EXHIBIT 10.7
NIKE, INC.
DEFERRED COMPENSATION
PLAN
(Amended and Restated Effective
January 1, 2009)
NIKE, INC. DEFERRED COMPENSATION
PLAN
January 1, 2009
Restatement
TABLE OF CONTENTS
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Page
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RECITALS
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1
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ARTICLE I TITLE AND DEFINITIONS
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2
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1.1
Title
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2
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1.2
Definitions
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2
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ARTICLE II PARTICIPATION
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9
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2.1
Participation
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9
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ARTICLE III DEFERRAL OF
COMPENSATION
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9
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3.1
Participant Elections to Defer
Compensation
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9
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3.2 Company
or Participating Employer Contributions
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11
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3.3
Investment Elections
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12
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ARTICLE IV ACCOUNTS
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13
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4.1
Participant Accounts
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13
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ARTICLE V VESTING
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14
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5.1
Compensation
Deferrals
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14
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5.2 Company
or Participating Employer Contributions
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14
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ARTICLE VI DISTRIBUTIONS
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14
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6.1
Separation from Service Due to
Retirement or Death
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14
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6.2
Separation from Service in
Certain Circumstances
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17
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6.3
Scheduled
Withdrawals
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18
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6.4
Unscheduled Withdrawals Due to
Financial Emergency
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18
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6.5 Change
of Control
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19
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6.6
Inability To Locate
Participant
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19
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ARTICLE VII ADMINISTRATION
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20
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7.1
Retirement Committee
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20
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7.2
Retirement Committee
Action
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20
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7.3 Powers
and Duties of the Retirement Committee
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20
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7.4 Trustee
Duties
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22
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7.5 Company
Duties
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22
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ARTICLE VIII CLAIMS PROCEDURE
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22
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8.1
Submission of Claim
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22
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8.2 Denial
of Claim
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22
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8.3 Review
of Denied Claim
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22
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8.4
Decision upon Review of Denied
Claim
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22
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TABLE OF CONTENTS
(continued)
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Page
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ARTICLE IX MISCELLANEOUS
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23
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9.1
Unsecured General
Creditor
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23
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9.2
Restriction Against
Assignment
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23
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9.3
Withholding
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23
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9.4
Amendment, Modification,
Suspension or Termination
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23
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9.5
Governing Law
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23
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9.6 Entire
Agreement
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23
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9.7 Receipt
or Release
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24
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9.8
Payments on Behalf of Persons
Under Incapacity
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24
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9.9 No
Employment Rights
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24
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9.10 Headings Not Part
of Agreement
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24
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9.11 Tax Liabilities
from Plan
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24
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APPENDIX I
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ii
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, 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.
On November 1, 2007, the Company again amended and restated
the Plan to substantially implement the final regulations and make
certain other changes effective for amounts deferred on and after
January 1, 2008.
Notice 2007-86 issued by the
Internal Revenue Service (“IRS”) requires the Plan to
be amended by December 31, 2008 to be in full compliance with
the final regulations under Section 409A effective as of
January 1, 2009. Therefore, the Company is again amending and
restating the Plan to bring the Plan into compliance with the
regulations under Section 409A. This January 1, 2009
restatement of the Plan applies to deferral elections made or
continued during the 2008 Annual Election Period ending no later
than November 30, 2008 and during any Initial Election Period
commencing on or after December 2, 2008, and shall not affect
the validity of any deferral election filed during any prior
Election Period pursuant to the Plan provisions in effect at such
time. The time and form of payment of all amounts deferred under
this Plan, whether before or after January 1, 2009, shall be
governed by the terms of this January 1, 2009 restatement of
the Plan, except that the prior Plan provisions on time and form of
payment shall apply to any Participant whose Separation from
Service occurs before October 23, 2008. Transition rules under
the Plan in effect at various times between December 31, 2004
and January 1, 2009 as permitted pursuant to IRS guidance
under Section 409A are set forth in Appendix I of this
January 1, 2009 restatement of the Plan.
No amendment to the June 1,
2004 restatement of the Plan is made or intended for amounts
deferred prior to January 1, 2005. An amount is considered to
be deferred after December 31, 2004 if:
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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
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the amount is still subject to a
substantial risk of forfeiture after December 31,
2004.
