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ADVANCED MEDICAL OPTICS, INC. 2005 EXECUTIVE DEFERRED COMPENSATION PLAN (2009 RESTATEMENT)

Executive Compensation Plan Agreement

ADVANCED MEDICAL OPTICS, INC. 2005 EXECUTIVE DEFERRED COMPENSATION PLAN (2009 RESTATEMENT) | Document Parties: ABBOTT MEDICAL OPTICS INC | ADVANCED MEDICAL OPTICS, INC You are currently viewing:
This Executive Compensation Plan Agreement involves

ABBOTT MEDICAL OPTICS INC | ADVANCED MEDICAL OPTICS, INC

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Title: ADVANCED MEDICAL OPTICS, INC. 2005 EXECUTIVE DEFERRED COMPENSATION PLAN (2009 RESTATEMENT)
Date: 2/24/2009
Industry: Medical Equipment and Supplies     Sector: Healthcare

ADVANCED MEDICAL OPTICS, INC. 2005 EXECUTIVE DEFERRED COMPENSATION PLAN (2009 RESTATEMENT), Parties: abbott medical optics inc , advanced medical optics  inc
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EXHIBIT 10.16(c)

ADVANCED MEDICAL OPTICS, INC.

2005 EXECUTIVE DEFERRED COMPENSATION PLAN

(2009 RESTATEMENT)

Effective January 1, 2005


ADVANCED MEDICAL OPTICS, INC.

2005 EXECUTIVE DEFERRED COMPENSATION

(2009 RESTATEMENT)

TABLE OF CONTENTS

 

 

  

 

  

Page

ARTICLE I - INTRODUCTION

  

1

1.1

  

Plan Purpose

  

1

1.2

  

Effective Date of Plan

  

1

1.3

  

Applicability of Code Section 409A

  

1

1.4

  

Applicability of ERISA

  

1

1.5

  

Predecessor Plan

  

1

ARTICLE II – DEFINITIONS

  

2

2.1

  

AMO 401(k) Plan

  

2

2.2

  

Annual Deferral

  

2

2.3

  

Base Salary

  

2

2.4

  

Beneficiary

  

2

2.5

  

Board; Board of Directors

  

2

2.6

  

Bonuses

  

2

2.7

  

Code

  

2

2.8

  

Committee

  

2

2.9

  

Company

  

2

2.10

  

Credited Service

  

2

2.11

  

Death Benefit

  

2

2.12

  

Deferral Accounts

  

3

2.13

  

Deferral Election

  

3

2.14

  

Disability

  

3

2.15

  

Effective Date

  

3

2.16

  

Eligible Employee

  

3

2.17

  

ERISA

  

3

2.18

  

Enrollment Forms

  

3

2.19

  

Financial Hardship Withdrawal

  

3

2.20

  

Fund Rate

  

4

2.21

  

Open Enrollment Period

  

4

2.22

  

Participant

  

4

2.23

  

Plan

  

4

2.24

  

Plan Entry Date

  

4

2.25

  

Plan Year

  

4

2.26

  

Predecessor Plan

  

4

2.28

  

Retirement Benefit

  

4

2.28

  

Retirement Date

  

4

2.29

  

Scheduled In-Service Withdrawal

  

4

2.30

  

Specified Employee

  

4


ADVANCED MEDICAL OPTICS, INC.

2005 EXECUTIVE DEFERRED COMPENSATION

(2009 RESTATEMENT)

TABLE OF CONTENTS

 

 

  

 

  

Page

2.31

  

Termination Benefit

  

4

2.32

  

Termination of Employment

  

4

ARTICLE III - ENROLLMENT AND PARTICIPATION

  

5

3.1

  

Open Enrollment

  

5

3.2

  

First Year of Eligibility

  

5

3.3

  

Automatic Enrollment for Restoration or Discretionary Credits

  

5

ARTICLE IV - DEFERRAL ELECTIONS

  

6

4.1

  

Deferral Election

  

6

4.2

  

Maximum Deferral Amount

  

6

4.3

  

Minimum Deferral Amount

  

6

4.4

  

Termination of Deferral Election

  

6

4.5

  

Time and Form of Payment

  

7

ARTICLE V - DEFERRAL ACCOUNTS

  

8

5.1

  

Deferral Accounts

  

8

5.2

  

Investment Earnings on Deferral Accounts

  

9

5.3

  

Participant Investment Elections

  

9

5.4

  

Fund Media

  

9

5.5

  

Statement of Accounts

  

