EXHIBIT
10(n)
Standex Deferred
Compensation Plan
IMPORTANT
NOTE
This document has not
been approved by the Department of Labor, Internal Revenue Service
or any other governmental entity. An adopting Employer must
determine whether the Plan is subject to the Federal securities
laws and the securities laws of the various states. An
adopting Employer may not rely on this document to ensure any
particular tax consequences or to ensure that the Plan is
“unfunded and maintained primarily for the purpose of
providing deferred compensation to a select group of management or
highly compensated employees” under Title I of the Employee
Retirement Income Security Act of 1974, as amended, with respect to
the Employer’s particular situation. Fidelity Employer
Services Company, its affiliates and employees cannot provide you
with legal advice in connection with the execution of this
document. This document should be reviewed by the
Employer’s attorney prior to execution.
October
2007
TABLE OF
CONTENTS
PREAMBLE
ARTICLE 1 –
GENERAL
1.1
Plan
1.2
Effective
Dates
1.3
Amounts Not Subject to
Code Section 409A
ARTICLE 2 –
DEFINITIONS
2.1
Account
2.2
Administrator
2.3
Adoption
Agreement
2.4
Beneficiary
2.5
Board or Board of
Directors
2.6
Bonus
2.7
Change in
Control
2.8
Code
2.9
Compensation
2.10
Director
2.11
Disabled
2.12
Eligible
Employee
2.13
Employer
2.14
ERISA
2.15
Identification
Date
2.16
Key Employee
2.17
Participant
2.18
Plan
2.19
Plan Sponsor
2.20
Plan Year
2.21
Related
Employer
2.22
Retirement
2.23
Separation from
Service
2.24
Unforeseeable
Emergency
2.25
Valuation
Date
2.26
Years of
Service
ARTICLE 3 –
PARTICIPATION
3.1
Participation
3.2
Termination of
Participation
i
ARTICLE 4 –
PARTICIPANT ELECTIONS
4.1
Deferral
Agreement
4.2
Amount of
Deferral
4.3
Timing of Election to
Defer
4.4
Election of Payment
Schedule and Form of Payment
ARTICLE 5 –
EMPLOYER CONTRIBUTIONS
5.1
Matching
Contributions
5.2
Other
Contributions
ARTICLE 6 –
ACCOUNTS AND CREDITS
6.1
Establishment of
Account
6.2
Credits to
Account
ARTICLE 7 –
INVESTMENT OF CONTRIBUTIONS
7.1
Investment
Options
7.2
Adjustment of
Accounts
ARTICLE 8 –
RIGHT TO BENEFITS
8.1
Vesting
8.2
Death
8.3
Disability
ARTICLE 9 –
DISTRIBUTION OF BENEFITS
9.1
Amount of
Benefits
9.2
Method and Timing of
Distributions
9.3
Unforeseeable
Emergency
9.4
Payment Election
Overrides
9.5
Cashouts of Amounts Not
Exceeding Stated Limit
9.6
Required Delay in
Payment to Key Employees
9.7
Change in
Control
9.8
Permissible Delays in
Payment
ii
ARTICLE 10 –
AMENDMENT AND TERMINATION
10.1
Amendment by Plan
Sponsor
10.2
Plan Termination
Following Change in Control or Corporate Dissolution
10.3
Other Plan
Terminations
ARTICLE 11 –
THE TRUST
11.1
Establishment of
Trust
11.2
Grantor
Trust
11.3
Investment of Trust
Funds
ARTICLE 12 –
PLAN ADMINISTRATION
12.1
Powers and
Responsibilities of the Administrator
12.2
Claims and Review
Procedures
12.3
Plan Administrative
Costs
ARTICLE 13 –
MISCELLANEOUS
13.1
Unsecured General
Creditor of the Employer
13.2
Employer’s
Liability
13.3
Limitation of
Rights
13.4
Anti-Assignment
13.5
Facility of
Payment
13.6
Notices
13.7
Tax
Withholding
13.8
Indemnification
13.9
Permitted Acceleration
of Payment
13.10
Governing
Law
iii
PREAMBLE
The Plan is intended to
be a “plan which is unfunded and is maintained by an employer
primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees”
within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of
the Employee Retirement Income Security Act of 1974, as amended, or
an “excess benefit plan” within the meaning of Section
3(36) of the Employee Retirement Income Security Act of 1974, as
amended, or a combination of both. The Plan is further
intended to conform with the requirements of Internal Revenue Code
Section 409A and the final regulations issued thereunder and shall
be implemented and administered in a manner consistent therewith.
