|
Exhibit 10-g
Trustmark Corporation
Deferred Compensation Plan
Master
Plan Document
As Restated Effective December 31, 2007
TRUSTMARK CORPORATION
DEFERRED COMPENSATION PLAN
As
Restated Effective December 31, 2007
Purpose
This
Plan is an amendment and restatement of the Trustmark
Corporation Deferred Compensation Plan (Effective January 1,
2002) (sometimes referred to as the 2002 Plan). The
purpose of this Plan is to provide specified benefits to
Directors and a select group of management or highly
compensated Employees who are selected fro participation in
this Plan and contribute materially to the continued growth,
development and future business success of Trustmark
Corporation, a Mississippi corporation, and its subsidiaries,
if any, that sponsor this Plan. This Plan shall be
unfunded for tax purposes and for purposes of Title I of
ERISA.
The
purpose of this restatement of the Plan is to comply with the
written plan document requirements of Code Section 409A and
related Treasury guidance and Regulations with respect to
Account Balances which are subject to Code Section 409A, and
this Plan as restated shall be operated and interpreted in
accordance with this intention. In order to
transition to the requirements of Code Section 409A and
related Treasury Regulations, the Committee may make available
to Participants certain transition relief provided under
Notice 2006-79, as described more fully in Appendix A of this
Plan.
In
addition, it is intended that the distribution and related
provisions of the 2002 Plan shall continue to apply to Account
Balances which are not subject to Code Section 409A (that is,
balances attributable to the amounts which were earned and
vested as of December 31, 2004, determined without regard to
any material amendment after October 3, 2004). For
that purpose, an Appendix B has been added to this Plan; and
that Appendix B generally contains the distribution and
related provisions of the 2002 Plan which shall continue
to govern all Account Balances which are not subject to
Code Section 409A , while the
terms and conditions of this Plan document (other than
Appendix B) shall govern all Account Balances which are
subject to Code Section 409A.
Thus,
it is intended that the provisions of this Plan (exclusive of
Appendix B) shall generally apply to Account Balances which
are subject to Code Section 409A, that t he terms and
conditions of the 2002 Plan regarding distributions of
Account Balances which are not subject to Code Section 409A
shall continue
to apply by their inclusion in Appendix B so that
Account Balances which are not subject to Section Code 409A
continue to be exempt from Code Section 409A, and that the
balance of the administrative and other provisions of this
Plan shall apply to Account Balances which are not subject to
Code Section 409A , provided
such application would not be considered a material
modification of the 2002 Plan which would cause Account
Balances which are not subject to Code Section 409A thereunder
to become subject to Code Section 409A.
ARTICLE 1
Definitions
For
the purposes of this Plan, unless otherwise clearly apparent
from the context, the following phrases or terms shall have
the following indicated meanings:
|
1.1
|
“Account
Balance” shall mean, with respect to a Participant, an entry
on the records of the Employer equal to the sum of the
Participant’s Annual Accounts. The Account Balance
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 his or her designated Beneficiary,
pursuant to this Plan.
|
If
a Participant is both an Employee and a Director and
participates in the Plan in each capacity, then separate
Account Balances (and separate Annual Accounts, if applicable)
shall be established for such Participant as a device for the
measurement and determination of the (a) amounts deferred
under the Plan that are attributable to the
Participant’s status as an Employee, and (b) amounts
deferred under the Plan that are attributable to the
Participant’s status as a Director.
|
1.2
|
“Annual
Account” shall mean, with respect to a Participant, an entry
on the records of the Employer equal to (a) the sum of the
Participant’s Annual Deferral Amount for any one Plan Year,
plus (b) amounts credited or debited to such amounts pursuant to
this Plan, less (c) all distributions made to the Participant or
his or her Beneficiary pursuant to this Plan that relate to the
Annual Account for such Plan Year. The Annual 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 his or her designated Beneficiary,
pursuant to this Plan.
|
|
1.3
|
“Annual
Deferral Amount” shall mean that portion of a Participant's
Base Salary, Bonus, Commissions and Director Fees that a
Participant defers in accordance with Article 3 for any one Plan
Year, without regard to whether such amounts are withheld and
credited during such Plan Year.
|
|
1.4
|
“Annual
Installment Method” shall mean the method used to determine
the amount of each payment due to a Participant who has elected to
receive a benefit over a period of years in accordance with the
applicable provisions of the Plan. The amount of each
annual payment due to the Participant shall be calculated by
multiplying the balance of the Participant’s benefit by a
fraction, the numerator of which is one and the denominator of
which is the remaining number of annual payments due to the
Participant. The amount of the first annual payment
shall be calculated as of the close of business on or around
the
Participant’s Benefit Distribution Date, and the amount
of each subsequent annual payment shall be calculated on or around
each anniversary of such Benefit Distribution Date. For
purposes of this Plan, the right to receive a benefit payment in
annual installments shall be treated as the entitlement to a single
payment.
