The CORPORATE plan for Retirement SM EXECUTIVE PLAN

 

CORPORATEplan for Retirement EXECUTIVE
BASIC PLAN DOCUMENT

 

ARTICLE 1

ADOPTION AGREEMENT

ARTICLE 2

DEFINITIONS

2.01 - Definitions

ARTICLE 3

PARTICIPATION

3.01 - Date of Participation

3.02 - Participation Following a Change in Status

ARTICLE 4

CONTRIBUTIONS

4.01 - Deferral Contributions

4.02 - Matching Contributions

4.03 - Employer Contributions

4.04 - Election Forms

ARTICLE 5

PARTICIPANTS’ ACCOUNTS

ARTICLE 6

INVESTMENT OF ACCOUNTS

6.01 - Manner of Investment

6.02 - Investment Decisions, Earnings and Expenses

ARTICLE 7

RIGHT TO BENEFITS

7.01 - Retirement

7.02 - Death

7.03 - Separation from Service

7.04 - Vesting after Partial Distribution

7.05 - Forfeitures

7.06 - Change in Control

7.07 - Disability

7.08 - Directors

ARTICLE 8

DISTRIBUTION OF BENEFITS

8.01 - Events Triggering and Form of Distributions

8.02 - Notice to Trustee

8.03 - Unforeseeable Emergency Withdrawals

 

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ARTICLE 9

AMENDMENT AND TERMINATION

9.01 - Amendment by Employer

9.02 - Termination

ARTICLE 10

MISCELLANEOUS

10.01 - Communication to Participants

10.02 - Limitation of Rights

10.03 - Nonalienability of Benefits

10.04 - Facility of Payment

10.05 - Plan Records

10.06 - USERRA

10.07 - Governing Law

ARTICLE 11

PLAN ADMINISTRATION

11.01 - Powers and Responsibilities of the Administrator

11.02 - Claims and Review Procedures

 

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PREAMBLE

 

It is the intention of the Employer to establish herein an unfunded plan maintained solely for the purpose of providing deferred compensation for a select group of management or highly compensated employees as provided in ERISA.  The Employer further intends that this Plan comply with Code section 409A, and the Plan is to be construed accordingly.

 

If the Employer has previously maintained the Plan described herein pursuant to a previously existing plan document or description, the Employer’s adoption of this Plan document is an amendment and complete restatement of, and supersedes, such previously existing document or description with respect to benefits accrued or to be paid on or after the effective date of this document (except to the extent expressly provided otherwise herein).

 

Article 1.  Adoption Agreement.

 

Article 2.  Definitions.

 

2.01.  Definitions.

 

(a)  Wherever used herein, the following terms have the meanings set forth below, unless a different meaning is clearly required by the context:

 

(1)  “Account” means an account established on the books of the Employer for the purpose of recording amounts credited to a Participant and any income, expenses, gains, or losses attributable thereto.

 

(2)           “Active Participant” means a Participant who is eligible to accrue benefits under a plan other than earnings on amounts previously deferred) within the 24-month period ending on the date the Participant becomes a Participant under Section 3.01.  Notwithstanding the above, however, a Participant is not an Active Participant if he has been paid all amounts deferred under the plan, provided that he was, on and before the date of the last payment, ineligible to continue or to elect to continue to participate in the plan for periods after such last payment (other than through an election of a different time and form of payment with respect to the amounts paid).

 

(A)   For purposes of Section 4.01(d), as used in the first paragraph of the definition of “Active Participant”  above, “plan”  means an account balance plan (or portion thereof) of the Employer or a Related Employer subject to Code section 409A pursuant to which the Participant is eligible to accrue benefits only if the Participant elects to defer compensation thereunder, and the “date the Participant becomes a Participant under Section 3.01” refers only to the date the Participant becomes a Participant with respect to Deferral Contributions.

 

(B)   For purposes of Section 8.01(a)(2), as used in the first paragraph of the definition of “Active Participant”  above, “plan”  means an account balance plan (or portion thereof) of the Employer or a Related Employer subject to Code section 409A pursuant to which the Participant is eligible to accrue benefits without any election by the Participant to defer compensation thereunder, and the “date the Participant becomes a Participant under Section 3.01” refers only to the date the Participant becomes a Participant with respect to Matching or Employer Contributions.

