Exhibit 10.29
WEST CORPORATION
EXECUTIVE RETIREMENT SAVINGS
PLAN
AMENDED AND RESTATED EFFECTIVE
JANUARY 1, 2008
WEST CORPORATION
EXECUTIVE RETIREMENT SAVINGS
PLAN
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Page
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PREAMBLE
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1
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ARTICLE I
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DEFINITIONS
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1
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ARTICLE II
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PARTICIPATION
IN THE PLAN
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3
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ARTICLE III
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DEFERRAL
ACCOUNTS
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4
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ARTICLE IV
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APPROVED
INVESTMENT FUNDS
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5
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ARTICLE V
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DISTRIBUTION OF
ACCOUNT
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6
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ARTICLE VI
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NON-ASSIGNABILITY
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8
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ARTICLE VII
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VESTING
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8
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ARTICLE VIII
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AMENDMENT OR
TERMINATION OF THE PLAN
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9
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ARTICLE IX
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PLAN
ADMINISTRATION
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10
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ARTICLE X
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MISCELLANEOUS
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14
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WEST CORPORATION
EXECUTIVE RETIREMENT SAVINGS
PLAN
PREAMBLE
West Corporation (the
“Company”) established the West Corporation Executive
Retirement Savings Plan (the “Original Plan”),
effective as of January 1, 2000, as an unfunded retirement
plan for a select group of management or highly compensated
employees. The Original Plan was thereafter amended and restated in
its entirety (the “First 409A Restatement”), effective
as of January 1, 2005, to comply with section 409A of the Code
and the proposed regulations and other guidance issued thereunder.
The First 409A Restatement was further modified by the adoption of
three amendments. The Company now desires to amend and restate the
First 409A Restatement, as amended, in its entirety as hereinafter
set forth (the “Second 409A Restatement” or the
“Plan”) to comply with final regulations issued under
section 409A of the Code and to reflect certain other changes. This
Second 409A Restatement shall be effective January 1,
2008.
The purpose of the Plan is to permit
eligible participants of the Company to accumulate additional
retirement and savings income on a deferred basis.
ARTICLE I
DEFINITIONS
As used in this Plan, the following
capitalized words and phrases have the meanings indicated, unless
the context requires a different meaning:
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1.1
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“Account” means the Deferral Account, Matching Account and
other sub-account(s) maintained on behalf of each Participant to
reflect his interest under the Plan. A separate sub-account
(referred to herein as a Participant’s “Grandfathered
Account”) shall be maintained for contributions attributable
to Plan Years ending on or before December 31, 2004, which
were fully vested as of such date and therefore are exempt from
section 409A of the Code. If a Participant’s Grandfathered
Account is materially modified within the meaning of Treasury
Regulation § 1.409A-6(a)(4) or the corresponding provisions in
future guidance issued by the Department of the Treasury and the
Internal Revenue Service, then such account will be subject to
section 409A of the Code and treated for purposes of this Plan in
the same manner as contributions attributable to periods on or
after the date of such material modification.
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1.2
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“Allocation Date”
means each business day during a
Plan Year with respect to which securities are traded on an
established securities market.
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1.3
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“Approved Investment
Fund” means one or
more of the measurement investment funds designated by the
Committee for purposes of crediting or debiting hypothetical
investment gains and losses to the Accounts of
Participants.
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1.4
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“Beneficiary”
means the person or persons
designated by a Participant, or otherwise entitled, to receive any
amount credited to his Account that remains undistributed at his
death.
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1.5
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“Code” means the Internal Revenue Code of 1986, as
amended from time to time.
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1.6
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“Committee” means the committee appointed in accordance with
Section 9.1 to administer the Plan.
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1
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1.7
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“Company” means West Corporation or any successor thereto.
Unless the context requires a different meaning, each reference to
“Company” shall also mean any affiliated employer of
West Corporation that participates in the Plan with respect to such
affiliate’s employees.
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1.8
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“Compensation”
means the aggregate compensation
earned by a Participant by the Company for a Plan Year, including
salary, overtime pay, commissions, bonuses and all other items that
constitute wages within the meaning of section 3401(a) of the Code
or are required to be reported under sections 6041(d), 6051(a)(3)
or 6052 of the Code (i.e., W-2 compensation); excluding, however,
all of the following items (even if includible in gross income):
reimbursements or other expense allowances, cash and non-cash
fringe benefits, moving expenses, welfare benefits, and stock
options and all other forms of equity compensation. Compensation
also includes salary deferral contributions under this Plan and any
elective deferrals under cash-or-deferred arrangements or cafeteria
plans that are not includable in gross income by reason of section
125 or 402(g)(3) of the Code but does not include any other amounts
contributed pursuant to, or received under, this Plan or any other
plan of deferred compensation. Compensation shall not include any
amount included in the taxable income of a Participant in any given
year as a result of its distribution pursuant to Article V of this
Agreement.
