Exhibit 10.74
SANMINA-SCI
CORPORATION
DEFERRED COMPENSATION
PLAN
Effective January 1, 2009
TABLE OF CONTENTS
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ARTICLE I
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PURPOSE
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1
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ARTICLE II
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DEFINITIONS
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1
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2.1
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Account
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1
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2.2
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Beneficiary
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2
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2.3
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Board
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2
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2.4
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Bonus
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2
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2.5
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Change of Control
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2
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2.6
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Code
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2
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2.7
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Code section 409A
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2
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2.8
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Committee
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2
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2.9
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Company
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2
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2.10
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Compensation Committee
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2
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2.11
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Deferral Commitment
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2
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2.12
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Deferral Period
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2
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2.13
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Disability
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2
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2.14
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Elective Deferred Compensation
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3
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2.15
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Eligible Employee
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3
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2.16
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Employer
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3
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2.17
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Initial Election Period
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3
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2.18
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In-Service Distribution Schedule
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3
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2.19
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Investment Funds
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3
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2.20
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Participant
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3
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2.21
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Payment Date
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3
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2.22
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Plan
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4
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2.23
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Retirement
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4
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2.24
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Salary
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4
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2.25
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Specified Employee
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4
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2.26
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Termination Distribution Schedule
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4
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2.27
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Termination of Employment
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4
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2.28
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Unforeseeable Emergency
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4
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ARTICLE III
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PARTICIPATION AND DEFERRAL
COMMITMENTS
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5
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3.1
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Eligibility
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5
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3.2
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Deferral Commitments
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5
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3.3
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Revocation of Deferral Commitment upon
Unforeseeable Emergency
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6
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i
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ARTICLE IV
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DEFERRED COMPENSATION
ACCOUNTS
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6
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4.1
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Accounts
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6
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4.2
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Investment of Accounts
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6
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4.3
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Vesting
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6
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ARTICLE V
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PLAN BENEFITS
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7
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5.1
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Distribution pursuant to Termination
Distribution Schedule.
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7
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5.2
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Distribution Pursuant to In-Service Distribution
Schedule.
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7
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5.3
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Special Payment Elections
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8
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5.4
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Distributions upon Change of Control.
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8
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5.5
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Distributions upon Disability or
death
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8
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5.6
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Distributions Upon an Unforeseeable
Emergency
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8
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5.7
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Inability to Locate Participant
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8
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5.8
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Tax Withholding
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8
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5.9
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Valuation and Settlement
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8
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5.10
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Payment to Guardian
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8
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ARTICLE VI
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BENEFICIARY DESIGNATION
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9
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6.1
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Beneficiary Designation
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9
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6.2
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Changing Beneficiary
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9
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6.3
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Community Property
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9
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6.4
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No Beneficiary Designation
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9
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A R TICLE
VII
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ADMINISTRATION
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10
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7.1
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Committee
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10
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7.2
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Agents and Delegation
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10
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7.3
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Binding Effect of Decisions
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10
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7.4
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Indemnification of Committee
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10
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ARTICLE VIII
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CLAIMS PROCEDURE
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10
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8.1
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Claim
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10
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8.2
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Review of Claim
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10
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8.3
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Notice of Denial of Claim
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11
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8.4
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Reconsideration of Denied Claim.
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11
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8.5
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Employer to Supply Information
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11
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ARTICLE IX
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AMENDMENT AND TERMINATION OF PLAN
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12
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9.1
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Amendment
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12
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9.2
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Right to Terminate Plan
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12
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ii
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ARTICLE X
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MISCELLANEOUS
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12
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10.1
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Unfunded Plan
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12
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10.2
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Unsecured General Creditor
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12
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10.3
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Trust Fund
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13
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10.4
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Nonalienability
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13
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10.5
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Not a Contract of Employment
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13
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10.6
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Protective Provisions
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13
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10.7
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Governing Law
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13
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10.8
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Validity
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13
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10.9
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Notice
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13
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10.10
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Successors
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14
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iii
SANMINA-SCI
CORPORATION
DEFERRED COMPENSATION
PLAN
ARTICLE I
PURPOSE
Effective January 1, 2003
Sanmina-SCI Corporation (the “Company”) approved the
establishment of the Sanmina-SCI Corporation Deferred Compensation
Plan (the “Plan”). The purpose of this Plan is to
provide current tax planning opportunities as well as supplemental
funds for the retirement or death of certain select employees of
the Company. It is intended that the Plan will aid the
Company in retaining and attracting employees of exceptional
ability.
The provisions of the Plan as
amended and restated herein shall be effective as of
January 1, 2009 and will apply to benefits accrued on and
after January 1, 2005. The Plan shall also govern those
benefits accrued under the Deferred Compensation Plan of the SCI
Systems, Inc. Employee Financial Security Program that were
transferred to this Plan effective as of March 1, 2008.
During the 2005 - 2008 period, the Plan was administered in
accordance with IRS guidance under section 409A of the Internal
Revenue Code (the “Code”). The Plan as amended
and restated is intended to reflect the requirements of Code
section 409A and the regulations thereunder, and, in all respects,
shall be administered and construed in accordance with such
requirements.