ARTICLE 1 –
GENERAL
1.1
Plan.
The Plan will be
referred to by the name specified in the Adoption
Agreement.
1.2
Effective
Dates.
(a)
Original Effective
Date. The Original Effective Date
is the date as of which the Plan was initially adopted.
(b)
Amendment Effective
Date. The Amendment Effective Date
is the date specified in the Adoption Agreement as of which the
Plan is amended and restated. Except to the extent otherwise
provided herein or in the Adoption Agreement, the Plan shall apply
to amounts deferred and benefit payments made on or after the
Amendment Effective Date.
(c)
Special Effective
Date. A Special Effective Date may
apply to any given provision if so specified in Appendix A of the
Adoption Agreement. A Special Effective Date will control
over the Original Effective Date or Amendment Effective Date,
whichever is applicable, with respect to such provision of the
Plan.
1.3
Amounts Not Subject
to Code Section 409A
Except as otherwise
indicated by the Plan Sponsor in Section 1.01 of the Adoption
Agreement, amounts deferred before January 1, 2005 that are earned
and vested on December 31, 2004 will be separately accounted for
and administered in accordance with the terms of the Plan as in
effect on December 31, 2004
1-1
ARTICLE 2 –
DEFINITIONS
Pronouns used in the
Plan are in the masculine gender but include the feminine gender
unless the context clearly indicates otherwise. Wherever used
herein, the following terms have the meanings set forth below,
unless a different meaning is clearly required by the
context:
2.1
“Account”
means an account
established for the purpose of recording amounts credited on behalf
of a Participant and any income, expenses, gains, losses or
distributions included thereon. The Account shall be a
bookkeeping entry only and shall be utilized solely as a device for
the measurement and determination of the amounts to be paid to a
Participant or to the Participant’s Beneficiary
pursuant to the Plan.
2.2
“Administrator”
means the person or
persons designated by the Plan Sponsor in Section 1.05 of the
Adoption Agreement to be responsible for the administration of the
Plan. If no Administrator is designated in the Adoption
Agreement, the Administrator is the Plan Sponsor.
2.3
“Adoption
Agreement” means the agreement adopted by the
Plan Sponsor that establishes the Plan.
2.4
“Beneficiary”
means the persons,
trusts, estates or other entities entitled under Section 8.2 to
receive benefits under the Plan upon the death of a
Participant.
2.5
“Board”
or “Board of Directors” means the Board of Directors of the
Plan Sponsor.
2.6
“Bonus”
means an amount of
incentive remuneration payable by the Employer to a
Participant.
2.7
“Change in
Control” means the occurrence of an event
involving the Plan Sponsor that is described in Section
9.7.
2.8
“Code”
means the Internal
Revenue Code of 1986, as amended.
2.9
“Compensation”
has the meaning
specified in Section 3.01 of the Adoption Agreement.
2.10
“Director”
means a non-employee
member of the Board who has been designated by the Employer as
eligible to participate in the Plan.
2-1
2.11
“Disabled”
means a
determination by the Administrator that the Participant is either
(a) unable to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or (b) is, by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or last for a continuous period
of not less than twelve months, receiving income replacement
benefits for a period of not less than three months under an
accident and health plan covering employees of the Employer.
A Participant will be considered Disabled if he is determined
to be totally disabled by the Social Security Administration or the
Railroad Retirement Board.
2.12
“Eligible
Employee” means an employee of the Employer
who satisfies the requirements in Section 2.01 of the Adoption
Agreement.
2.13
“Employer”
means the Plan Sponsor
and any other entity which is authorized by the Plan Sponsor to
participate in and, in fact, does adopt the Plan.
2.14
“ERISA”
means the Employee
Retirement Income Security Act of 1974, as amended.
2.15
“Identification
Date” means the date as of which Key
Employees are determined which is specified in Section 1.06 of the
Adoption Agreement.
2.16
“Key
Employee” means an employee who satisfies the
conditions set forth in Section 9.6.
2.17
“Participant”
means an Eligible
Employee or Director who commences participation in the Plan in
accordance with Article 3.
2.18
“Plan”
means the unfunded
plan of deferred compensation set forth herein, including the
Adoption Agreement and any trust agreement, as adopted by the Plan
Sponsor and as amended from time to time.
