Exhibit 10.53
The CORPORATE plan for
Retirement SM
EXECUTIVE Plan
BASIC PLAN
DOCUMENT
IMPORTANT
NOTE
This document has not been approved by the
Department of Labor, the Internal Revenue Service or any other
governmental entity. The Employer must determine whether
the plan is subject to the Federal securities laws and the
securities laws of the various states. The 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 the
Employee Retirement Income Security Act with respect to the
Employer's particular situation. Fidelity Management
Trust Company, its affiliates and employees cannot and do not
provide legal or tax advice or opinions in connection with this
document. This document does not constitute legal or tax
advice or opinions and is not intended or written to be used, and
it cannot be used by any taxpayer, for the purposes of avoiding
penalties that may be imposed on the taxpayer. This
document must be reviewed by the Employer’s attorney
prior to adoption.
(07/2007)
ECM NQ 2007 BPD
© 2007 Fidelity
Management & Research Company
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
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
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:
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(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.
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“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).
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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.
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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).
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(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.
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(5) "Beneficiary" means the person or
persons entitled under Section 7.02 to receive benefits under the
Plan upon the death of a Participant.
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(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.
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(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:
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The corporation
for which the Participant is performing services at the time of the
change in control event;
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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
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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.
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(8) "Code" means the
Internal Revenue Code of 1986, as amended from time to
time.
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(9) "Compensation" means
for purposes of Article 4:
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(A) If the Employer elects Section
1.04(a), such term as defined in such Section 1.04(a).
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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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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).
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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.
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(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.
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(12) “Disability” is
described in Section 1.07(a)(2).
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(13) "Employee" means any employee of
the Employer.
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(14) "Employer" means the employer
named in Section 1.02(a) and any Related Employers listed in
Section 1.02(b).
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(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.
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(17) "ERISA" means the Employee
Retirement Income Security Act of 1974, as from time to time
amended.
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(18) “Inactive
Participant” means a Participant who is not an Employee or
Director.
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(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.
(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).
(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).
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Participation following a Change in
Status .
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(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.
(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 .
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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.
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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 Performance-based Bonus is based are performed.
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Fiscal
Year Bonus . With
respe
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