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1.9
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“Deferral Account”
means the sub-account established on
behalf a Participant to reflect the amount of contributions that he
elects to defer under the Plan pursuant to
Section 3.1.
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1.10
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“Deferral Election
Agreement” means an
agreement between a Participant and the Company under which the
Participant agrees to defer a portion of his Compensation that is
earned and payable for services performed during a Plan
Year.
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1.11
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“Eligible Employee”
means an employee of the Company who
is a member of a select group of management or highly compensated
employees and who is designated by the Company for participation in
the Plan.
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1.12
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“Grandfathered Account”
(see Section 1.1)
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1.13
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“Matching Account”
means the sub-account established on
behalf of a Participant to reflect the amount of Company matching
contributions made on his behalf pursuant to
Section 3.2.
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1.14
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“Participant”
means any Eligible Employee who
satisfies the conditions for participation in the Plan set forth in
Section 2.1.
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1.15
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“Plan” means the West Corporation Executive Retirement
Savings Plan, as set forth herein and as from time to time
amended.
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1.16
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“Plan
Year” means the
accounting year of the Plan, which ends on
December 31.
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1.17
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“Separation from Service”
means the complete termination of
the employment relationship with the Company and all corporations
or entities or organizations with which the Company would be
considered a single employer pursuant to subsections (b) and
(c) of section 414 of the Code determined in conformance with
section 409A of the Code and Treasury Regulation §1.409A-1(h)
or the corresponding provisions in future guidance issued by the
Department of the Treasury and the Internal Revenue Service. For
this purpose, an individual’s employment relationship is
treated as continuing intact while the individual is on military
leave, sick leave or other bona fide leave of absence if the period
of any such leave does not exceed six (6) months, or if
longer, so long as the individual retains the right to reemployment
under an applicable statute or by contract.
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2
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1.18
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“Trust” or “Trust Fund” means any
trust established to hold amounts set aside by the Company in
accordance with Section 3.6.
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1.19
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“Trustee” means the person(s) serving as trustee of the
Trust Fund.
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1.20
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Rules of
Construction
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(a)
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Governing
law . The construction
and operation of this Plan are governed by the laws of the State of
Nebraska.
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(b)
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Headings . The headings of Articles, Sections and
Subsections are for reference only and are not to be utilized in
construing the Plan.
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(c)
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Gender . Unless clearly inappropriate, all pronouns of
whatever gender refer indifferently to persons or objects of any
gender.
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(d)
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Singular and
plural . Unless clearly
inappropriate, singular items refer also to the plural Company and
vice versa.
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(e)
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Severability . If any provision of this Plan is held illegal
or invalid for any reason, the remaining provisions are to remain
in full force and effect and to be construed and enforced in
accordance with the purposes of the Plan as if the illegal or
invalid provision did not exist.
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ARTICLE II
PARTICIPATION IN THE
PLAN
Participation in the Plan shall be
limited to employees of the Company who (i) qualify for
inclusion in a “select group of management or highly
compensated employees” within the meaning of sections 201(2),
301(a)(3), 401(a)(1) and 4021(b)(6) of ERISA and (ii) are
designated by the Company as being eligible to participate. If the
Company determines that a Participant no longer qualifies as being
a member of a select group of management or highly compensated
employees, then the compensation deferral elections made by such
individual in accordance with the provisions of the Plan will
continue for the remainder of the Plan Year. However, no additional
amounts shall be deferred and credited to the Account of such
individual under the Plan for any future Plan Year until such time
as the individual is again determined to be eligible to participate
in the Plan and makes a new election under the provisions of the
Plan; except that all prior amounts credited to the Account of such
individual shall continue to be adjusted for earnings or losses
pursuant to the other provisions of the Plan until fully
distributed. The Company also retains the right to direct the
immediate payment of all amounts credited to a Participant’s
Grandfathered Account upon the Company’s determination that
such Participant is no longer eligible for the Plan.
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2.2
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Commencement
of Participation
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Eligible Employees may elect to
participate in the Plan, in the manner designated by and acceptable
to the Company, effective as of the first day of each Plan Year.
Notwithstanding the foregoing, in the case of the first Plan Year
in which an individual becomes eligible to participate in the Plan,
such individual may make an initial deferral election within 30
days after the date he or she becomes eligible to participate in
the Plan (as defined in Treasury Regulation §1.409A-1(c) or
the corresponding provision in subsequent guidance issued by the
Department of the Treasury to include any other plan that would be
considered together with this Plan as the same plan), with respect
to Compensation paid for services to be performed subsequent to the
election.
