Exhibit 10.36
ACE USA
OFFICER DEFERRED COMPENSATION
PLAN
(Amended and Restated Effective
January 1, 2009)
The ACE USA Officer Deferred
Compensation Plan (the “Plan”) is hereby amended and
restated effective January 1, 2009 by ACE INA Holdings, Inc.
to permit Eligible Employees to defer receipt of certain
compensation pursuant to the terms and provisions set forth below.
From January 1, 2005 through December 31, 2008, the Plan
has operated in good faith compliance with Code section 409A and
the transitional guidelines set forth in official IRS
guidance.
The Plan is intended (1) to
comply with Code section 409A, the final regulations and official
guidance issued thereunder for credited amounts earned and vested
after December 31, 2004, while credited amounts earned and
vested prior to January 1, 2005 (and applicable earnings
credited on these amounts) are not intended to be subject to the
provisions of Code section 409A (the “Grandfathered
Amounts”), to the fullest extent permitted by Code section
409A and official guidance, and (2) to be “a plan which
is unfunded and is maintained by an employer primarily for the
purpose of providing deferred compensation for a select group of
management or highly compensated employees” within the
meaning of sections 201(2), 301(a)(3) and 401(a)(1) of ERISA.
Notwithstanding any other provision of this Plan, this Plan shall
be interpreted, operated and administered in a manner consistent
with these intentions. The Plan document and Plan procedures in
effect on December 31, 2004 will remain in full force and
effect for the Grandfathered Amounts.
SECTION 1
DEFINITIONS
Wherever used herein the following
terms shall have the meanings hereinafter set forth:
“ Account ” means
a bookkeeping account established by the Company for each
Participant electing to defer Eligible Income under the
Plan.
“ Affiliate ”
means any corporation or other entity that is treated as a single
employer with the Company under section 414 of the Code.
“ Base Salary ”
means the regular base salary paid to an Eligible Employee by the
Company or an Affiliate.
“ Code ” means
the Internal Revenue Code of 1986, as amended.
“ Committee ”
means the Retirement Committee of ACE INA Holdings, Inc.
“ Company ” means
ACE INA Holdings, Inc. or any successor corporation or other
entity.
“ Deferral Form ”
means a written form provided by the Committee pursuant to which an
Eligible Employee may elect to defer amounts under the
Plan.
“ Eligible Employee
” means an Employee who is designated by the Committee as
belonging to a “select group of management or highly
compensated employees,” as such phrase is defined under
ERISA, and eligible to participate in the Plan. Any determination
of the Committee regarding whether an Employee is an Eligible
Employee shall be final and binding for all Plan
purposes.
“ Eligible Income
” means Base Salary, Incentive Awards and other amounts
designated by the Committee. Eligible Income does not include
irregular, non-recurring types of compensation.
“ Employee ”
means an individual who is a regular employee on the payroll of the
Company or its Affiliates. The term “Employee” shall
not include a person hired as an independent contractor, leased
employee, consultant, or a person otherwise designated by the
Company or an Affiliate as not eligible to participate in the Plan,
even if such person is determined to be an “employee”
of the Company or an Affiliate by any governmental or judicial
authority.
“ ERISA ” means
the Employee Retirement Income Security Act of 1974, as
amended.
“ Grandfathered Amounts
” means amounts that were deferred under the Plan and earned
and vested as of December 31, 2004. Grandfathered Amounts are
subject to the distribution rules in effect prior to this amendment
and restatement.
“ Incentive Award
” means an amount payable to an Eligible Employee under an
annual bonus or incentive compensation plan of the Company or an
Affiliate.
“ Investment Options
” means the investment options, as determined from time to
time by the Committee, used to credit earnings, gains and losses on
Account balances.
“ Key Employee ”
means an Employee treated as a “specified employee”
under Code section 409A(a)(2)(B)(i) ( i.e. , a key employee
(as defined in Code section 416(i) without regard to paragraph
(5) thereof)) of the Company. Key Employees shall be
determined by the Committee in accordance with Code section 409A
using a December 31 identification date. A listing of Key
Employees as of an identification date shall be effective for the
12-month period beginning on the January 15 following the
identification date.
“ Participant ”
means an Eligible Employee who elects to defer amounts under the
Plan.
“ Payment Date ”
means the first business day of the year following an event
triggering a payment.
- 2 -
“ Plan ” means
the ACE USA Officer Deferred Compensation Plan, as set forth herein
and as amended from time to time.
“ Plan Year ”
means January 1 through December 31.
“ Separation from
Service ” or “ Separate from Service ”
means means a “separation from service” within the
meaning of Code section 409A.
“ Qualified Plan
” means one or more of the ACE USA Basic Employee Retirement
Savings Plan, ACE USA Basic Puerto Rico Employee Retirement Savings
Plan, the ACE USA Employee Retirement Savings Plan or the ACE USA
Puerto Rico Employee Retirement Savings Plan. Any reference to a
Qualified Plan only refers to the plan in which an Eligible
Employee is a participant.
