Exhibit 10(c)
NOTE: Execution of this Adoption
Agreement creates a legal liability of the Employer with
significant tax consequences to the Employer and Participants. The
Employer should obtain legal and tax advice from its professional
advisors before adopting the Plan. Principal Life Insurance Company
disclaims all liability for the legal and tax consequences which
result from the elections made by the Employer in this Adoption
Agreement.
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Principal Life Insurance Company, Raleigh, NC 27612
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A member of
the Principal Financial Group®
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THE EXECUTIVE NONQUALIFIED
“EXCESS” PLAN
ADOPTION AGREEMENT
THIS AGREEMENT is the adoption by
A. O. Smith Corporation (the “Company”) of the
Executive Nonqualified Excess Plan (“Plan”).
WITNESSETH:
WHEREAS, the Company desires to
adopt the Plan as an unfunded, nonqualified deferred compensation
plan; and
WHEREAS, the provisions of the Plan
are intended to comply with the requirements of Section 409A
of the Code and the regulations thereunder and shall apply to
amounts subject to section 409A; and
WHEREAS, the Company has been
advised by Principal Life Insurance Company to obtain legal and tax
advice from its professional advisors before adopting the
Plan,
NOW, THEREFORE, the Company hereby
adopts the Plan in accordance with the terms and conditions set
forth in this Adoption Agreement:
ARTICLE I
Terms used in this Adoption
Agreement shall have the same meaning as in the Plan, unless some
other meaning is expressly herein set forth. The Employer hereby
represents and warrants that the Plan has been adopted by the
Employer upon proper authorization and the Employer hereby elects
to adopt the Plan for the benefit of its Participants as referred
to in the Plan. By the execution of this Adoption Agreement, the
Employer hereby agrees to be bound by the terms of the
Plan.
ARTICLE II
The Employer hereby makes the
following designations or elections for the purpose of the
Plan:
2.6 Committee:
The duties of the Committee set
forth in the Plan shall be satisfied by:
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(a)
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Company
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(b)
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The
administrative committee appointed by the Board to serve at the
pleasure of the Board.
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(c)
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Board.
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XX
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(d)
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Other
(specify): Personnel and compensation committee of the Board
of Directors .
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1
2.8 Compensation: The “Compensation” of a Participant
shall mean all of a Participant’s:
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XX
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(a)
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Base
salary.
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XX
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(b)
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Service
Bonus.
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XX
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(c)
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Performance-Based Compensation earned in a
period of 12 months or more.
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(d)
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Commissions.
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(e)
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Compensation
received as an Independent Contractor reportable on Form
1099.
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XX
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(f)
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Other:
Restricted stock units .
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2.9 Crediting Date:
The Deferred Compensation Account of
a Participant shall be credited with the amount of any Participant
Deferral to such account at the time designated below:
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(a)
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The last
business day of each Plan Year.
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(b)
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The last
business day of each calendar quarter during the Plan
Year.
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(c)
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The last
business day of each month during the Plan Year.
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(d)
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The last
business day of each payroll period during the Plan
Year.
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(e)
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Each pay day as
reported by the Employer.
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XX
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(f)
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Any business
day on which Participant Deferrals are received by the
administrative recordkeeper.
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(g)
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Other:
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2.13 Effective
Date:
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(a)
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This is a newly-established Plan,
and the Effective Date of the Plan is
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(b)
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This is an amendment and restatement of plans
named
A. O. Smith Corporation Corporate
Directors’ Deferred Compensation Plan, A. O. Smith
Corporation Executive Deferred Compensation Plan, A. O. Smith
Corporation Supplemental Profit Sharing Plan
, and incorporates the bonus
deferral provisions under the A. 0. Smith Corporation
Combined Executive Incentive Compensation Plan .
The Effective Date of this amended
and restated Plan is December 1, 2008 .
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(i)
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All amounts in
Deferred Compensation Accounts shall be subject to the provisions
of this amended and restated Plan.
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XX
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(ii)
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Any
Grandfathered Amounts shall be subject to the Plan rules in effect
on October 3, 2004.
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2
2.20 Normal Retirement Age:
The Normal Retirement Age of a
Participant shall be:
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XX
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(a)
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Age
65 .
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(b)
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The later of
age or the
anniversary of the participation commencement date. The
participation commencement date is the first day of the first Plan
Year in which the Participant commenced participation in the
Plan.
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(c)
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Other:
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2.23 Participating
Employer(s): As of the
Effective Date, the following Participating Employer(s) are parties
to the Plan:
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A. O.
Smith Corporation
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11270
West Park Place
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414-359-4237
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39-0619790
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Milwaukee, WI
53224
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2.26 Plan:
The name of the Plan is
A. O. Smith Nonqualified
Deferred Compensation Plan .
2.28 Plan Year:
The Plan Year shall end each year on
the last day of the month of December .
2.30 Seniority Date:
The date on which a Participant
has:
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(a)
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Attained age
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(b)
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Completed
Years of Service from First Date of
Service.
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(c)
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Attained age
and completed
Years of Service from First Date of Service.
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(d)
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Attained an age
as elected by the Participant.