 

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(3)   “Administrator” means the Employer adopting this Plan (but excluding Related Employers) or other person designated by the Employer in Section 1.01(c).

 

(4)   “Adoption Agreement” means Article 1, under which the Employer establishes and adopts or amends the Plan and selects certain provisions of the Plan. The provisions of the Adoption Agreement are an integral part of the Plan.

 

(5)   “Beneficiary” means the person or persons entitled under Section 7.02 to receive benefits under the Plan upon the death of a Participant.

 

(6)   “Bonus” means any Performance-based Bonus or any Non-performance-based Bonus as listed and identified in the table in Section 1.05(a)(2) hereof.

 

(7)   “Change in Control” means a change in control with respect to the applicable corporation, as defined in 26 CFR section 1.409A-3(i)(5).  For purposes of this definition “applicable corporation” means:

 

(A) The corporation for which the Participant is performing services at the time of the change in control event;

 

(B) The corporation(s) liable for payment hereunder (but only if either the accrued benefit hereunder is attributable to the performance of service by the Participant for such corporation(s) or there is a bona fide business purpose for such corporation(s) to be liable for such payment and, in either case, no significant purpose of making such corporation(s) liable for such benefit is the avoidance of Federal income tax); or

 

(C) A corporate majority shareholder of one of the corporations described in (A) or (B) above or any corporation in a chain of corporations in which each corporation is a majority shareholder of another corporation in the chain, ending in a corporation identified in (A)   or (B) above.

 

(8)   “Code” means the Internal Revenue Code of 1986, as amended from time to time.

 

(9)   “Compensation” means for purposes of Article 4:

 

(A)  If the Employer elects Section 1.04(a), such term as defined in such Section 1.04(a).

 

(B) If the Employer elects Section 1.04(b), wages as defined in Code section 3401(a) and all other payments of compensation to an Employee by the Employer (in the course of the Employer’s trade or business) for which the Employer is required to furnish the Employee a written statement under Code sections 6041(d) and 6051(a)(3), excluding any items elected by the Employer in Section 1.04(b), reimbursements or other expense allowances, fringe benefits (cash and non-cash), moving expenses, deferred compensation and welfare benefits, but including amounts that are not includable in the gross income of the Employee under a salary reduction agreement by reason of the application of Code section 125, 132(f)(4), 402(e)(3), 402(h) or 403(b).  Compensation shall be determined without regard to any rules under Code section 3401(a) that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code section 3401 (a)(2)).

 

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(C) If the Employer elects Section 1.04(c), any and all monetary remuneration paid to the Director by the Employer, including, but not limited to, meeting fees and annual retainers, and excluding items listed in Section 1.04(c).

 

For purposes of this Section 2.01(a)(9), Compensation shall also include amounts deferred pursuant to an election under Section 4.01.

 

(10)  “Deferral Contribution” means a hypothetical contribution credited to a Participant’s Account as the result of the Participant’s election to reduce his Compensation in exchange for such credit, as described in Section 4.01.

 

(11)  “Director” means a person, other than an Employee, who is elected or appointed as a member of the board of directors of the Employer, with respect to a corporation, or to an analogous position with respect to an entity that is not a corporation.

 

(12)  “Disability” is described in Section 1.07(a)(2).

 

(13)  “Employee” means any employee of the Employer.

 

(14)  “Employer” means the employer named in Section 1.02(a) and any Related Employers listed in Section 1.02(b).

 

(15)  “Employer Contribution” means a hypothetical contribution credited to a Participant’s Account under the Plan as a result of the Employer’s crediting of such amount, as described in Section 4.03.

 

(16)  “Employment Commencement Date” means the date on which the Employee commences employment with the Employer.

 

(17)  “ERISA” means the Employee Retirement Income Security Act of 1974, as from time to time amended.

 

(18)  “Inactive Participant” means a Participant who is not an Employee or Director.

 

(19)  “Matching Contribution” means a hypothetical contribution credited to a Participant’s Account under the Plan as a result of the Employer’s crediting of such amount, as described in Section 4.02.