|
|
1.5
|
“Base
Salary” shall mean the annual cash compensation relating to
services performed during any calendar year, excluding
distributions from nonqualified deferred compensation plans,
bonuses, commissions, overtime, fringe benefits, stock options,
relocation expenses, incentive payments, non-monetary awards,
director fees and other fees, and automobile and other allowances
paid to a Participant for employment services rendered (whether or
not such allowances are included in the Employee’s gross
income). Base Salary shall be calculated before
reduction for compensation voluntarily deferred or contributed by
the Participant pursuant to all qualified or nonqualified plans of
any Employer and shall be calculated to include amounts not
otherwise included in the Participant's gross income under Code
Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans
established by any Employer; provided, however, that all such
amounts will be included in compensation only to the extent that
had there been no such plan, the amount would have been payable in
cash to the Employee.
|
|
1.6
|
“Beneficiary”
shall mean one or more persons, trusts, estates or other entities,
designated in accordance with Article 10, that are entitled to
receive benefits under this Plan upon the death of a
Participant.
|
|
1.7
|
“Beneficiary
Designation Form” shall mean the form established from time
to time by the Committee that a Participant completes, signs and
returns to the Committee to designate one or more
Beneficiaries.
|
|
1.8
|
“Benefit
Distribution Date” shall mean the date upon which all or an
objectively determinable portion of a Participant’s
vested benefits will become eligible for
distribution. Except as otherwise provided in the Plan,
a Participant’s Benefit Distribution Date shall be determined
based on the earliest to occur of an event or scheduled date set
forth in Articles 4 through 9, as applicable.
|
|
1.9
|
“Board”
shall mean the board of directors of the Company.
|
|
1.10
|
“Bonus”
shall mean any compensation, in addition to Base Salary and
Commissions, earned by a Participant under any Employer's annual
bonus and cash incentive plans.
|
|
1.11
|
“Change in Control” shall mean the first to occur of
any of a Buyout, Merger, Dissolution, or Substantial Change in
Ownership. The following terms
have the following meanings for this purpose:
|
|
|
(a)
|
“Bank”
shall mean Trustmark National Bank.
|
|
|
(b)
|
“Buyout”
shall mean a transaction or series of related transactions by which
the Company or Bank is sold, either through the sale of a
Controlling Interest in the Company’s or Bank’s voting
stock or through the sale of substantially all of the
Company’s or Bank’s assets, to a party not having a
Controlling Interest in the Company’s or Bank’s voting
stock.
|
|
|
(c)
|
“Controlling
Interest” shall mean ownership, either directly or
indirectly, of more than 20% of the entity’s voting
stock.
|
|
|
(d)
|
“Dissolution”
shall mean the dissolution or liquidation of the Company or
Bank.
|
|
|
(e)
|
“Merger”
shall mean a transaction or a series of transactions wherein the
Company or Bank is combined with another business entity, and after
which the persons or entities who had owned, either directly or
indirectly, a Controlling Interest in the Company’s or
Bank’s voting stock own less than a Controlling Interest in
the voting stock of the combined entity.
|
|
|
(f)
|
“Substantial
Change in Ownership” shall mean a transaction or series of
transactions in which a Controlling Interest in the Company or Bank
is acquired by or for a person or business entity, either of which
did not own, either directly or indirectly, a Controlling Interest
in the Company or Bank. The above shall not apply to
stock purchased by any tax-qualified employee stock ownership plan
or such type of benefit plan sponsored by the Company or any of its
subsidiaries.
|
|
1.12
|
“Code”
shall mean the Internal Revenue Code of 1986, as it may be amended
from time to time.
|
|
1.13
|
“Commissions”
shall mean the cash commissions earned by a Participant during a
Plan Year, as determined in accordance with Code Section 409A and
related Treasury Regulations.
|
|
1.14
|
“Committee”
shall mean the committee described in Article 13.
|
|
1.15
|
“Company”
shall mean Trustmark Corporation, a Mississippi corporation, and
any successor to all or substantially all of the Company’s
assets or business.
|
|
1.16
|
“Director”
shall mean any member of the board of directors of any
Employer.
|
|
1.17
|
“Director
Fees” shall mean the annual fees earned by a Director from
any Employer, including retainer fees and meetings fees, as
compensation for serving on the board of directors.
|
|
1.18
|
“Disability”
or “Disabled” shall mean that a Participant is either
(a) unable to engage in any substantial gainful activity by reason
of 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 12 months, or (b) by reason of
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 12 months, receiving income
replacement benefits for a period of not less than 3 months under
an accident and health plan covering employees of the
Participant’s Employer. For purposes of this Plan,
a Participant shall be deemed Disabled if determined to be totally
disabled by the Social Security Administration. A
Participant shall also be deemed Disabled if determined to be
disabled in accordance with the applicable disability insurance
program of such Participant’s Employer, provided that the
definition of “disability” applied under such
disability insurance program complies with the requirements of this
Section.
|
|
1.19
|
“Election
Form” shall mean the form, which may be in electronic format,
established from time to time by the Committee that a Participant
completes, signs and returns to the Committee to make an election
under the Plan.
|
|
1.20
|
“Employee”
shall mean a person who is an employee of an Employer.