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1
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”) with a trustee (the “Trustee”)
pursuant to a trust agreement (the “Trust Agreement”).
The Company and the Participating Employers intend 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. 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.
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 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) “ 401(k) Profit Sharing
Plan ” means the 401(k) Savings and Profit Sharing Plan
for Employees of NIKE, Inc.
(b) “ Account ”
means for each Participant the bookkeeping account maintained by
the Administrator 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 Investment Returns pursuant
to Section 4.1(d).
(c) “ Administrator
” means the plan administrator appointed by the Retirement
Committee pursuant to Section 7.3(a)(10) to handle day-to-day
administration of the Plan and perform such other duties as shall
be delegated by the Retirement Committee.
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(d) “ Annual Election
Period ” means the period designated each year during
which Participants submit their elections to defer Compensation.
Unless modified by the Retirement Committee, an Annual Election
Period shall end not later than November 30 of each year. For
administrative convenience, a portion of each Annual Election
Period may be designated as the open enrollment period; during the
portion of each Annual Election Period after expiration of the open
enrollment period, the ability of Participants to make or change
elections may be limited, and the Administrator shall have
discretion to accept or reject any elections or changes that are
submitted.
(e) “ Beneficiary
” or “ Beneficiaries ” means the
beneficiary last designated in writing by a Participant, in
accordance with procedures established by the Administrator, 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 Administrator during the
Participant’s lifetime.
(f) “ Board of
Directors ” or “ Board ” means the
Board of Directors of the Company.
(g) “ 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.
(h) “ Change of Control
” means any of the following with respect to the Company for
all Participants, and also with respect to a Participating Employer
for any Participant employed by or engaged as a Consultant to the
Participating Employer at the time of the Change of
Control:
(1) The date on which any person or
group of persons, within the meaning of the final regulations under
Code Section 409A, becomes the owner 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;
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(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;
(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).
(i) “ Code ”
means the Internal Revenue Code of 1986, as amended.
(j) “ Company ”
means NIKE, Inc. and any successor corporation to NIKE,
Inc.
(k) “ Compensation
” means the Salary, Bonus, Fees, and Long Term Incentive
Payments that an Eligible Employee, Director or Consultant earns
for services rendered to the Company or a Participating
Employer.
(l) “ Consultant
” means any person, including an advisor but excluding anyone
who is an Employee or a Director, 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; provided, however, that any
such designation shall not become effective until the eleventh day
after the Company notifies the Administrator that such person has
been so designated. The Company shall promptly notify the
Administrator of any such designation.
(m) “ Director ”
means a non-Employee member of the Board; provided, however, that a
new member of the Board shall not become a Director eligible to
participate in the Plan until the eleventh day after the Company
notifies the Administrator that such person has become a member of
the Board. The Company shall promptly notify the Administrator when
a person becomes a member of the Board.
(n) “ Discretionary
Contribution ”, “ Ongoing Discretionary
Contribution ” and “ Other Discretionary
Contribution ” are defined in
Section 3.2(c).
(o) “ Election Period
” means the period designated under this Plan when
Participants submit their elections to defer Compensation. The term
Election Period includes the Initial Election Period and any Annual
Election Period.
(p) “ Eligible Employee
” means any Employee who has a base salary of at least
$150,000; provided, however, that an Employee whose initial base
salary is at least $150,000 or an Employee whose base salary is
increased to at least $150,000 shall not become an Eligible
Employee until the eleventh day after the Company notifies the
Administrator that the Employee has a base salary of at least
$150,000. The Company shall promptly notify the Administrator of
any Employee whose salary is at least $150,000.
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(q) “ 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.
(r) “ Fees ”
means (1) in the case of Directors, 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 (2) in the case of a Consultant, the cash fees
paid to such individual for services rendered to the
Company.
(s) “ Fund ” or
“ Funds ” means one or more of the investment
funds selected by the Retirement Committee pursuant to
Section 3.3.
(t) “ Initial Election
Period ” means the 30-day period commencing with the date
an individual becomes an Eligible Employee, Director or
Consultant.
(u) “ 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.