 

(20)  “Non-performance-based Bonus” means any Bonus listed under the column entitled “non performance based” in Section 1.05(a)(2).

 

(21)  “Participant” means any Employee or Director who participates in the Plan in accordance with Article 3 (or formerly participated in the Plan and has an amount credited to his Account).

 

(22)  “Performance-based Bonus” means any Bonus listed under the column entitled “performance based” in Section 1.05(a)(2), which constitutes compensation, the amount of, or entitlement to, 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 and which is further defined in 26 CFR section 1.409A-1(e).

 

(23)  “Permissible Investment” means the investments specified by the Employer as available for hypothetical investment of Accounts.  The Permissible Investments under the Plan are listed in the Service Agreement, and the provisions of the Service Agreement listing the Permissible Investments are hereby incorporated herein.

 

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(24)  “Plan” means the plan established by the Employer as set forth herein as a new plan or as an amendment to an existing plan, such establishment to be evidenced by the Employer’s execution of the Adoption Agreement, together with any and all amendments hereto.

 

(25)  “Related Employer” means any employer other than the Employer named in Section 1.02 (a), if the Employer and such other employer are members of a controlled group of corporations (as defined in Code section 414(b)) or trades or businesses (whether or not incorporated) under common control (as defined in Code section 414(c)).

 

(26)  “Separation from Service” means the date the Participant retires or otherwise has a termination of employment (or a termination of the contract pursuant to which the Participant has provided services as a Director, for a Director Participant) with the Employer and all Related Employers, as further defined in 26 CFR section 1.409A-1(h); provided, however, that

 

(A)  For purposes of this paragraph (26), the definition of “Related Employer” shall be modified as follows:

 

(i)            In applying Code section 1563(a)(1), (2) and (3) for purposes of determining a controlled group of corporations under Code section 414(b), the phrase “at least 50%” shall be used instead of “at least 80 percent” each place “at least 80 percent” appears in Code section 1563(a)(1), (2) and (3); and

 

(ii)           In applying 26 CFR section 1.414(c)-2 for purposes of determining trades or business (whether or not incorporated) under common control for purposes of Code section 414(c), the phrase “at least 50%” shall be used instead of “at least 80 percent” each place “at least 80 percent” appears in 26 CFR section 1.414(c)-2.

 

(B)  In the event a Participant provides services to the Employer or a Related Employer as an Employee and a Director,

 

(i)            The Employee Participant’s services as a Director are not taken into account in determining whether the Participant has a Separation from Service as an Employee; and

 

(ii)           The Director Participant’s services as an Employee are not taken into account in determining whether the Participant has a Separation from Service as a Director

 

provided that this Plan is not aggregated with a plan subject to Code section 409A in which the Director Participant participates as an employee of the Employer or a Related Employer or in which the Employee Participant participates as a director (or a similar position with respect to a non-corporate entity) of the Employer or a Related Employer, as applicable, pursuant to 26 CFR section 1.409A-1(c)(2)(ii).

 

(27)  “Service Agreement” means the agreement between the Employer and Trustee regarding the arrangement between the parties for recordkeeping services with respect to the Plan.

 

(28)  “Specified Employee,” (unless defined by the Employer in a separate writing, in which case such writing is hereby incorporated herein) means a Participant who meets the requirements in 26 CFR section 1.409A-1(i) applying the default definition components provided in such regulation (those that would apply absent elections, as described in 26 CFR section 1.409A-1(i)(8)), including an identification date of December 31.  In the event that such default definition components are applicable, the Employer has elected Section 1.01(b)(2) and, immediately prior to the date in Section 1.01(b)(2), the Plan applied an identification date (the “prior date”) other than the December 31, the prior date shall continue to apply, and December 31 shall not apply, until the date that is 12 months after the date in Section 1.01(b)(2).

 

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(29)  “Trust” means the trust created by the Employer, pursuant to the Trust agreement between the Employer and the Trustee, under which assets are held, administered, and managed, subject to the claims of the Employer’s creditors in the event of the Employer’s insolvency, until paid to Participants and their Beneficiaries as specified in the Plan.