2.19
“Plan
Sponsor” means the entity identified in
Section 1.03 of the Adoption Agreement or any successor by merger,
consolidation or otherwise.
2.20
“Plan
Year” means the period identified in
Section 1.02 of the Adoption Agreement.
2.21
“Related
Employer” means the Employer and (a) any
corporation that is a member of a controlled group of corporations
as defined in Code Section 414(b) that includes the Employer and
(b) any trade or business that is under common control as defined
in Code Section 414(c) that includes the Employer.
2-2
2.22
“Retirement”
has the meaning
specified in 6.01(f) of the Adoption Agreement.
2.23
“Separation
from Service” means the date that the Participant
dies, retires or otherwise has a termination of employment with
respect to all entities comprising the Related Employer. A
Separation from Service does not occur if the Participant is on
military leave, sick leave or other bona fide leave of absence if
the period of leave does not exceed six months or such longer
period during which the Participant’s right to re-employment
is provided by statute or contract. If the period of leave
exceeds six months and the Participant’s right to
re-employment is not provided either by statute or contract, a
Separation from Service will be deemed to have occurred on the
first day following the six-month period. If the period of
leave is due to any medically determinable physical or mental
impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than six
months, where the impairment causes the Participant to be unable to
perform the duties of his or her position of employment or any
substantially similar position of employment, a 29 month period of
absence may be substituted for the six month period.
Whether a termination
of employment has occurred is based on whether the facts and
circumstances, indicate that the Related Employer and the
Participant reasonably anticipated that no further services would
be performed after a certain date or that the level of bona fide
services the Participant would perform after such date (whether as
an employee or as an independent contractor) would permanently
decrease to no more than 20 percent of the average level of bona
fide services performed (whether as an employee or an independent
contractor) over the immediately preceding 36 month period (or the
full period of services to the Related Employer if the employee has
been providing services to the Related Employer for less than 36
months).
An independent
contractor is considered to have experienced a Separation from
Service with the Related Employer upon the expiration of the
contract (or, in the case of more than one contract all contracts)
under which services are performed for the Related Employer if the
expiration constitutes a good-faith and complete termination of the
contractual relationship.
If a Participant
provides services as both an employee and an independent contractor
of the Related Employer, the Participant must separate from service
both as and employee and as an independent contractor to be treated
as having incurred a Separation from Service. If a
Participant ceases providing services as an independent contractor
and begins providing services as an employee, or ceases providing
services as an employee and begins providing services as an
independent
2-3
contractor, the
Participant will not be considered to have experienced a Separation
from Service until the Participant has ceased providing services in
both capacities.
If a Participant
provides services both as an employee and as a member of the board
of directors of a corporate Related Employer (or an analogous
position with respect to a noncorporate Related Employer), the
services provided as a director are not taken into account in
determining whether the Participant has incurred a Separation from
Service as an employee for purposes of a nonqualified deferred
compensation plan in which the Participant participates as an
employee that is not aggregated under Code Section 409A with any
plan in which the Participant participates as a
director.
If a Participant
provides services both as an employee and as a member of board of
directors of a corporate related Employer (or an analogous position
with respect to a noncorporate Related Employer), the services
provided as an employee are not taken into account in determining
whether the Participant has experienced a Separation from Service
as a director for purposes of a nonqualified deferred compensation
plan in which the Participant participates as a director that is
not aggregated under Code Section 409A with any plan in which the
Participant participates as an employee.
All determinations of
whether a Separation from Service has occurred will be made in a
manner consistent with Code Section 409A and the final regulations
thereunder.
2.24
“Unforeseeable
Emergency” means a severe financial hardship
of the Participant resulting from an illness or accident of the
Participant, the Participant’s spouse, the
Participant’s Beneficiary, or the Participant’s
dependent (as defined in Code Section 152, without regard to Code
section 152(b)(i), (b)(2) and (d)(i)(B); loss of the
Participant’s property due to casualty; or other similar
extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant.
2.25
“Valuation
Date” means each business day of the Plan
Year.
2.26
“Years of
Service” means each one year period for
which the Participant receives service credit in accordance with
the provisions of Section 7.01(d) of the Adoption
Agreement.
2-4
ARTICLE 3 –
PARTICIPATION
3.1
Participation.
The
Participants in the Plan shall be those Directors and employees of
the Employer who satisfy the requirements of Section 2.01 of the
Adoption Agreement.