(v) “ Long Term Incentive
Payment ” means:
(1) an amount payable to an Eligible
Employee under the Long Term Incentive Plan;
(2) an amount payable to an Eligible
Employee 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;
(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;
and
(4) an amount payable to an Eligible
Employee under an award for a performance period (generally
referred to as a Mid Plan Grant), where the Eligible Employee had
previously received an award for that performance period on the
same terms under the Long Term Incentive Plan or similar plan or
program of a Participating Employer, and the additional award is
made in recognition of the Eligible Employee’s
promotion.
(w) “ Long Term Incentive
Plan ” means the Long Term Incentive Plan of NIKE, Inc.,
as amended from time to time.
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(x) “ Participant
” means any Consultant, Director or Eligible Employee who
elects to defer Compensation in accordance with Section 3.1
and any Employee who is credited with a Company or Participating
Employer contribution in accordance with Section 3.2, and
shall continue to include any person who ceases to be a Consultant,
Director, Eligible Employee or Employee for as long as such person
has a balance in his or her Account.
(y) “ 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 or
any subcommittee thereof has designated as a Participating Employer
in this Plan.
(z) “ Payment Commencement
Date ” means:
(1) Except as provided in
(2) or (3) below, a date within 90 days after the
last day of the calendar quarter containing the Participant’s
Separation from Service, provided that the Participant may not
designate the date within this 90-day period when payment shall be
made.
(2) Except as provided in
(3) below, if the Participant is a Specified Employee on the
date of the Participant’s Separation from Service (for a
reason other than death), the Payment Commencement Date shall be a
date determined by the Company not earlier than six months after
the date of the Participant’s Separation from
Service.
(3) If the Participant elects to
change the form of payment with respect to any amount deferred
under the Plan in accordance with Section 6.1(b)(4), the
Payment Commencement Date applicable to such amount (other than in
the case of a Separation from Service due to death) shall be five
years after the date specified in (1) or (2) above, as
applicable, and if the Participant elects to change the form of
payment for a second or third time with respect to any amount
deferred under the Plan in accordance with Section 6.1(b)(4),
the Payment Commencement Date applicable to such amount (other than
in the case of death) shall be delayed another five years for each
such change.
(aa) “ Plan ”
means the NIKE, Inc. Deferred Compensation Plan set forth herein,
now in effect, or as amended from time to time.
(bb) “ Plan Year
” means the calendar year.
(cc) “ Profit Sharing Make
Up Contribution ” is defined in
Section 3.2(b).
(dd) “ Retirement
” means the Participant’s Separation from 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.
(ee) “ 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 401(k) Profit Sharing
Plan.
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(ff) “ Salary ”
for any Plan Year means the base salary paid to an Eligible
Employee for all pay periods that end during 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.
(gg) “ Scheduled
Withdrawal ” and “Scheduled Withdrawal Date”
are defined in Section 6.3(a).
(hh) “ Separation from
Service ” shall have the meaning ascribed to such term in
Treasury Regulations §1.409A-1(h), except that the definition
of Separation from Service in the foregoing regulation for an
Employee shall be modified by substituting
“45 percent” for “20 percent”
with the effect that a Separation from Service shall occur on a
date if the level of services to be provided by the Employee to the
Company and its direct and indirect subsidiaries after that date is
reasonably anticipated to be permanently reduced to less than
45 percent of the average level of bona fide services provided
by the Employee to the Company and its direct and indirect
subsidiaries during the immediately preceding period of 36
consecutive months.
(ii) “ 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.
(jj) “ Specified
Employee ” during any twelve-month period from
April 1 through March 31 of the following year (an
“Effective Period”) means:
(1) any Participant who, at any time
during the last calendar year ending prior to the beginning of the
Effective Period, (A) held a position of Vice President or
higher of the Company, (B) was the chief executive officer of
any Participating Employer that had consolidated revenues of more
than $100 million during such calendar year, or (C) was
an employee reporting directly to any such chief executive officer
and holding a position of Vice President or higher of the
Participating Employer; and
(2) any other Participant who, at
any time during the last calendar year ending prior to the
beginning of the Effective Period, was a “key employee”
as defined in Section 416(i)(1)(A)(i), (ii) or
(iii) of the Code (applied in accordance with the regulations
thereunder and disregarding Section 416(i)(5) of the Code),
specifically including any Participant who was an officer of the
Company or any
7
subsidiary of the Company at any
time during such calendar year and whose compensation received
during such calendar year results in the Participant being one of
the 50 highest-compensated persons for the year in the group of all
such officers. For purposes of this Section 1.2(jj) only,
“compensation” shall mean compensation as defined in
the safe harbor set forth in Treasury Regulations
§1.415(c)-2(d)(2), and therefore shall generally include
(without limiting the detailed terms set forth in the referenced
regulation) all wages and other amounts received for services to
the Company and its subsidiaries including any amounts deferred
under any 401(k), cafeteria or transportation fringe plan and any
amounts received on account of an overseas assignment, but
specifically excluding any compensation received on exercise of a
stock option or vesting of restricted stock and any reimbursement
of moving expenses.