|
|
1.21
|
“Employer(s)”
shall be defined as follows:
|
|
|
(a)
|
Except
as otherwise provided in part (b) of this Section, the term
“Employer” shall mean the Company and/or any of its
subsidiaries (now in existence or hereafter formed or acquired)
that have been selected by the Board to participate in the Plan and
have adopted the Plan as a sponsor.
|
|
|
(b)
|
For
the purpose of determining whether a Participant has experienced a
Separation from Service, the term “Employer” shall
mean:
|
|
|
(i)
|
The
entity for which the Participant performs services and with respect
to which the legally binding right to compensation deferred or
contributed under this Plan arises; and
|
|
|
(ii)
|
All
other entities with which the entity described above would be
aggregated and treated as a single employer under Code Section
414(b) (controlled group of corporations) and Code Section 414(c)
(a group of trades or businesses, whether or not incorporated,
under common control), as applicable. In order to
identify the group of entities described in the preceding sentence,
the Committee shall use an ownership threshold of 80% when
applying, the applicable provisions of (A) Code Section 1563 for
determining a controlled group of corporations under Code Section
414(b), and (B) Treas. Reg. §1.414(c)-2 for determining the
trades or businesses that are under common control under Code
Section 414(c).
|
|
1.22
|
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
|
|
1.23
|
“Participant”
shall mean any Employee or Director (a) who is selected to
participate in the Plan, (b) whose executed Plan Agreement,
Election Form and Beneficiary Designation Form are accepted by the
Committee, and (c) whose Plan Agreement has not
terminated.
|
|
1.24
|
“Performance-Based
Compensation” shall mean compensation the entitlement to or
amount of which is contingent on the satisfaction of
pre-established organizational or individual performance criteria
relating to a performance period of at least 12 consecutive months,
as determined by the Committee in accordance with Treas. Reg.
§1.409A-1(e). The outcome under the applicable
pre-established organizational or individual performance criteria
must be substantially uncertain at the time of establishment, and
the criteria must be established no later than 90 days after the
beginning of the period of service to which the incentive
compensation and performance relate.
|
|
1.25
|
“Plan”
shall mean the Trustmark Corporation Deferred Compensation Plan,
which shall be evidenced by this instrument, as it may be amended
from time to time, and by any other documents that together with
this instrument define a Participant’s rights to amounts
credited to his or her Account Balance.
|
|
1.26
|
“Plan
Agreement” shall mean a written agreement in the form
prescribed by or acceptable to the Committee that evidences a
Participant’s agreement to the terms of the Plan and which
may establish additional terms or conditions of Plan participation
for a Participant. Unless otherwise determined by the
Committee, the most recent Plan Agreement accepted with respect to
a Participant shall supersede any prior Plan Agreements for such
Participant. Plan Agreements may vary among Participants
and may provide additional benefits not set forth in the Plan or
limit the benefits otherwise provided under the Plan.
|
|
1.27
|
“Plan
Year” shall mean a period
beginning on January 1 of each calendar year and continuing through
December 31 of such calendar year.
|
|
1.28
|
“Retirement,”
“Retire(s)” or “Retired” shall mean with
respect to a Participant who is an Employee, a Separation from
Service on or after the attainment of (a) age 65 or (b) age 50 with
5 Years of Service, and shall mean with respect to a Participant
who is a Director, a Separation from Service on or after the
attainment of age 65. If a Participant is both an
Employee and a Director and participates in the Plan in each
capacity, (a) the determination of whether the Participant
qualifies for Retirement as an Employee shall be made when the
Participant experiences a Separation from Service as an Employee
and such determination shall only apply to the applicable Account
Balance established in accordance with Section 1.1 for amounts
deferred under the Plan as an Employee, and (b) the determination
of whether the Participant qualifies for Retirement as a Director
shall be made at the time the Participant experiences a Separation
from Service as a Director and such determination shall only apply
to the applicable Account Balance established in accordance with
Section 1.1 for amounts deferred under the Plan as a
Director.
|
|
1.29
|
“Separation
from Service” shall mean a termination of services provided
by a Participant to his or her Employer, whether voluntarily or
involuntarily, other than by reason of death or Disability, as
determined by the Committee in accordance with Treas. Reg.
§1.409A-1(h). In determining whether a Participant
has experienced a Separation from Service, the following provisions
shall apply:
|
|
|
(a)
|
For
a Participant who provides services to an Employer as an Employee,
except as otherwise provided in part (c) of this Section, a
Separation from Service shall occur when such Participant has
experienced a termination of employment with such
Employer. A Participant shall be considered to have
experienced a termination of employment when the facts and
circumstances indicate that the Participant and his or her Employer
reasonably anticipate that either (i) no further services will be
performed for the Employer after a certain date, or (ii) that the
level of bona fide services the Participant will perform for the
Employer after such date (whether as an Employee or as an
independent contractor) will permanently decrease to less than 50%
of the average level of bona fide services performed by such
Participant (whether as an Employee or an independent contractor)
over the immediately preceding 36-month period (or the full period
of services to the Employer if the Participant has been providing
services to the Employer less than 36 months).