SECTION 2
PARTICIPATION
Participation in the Plan shall be
limited to Eligible Employees. The Committee shall notify any
Employee of his status as an Eligible Employee at such time and in
such manner as the Committee shall determine. An Eligible Employee
shall become a Participant by making a deferral election under
Section 3.
SECTION 3
PARTICIPANT
ACCOUNTS
3.1 Deferral Elections .
Deferrals may be made by a Participant with respect to the
following types of Eligible Income, as permitted by the
Committee:
(a) Base Salary . An Eligible
Employee may elect to defer any portion of his Base Salary, as
specified on election forms provided to Eligible
Employees.
(b) Incentive Awards . An
Eligible Employee may elect to defer any portion of an Incentive
Award up to 100%.
(c) Other amounts designated by the
Committee as Eligible Income.
In order to elect to defer Eligible
Income earned during a Plan Year, an Eligible Employee shall file
an irrevocable Deferral Form with the Committee before the
beginning of such Plan Year. Notwithstanding the foregoing,
(1) if the Plan Administrator Committee determines that an
Incentive Award qualifies as “performance-based
compensation” under Code section 409A, an Eligible
- 3 -
Employee may elect to defer a portion of the
Incentive Award by filing a Deferral Form at such later time as
permitted by the Committee, and (2) in the first year in which
an Employee becomes eligible to participate in the Plan, a deferral
election may be made with respect to services to be performed
subsequent to the election within 30 days after the date the
Employee becomes eligible to participate in the Plan to the extent
permitted under Code section 409A.
3.2 Crediting of Deferrals .
Eligible Income deferred by a Participant under the Plan shall be
credited to the Participant’s Account as soon as practicable
after the amounts would have otherwise been paid to the
Participant.
3.3 Crediting of Other
Contributions . To the extent the crediting of deferrals of
eligible income by a Participant under the Plan reduces
contributions under a Qualified Plan or reduces the crediting of
contributions under a nonqualified plan of the Company or an
Affiliate, such amounts will be credited under the Plan in the same
amount and at the same time as they would have been contributed to
a Qualified Plan or credited to a nonqualified plan.
3.4 Vesting . Amounts
credited to the Accounts shall be vested at the same time in the
same amount as contributions under any applicable Qualified
Plan.
3.5 Earnings . The Company
shall periodically credit gains, losses and earnings to a
Participant’s Account, until the full balance of the Account
has been distributed. Amounts shall be credited to a
Participant’s Account under this Section based on the results
that would have been achieved had amounts credited to the Account
been invested as soon as practicable after crediting into the
Investment Options selected by the Participant. The Committee shall
specify procedures to allow Participants to make elections as to
the deemed investment of amounts newly credited to their Accounts,
as well as the deemed investment of amounts previously credited to
their Accounts. Nothing in this Section or otherwise in the Plan,
however, will require the Company to actually invest any amounts in
such Investment Options or otherwise.
SECTION 4
DISTRIBUTION OF ACCOUNT
BALANCE
The provisions of this
Section 4 shall apply only to amounts subject to Code section
409A. Distribution rules applicable to the Grandfathered Amounts
(and the earnings credited on those amounts) are set forth in
Attachment A.
4.1. Distribution Upon
Separation . A Participant’s Account balance shall
normally be distributed to him in a lump sum payment on the Payment
Date following the Participant’s Separation from Service. A
Participant may elect on a Deferral Form to have the portion of his
Account related to amounts deferred under the Deferral Form (and
earnings thereon) distributed in annual installments over a period
of up to 10 years with payments commencing on the Payment Date
following the Participant’s Separation from
Service.
- 4 -
Notwithstanding the foregoing,
distributions may not be made to a Key Employee upon a Separation
from Service before the date which is six months after the date of
the Key Employee’s Separation from Service (or, if earlier,
the date of death of the Key Employee). If applicable, any amounts
payable to the Participant during such six (6) month period
shall be accumulated and paid on the first day of the seventh month
following the Participant’s Separation from
Service.
4.2. Distribution as of Specified
Date . A Participant may elect on a Deferral Form to have the
portion of his Account related to amounts deferred under the
Deferral Form (and earnings thereon) paid to the Participant in the
form elected as of a specified date; provided however, if no form
is elected payment shall be made in a lump sum. If expressly
elected by a Participant on a Deferral Form, payment with respect
to the portion of his Account related to Amounts deferred under the
Deferral Form may be made on the later or earlier of: (1) a
specified date or (2) the Payment Date following Separation
from Service.
4.3. Distributions Upon Death
. Notwithstanding any provision in the Plan to the contrary, if a
Participant dies before full distribution of his Account balance,
any remaining balance shall be distributed in a lump sum payment on
the Payment Date following the Participant’s death to the
Participant’s beneficiary. A Participant shall designate his
beneficiary in a writing delivered to the Committee prior to death
in accordance with procedures established by the Committee. If a
Participant has not properly designated a beneficiary or if no
designated beneficiary is living on the date of distribution, such
amount shall be distributed to the Participant’s
estate.
4.4. Withdrawals for
Unforeseeable Emergency . A Participant may withdraw all or any
portion of his Account balance for an Unforeseeable Emergency. The
amounts distributed