(kk) “ Trust ”,
“ Trustee ” and “ Trust Agreement
” are defined in the Recitals.
(ll) “ Unscheduled
Withdrawal ” is defined in
Section 6.4(a).
(mm) “ Valuation Date
” means each date on which Accounts are valued.
For purposes of adjusting each
Participant’s Account balance for Investment Returns under
Section 4.1(d), the Valuation Date means each day that the New
York Stock Exchange is open for trading.
For purposes of Unscheduled
Withdrawals, the Valuation Date means the date the Retirement
Committee or any subcommittee thereof approves a request for an
Unscheduled Withdrawal.
For purposes of a Scheduled
Withdrawal, the Valuation Date means a day selected by the Company
in its sole discretion for administrative practicality that falls
within 30 days prior to the date of payment of the Scheduled
Withdrawal.
For purposes of calculating lump sum
payments under Section 6.1 or 6.2, the Valuation Date means a
day selected by the Company in its sole discretion for
administrative practicality that falls within 30 days prior to
the payment date.
For purposes of calculating the
dollar amount of a quarterly installment payment, the Valuation
Date means a day selected by the Company in its sole discretion for
administrative practicality that falls within 30 days prior to
the date of the quarterly payment.
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 will be delayed for an
administratively reasonable period of time to allow for processing
and reporting of payments and withholding of applicable
taxes.
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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. An Employee
shall also become a Participant in the Plan by having a Company or
Participating Employer contribution credited to him or her in
accordance with Section 3.2.
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 Administrator that
conforms to the requirements of this Section 3.1, in a form
provided by the Administrator, 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 irrevocable
following completion of the Initial Election Period and shall be
effective as to Salary and Fees earned during the remainder of the
current Plan Year beginning with the first pay period beginning
after the Initial Election Period.
(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.
(c) Deferral Elections After
Initial Election Period
(1) Annual Election Period .
An Eligible Employee, Director or Consultant may elect to defer
Compensation, or may modify or terminate a previous deferral
election, by filing an election with the Administrator, in a form
provided by the Administrator, during an Annual Election
Period.
(2) Salary and Fees . A
deferral election with respect to Salary or Fees made or continued
during an Annual Election Period shall apply to Salary and Fees
payable for services performed during the Plan Year following the
Annual Election Period.
(3) Bonus . A deferral
election with respect to Bonus made or continued during an Annual
Election Period shall apply to Bonus payable in respect of the
fiscal year commencing during the Plan Year following the Annual
Election Period.
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(4) Long Term Incentive
Payments . Long Term Incentive Payments generally are made in
August of each year, based on actual financial performance
compared against targets established by the Company or
Participating Employer for a period of more than one fiscal year.
The performance period is the time period specified in the
agreement covering the award over which the performance of the
Company or Participating Employer is measured to determine the
amount of the Long Term Incentive Payment. A deferral election with
respect to Long Term Incentive Payments made or continued during an
Annual Election Period shall apply to Long Term Incentive Payments
payable in respect of performance periods commencing during the
Plan Year following the Annual Election Period. If a Long Term
Incentive Payment is payable in either cash or Company stock, an
election to defer the Long Term Incentive Payment shall be deemed
to be an irrevocable agreement to receive the Long Term Incentive
Payment in the form of cash and not as Company stock.
(5) Irrevocability . Any
deferral election that is made or continued during an Annual
Election Period shall be irrevocable following completion of the
Annual Election Period with respect to the Compensation to which
the deferral election applies.