|
If
a Participant is on military leave, sick leave, or other bona
fide leave of absence, the employment relationship between the
Participant and the Employer shall be treated as continuing
intact, provided that the period of such leave does not exceed
6 months, or if longer, so long as the Participant retains a
right to reemployment with the Employer under an applicable
statute or by contract. If the period of a military
leave, sick leave, or other bona fide leave of absence exceeds
6 months and the Participant does not retain a right to
reemployment under an applicable statute or by contract, the
employment relationship shall be considered to be terminated
for purposes of this Plan as of the first day immediately
following the end of such 6-month period. In
applying the provisions of this paragraph, a leave of absence
shall be considered a bona fide leave of absence only if there
is a reasonable expectation that the Participant will return
to perform services for the Employer.
|
|
(b)
|
For
a Participant who provides services to an Employer as an
independent contractor, except as otherwise provided in part (c) of
this Section, a Separation from Service shall occur upon the
expiration of the contract (or in the case of more than one
contract, all contracts) under which services are performed for
such Employer, provided that the expiration of such contract(s) is
determined by the Committee to constitute a good-faith and complete
termination of the contractual relationship between the Participant
and such Employer.
|
|
|
(c)
|
For
a Participant who provides services to an Employer as both an
Employee and an independent contractor , a Separation from
Service generally shall not occur until the Participant has ceased
providing services for such Employer as both as an Employee and as
an independent contractor, as determined in accordance with the
provisions set forth in parts (a) and (b) of this Section,
respectively. Similarly, if a Participant either (i)
ceases providing services for an Employer as an independent
contractor and begins providing services for such Employer as an
Employee, or (ii) ceases providing services for an Employer as an
Employee and begins providing services for such Employer as an
independent contractor, the Participant will not be considered to
have experienced a Separation from Service until the Participant
has ceased providing services for such Employer in both capacities,
as determined in accordance with the applicable provisions set
forth in parts (a) and (b) of this Section.
|
Notwithstanding
the foregoing provisions in this part (c), if a Participant
provides services for an Employer as both an Employee and as a
Director, to the extent permitted by Treas. Reg.
§1.409A-1(h)(5) the services provided by such Participant
as a Director shall not be taken into account in determining
whether the Participant has experienced a Separation from
Service as an Employee, and the services provided by such
Participant as an Employee shall not be taken into account in
determining whether the Participant has experienced a
Separation from Service as a Director.
|
1.30
|
“Trust”
shall mean one or more trusts established by the Company in
accordance with Article 16.
|
|
1.31
|
“Unforeseeable
Emergency” shall mean a severe financial hardship of the
Participant resulting from (a) 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
paragraphs (b)(1), (b)(2) and (d)(1)(b) thereof), (b) a loss of the
Participant’s property due to casualty, or (c) such other
similar extraordinary and unforeseeable circumstances arising as a
result of events beyond the control of the Participant, all as
determined by the Committee based on the relevant facts and
circumstances.
|
|
1.32
|
“Years
of Service” shall mean the total number of full years in
which a Participant has been employed by one or more
Employers. For purposes of this definition, a year of
employment shall be a 365 day period (or 366 day period in the case
of a leap year) that, for the first year of employment, commences
on the Employee's date of hiring and that, for any subsequent year,
commences on an anniversary of that hiring date. A
partial year of employment shall not be treated as a Year of
Service.
|
ARTICLE 2
Selection,
Enrollment, Eligibility
|
2.1
|
Selection by Committee . Participation in the
Plan shall be limited to Directors and a select group of management
or highly compensated Employees, as determined by the Committee in
its sole discretion. From that group, the Committee
shall select, in its sole discretion, those individuals who may
actually participate in this Plan.
|
|
2.2
|
Enrollment and Eligibility Requirements; Commencement of
Participation .
|
|
|
(a)
|
As
a condition to participation, each selected Director or Employee
shall complete, execute and return to the Committee a Plan
Agreement, an Election Form and a Beneficiary Designation Form by
the deadline(s) established by the Committee in accordance with the
applicable provisions of this Plan. In addition, the
Committee shall establish from time to time such other enrollment
requirements as it determines, in its sole discretion, are
necessary.
|
|
|
(b)
|
Each
selected Director or Employee who is eligible to participate in the
Plan shall commence participation in the Plan on the date that the
Committee determines that the Director or Employee has met all
enrollment requirements set forth in this Plan and required by the
Committee, including returning all required documents to the
Committee within the specified time
period.
|
|
|
(c)
|
If
a Director or an Employee fails to meet all requirements
established by the Committee within the period required, that
Director or Employee shall not be eligible to participate in the
Plan during such Plan Year.
|
ARTICLE 3
Deferral
Commitments/Vesting/Crediting/Taxes
|
3.1
|
Minimum and Maximum Deferral .
