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NIKE, INC. DEFERRED COMPENSATION PLAN

Employee Benefits Plan Agreement

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NIKE INC

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Title: NIKE, INC. DEFERRED COMPENSATION PLAN
Governing Law: Oregon     Date: 7/28/2008
Industry: Footwear     Sector: Consumer Cyclical

NIKE, INC. DEFERRED COMPENSATION PLAN, Parties: nike inc
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EXHIBIT 10.6

NIKE, INC.

DEFERRED COMPENSATION PLAN

(Amended and Restated Effective January 1, 2008)


NIKE, INC. DEFERRED COMPENSATION PLAN

January 1, 2008 Restatement

TABLE OF CONTENTS

 

 

 

 

 

 

 

  

 

  

Page

RECITALS

  

1

ARTICLE I TITLE AND DEFINITIONS

  

2

1.1

  

Title

  

2

1.2

  

Definitions

  

2

ARTICLE II PARTICIPATION

  

9

2.1

  

Participation

  

9

ARTICLE III DEFERRAL OF COMPENSATION

  

9

3.1

  

Participant Elections to Defer Compensation

  

9

3.2

  

Director’s 1999 Transition Election

  

11

3.3

  

Company or Participating Employer Contributions

  

11

3.4

  

Deferral of Long Term Incentive Payments

  

12

3.5

  

Investment Elections

  

14

ARTICLE IV ACCOUNTS

  

15

4.1

  

Participant Accounts

  

15

ARTICLE V VESTING

  

16

5.1

  

Compensation Deferrals

  

16

5.2

  

Company or Participating Employer Contributions

  

16

5.3

  

Director’s 1999 Transition Retirement Plan Investments

  

16

ARTICLE VI DISTRIBUTIONS

  

16

6.1

  

Termination of Service Due to Retirement or Death

  

16

6.2

  

Termination of Service For Reasons Other Than Retirement or Death

  

18

6.3

  

Scheduled Withdrawals

  

18

6.4

  

Unscheduled Withdrawals Due to Financial Emergency

  

19

6.5

  

Change of Control

  

20

6.6

  

Section 162(m) Limitation

  

20

6.7

  

Inability To Locate Participant

  

21

ARTICLE VII ADMINISTRATION

  

21

7.1

  

Retirement Committee

  

21

7.2

  

Retirement Committee Action

  

22

7.3

  

Powers and Duties of the Retirement Committee

  

22

7.4

  

Trustee Duties

  

23

7.5

  

Company Duties

  

23

ARTICLE VIII CLAIMS PROCEDURE

  

24

8.1

  

Submission of Claim

  

24

8.2

  

Denial of Claim

  

24

8.3

  

Review of Denied Claim

  

24

8.4

  

Decision upon Review of Denied Claim

  

24

ARTICLE IX MISCELLANEOUS

  

25

9.1

  

Unsecured General Creditor

  

25

9.2

  

Restriction Against Assignment

  

25


 

 

 

 

 

9.3

  

Withholding

  

25

9.4

  

Amendment, Modification, Suspension or Termination

  

25

9.5

  

Governing Law

  

26

9.6

  

Entire Agreement

  

26

9.7

  

Receipt or Release

  

26

9.8

  

Payments on Behalf of Persons Under Incapacity

  

26

9.9

  

No Employment Rights

  

26

9.10

  

Headings, etc. Not Part of Agreement

  

26

9.11

  

Tax Liabilities from Plan

  

27

APPENDIX I

  

28


RECITALS

Effective January 1, 1998, NIKE, Inc. (the “Company”) combined its Supplemental Executive Savings Plan and its Supplemental Executive Profit Sharing Plan into a single plan, which was renamed the NIKE, Inc. Deferred Compensation Plan (the “Plan”). The Company subsequently amended and restated the Plan, effective as of January 1, 2000, January 1, 2003, and June 1, 2004.

On October 3, 2004, the U.S. Congress added Section 409A to the Internal Revenue Code when it enacted the American Jobs Creation Act of 2004. Among other things, the Section 409A modified the tax rules applicable to non-qualified deferred compensation plans, such as the Plan.

Effective January 1, 2005, the Company adopted an interim amended and restated Plan to demonstrate good-faith compliance with Section 409A as interpreted in guidance issued by the Department of Treasury, including but not limited to Notice 2005-1.