The provisions of the Plan as of
October 3, 2004 (the “2003 Plan Document”) will
continue to apply to benefits accrued prior to 2005. Set
forth in Appendix A for reference only is a copy of the 2003 Plan
Document. No provision of the Plan as amended and restated,
nor any future amendment to the Plan, shall amend any provision of
the 2003 Plan Document in Appendix A unless otherwise
indicated.
ARTICLE II
DEFINITIONS
For purposes of this Plan, the
following terms shall have the meanings indicated, unless the
context clearly indicates otherwise:
2.1
Account
.
“Account” means the Account maintained by the Company
in accordance with Article IV with respect to any deferrals,
any amounts transferred to this Plan, and any applicable
earnings. A Participant’s Account shall be utilized
solely as a device for the determination and measurement of the
amounts to be paid to the Participant pursuant to this Plan and
shall not constitute or be treated as a trust fund of any
kind.
2.2
Beneficiary
.
“Beneficiary” means the person, persons or entity
entitled under Article VI to receive any Plan benefits payable
after a Participant’s death.
2.3
Board . “Board”
means the Board of Directors of Sanmina-SCI.
2.4
Bonus . “Bonus”
means any compensation that would qualify as
“performance-based compensation” within the meaning of
Code section 409A. A Participant’s Bonus for purposes
of the Plan shall be determined without regard to any reductions
(1) for any deferral contributions to a plan qualified under
Section 125 or Section 401(k) of the Code or
(2) pursuant to any Deferral Commitment.
2.5
Change of
Control . “Change of
Control” means:
(a)
A change in the
effective control of the Company as defined under Treasury
Regulations section 1.409A-3(i)(5)(vi)(A)(1); or,
(b)
A change in the
ownership of the Company as defined under Code section 409A;
or,
(c)
A change in the
ownership of a substantial portion of the Company’s assets as
defined under Code section 409A.
2.6
Code . “Code”
means the Internal Revenue Code, as amended from time to
time.
2.7
Code section
409A . Code section 409A
shall refer to, collectively, section 409A of the Code and the
regulations and IRS guidance issued thereunder.
2.8
Committee
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“Committee” means the management committee established
by or at the direction of the Board to administer the
Plan.
2.9
Company
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“Company” means Sanmina-SCI Corporation or any
successor thereto.
2.10
Compensation
Committee . “Compensation
Committee” means the Compensation Committee of the
Board.
2.11
Deferral
Commitment . “Deferral
Commitment” means an election to defer Salary and/or Bonus
pursuant to Article III.
2.12
Deferral
Period . “Deferral
Period” means the period over which a Participant has elected
to defer a portion of his Salary and/or Bonus. Each calendar
year shall be a separate Deferral Period. However, for the
initial Deferral Period under the Plan or for a newly eligible
employee, the Deferral Period shall be the portion of the calendar
year described in Section 3.2.
2.13
Disability.
“Disability” means a mental or physical condition that
satisfies the definition of disability contained in the
Company’s long-term disability plan and would make
the
2
individual eligible for benefits under that
plan; provided that such condition would also qualify as a
“disability” as defined under Code section
409A.
2.14
Elective
Deferred Compensation . “Elective
Deferred Compensation” means the amount of Salary and/or
Bonus that a Participant elects to defer pursuant to a Deferral
Commitment.
2.15
Eligible
Employee . “Eligible
Employee” means a management or highly compensated employee
who is named by the Company’s Chief Executive Officer or his
or her designee or the Committee as eligible to participate in this
Plan. To be considered for eligibility in a year, the
employee must have a projected base salary equal to at least the
compensation amount described under Code section
414(q).
2.16
Employer
.
“Employer” means the Company and each related company
or business which is part of the same controlled group under Code
sections 414(b) or 414(c); provided that in applying Code
section 1563(a)(1) — (a)(3) for purposes of
determining a controlled group of corporations under Code section
414(b) and in applying Treasury Regulations section 1.414(c)-2
for purposes of determining whether trades or businesses are under
common control under Code section 414(c), the phrase “at
least 50 percent” is used instead of “at least 80
percent.”
2.17
Initial
Election Period . “ Initial Election
Period” for an Eligible Employee shall mean the period ending
thirty (30) days after the date the employee becomes initially
eligible under Section 3.1.
2.18
In-Service
Distribution Schedule . “In-Service
Distribution Schedule” means the distribution schedule
elected by the Participant as part of the Deferral Commitment for
the Deferral Period which shall govern any in-service distributions
in accordance with Section 5.2.
2.19
Investment
Funds . “Investment
Funds” means the portfolios or funds selected by the
Committee to be used in calculating the hypothetical earnings and
loses credited to an Account.
2.20
Participant
.
“Participant” means any individual who is participating
in this Plan as provided in Article III and any individual who
has an Account under this Plan.
2.21
Payment
Date . “Payment
Date” shall mean:
(a)
with respect to
distributions pursuant to an In-Service Distribution Schedule for a
Deferral Period, the last regularly scheduled pay day in the
January of the calendar year elected by the Participant,
and
(b)
with respect to
distributions to a Participant other than a Specified Employee
pursuant to a Termination Distribution Schedule, the last regularly
scheduled pay day during the first January or
July commencing after the Participant’s Termination of
Employment.