|
|
|
(a)
|
Annual Deferral Amount . For each Plan Year, a
Participant may elect to defer, as his or her Annual Deferral
Amount, subject to the limitations provided below, Base Salary,
Bonus, Commissions and/or Director Fees up to the following maximum
percentages for each deferral elected:
|
|
Deferral
|
Maximum Percentage
|
|
Base
Salary
|
90%
|
|
Bonus
|
90%
|
|
Commissions
|
90%
|
|
Director
Fees
|
100%
|
In
addition, the Annual Deferral Amount must be for an
anticipated combined minimum amount of $2,500 (assuming
continued employment). If an election is made for
less than the stated anticipated combined minimum amount (as
determined by the Committee), the election shall be void from
the outset and the amount deferred shall be zero; otherwise
the election shall be given effect even if the amount deferred
actually is less than $2,500.
|
|
(b)
|
Short Plan Year . Notwithstanding the foregoing,
if a Participant first becomes a Participant after the first day of
a Plan Year, then to the extent required by Section 3.2 and Code
Section 409A and related Treasury Regulations, the maximum amount
of the Participant’s Base Salary, Bonus, Commissions or
Director Fees that may be deferred by the Participant for the Plan
Year shall be determined by applying the percentages set forth in
Section 3.1(a) to the portion of such compensation attributable to
services performed after the date that the Participant’s
deferral election is made.
|
|
3.2
|
Timing of Deferral Elections; Effect of Election Form
.
|
|
|
(a)
|
General Timing Rule for Deferral Elections
. Except as otherwise provided in this Section, in order
for a Participant to make a valid election to defer Base Salary,
Bonus, Commissions and/or Director Fees, the Participant must
submit an Election Form on or before the deadline established by
the Committee, which in no event shall be later than the December
31 st
preceding the Plan Year in which such compensation will be
earned.
|
Any
deferral election made in accordance with this part (a) of
this Section shall be irrevocable; provided, however, that if
the Committee permits or requires Participants to make a
deferral election by the deadline described above for an
amount that qualifies as Performance-Based Compensation, the
Committee may permit a Participant to subsequently change his
or her deferral election for such compensation by submitting a
new Election Form in accordance with Section 3.2(d)
below.
|
|
(b)
|
Timing of Deferral Elections for Newly Eligible Plan
Participants . A selected Director or Employee
who first becomes eligible to participate in the Plan on or after
the beginning of a Plan Year, as determined in accordance with
Treas. Reg. §1.409A-2(a)(7)(ii) and the “plan
aggregation” rules provided in Treas. Reg.
§1.409A-1(c)(2), may be permitted to make an election to defer
the portion of Base Salary, Bonus, Commissions and/or Director Fees
attributable to services to be performed after such election,
provided that the Participant submits an Election Form on or before
the deadline established by the Committee, which in no event shall
be later than 30 days after the Participant first becomes eligible
to participate in the Plan.
|
If a deferral election made in accordance with this part (b) of
this Section relates to compensation earned based upon a specified
performance period, the amount eligible for deferral shall be equal
to (i) the total amount of compensation for the performance period,
multiplied by (ii) a fraction, the numerator of which is the number
of days remaining in the service period after the
Participant’s deferral election is made, and the denominator
of which is the total number of days in the performance
period.
Any
deferral election made in accordance with this part (b) of
this Section shall become irrevocable no later than the 30
th
day after the date the selected Director or Employee becomes
eligible to participate in the Plan.
|
|
(c)
|
Timing of Deferral Elections for Fiscal Year Compensation
. In the event that the fiscal year of an Employer is
different than the taxable year of a Participant, the Committee may
determine that a deferral election may be made for “fiscal
year compensation” (as defined below), by submitting an
Election Form on or before the deadline established by the
Committee, which in no event shall be later than the last day of
the Employer’s fiscal year immediately preceding the fiscal
year in which the services related to such compensation will begin
to be performed. For purposes of this Section, the term
“fiscal year compensation” shall only include Bonus
relating to a service period coextensive with one or more
consecutive fiscal years of the Employer, of which no amount is
paid or payable during the Employer’s fiscal year(s) that
constitute the service period.
|
A
deferral election made in accordance with this part (c) of
this Section shall be irrevocable; provided, however, that if
the Committee permits or requires Participants to make a
deferral election by the deadline described in this part (c)
of this Section for an amount that qualifies as
Performance-Based Compensation, the Committee may permit a
Participant to subsequently change his or her deferral
election for such compensation by submitting a new Election
Form in accordance with part (d) of Section 3.2
below.
|
|
(d)
|
Timing of Deferral Elections for Performance-Based
Compensation . Subject to the
limitations described below, the Committee may determine that an
irrevocable deferral election for an amount that qualifies as
Performance-Based Compensation may be made by submitting an
Election Form on or before the deadline established by the
Committee, which in no event shall be later than 6 months before
the end of the performance period.
|
In
order for a Participant to be eligible to make a deferral
election for Performance-Based Compensation in accordance with
the deadline established pursuant to this part (d) of this
Section, the Participant must have performed services
continuously from the later of (i) the beginning of the
performance period for such compensation, or (ii) the date
upon which the performance criteria for such compensation are
established, through the date upon which the Participant makes
the deferral election for such compensation. In no
event shall a deferral election submitted under this part (d)
of this Section be permitted to apply to any amount of
Performance-Based Compensation that has become readily
ascertainable.