In April 2007, the Department of Treasury issued final regulations interpreting Section 409A. Therefore, the Company is again amending and restating the Plan to substantially implement the final regulations, effective for amounts deferred on and after January 1, 2008. The 2008 Restatement supersedes the 2005 interim restatement and applies to amounts deferred after January 1, 2008. Transition rules for amounts deferred after December 31, 2004 and before January 1, 2008 are set forth in Appendix I of the 2008 Restatement.

No amendment to the June 1, 2004 Plan restatement is made or intended for amounts deferred prior to January 1, 2005. An amount is considered to be deferred after December 31, 2004 if:

 

 

 

the Participant first acquires a legally binding right to be paid the amount (determined without regard to any deferral election by the Participant) after December 31, 2004; or

 

 

 

the amount is still subject to a substantial risk of forfeiture after December 31, 2004.

Amounts deferred prior to January 1, 2005, including earnings on such amounts, are subject to the rules of the June 1, 2004 restatement of the Plan.

In connection with the Plan, the Company has established an irrevocable trust (the “Trust”). The Company intends to make contributions to the Trust so that such contributions will be held by the Trustee and invested, reinvested and distributed, all in accordance with the provisions of this Plan and the Trust Agreement. The amounts contributed to the Trust and the earnings thereon shall be used by the Trustee to satisfy the liabilities of the Company under the Plan in accordance with the procedures set forth herein. The Trust is a “grantor trust,” with the principal and income of the Trust treated as assets and income of the Company for federal and state income tax purposes.

 

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The assets of the Trust shall at all times be subject to the claims of the general creditors of the Company as provided in the Trust Agreement.

The existence of the Trust shall not alter the characterization of the Plan as “unfunded” for purposes of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and shall not be construed to provide income to Plan Participants prior to actual payment of the vested accrued benefits under the Plan.

NOW THEREFORE, the Company does hereby adopt this amended and restated Plan as follows:

ARTICLE I

TITLE AND DEFINITIONS

1.1 Title

This Plan shall be known as the NIKE, Inc. Deferred Compensation Plan.

1.2 Definitions

Whenever the following words and phrases are used in this Plan, with the first letter capitalized, they shall have the meanings specified below.

(a) “ Account ” means for each Participant the bookkeeping account maintained by the Retirement Committee that is credited with amounts equal to (1) the portion of the Participant’s Salary that he or she elects to defer, (2) the portion of the Participant’s Bonus that he or she elects to defer, (3) the portion of the Participant’s Fees that he or she elects to defer, (4) the portion of the Participant’s Long Term Incentive Payment that he or she elects to defer, (5) Company or Participating Employer contributions, if any, made to the Plan for the Participant’s benefit, and (6) adjustments to reflect deemed earnings pursuant to Section 4.1(e).

(b) “ Actuarial Equivalent ” means the actuarial present value determined by the actuary appointed by the Company, in accordance with generally accepted actuarial principles, with a discount for mortality using the 1983 Group Annuity Mortality Table and a discount for interest at the 30-year Treasury rate for July 1999 (5.98%).

(c) “Annual Election Period” means the period designated each year during which Participants submit their elections to defer Compensation. Unless modified by the Retirement Committee, the Annual Election Period shall end not later than November 30 of the year immediately preceding the beginning of the Plan Year for which the deferral elections made during the Annual Election Period shall be in effect.

(d) “Beneficiary” or “Beneficiaries” means the beneficiary last designated in writing by a Participant, in accordance with procedures established by the Retirement Committee, to receive the benefits specified hereunder in the event of the Participant’s death. No Beneficiary designation shall become effective until it is filed with the Retirement Committee during the Participant’s lifetime.

 

2


(e) “ Board of Directors ” or “Board” means the Board of Directors of the Company.

(f) “ Bonus ” means incentive compensation payable under the Company’s Performance Sharing Plan (PSP) or a similar annual incentive compensation plan maintained by a Participating Employer which qualifies as Performance Based Compensation.

(g) “ Change of Control ” means any of the following with respect to the Company for all Participants, and also with respect to a Participating Employer, but only to the extent that the Participating Employer employs a Participant or is responsible for paying Plan benefits to a Participant:

(1) The date on which any person or group of persons, within the meaning of the final regulations under Code Section 409A, acquires ownership of fifty percent or more of the total fair market value of the Company’s Class A and Class B common stock or a Participating Employer’s common stock, or fifty percent or more of the combined voting power of the Company’s or Participating Employer’s then outstanding voting securities entitled to vote generally.

(2) The date on which any person or group of persons, within the meaning of the final regulations under Code Section 409A, acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition) forty percent or more of the combined voting power of the Company’s or Participating Employer’s then outstanding voting securities entitled to vote generally.