3.2
Termination of
Participation. The Administrator may
terminate a Participant’s participation in the Plan in a
manner consistent with Code Section 409A.
3-1
ARTICLE 4 –
PARTICIPANT ELECTIONS
4.1
Deferral
Agreement. If permitted by the Plan
Sponsor in accordance with Section 4.01 of the Adoption Agreement,
each Eligible Employee and Director may elect to defer his
Compensation within the meaning of Section 3.01 of the Adoption
Agreement by executing in writing or electronically, a deferral
agreement in accordance with rules and procedures established by
the Administrator and the provisions of this Article 4.
A new deferral
agreement must be timely executed for each Plan Year during which
the Eligible Employee or Director desires to defer Compensation An
Eligible Employee or Director who does not timely execute a
deferral agreement shall be deemed to have elected zero deferrals
of Compensation for such Plan Year.
A deferral agreement
may be changed or revoked during the period specified by the
Administrator. Except as provided in Section 9.3 or in
Section 4.01(c) of the Adoption Agreement, a deferral agreement
becomes irrevocable at the close of the specified
period.
4.2
Amount of
Deferral. An Eligible Employee or
Director may elect to defer Compensation in any amount permitted by
Section 4.01(a) of the Adoption Agreement.
4.3
Timing of Election
to Defer. Each Eligible Employee or
Director who desires to defer Compensation otherwise payable during
a Plan Year must execute a deferral agreement within the period
preceding the Plan Year specified by the Administrator. Each
Eligible Employee who desires to defer Compensation that is a Bonus
must execute a deferral agreement within the period preceding the
Plan Year during which the Bonus is earned that is specified by the
Administrator, except that if the Bonus can be treated as
performance based compensation as described in Code Section
409A(a)(4)(B)(iii), the deferral agreement may be executed within
the period specified by the Administrator, which period, in no
event, shall end after the date which is six months prior to the
end of the period during which the Bonus is earned. In
addition, if the Compensation qualifies as ‘fiscal year
compensation’ within the meaning of Reg. Sec. 1.409A
-2(a)(6), the deferral agreement may be made not later than the end
of the Employer’s taxable year immediately preceding the
first taxable year of the Employer in which any services are
performed for which such Compensation is payable.
4-1
Except as otherwise
provided below, an employee who is classified or designated as an
Eligible Employee during a Plan Year or a Director who is
designated as eligible to participate during a Plan Year may elect
to defer Compensation otherwise payable during the remainder of
such Plan Year in accordance with the rules of this Section 4.3 by
executing a deferral agreement within the thirty (30) day period
beginning on the date the employee is classified or designated as
an Eligible Employee or the date the Director is designated as
eligible, whichever is applicable, if permitted by Section 2.01 of
the Adoption Agreement. If Compensation is based on a
specified performance period that begins before the Eligible
Employee or Director executes his deferral agreement, the election
will be deemed to apply to the portion of such Compensation equal
to the total amount of Compensation for the performance period
multiplied by the ratio of the number of days remaining in the
performance period after the election over the total number of days
in the performance period. The rules of this paragraph shall
not apply unless the Eligible Employee or Director can be treated
as initially eligible in accordance with Reg. Sec.
1.409A-2(a)(7).
4.4
Election of Payment
Schedule and Form of Payment.
All elections of a
payment schedule and a form of payment will be made in accordance
with rules and procedures established by the Administrator and the
provisions of this Section 4.4.
(a)
If the Plan Sponsor has
elected to permit annual distribution elections in accordance with
Section 6.01(h) of the Adoption Agreement the following rules
apply. At the time an Eligible Employee of Director completes
a deferral agreement, the Eligible Employee or Director must elect
a distribution event (which includes a specified time) and a form
of payment for the Compensation subject to the deferral agreement
and for any Employer contributions that may be credited to the
Participant’s Account during the Plan Year from among the
options the Plan Sponsor has made available for this purpose and
which are specified in 6.01(b) of the Adoption Agreement. If
an Eligible Employee or Director fails to elect a distribution
event, he shall be deemed to have elected Separation from Service
as the distribution event. If he fails to elect a form of
payment, he shall be deemed to have elected a lump sum form of
payment.