|
|
(e)
|
Timing Rule for Deferral of Compensation Subject to Risk of
Forfeiture . With respect to compensation (i) to
which a Participant has a legally binding right to payment in a
subsequent year, and (ii) that is subject to a forfeiture condition
requiring the Participant’s continued services for a period
of at least 12 months from the date the Participant obtains the
legally binding right, the Committee may determine that an
irrevocable deferral election for such compensation may be made by
timely delivering an Election Form to the Committee in accordance
with its rules and procedures, no later than the 30 th
day after the Participant obtains the legally binding right to the
compensation, provided that the election is made at least 12 months
in advance of the earliest date at which the forfeiture condition
could lapse, as determined in accordance with Treas. Reg.
§1.409A-2(a)(5).
|
Any
deferral election(s) made in accordance with this part (e) of
this Section shall become irrevocable no later than the 30
th
day after the Participant obtains the legally binding right to
the compensation subject to such deferral
election(s).
|
3.3
|
Withholding and Crediting of Annual Deferral Amounts
. For each Plan Year, the Base Salary portion of the
Annual Deferral Amount shall be withheld from each regularly
scheduled Base Salary payroll in equal amounts, as adjusted from
time to time for increases and decreases in Base
Salary. The Bonus, Commissions and/or Director
Fee’s portion of the Annual Deferral Amount shall be withheld
at the time the Bonus, Commissions or Director Fees are or
otherwise would be paid to the Participant, whether or not this
occurs during the Plan Year itself. Annual Deferral
Amounts shall be credited to the Participant’s Annual Account
for such Plan Year at the time such amounts would otherwise have
been paid to the Participant.
|
|
3.4
|
Vesting . A Participant shall at all times be
100% vested in the portion of his or her Account Balance
attributable to Annual Deferral Amounts, plus amounts credited or
debited on such amounts pursuant to Section 3.5.
|
|
3.5
|
Crediting/Debiting of Account Balances . In
accordance with, and subject to, the rules and procedures that are
established from time to time by the Committee, in its sole
discretion, amounts shall be credited or debited to a Participant's
Account Balance in accordance with the following
rules:
|
|
|
(a)
|
Measurement Funds . A Participant may elect one
or more of the measurement funds selected by the Committee, in its
sole discretion, which are based on certain mutual funds (the
“Measurement Funds”), for the purpose of crediting or
debiting additional amounts to his or her Account
Balance. As necessary, the Committee may, in its sole
discretion, discontinue, substitute or add a Measurement
Fund. Each such action will take effect as of the first
day of the first calendar quarter that begins at least 30 days
after the day on which the Committee gives Participants advance
written notice of such change.
|
|
|
(b)
|
Election of Measurement Funds . A Participant, in
connection with his or her initial deferral election in accordance
with Section 3.2 above, shall elect, on the Election Form, one or
more Measurement Fund(s) (as described in Section 3.5(a) above) to
be used to determine the amounts to be credited or debited to his
or her Account Balance. If a Participant does not elect
any of the Measurement Funds as described in the previous sentence,
the Participant’s Account Balance shall automatically be
allocated into the lowest-risk Measurement Fund, as determined by
the Committee, in its sole discretion. A Participant may
(but is not required to) elect, by submitting an Election Form to
the Committee that is accepted by the Committee, to add or delete
one or more Measurement Fund(s) to be used to determine the amounts
to be credited or debited to his or her Account Balance, or to
change the portion of his or her Account Balance allocated to each
previously or newly elected Measurement Fund. If an
election is made in accordance with the previous sentence, it shall
apply as of the first business day deemed reasonably practicable by
the Committee, in its sole discretion, and shall continue
thereafter for each subsequent day in which the Participant
participates in the Plan, unless changed in accordance with the
previous sentence. Notwithstanding the foregoing, the
Committee, in its sole discretion, may impose limitations on the
frequency with which one or more of the Measurement Funds elected
in accordance with this part (b) of this Section may be added or
deleted by such Participant; furthermore, the Committee, in its
sole discretion, may impose limitations on the frequency with which
the Participant may change the portion of his or her Account
Balance allocated to each previously or newly elected Measurement
Fund.
|
|
|
(c)
|
Proportionate Allocation . In making any election
described in part (b) of this Section above, the Participant shall
specify on the Election Form, in increments of 1%, the percentage
of his or her Account Balance or Measurement Fund, as applicable,
to be allocated/reallocated.
|
|
|
(d)
|
Crediting or Debiting Method . The performance of
each Measurement Fund (either positive or negative) will be
determined on a daily basis based on the manner in which such
Participant’s Account Balance has been hypothetically
allocated among the Measurement Funds by the
Participant.