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XX
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(e)
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Not applicable
– distribution elections for Separation from Service are not
based on Seniority Date
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3
4.1 Participant Deferral Credits:
Subject to the limitations in
Section 4.1 of the Plan, a Participant may elect to have his
Compensation (as selected in Section 2.8 of this Adoption
Agreement) deferred within the annual limits below by the following
percentage or amount as designated in writing to the
Committee:
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XX
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(a)
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Base
salary:
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minimum deferral:
3
%
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maximum deferral: $
or 100
%
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XX
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(b)
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Service
Bonus:
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minimum
deferral:
3
%
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maximum
deferral: $
or 100
%
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XX
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(c)
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Performance-Based Compensation
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minimum
deferral:
3
%
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maximum
deferral: $
or 100
%
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(d)
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Commissions:
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minimum
deferral:
%
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maximum
deferral: $
or
%
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XX
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(e)
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Form 1099
Compensation:
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minimum
deferral:
25 %
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maximum
deferral: $
or 100
%
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XX
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(f)
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Other:
Restricted Stock Units :
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minimum
deferral:
25 %
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maximum
deferral: $
or 100
%
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(g)
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Participant
deferrals not allowed.
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4
4.2 Employer Credits: Employer Credits will be made in the following
manner:
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XX
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(a)
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Employer
Discretionary Credits: The Employer may make discretionary credits to
the Deferred Compensation Account of each Active Participant in an
amount determined as follows:
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XX
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(i)
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An amount
determined each Plan Year by the Employer.
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(ii)
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Other:
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XX
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(b)
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Other
Employer Credits : The
Employer may make other credits to the Deferred Compensation
Account of each Active Participant in an amount determined as
follows:
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XX
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(i)
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An amount
determined each Plan Year by the Employer.
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(ii)
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Other:
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(c)
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Employer
Credits not allowed.
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5.2 Disability of a
Participant:
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XX
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(a)
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A
Participant’s becoming Disabled shall be a Qualifying
Distribution Event and the Deferred Compensation Account shall be
paid by the Employer as provided in Section 7.1.
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(b)
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A Participant
becoming Disabled shall not be a Qualifying Distribution
Event.
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5.3 Death of a
Participant: If the
Participant dies while in Service, the Employer shall pay a benefit
to the Beneficiary in an amount equal to the vested balance in the
Deferred Compensation Account of the Participant determined as of
the date payments to the Beneficiary commence, plus:
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(a)
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An amount to be
determined by the Committee.
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(b)
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Other:
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XX
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(c)
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No additional
benefits.
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5
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5.4
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In-Service
or Education Distributions: In-Service and Education Accounts are permitted
under the Plan:
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XX
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(a)
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In-Service
Accounts are allowed with respect to:
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XX
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Participant
Deferral Credits only.
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Employer
Credits only.
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Participant
Deferral and Employer Credits.
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In-service
distributions may be made in the following manner:
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XX
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Single lump sum
payment.
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XX
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Annual
installments over a term certain not to exceed 5
years.
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Education
Accounts are allowed with respect to:
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Participant
Deferral Credits only.
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Employer
Credits only.
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Participant
Deferral and Employer Credits.
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Education
Accounts distributions may be made in the following
manner:
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Single lump sum
payment.
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Annual
installments over a term certain not to exceed
years.
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If applicable,
amounts not vested at the time payments due under this Section
cease will be:
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Forfeited
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Distributed at
Separation from Service if vested at that time
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(b)
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No In-Service
or Education Distributions permitted.
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5.5
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Change in
Control Event:
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(a)
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Participants
may elect upon initial enrollment to have accounts distributed upon
a Change in Control Event.
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XX
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(b)
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A Change in
Control shall not be a Qualifying Distribution
Event.
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5.6
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Unforeseeable Emergency Event:
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XX
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(a)
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Participants
may apply to have accounts distributed upon an Unforeseeable
Emergency event.
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(b)
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An
Unforeseeable Emergency shall not be a Qualifying
Distribution Event
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6
6. Vesting: An Active Participant shall be fully vested in
the Employer Credits made to the Deferred Compensation Account upon
the first to occur of the following events:
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XX
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(a)
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Normal
Retirement Age.
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XX
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(b)
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Death.
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XX
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(c)
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Disability.
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(d)
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Change in
Control Event
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XX
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(e)
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Other:
Job Abolition .
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XX
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(f)
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Satisfaction of
the vesting requirement as specified below:
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XX
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Employer
Discretionary Credits:
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(i)
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Immediate 100%
vesting.
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(ii)
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100% vesting
after Years of Service.
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(iii)
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100% vesting at
age .
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XX
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(iv)
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Number of Years of Service
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Vested
Percentage
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Less
than
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1
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0
%
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1
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0
%
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2
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0
%
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3
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40
%
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4
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60
%
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5
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80
%
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6
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100 %
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7
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%
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8
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%
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9
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%
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10 or more
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%
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For this
purpose, Years of Service of a Participant shall be calculated from
the date designated below:
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XX
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(1)
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First Day of
Service.
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(2)
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Effective Date
of Plan Participation.
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(3)
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Each Crediting
Date. Under this option (3), each Employer Credit shall vest based
on the Years of Service of a Participant from the Crediting Date on
which each Employer Discretionary Credit is made to his or her
Deferred Compensation Account.
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7
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XX
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Other
Employer Credits:
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(i)
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Immediate 100%
vesting.
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(ii)
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100% vesting
after Years of Service.
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(iii)
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100% vesting at
age .
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(iv)
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Number of Years of Service
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Vested
Percentage
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Less
than
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1
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%
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1
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%
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2
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%
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3
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%
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4
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%
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5
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%
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6
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%
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7
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%
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8
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%
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9
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%
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10 or more
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%
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For this
purpose, Years of Service of a Participant shall be calculated from
the date designated below:
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(1)
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First Day of
Service.
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(2)
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Effective Date
of Plan Participation.
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