(3) The date on which a person or group of persons, within the meaning of the final regulations under Code Section 409A, acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition) assets of the Company or a Participating Employer equal to or greater than ninety percent of the total gross fair market value of all or substantially all of the Company’s or Participating Employer’s assets. A transfer of assets is not treated as a Change of Control if the assets are transferred to:

(A) a Company or Participating Employer shareholder (immediately before the asset transfer) in exchange for or with respect to its stock;

(B) an entity, 50 percent or more of the total value or voting power of which is owned, directly or indirectly, by the Company or Participating Employer;

 

3


(C) a person, or more than one person acting as a group, that owns, directly or indirectly, 50 percent or more of the total value or voting power of the outstanding stock of the Company or Participating Employer;

(D) an entity, at least 50 percent of the total value or voting power of which is owned, directly or indirectly, by a person described in paragraph (C).

(h) “ Code ” means the Internal Revenue Code of 1986, as amended.

(i) “ Company ” means NIKE, Inc. and any successor corporation to NIKE, Inc.

(j) “ Company Stock ” means NIKE, Inc. Class B common stock.

(k) “ Compensation ” means the Salary, Bonus, and Fees that the Participant earns for services rendered to the Company or a Participating Employer.

(l) “ Consultant ” means any person, including an advisor but excluding Directors, engaged by the Company or a Participating Employer to render services to the Company or a Participating Employer and designated by the Retirement Committee as eligible to participate in the Plan.

(m) “ Director ” means a non-Employee member of the Board.

(n) “ Director’s 1999 Transition Retirement Benefit ” means the Actuarial Equivalent of the Director’s Retirement Annuity as determined on September 1, 1999, divided by the fair market value of Company stock on September 1, 1999, and stated in units representing shares of Company Stock.

(o) “ Director’s Retirement Annuity ” means the projected annual retirement benefit payable to a Retired Director in the amount of eighteen thousand dollars ($18,000), reduced proportionately for each year of service completed as a Director less than ten (but with no benefit if five or fewer years of service).

(p) “ Distributable Amount ” means the amount credited to a Participant’s Account.

(q) “ Distribution Event ” means, with respect to each Participant, the Participant’s Termination of Service for any reason, including Retirement or death, or the date of a Scheduled or Unscheduled Withdrawal. A Participant’s Distribution Event election shall be made at such time, on such written or electronic form and subject to such terms and conditions as the Retirement Committee may specify.

(r) “Election Period” means the period designated under this Plan when Participants submit their elections to defer Compensation and/or Long Term Incentive Payments. The term Election Period includes the Initial Election Period and any Annual Election Period.

 

4


(s) “ Eligible Employee ” means any Employee who is designated in writing as eligible to participate in the Plan by the Retirement Committee from among a select group of management or highly-compensated Employees of the Company or a Participating Employer. Effective January 1, 2008, an Employee must have a Salary of at least $150,000 to be an Eligible Employee.

(t) “ Employee ” means a common law employee of the Company or a Participating Employer performing services regularly in the United States or, if not performing services regularly in the United States, a common law employee of the Company or Participating Employer who is on U.S. payroll and participating in a Company-sponsored Global Transfer Program.

(u) “ Fees ” means (i) in the case of non-Employee members of the Board, amounts paid by the Company in the form of annual cash fees, including retainer fees, and fees paid for attendance at meetings of the Board and Board committees, and (ii) in the case of any other non-Employee service provider, the cash fees paid to such individual for services rendered to the Company.

(v) “ Fund ” or “Funds” means one or more of the investment funds selected by the Retirement Committee pursuant to Section 3.5.

(w) “ Initial Election Period ” means the 30-day period following an individual’s designation as an Eligible Employee, Director or Consultant.

(x) “ Investment Return ” means, for each Fund, an amount equal to the pre-tax rate of gain or loss on the assets of such Fund (net of applicable fund and investment charges) from one Valuation Date to the immediately following Valuation Date.

(y) “ Long Term Incentive Payment ” means:

(1) an amount payable to a Participant under the Long Term Incentive Plan;

(2) for payments made on or after August 1, 2004, an amount payable to a Participant under a plan or program established by a Participating Employer, and approved by the Company, to provide incentives to Employees of the Participating Employer to attain specified performance targets over a multi-year period; and

(3) an amount payable under the NIKE, Inc. 1990 Stock Incentive Plan pursuant to an award with terms similar to awards made under the Long Term Incentive Plan.