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ARTICLE III
DEFERRAL ACCOUNTS
Each Plan Year, a Participant may
execute a Deferral Election Agreement under which he may elect to
defer a percentage of his Compensation, subject to any minimum
amount specified by the Committee and subject to maximum amount
equal to 100% of the dollar limit under section 402(g) of the Code,
as adjusted from time to time by the Secretary of the Treasury. A
Deferral Election Agreement shall be entered into prior to the
commencement of the Plan Year with respect to which such agreement
relates and prior to the performance of services by a Participant
for such Plan Year; provided, however, in the case of the first
Plan Year in which a Participant becomes eligible to participate in
the Plan, such election may be made with respect to services
performed subsequent to the Participant’s election within 30
days after the date the Participant first becomes eligible to
participate in the Plan. All elections for a given Plan Year shall
be written in a form supplied by the Company and shall be subject
to any terms and conditions specified by the Company in its
discretion, including but not limited to any limitation on the
amount of contributions that may be deferred under the Plan. As a
condition of participating in this Plan for each Plan Year, each
Participant must elect to contribute to the Company’s 401(k)
savings plan the maximum elective deferrals permitted under section
402(g) of the Code or the maximum elective contributions permitted
under the terms of such 401(k) savings plan.
For each Plan Year, the Company in
its discretion may make a matching contribution to a
Participant’s Account under this Plan, provided that in no
event shall such matching contribution exceed 100% of the matching
contribution that would be provided to the Participant under the
Company’s 401(k) savings plan in the absence of any
plan-based restrictions that reflect limits on qualified plan
limitations under the Code. Any such Company matching contributions
shall be subject to any conditions specified by the
Company.
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3.3
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Account
Reflecting Deferred Compensation
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The Company shall establish and
maintain a separate Account for each Participant which shall
reflect the amount of such Participant’s total contributions
under this Plan and all credits or charges under Section 3.4
from time to time. All amounts credited or charged to a
Participant’s Account hereunder shall be in a manner and form
determined within the sole discretion of the Company.
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(a)
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Annual
Earnings or Losses
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As of each Allocation Date during a
Plan Year, a Participant’s Account shall be credited or
debited with earnings or losses approximately equal to the
earnings, gain or loss on the Approved Investment Funds indicated
as preferred by a Participant for the Plan Year or for the portion
of such Plan Year in which the Account is deemed to be
invested.
4
As of each Allocation Date, the
amount credited to a Participant’s Account shall be the
amount credited to his Account as of the immediately preceding
Allocation Date, plus the Participant’s contribution credits
since the immediately preceding Allocation Date, minus any amount
that is paid to or on behalf of a Participant pursuant to this Plan
subsequent to the immediately preceding Allocation Date, plus or
minus any hypothetical investment gains or losses determined
pursuant to Section 3.4(a) above.
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3.5
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Investment,
Management and Use
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The Company shall have sole control
and discretion over the investment, management and use of all
amounts credited to a Participant’s Account until such
amounts are distributed pursuant to Article V. Notwithstanding any
other provision of this Plan or any notice, statement, summary or
other communication provided to a Participant that may be
interpreted to the contrary, the Approved Investment Funds are to
be used for measurement purposes only, and a Participant’s
election of any such fund, the determination of credits and debits
to his Account based on such funds, the Company’s actual
ownership of such funds, and any authority granted by the Company
to a Participant to change the investment of the Company’s
assets, if any, may not be considered or construed in any manner as
an actual investment of the Account in any such fund or to
constitute a funding of this Plan.
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3.6
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Credits to
Trust Fund
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The Company may establish a Trust
Fund and make credits to it corresponding to any or all amounts
credited under this Article III.
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3.7
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Status of
the Trust Fund
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Notwithstanding any other provision
of this Plan, any assets of the Trust Fund shall remain the
property of the Company and shall be subject to the claims of its
creditors in accordance with the terms of the Trust. No Participant
(or Beneficiary) has any priority claim on Trust assets, if any, or
any security interest or other right in or to them superior to the
rights of general creditors of the Company.
ARTICLE IV
APPROVED INVESTMENT
FUNDS
Each Participant may from time to
time indicate to the Company or its designee, in manner designated
by the Committee, a preference that monies in his Account be
invested by the Company in one or more Approved Investment Funds.
In the absence of any such preference election by a Participant,
such Participant’s Account shall be deemed to have been
invested in the Approved Investment Fund designated by the
Committee which is designed to preserve principal and to provide a
reasonable rate of return consistent with the need for liquidity.
The Company shall not be obligated to follow a Participant’s
expressed preference and may follow the procedure in
Section 4.4(b).
The Committee in its sole discretion
shall designate the Approved Investment Funds to be used under the
Plan and the Committee may from time to time discontinue,
substitute or add one or more such Funds.
5
Subject to any limitations
established by the Committee, a Participant may indicate to the
Company or its designee, in a manner designated by the Committee,
th