 

(30)  “Trust Fund” means the property held in the Trust by the Trustee.

 

(31)  “Trustee” means the individual(s) or entity appointed by the Employer under the Trust agreement.

 

(32)  “Unforeseeable Emergency” is as defined in 26 CFR section 1.409A-3(i)(3)(i).

 

(33)  “Year of Service” is as defined in Section 7.03(b) for purposes of the elapsed time method and in Section 7.03(c) for purposes of the class year method.

 

(b) Pronouns used in the Plan are in the masculine gender but include the feminine gender unless the context clearly indicates otherwise.

 

Article 3.   Participation.

 

3.01. Date of Participation . An Employee or Director becomes a Participant on the date such Employee’s or Director’s participation becomes effective (as described in Section 1.03).

 

3.02. Participation following a Change in Status.

 

(a)  If a Participant ceases to be an Employee or Director and thereafter resumes the same status he had as a Participant during his immediately previous participation in the Plan (as an Employee if previously a Participant as an Employee and as a Director if previously a Participant as a Director), he will again become a Participant immediately upon resumption of such status, provided, however, that if such Participant is a Director, he is an eligible Director upon resumption of such status (as defined in Section 1.03(b)), and provided, further, that if such Participant is an Employee, he is an eligible Employee upon resumption of such status (as defined in Section 1.03 (a)).  Deferral Contributions to such Participant’s Account thereafter, if any, shall be subject to (1) or (2) below.

 

(1) If the Participant resumes such status during a period for which such Participant had previously made a valid deferral election pursuant to Section 4.01, he shall immediately resume such Deferral Contributions.  Deferral Contributions applicable to periods thereafter shall be made pursuant to the election and other rules described in Section 4.01.

 

(2) If the Participant resumes such status after the period described in the first sentence of paragraph (1) of this Section 3.02, any Deferral Contributions with respect to such Participant shall be made pursuant to the election and other rules described in Section 4.01.

 

(b) When an individual who is a Participant due to his status as an eligible Employee (as defined in Section 1.03(a)) continues in the employ of the Employer or Related Employer but ceases to be an eligible Employee, the individual shall not receive an allocation of Matching or Employer Contributions for the period during which he is not an eligible Employee.  Such Participant shall continue to make Deferral Contributions throughout the remainder of the applicable period (as described in Section 4.01) in which such change in status occurs, if, and as, applicable.

 

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(c) When an individual who is a Participant due to his status as an eligible Director (as defined in Section 1.03(b)) continues his directorship with the Employer or a Related Employer but ceases to be an eligible Director, the individual shall not receive an allocation of Matching or Employer Contributions for the period during which he is not an eligible Director. Such Participant shall continue to make Deferral Contributions throughout the remainder of the applicable period (as described in Section 4.01) in which such change in status occurs, if, and as, applicable.

 

Article 4.   Contributions.

 

4. 01   Deferral Contributions .  If elected by the Employer pursuant to Section 1.05(a) and/or 1.06(a), a Participant described in such applicable Section may elect to reduce his Compensation by a specified percentage or dollar amount. The Employer shall credit an amount to the Participant’s Account equal to the amount of such reduction.  Except as otherwise provided in this Section 4.01, such election shall be effective to defer Compensation relating to all services performed in the calendar year beginning after the calendar year in which the Participant executes the election.  Under no circumstances may a salary reduction agreement be adopted retroactively.  If the Employer has elected to apply Section 1.05(a)(2), no amount will be deducted from Bonuses unless the Participant has made a separate deferral election applicable to such Bonuses.  A Participant’s election to defer Compensation may be changed at any time before the last permissible date for making such election, at which time such election becomes irrevocable.  Notwithstanding anything herein to the contrary, the conditions under which a Participant may make a deferral election as provided in the applicable salary reduction agreement are hereby incorporated herein and supersede any otherwise inconsistent Plan provision.

 

(a)           Performance Based Bonus.  With respect to a Performance-based Bonus, a separate election made pursuant to Section 1.05(a)(2) will be effective to defer such Bonus if made no later than 6 months before the end of the period during which the services on which such Performa