(z) “ Long Term Incentive Plan ” means the Long Term Incentive Plan of NIKE, Inc., as amended from time to time.

 

5


(aa) “ Participant ” means any Consultant, Director or Eligible Employee who elects to defer Compensation in accordance with Section 3.1.

(bb) “ Participating Employer ” means an entity directly or indirectly controlled by the Company or in which the Company has a significant equity or investment interest, which the Retirement Committee has designated as a Participating Employer in this Plan.

(cc) “ Payment Commencement Date ” means:

(1) in the case of distributions which are paid in the form of a single cash lump sum under Sections 6.1 or 6.2, within 90 days after last day of the calendar quarter containing the Participant’s Termination of Service, provided that the Participant may not designate the date within this 90-day period when payment shall be made;

(2) with respect to the first payment in a series of quarterly installments under Section 6.1(b), within 90 days after last day of the calendar quarter containing the Participant’s Termination of Service, provided that the Participant may not designate the date within this 90-day period when payment shall be made;

(3) in the case of distributions on account of Plan termination, distributions otherwise payable under (1) or (2) may be subject to earlier distribution at the discretion of the Committee, to the extent that earlier distribution would not result in additional tax under Section 409A of the Code.

If the Participant holds the position of Vice President of the Company, or a higher position, and the distribution is made on account of the Participant’s Termination of Service (for a reason other than death), the Payment Commencement Date may not be earlier than six months after the date of the Participant’s Termination of Service.

(dd) “Performance Based Compensation” means payments to an individual that are contingent on the satisfaction of pre-established organizational or individual performance criteria measured during a performance period of at least 12 consecutive months. Organizational or individual performance criteria are considered to be “pre-established” if established in writing no later than 90 days after the start of the performance period, provided that attainment of the performance criteria is substantially uncertain at the time the criteria are established. In order to defer Performance Based Compensation, a Participant must perform services continuously during the period that begins on the later of: (i) the first day of the performance measuring period, or (ii) the date that the performance criteria are established, and that ends not sooner than the date that the deferral election is made. Performance Based Compensation does not include any amount that an individual is entitled to receive regardless of whether performance goals are attained.

(ee) “ Plan ” means the NIKE, Inc. Deferred Compensation Plan set forth herein, now in effect, or as amended from time to time.

 

6


(ff) “ Plan Year ” means the calendar year.

(gg) “ Predecessor Plans ” means the NIKE, Inc. Supplemental Executive Savings Plan and the NIKE, Inc. Supplemental Executive Profit Sharing Plan.

(hh) “ Profit Sharing Plan ” means the 401(k) Savings and Profit Sharing Plan for Employees of NIKE, Inc.

(ii) “ Retirement ” means the Participant’s Termination of Service if at the time thereof the Participant has attained at least age 35 and has completed at least sixty (60) whole months of Service.

(jj) “ Retired Director ” or “Director’s Retirement” means the cessation of a Director’s services on the Board at or after age 65 with ten (10) years of service, but no later than age 72 if the Director commenced service as a Director after the Company’s 1993 fiscal year.

(kk) “ Retirement Committee ” means the Retirement Committee appointed by the Board to administer the Plan in accordance with Article VII. Unless specified otherwise by the Board, the “Retirement Committee” shall mean the Retirement Committee established under the Profit Sharing Plan.

(ll) “ Salary ” means the Employee’s base salary for the Plan Year. Salary excludes any other form of compensation such as restricted stock, proceeds from stock options or stock appreciation rights, severance payments, moving expenses, car or other special allowance, adjustments for overseas employment, or any other amounts included in an Eligible Employee’s taxable income that is not compensation for services. Deferral elections shall be computed before taking into account any reduction in taxable income by salary reduction under Code Sections 125 or 401(k), or under this Plan.

(mm) “ Service ” means performance of services for the Company (including any entity that is directly or indirectly controlled by the Company or any entity in which the Company has a significant equity or investment interest, as determined by the Company for purposes of this Plan) or a Participating Employer as an Employee, Director or Consultant.

(nn) “Termination of Service” means that the anticipated level of services provided by a Participant to the Company and all Participating Employers is permanently reduced to less than 45 percent of the average level of bona fide services provided by the Participant to the Company and all Participating Employers during the immediately preceding period of 36 consecutive months.

(oo) “ Valuation Date ” means each date on which Accounts are valued. The Retirement Committee shall establish the Valuation Dates under the Plan.

