and all future deferrals and contributions until changed by the Participant. Any such change may be prospectively elected by the Participant at the times established by the Administrator, which shall be no less frequently than semi-annually, and shall be effective only from and after the effective date of such change. Until such time as the Administrator takes action to the contrary, such changes may be elected at the times specified in Section 5.03.
(iii) A Participant’s balance in the Common Stock option shall be determined as though deferrals and contributions credited to the Participant’s Account allocated to that option are invested in Common Stock by purchase at the Fair Market Value price of such stock on the date the amounts are credited to the Participant’s Account.
(iv) The portion of a Participant’s Account invested in the Common Stock option shall be called the Metavante Stock Portion. The remaining portion of the Participant’s Account is herein referred to as the General Investment Portion.
(v) The value of the Metavante Stock Portion on any particular date will be based upon the value of the shares of Common Stock which such Portion is deemed to hold on that date. Subject to subparagraph (vii) below, the shares of such stock deemed to be held in such Portion shall be credited with dividends at the time they are credited with respect to actual shares of Common Stock and such dividends shall be deemed to be used to purchase
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additional shares of Common Stock on the day following the crediting of such dividends at the then Fair Market Value price of such stock. Subject to subparagraph (vii) below, the Metavante Stock Portion shall also be credited from time to time with additional shares of Common Stock equal in number to the number of shares granted in any stock dividend or split to which the holder of a like number of shares of Common Stock would be entitled. All other distributions with respect to shares of Common Stock shall be similarly applied.
(vi) The valuation of the funds held in the General Investment Portion shall be accomplished in the same manner as though the deemed investments in such funds had actually been made and are valued at their fair market value price on valuation dates hereunder.
(vii) A Participant’s Account shall be valued as of December 31 each year and at such other times established by the Administrator, which shall be no less frequently than quarterly. Until such time as the Administrator takes action to the contrary, such valuation shall be quarterly. The Employer shall increase the Account of each Participant by (A) the amount, if any, of deferrals and contributions credited pursuant to Section 5.01 during any calendar quarter, and (B) any investment income or gains and decrease each Participant’s Account by (A) any withdrawals or distributions from the Account during any calendar quarter and (B) any investment losses resulting as if the Account were invested pursuant to the timely-filed Investment Election in effect for such calendar quarter. For purposes of computing the investment return on the Account for any quarter, the principal balance as of the first day of the relevant quarter shall equal the balance as of the end of the preceding quarter, increased by 50% of the amounts, if any, of deferrals and contributions credited to the Account during the quarter pursuant to Section 5.01 hereof and decreased by any distributions made to the Participant or his Beneficiaries from the Account during the quarter.
(viii) All election