|
|
|
(e)
|
No Actual Investment . Notwithstanding any other
provision of this Plan that may be interpreted to the contrary, the
Measurement Funds are to be used for measurement purposes only, and
a Participant's election of any such Measurement Fund, the
allocation of his or her Account Balance thereto, the calculation
of additional amounts and the crediting or debiting of such amounts
to a Participant's Account Balance shall not be considered or
construed in any manner as an actual investment of his or her
Account Balance in any such Measurement Fund. In the
event that the Company or the Trustee (as that term is defined in
the Trust), in its own discretion, decides to invest funds in any
or all of the investments on which the Measurement Funds are based,
no Participant shall have any rights in or to such investments
themselves. Without limiting the foregoing, a
Participant's Account Balance shall at all times be a bookkeeping
entry only and shall not represent any investment made on his or
her behalf by the Company or the Trust; the Participant shall at
all times remain an unsecured creditor of the Company.
|
|
3.6
|
FICA and Other Taxes .
|
|
|
(a)
|
Annual Deferral Amounts . For each Plan Year in
which an Annual Deferral Amount is being withheld from a
Participant, the Participant’s Employer(s) shall withhold
from that portion of the Participant’s Base Salary, Bonus
and/or Commissions that is not being deferred, in a manner
determined by the Employer(s), the Participant’s share of
FICA and other employment taxes on such Annual Deferral
Amount. If necessary, the Committee may reduce the
Annual Deferral Amount in order to comply with this
Section.
|
|
|
(b)
|
Distributions . The Participant’s
Employer(s), or the trustee of the Trust, shall withhold from any
payments made to a Participant under this Plan all federal, state
and local income, employment and other taxes required to be
withheld by the Employer(s), or the trustee of the Trust, in
connection with such payments, in amounts and in a manner to be
determined in the sole discretion of the Employer(s) and the
trustee of the Trust.
|
|
3.7
|
Automatic Cancellation of Deferral Election upon Receipt of
Hardship Withdrawal from a 401(k) Plan .
|
|
|
(a)
|
A
Participant’s deferral elections under this Plan in effect at
the time of a 401(k) hardship withdrawal shall be cancelled (rather
than postponed or delayed) prospectively so that no further
deferrals from his Base Salary, Bonus, Commissions and/or Director
Fees shall be made during the 401(k) hardship withdrawal required
cancellation period or with respect to the calendar year in which
the 401(k) hardship withdrawal required cancellation period
begins. Such cancellation shall be effected in
accordance with the requirements of Code Section 409A and, to the
extent not inconsistent therewith, the provisions of this
Section.
|
|
|
(b)
|
A
Participant whose deferral elections under this Plan are cancelled
pursuant to this Section may file a new deferral election in order
to commence or recommence making deferrals under the Plan from his
Base Salary, Bonus, Commissions and/or Director Fees at the later
of (i) the first payroll period that commences after the end
of the 401(k) hardship withdrawal required cancellation period or
(ii) the Participant’s next election period under the
Plan. The new election shall be made in the same manner
as other elections under the Plan, but no later than the last day
required for filing the Participant’s next or any subsequent
election on or following which the Participant’s deferrals
from his compensation will commence or recommence, and shall apply
only to Base Salary, Bonus, Commissions and/or Director Fees earned
after the new election becomes effective as and to the extent
required by Code Section 409A.
|
|
|
(c)
|
For
purposes hereof, the following terms have the following
meanings:
|
|
|
(i)
|
A
“401(k) hardship withdrawal” is a hardship withdrawal
from a 401(k) plan which requires a suspension of employee
contributions and elective deferrals as a result of receipt of the
hardship withdrawal in order to satisfy the regulations under Code
Section 401(k).
|
|
|
(ii)
|
The
“401(k) hardship withdrawal required cancellation
period” means the 6 month period (or other stated period in
the 401(k) plan) during which employee contributions and elective
deferrals must be suspended as a result of receipt of a 401(k)
hardship withdrawal in order to satisfy the regulations under Code
Section 401(k).
|
|
|
(iii)
|
A
“401(k) Plan” means a plan qualified under Code Section
401(a) that contains a cash or deferral arrangement described in
Code Section 401(k) maintained by the Employer or any other
business entity or other organization (whether or not incorporated)
which during the relevant period is treated (but only for the
portion of the period so treated and for the purpose and to the
extent required to be so treated) as a single employer with the
Employer or any affiliate under Code Section 414(b), (c), (m) or
(o), as it may be amended from time to time, or any successor
thereto.
|
|
3.8
|
Automatic Suspension
of Deferral Right upon
Receipt of Voluntary
Withdrawal pursuant to the 2002 Plan
. Under Section 4.4 of the 2002 Plan (see Appendix B), a
Participant (or, after a Participant’s death, his or her
Beneficiary) may elect, at any time, to withdraw all of his or her
vested Account Balance under the 2002 Plan, less a withdrawal
penalty equal to 10% of such amount (the net amount shall be
referred to as the “Withdrawal
Amount”). Once the Withdrawal Amount is paid, the
Participant's participation in the Plan shall be suspended from
making deferral elections for the Plan Year immediately following
the Plan Year the distribution is made and for the first portion of
the next Plan Year after such full Plan Year of suspension equal to
the remainder of the Plan Year following the date the distribution
is made.