 

7


For purposes of determining the value of each Participant’s Account balance, the Valuation Date means each day that the New York Stock Exchange is open for trading.

For purposes of Unscheduled Withdrawals (Unforeseeable Emergencies), the Valuation Date means the date the Retirement Committee approves a request for an Unscheduled Withdrawal.

For purposes of calculating lump sum payments under Section 6.1 or 6.2, the Valuation Date means the last day of the calendar quarter preceding the Payment Commencement Date.

For purposes of calculating the dollar amount of quarterly installment payments, the Valuation Date means the last day of the calendar quarter immediately preceding the quarterly payment date.

The final installment payment will be equal to the Participant’s remaining Account balance.

Any valuation under this Plan shall be based on the closing market prices of the investment Funds on the applicable Valuation Date or, if the Valuation Date is not a day on which the New York Stock Exchange is open for trading, the preceding such trading day.

Payment amounts and deductions from Accounts are based on asset values as of the Valuation Date even though actual payments to the Participant may be delayed for an administratively reasonable period of time to allow for processing and reporting of payments and withholding of applicable taxes.

 

8


ARTICLE II

PARTICIPATION

2.1 Participation

An Eligible Employee, Director or Consultant shall become a Participant in the Plan by electing to defer a portion of his or her Compensation in accordance with Section 3.1.

ARTICLE III

DEFERRAL OF COMPENSATION

3.1 Participant Elections to Defer Compensation

(a) Initial Eligibility . Each Eligible Employee, Director or Consultant may elect to defer Salary or Fees by filing an election with the Retirement Committee that conforms to the requirements of this Section 3.1, on a form provided by the Retirement Committee, no later than the last day of his or her Initial Election Period. An election to defer Salary or Fees made during an Initial Election Period shall be effective as to Salary and Fees earned beginning with the first pay period beginning after the Initial Election Period. Employees who first became Eligible Employees during a Plan Year may make an election to defer Compensation payable in subsequent Plan Years by making deferral elections in accordance with subsection 3.1(c).

(b) Automatic Continuation of Deferral Elections . A Compensation deferral election made under this Section 3.1 shall remain in effect, notwithstanding any change in the Participant’s Compensation, until modified or terminated at a subsequent Annual Election Period or as otherwise provided herein. However, if a Participant receives an unscheduled in-service withdrawal (with 10 percent forfeiture) under the 2004 Restatement of the Plan, the Participant’s deferral election shall continue only through the last day of the Plan Year in which the unscheduled in-service withdrawal is received, and the Participant shall be prohibited from making deferrals to this Plan for next two Plan Years following receipt of the unscheduled in-service withdrawal.

(c) Deferral Elections After Initial Election Period .

(1) Annual Election Period . Subject to the minimum deferral requirement of subsection (d) of this Section, the percentage of Salary, Bonus, and Fees designated by the Participant for deferral may be modified by filing a new election with the Retirement Committee during an Annual Election Period. Except as provided for Bonus deferrals, a deferral election made during the Annual Election Period shall apply only to Compensation payable for services performed beginning in the Plan Year following the Annual Election Period.

 

9


(2) Irrevocable During Plan Year . Once a Compensation deferral election has taken effect, the Participant’s Compensation deferral election shall be irrevocable for the remainder of the Plan Year. However, if a Participant receives a hardship distribution under the Profit Sharing Plan (or Participating Employer’s qualified plan) or a distribution under this Plan due to unforeseeable financial emergency, the Participant’s deferral election will be canceled for the remainder of the Plan Year in which the distribution is made (or, if longer, for a period of six months after the hardship distribution is made). The Participant must re-establish eligibility in order to defer Compensation in subsequent Plan Years.

(3) Deferral of Bonus . A Participant may defer Bonus during an Annual Election Period, subject to a timing requirement and a services requirement, as follows:

(A) Timing of Election . An election to defer Bonus must be made and become irrevocable (i) no later than six months before the last day of the period over which a Participant’s performance is measured and (ii) before the Bonus compensation has become both substantially certain to be paid and readily ascertainable.

(B) Services Requirement . The Participant must perform services continuously during the period that begins on the later of

(i) the first day of the performance measuring period, or

(ii) the date that the performance criteria are established,

and that ends not sooner than the date that the deferral election is made.

(4) Suspension of Participation . If a Participant receives an unscheduled in-service withdrawal (with 10 percent forfeiture) under the 2004 Restatement of the Plan, the Participant shall be prohibited from making deferrals to this Plan for next two Plan Years following receipt of the unscheduled in-service withdrawal.