(b)
If the Plan Sponsor has
elected not to permit annual distribution elections in accordance
with Section 6.01(h) of the Adoption Agreement the following rules
apply. At the time an Eligible Employee or Director first
completes a deferral agreement, the Eligible Employee or Director
must elect a distribution event (which includes a specified time)
and a form of payment for amounts credited to his Account from
among the options the Plan Sponsor has made available for this
purpose and which are specified
4-2
in Section 6.01(b) of
the Adoption Agreement. If an Eligible Employee or Director
fails to elect a distribution event, he shall be deemed to have
elected Separation from Service in the distribution event. If
the fails to elect a form of payment, he shall be deemed to have
elected a lump sum form of payment.
.
4-3
ARTICLE 5 –
EMPLOYER CONTRIBUTIONS
5.1
Matching
Contributions. If elected by the Plan
Sponsor in Section 5.01(a) of the Adoption Agreement, the Employer
will credit the Participant’s Account with a matching
contribution determined in accordance with the formula specified in
Section 5.01(a) of the Adoption Agreement. The matching
contribution will be treated as allocated to the
Participant’s Account at the time specified in Section
5.01(a)(iii) of the Adoption Agreement.
5.2
Other
Contributions. If elected by the Plan
Sponsor in Section 5.01(b) of the Adoption Agreement, the Employer
will credit the Participant’s Account with a contribution
determined in accordance with the formula or method specified in
Section 5.01(b) of the Adoption Agreement. The contribution
will be treated as allocated to the Participant’s Account at
the time specified in Section 5.01(b)(iii) of the Adoption
Agreement.
5-1
ARTICLE 6 –
ACCOUNTS AND CREDITS
6.1
Establishment of
Account. For accounting and computational
purposes only, the Administrator will establish and maintain an
Account on behalf of each Participant which will reflect the
credits made pursuant to Section 6.2, distributions or withdrawals,
along with the earnings, expenses, gains and losses allocated
thereto, attributable to the hypothetical investments made with the
amounts in the Account as provided in Article 7. The
Administrator will establish and maintain such other records and
accounts, as it decides in its discretion to be reasonably required
or appropriate to discharge its duties under the Plan.
6.2
Credits to Account.
A
Participant’s Account will be credited for each Plan Year
with the amount of his elective deferrals under Section 4.1 at the
time the amount subject to the deferral election would otherwise
have been payable to the Participant and the amount of Employer
contributions treated as allocated on his behalf under Article 5.
6-1
ARTICLE 7 –
INVESTMENT OF CONTRIBUTIONS
7.1
Investment Options.
The
amount credited to each Account shall be treated as invested in the
investment options designated for this purpose by the
Administrator.
7.2
Adjustment of
Accounts. The amount credited to each Account
shall be adjusted for hypothetical investment earnings, expenses,
gains or losses in an amount equal to the earnings, expenses, gains
or losses attributable to the investment options selected by the
party designated in Section 9.01 of the Adoption Agreement from
among the investment options provided in Section 7.1. If
permitted by Section 9.01 of the Adoption Agreement, a Participant
(or the Participant’s Beneficiary after the death of the
Participant) may, in accordance with rules and procedures
established by the Administrator, select the investments from among
the options provided in Section 7.1 to be used for the purpose of
calculating future hypothetical investment adjustments to the
Account or to future credits to the Account under Section 6.2
effective as the Valuation Date coincident with or next following
notice to the Administrator. Each Account shall be adjusted
as of each Valuation Date to reflect: (a) the hypothetical
earnings, expenses, gains and losses described above; (b) amounts
credited pursuant to Section 6.2; and (c) distributions or
withdrawals. In addition, each Account may be adjusted for
its allocable share of the hypothetical costs and expenses
associated with the maintenance of the hypothetical investments
provided in Section 7.1.
7-1
ARTICLE 8 –
RIGHT TO BENEFITS
8.1
Vesting.
A
Participant, at all times, has the 100% nonforfeitable interest in
the amounts credited to his Account attributable to his elective
deferrals made in accordance with Section 4.1.
A Participant’s
right to the amounts credited to his Account attributable to
Employer contributions made in accordance with Article 5 shall be
determined in accordance with the relevant schedule and provisions
in Section 7.01 of the Adoption Agreement.
8.2
Death.
The
Plan Sponsor may elect to accelerate vesting upon the death of the
Participant in accordance with Section 7.01(c) of the Adoption
Agreement and/or to permit distributions upon Death in accordance
with Section 6.01(b) or Section 6.01(