3
(c)
with respect to
distributions to a Specified Employee pursuant to a Termination
Distribution Schedule, the last regularly scheduled pay day during
the first January or July commencing after the end of the
six (6) month period following the Participant’s
Termination of Employment. In no event shall the Payment Date
pursuant to a Termination Distribution Schedule for any Participant
who is a Specified Employee occur before the end of the six
(6) month period following the Participant’s Termination
of Employment.
2.22
Plan . “Plan”
means the Sanmina-SCI Corporation Deferred Compensation
Plan.
2.23
Retirement
.
“Retirement” means Termination of Employment after the
attainment of:
(a)
Age sixty (60),
or
(b)
Age fifty-five
(55) with seven (7) years of service with the Employer. A
Participant shall be credited with a year of service for each full
year in which the Participant remains employed by the Employer,
beginning on the Participant’s initial hire date and ending
on the date of the Participant’s Termination of
Employment.
2.24
Salary
.
“Salary” means the Participant’s base salary and
quarterly bonus, but excluding any annual bonus, commissions, or
other benefits payable to a Participant during the Deferral Period.
A Participant’s Salary shall be determined without regard to
any reductions (1) for any deferral contributions to a plan
qualified under Section 125 or Section 401(k) of the
Code or (2) pursuant to any Deferral Commitment.
2.25
Specified
Employee . “Specified
Employee” means any Participant who qualifies as a
“specified employee” as defined under Code section
409A.
2.26
Termination
Distribution Schedule . “Termination
Distribution Schedule” means the distribution schedule
elected by the Participant as part of the Deferral Commitment for
the Deferral Period, which shall govern distributions upon
Termination of Employment in accordance with
Section 5.1.
2.27
Termination of
Employment . “Termination of
Employment” means the Participant’s “separation
from service” as defined under Code section 409A.
2.28
Unforeseeable
Emergency . “Unforeseeable
Emergency” means a severe financial hardship to the
Participant resulting from an unexpected illness or accident of the
Participant or his or her dependent (as defined in Code section
152(a) (without regard to section 152(b)(1), (b)(2), and
(d)(1)(B)), loss of the Participant’s property due to
casualty, or some other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of
the Participant. An Unforeseeable Emergency will not be
deemed to exist if such emergency may be relieved through
reimbursement or compensation from insurance or otherwise, by
liquidation of the service providers assets (to the extent such
liquidation of the such assets would not cause severe financial
hardship) or by cessation of deferrals under this Plan.
4
ARTICLE III
PARTICIPATION AND DEFERRAL
COMMITMENTS
3.1
Eligibility
. An
employee shall be eligible to participate in the Plan as of the
later of: (a) the date on which the employee becomes an
Eligible Employee, or (b) the date the employee is notified of
his or her eligibility to participate by the Committee and the
material terms of such participation.
3.2
Deferral
Commitments . An Eligible Employee
may elect to defer receipt of his or her Salary and/or Bonus by
filing a Deferral Commitment in accordance with this
Section 3.2. The total amount deferred by a Participant
shall be limited in any calendar year, if necessary, to satisfy the
applicable employment tax, income tax and employee benefit plan
withholding requirements. The minimum aggregate amount that
may be deferred by a Participant during a Deferral Period is
$2,000.
(a)
Salary
Deferral Commitments .
(1)
Except as
otherwise provided in (2) below, a Participant may elect to
defer any portion of the Participant’s Salary by submitting a
Deferral Commitment prior to the commencement of the Deferral
Period for which the election is to apply, provided that the
Committee may require a Participant to submit a Deferral Commitment
at an earlier date. Any election to defer Salary shall be
irrevocable and shall apply only to the Salary payable with respect
to services performed during the Deferral Period for which the
election is made.
(2)
Notwithstanding
the foregoing, during the Participant’s initial year of
eligibility, a Participant may elect to defer any portion of the
Participant’s Salary by submitting a Deferral Commitment
during the Participant’s Initial Election Period, provided
that such Deferral Commitment shall be irrevocable and shall apply
only to the Salary payable with respect to services performed after
the Deferral Commitment is submitted.
(b)
Bonus Deferral
Commitments .
(1)
Except as otherwise provided in
(2) below, a Participant may elect to defer any portion of the
Participant’s Bonus by submitting a Deferral Commitment no
later than six (6) months preceding the end of the performance
period to which the Bonus relates; provided that the Committee may
require a Participant to submit a Deferral Commitment at an earlier
date. Any election to defer the Participant’s Bonus
shall be irrevocable and shall apply only to the Bonus payable with
respect to services performed during the Deferral Period for which
the election is made.
(2)
Notwithstanding the foregoing,
during the Participant’s initial year of eligibility, a
Participant may elect to defer any portion of the
Participant’s Bonus by submitting a Deferral Commitment
during the Participant’s Initial Election Period, provided
that the portion of any Bonus deferred shall be prorated in
accordance with Code section 409A.
5
(c)
Distribution
Election . A Par
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