(d) Amount of Deferral .

(1) Maximum Deferral . The maximum amount of Compensation that an Eligible Employee, Director or Consultant may elect to defer is as follows:

(A) Any whole percentage of Salary up to 100%;

(B) Any whole percentage of Bonus up to 100%;

(C) Any whole percentage of Fees up to 100%;

provided, however, that no election under this Section 3.1 shall be effective to reduce the Compensation paid to an Eligible Employee to an amount that is less than the amount necessary to pay applicable employment taxes (e.g., FICA and Medicare contributions) payable with respect to amounts deferred hereunder,

 

10


amounts necessary to satisfy any other benefit plan withholding obligations, any resulting income taxes payable with respect to Compensation that cannot be deferred, and any amounts necessary to satisfy any wage garnishment or similar obligations.

(2) Minimum Deferrals . For each full Plan Year during which an Eligible Employee is a Participant, the minimum dollar amount that may be deferred under this Section 3.1 is $5,000. The minimum deferral is $1,000 in the case of Directors and Consultants.

(e) Termination of Deferral Election . If a Participant ceases to be an Eligible Employee, Director or Consultant, the deferral election shall continue with respect to Compensation earned through the last day of the Plan Year in which the Participant ceases to be an Eligible Employee, Director, or Consultant and then shall terminate. The Participant must re-establish eligibility in order to defer Compensation in subsequent Plan Years.

3.2 Director’s 1999 Transition Election . Any Director as of September 1, 1999, shall have made an election on or before September 24, 1999, to either remain eligible for the Director’s Retirement Annuity or to convert such annuity to the Director’s 1999 Transition Retirement Benefit, in either case such benefit not payable until the Director’s Retirement. In the event an electing Director converted the Director’s Retirement Annuity, such election shall be irrevocable and paid as provided herein.

3.3 Company or Participating Employer Contributions

(a) Eligibility . An Eligible Employee who qualifies for a contribution for a Plan Year under the Profit Sharing Plan (or a Participating Employer’s qualified retirement plan, if applicable) shall be eligible for a Company or Participating Employer contribution under this Plan for such Plan Year if he or she either (1) makes a Deferral Election under 3.1 for the Plan Year, or (2) receives compensation under the Profit Sharing Plan (or Participating Employer’s qualified retirement plan, if applicable) exceeding the Code § 401(a)(17) limit of $200,000 (as indexed; $230,000 for 2008) for its Plan Year, or both.

(b) Contribution . An Eligible Employee who is eligible under subsection 3.3(a) shall be credited with a “Restoration Amount” for each Plan Year. “Restoration Amount” means the amount by which the Eligible Employee’s allocated share of the “Profit Sharing Contribution” (as defined in the Profit Sharing Plan or the Participating Employer’s qualified retirement plan) for the corresponding plan year under the Profit Sharing Plan or Participating Employer’s qualified retirement plan would be higher if calculated on the basis of Compensation as defined in this Plan (1) determined before any reduction for deferral of Compensation under this Plan; and (2) without regard to the Code § 401(a)(17) limit.

 

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(c) Time and Form of Payment . If the Restoration Amount becomes payable due to the Participant’s Retirement or death, the Restoration Amount (adjusted for investment returns) shall be paid in quarterly installments over a period of five years beginning on the Payment Commencement Date. The Participant may elect an optional form of payment (listed in Section 6.1(b)(2)) of the Restoration Amount under the procedures set forth Section 6.1(b)(4). If the Restoration Amount becomes payable under Section 6.2 due to the Participant’s Termination of Service for a reason other than Retirement or death, the Restoration Amount (adjusted for investment returns) shall be paid in a single lump sum beginning on the Payment Commencement Date.

(d) Discretionary Contributions . In addition to contributions in accordance with Section 3.3(b), the Company or Participating Employer may, in its sole discretion, make discretionary contributions to the Accounts of one or more Participants at such times and in such amounts as the Board, the Participating Employer or the Retirement Committee may determine. At the time that the Company or Participating Employer specifies the amount of the Discretionary Contribution, the Company or Participating Employer must also specify (1) the time and form of payment of the Discretionary Contribution; and (2) the vesting schedule, if any, applicable to the Discretionary Contribution. A Participant may change the time and form of payment of the Discretionary Contribution only if his or her change is filed with the Retirement Committee at least twelve months prior to his or her Payment Commencement Date and the first payment made under the newly elected form of payment cannot be made sooner than five years aft


 
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