|
ARTICLE 4
Short-Term
Payout
|
4.1
|
Short-Term Payouts . In connection with each
election to defer an Annual Deferral Amount, a Participant may
elect to receive all or a portion of such Annual Deferral Amount,
plus amounts credited or debited on that amount pursuant to Section
3.5, in the form of a lump sum payment, calculated as of the close
of business on or around the Benefit Distribution Date designated
by the Participant in accordance with this Section (a
“Short-Term Payout”). The Benefit
Distribution Date for the amount subject to a Short-Term Payout
election shall be the first day of any Plan Year designated by the
Participant, which may be no sooner than 2 Plan Years after the end
of the Plan Year to which the Participant’s deferral election
relates, unless otherwise provided on an Election Form approved by
the Committee.
|
Subject
to the other terms and conditions of this Plan, each
Short-Term Payout elected shall be paid out during a 60 day
period commencing immediately after the Benefit Distribution
Date. By way of example, if a Short-Term Payout is
elected for Annual Deferral Amounts that are earned in the
Plan Year commencing January 1, 2008, the earliest Benefit
Distribution Date that may be designated by a Participant
would be January 1, 2011, and the Short-Term Payout would be
paid out during the 60 day period commencing immediately after
such Benefit Distribution Date.
|
4.2
|
Postponing Short-Term Payouts . With respect to
each Short-Term Payout, a Participant may elect one time only to
postpone a Short-Term Payout described in Section 4.1 above, and
have such amount paid out during a 60 day period commencing
immediately after an allowable alternative Benefit Distribution
Date designated in accordance with this Section. In
order to make such an election, the Participant must submit an
Election Form to the Committee in accordance with the following
criteria:
|
|
|
(a)
|
The
election of the new Benefit Distribution Date shall have no effect
until at least 13 months after the date on which the election is
made;
|
|
|
(b)
|
The
new Benefit Distribution Date selected by the Participant for such
Short-Term Payout must be the first day of a Plan Year that is no
sooner than 5 years after the previously designated Benefit
Distribution Date; and
|
|
|
(c)
|
The
election must be made at least 13
months prior to the Participant's previously designated Benefit
Distribution Date for such Short-Term Payout.
|
For
purposes of applying the provisions of this Section, a
Participant’s election to postpone a Short-Term
Payout shall not be considered to be made until the date
on which the election becomes irrevocable. Such an
election shall become irrevocable no later than the date that
is 13 months prior to the Participant’s previously
designated Benefit Distribution Date for such Short-Term
Payout.
|
4.3
|
Other Benefits Take Precedence Over Short-Term Payouts
. Should an event occur prior to any Benefit
Distribution Date designated for a Short-Term Payout that would
trigger a benefit under Articles 5 through 9, as applicable, all
amounts subject to a Short-Term Payout election shall be paid in
accordance with the other applicable provisions of the Plan and not
in accordance with this Article 4.
|
ARTICLE 5
Unforeseeable
Emergencies
|
5.1
|
Unforeseeable Emergencies .
|
|
|
(a)
|
If
a Participant experiences an Unforeseeable Emergency prior to the
occurrence of a distribution event described in Articles 6 through
9, as applicable, the Participant may petition the Committee to
receive a partial or full payout from the Plan. The
payout, if any, from the Plan shall not exceed the lesser of (i)
the Participant's vested Account Balance, calculated as of the
close of business on or around the Benefit Distribution Date for
such payout, as determined by the Committee in accordance with
provisions set forth below, or (ii) the amount necessary to satisfy
the Unforeseeable Emergency, plus amounts necessary to pay Federal,
state, or local income taxes or penalties reasonably anticipated as
a result of the distribution. A Participant shall not be
eligible to receive a payout from the Plan to the extent that the
Unforeseeable Emergency is or may be relieved (A) through
reimbursement or compensation by insurance or otherwise, (B) by
liquidation of the Participant’s assets, to the extent the
liquidation of such assets would not itself cause severe financial
hardship or (C) by cessation of deferrals under this
Plan.
|
|
|
(b)
|
If
the Committee, in its sole discretion, approves a
Participant’s petition for payout from the Plan, the
Participant’s Benefit Distribution Date for such payout shall
be the date on which such Committee approval occurs and such payout
shall be distributed to the Participant in a lump sum no later than
60 days after such Benefit Distribution Date. In
addition, in the event of such approval the Participant’s
outstanding deferral elections under the Plan shall be
cancelled.
|
ARTICLE 6
Retirement
Benefit
|
6.1
|
Retirement Benefit . If a Participant experiences
a Separation from Service that qualifies as a Retirement, the
Participant shall be eligible to receive his or her vested Account
Balance in either a lump sum or annual installment payments, as
elected by the Participant in accordance with Section 6.2 (the
“Retirement Benefit”). A Participant’s
Retirement Benefit shall be calculated as of the close of business
on or around the applicable Benefit Distribution Date for such
benefit, which shall be (a) a
|
|