(d) Amount of Deferral . The
amount of Compensation that an Eligible Employee, Director or
Consultant may elect to defer is as follows:
(1) Any whole percentage of Salary
up to 100%;
(2) Any whole percentage of Bonus up
to 100%;
(3) Any whole percentage of Fees up
to 100%; and
(4) Any whole percentage of Long
Term Incentive Payments 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 total amount necessary (i) to satisfy any required
withholding of applicable employment taxes (e.g., FICA
contributions) payable with respect to amounts deferred hereunder,
(ii) to satisfy any withholding obligations under a cafeteria
plan as defined in Section 125(d) of the Code, and
(iii) to satisfy any resulting income tax withholding required
with respect to Compensation that cannot be deferred.
(e) Suspension or Termination of
Deferrals
(1) Unscheduled Withdrawals under
Old Plan . If a Participant receives an unscheduled in-service
withdrawal (with 10 percent forfeiture) under the June 1,
2004 restatement of the Plan, all deferral elections of the
Participant under this Plan that are then irrevocable shall remain
in effect, but the Participant shall be prohibited from making or
continuing any deferral elections during the next two Annual
Election Periods following receipt of the unscheduled in-service
withdrawal.
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(2) Hardship Withdrawal under
401(k) Profit Sharing Plan . If a Participant receives a
hardship withdrawal under the 401(k) Profit Sharing Plan (or a
Participating Employer’s qualified plan):
(A) all of the Participant’s
deferral elections under this Plan shall be prospectively canceled
so that no additional Compensation shall be deferred under those
deferral elections after the date of the hardship withdrawal,
and
(B) if the hardship withdrawal is
received in any Plan Year after June 30 of that Plan Year, the
Participant shall be ineligible to make any deferral election
during the Annual Election Period occurring during that Plan
Year.
(3) Loss of Eligibility . If
a Participant ceases to be an Eligible Employee, Director or
Consultant, all deferral elections of the Participant under this
Plan that are then irrevocable shall remain in effect, but the
Participant shall be ineligible to make or continue deferral
elections during subsequent Annual Election Periods unless and
until the Participant re-establishes eligibility as an Eligible
Employee, Director or Consultant.
3.2 Company or Participating
Employer Contributions
(a) Profit Sharing
Eligibility . An Employee who qualifies for a profit sharing
contribution for a fiscal year under the 401(k) Profit Sharing Plan
(or a Participating Employer’s qualified retirement plan, if
applicable) shall be eligible for a Company or Participating
Employer contribution under Section 3.2(b) for such fiscal
year if he or she either (1) made a deferral election under
Section 3.1 that resulted in the deferral of any Salary or
Bonus otherwise payable during such fiscal year, or
(2) receives compensation (as defined under the 401(k) Profit
Sharing Plan or a Participating Employer’s qualified
retirement plan, if applicable) during such fiscal year exceeding
the Code Section 401(a)(17) limit (as indexed, $225,000 for
fiscal 2008), or both.
(b) Profit Sharing Make Up
Contribution . An Employee who is eligible under
Section 3.2(a) for any fiscal year shall be credited with a
“Profit Sharing Make Up Contribution” for such fiscal
year. The “Profit Sharing Make Up Contribution” shall
be equal to the amount determined by multiplying (1) the
percentage applied to eligible compensation in calculating the
profit sharing contribution under the 401(k) Profit Sharing Plan or
applicable Participating Employer’s qualified retirement plan
for the fiscal year, by (2) the amount determined by
subtracting the Employee’s eligible compensation used to
calculate his or her profit sharing contribution under the 401(k)
Profit Sharing Plan or applicable Participating Employer’s
qualified retirement plan from the Employee’s compensation
(as defined under the 401(k) Profit Sharing Plan or applicable
Participating Employer’s qualified retirement plan) received
during such fiscal year determined (A) before any reduction
for deferral of Salary or Bonus under this Plan and
(B) without regard to the Code Section 401(a)(17)
limit.
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(c) Discretionary
Contributions . In addition to contributions in accordance with
Section 3.2(b), the Company or a Participating Employer may,
in its sole discretion, make discretionary contributions
(“Discretionary Contributions”) to the Accounts of one
or more Employees, Directors or Consultants at such times, in such
amounts, and subject to such vesting schedules, if any, as the
Board, the Participating Employer or the Retirement Committee may
determine. If the Company or a Participating Employer agrees to
make a Dis