9

ARTICLE VI - RETIREMENT BENEFIT DISTRIBUTIONS

  

10

6.1

  

Entitlement to Retirement Benefits

  

10

6.2

  

Time of Commencement

  

10

6.3

  

Form of Retirement Benefits

  

10

6.4

  

Change in Time or Form of Payment

  

11

ARTICLE VII - TERMINATION BENEFIT DISTRIBUTIONS

  

12

7.1

  

Entitlement to Termination Benefits

  

12

7.2

  

Time of Commencement

  

12

7.3

  

Form of Termination Benefits

  

12

7.4

  

Change in Time or Form of Payment

  

13

 

ii


ADVANCED MEDICAL OPTICS, INC.

2005 EXECUTIVE DEFERRED COMPENSATION

(2009 RESTATEMENT)

TABLE OF CONTENTS

 

 

  

 

  

Page

ARTICLE VIII – DEATH BENEFIT DISTRIBUTIONS

  

14

8.1

  

Entitlement to Death Benefits

  

14

8.2

  

Time of Commencement

  

14

8.3

  

Form of Death Benefits

  

14

8.4

  

Change in Time or Form of Payment

  

15

8.5

  

Investments After Death

  

15

ARTICLE IX - SCHEDULED IN-SERVICE WITHDRAWALS

  

17

9.1

  

Entitlement to Scheduled In-Service Withdrawal

  

17

9.2

  

Time of Commencement

  

17

9.3

  

Form of Scheduled In-Service Withdrawal

  

17

9.4

  

Change in Time or Form of Payment

  

17

ARTICLE X - FINANCIAL HARDSHIP WITHDRAWALS

  

18

10.1

  

Entitlement to Financial Hardship Withdrawal

  

18

10.2

  

Termination of Deferral Election

  

18

10.3

  

Financial Hardship Defined

  

18

10.4

  

Amount of Financial Hardship Withdrawal

  

18

10.5

  

Source of Financial Hardship Withdrawal

  

19

ARTICLE XI - ADDITIONAL BENEFIT PAYMENT RULES

  

20

11.1

  

Constructive Receipt

  

20

11.2

  

Postponement of Payment

  

20

11.3

  

Installment Payments

  

20

11.4

  

Transition Election Rule

  

20

ARTICLE XII - ADMINISTRATION OF THE PLAN

  

21

12.1

  

Administration by Committee

  

21

12.2

  

Committee Authority; Rules and Regulations

  

21

12.3

  

Appointment of Agents

  

21

12.4

  

Application for Benefits

  

21

12.5

  

Action on Application

  

21

12.6

  

Appeal Procedures

  

22

 

iii


ADVANCED MEDICAL OPTICS, INC.

2005 EXECUTIVE DEFERRED COMPENSATION

(2009 RESTATEMENT)

TABLE OF CONTENTS

 

 

  

 

  

Page

ARTICLE XIII - CHANGE IN CONTROL

  

24

13.1

  

Effect of a Change in Control

  

24

13.2

  

Change in Control Defined

  

24

ARTICLE XIV - TRUST AND INSURANCE CONTRACTS

  

26

14.1

  

Trust Information

  

26

14.2

  

Funding of Trust

  

26

14.3

  

Investment in Insurance Contracts

  

26

14.4

  

Investment in Fund Media

  

26

ARTICLE XV - MISCELLANEOUS PROVISIONS

  

27

15.1

  

Designation of Beneficiary

  

27

15.2

  

Payments During Incapacity

  

27

15.3

  

Domestic Relations Orders

  

27

15.4

  

Prohibition Against Assignment

  

27

15.5

  

Binding Effect

  

28

15.6

  

No Transfer of Interest

  

28

15.7

  

Amendment or Termination of the Plan

  

28

15.8

  

No Right to Employment

  

28

15.9

  

Notices

  

28

15.10

  

Governing Law

  

29

15.11

  

Titles and Headings; Gender of Terms

  

29

15.12

  

Severability

  

29

15.13

  

Tax Effect of Plan

  

29

APPENDIX A – Fund Media

  

A-1

 

iv


ARTICLE I

INTRODUCTION

1.1 Plan Purpose . The purpose of the Advanced Medical Optics, Inc. 2005 Executive Deferred Compensation Plan (the “Plan”) is to provide deferred compensation benefits to selected executive and management employees of the Company as more fully provided herein. The benefits provided under this Plan are intended to be in addition to other employee benefit programs offered by the Company, including but not limited to tax-qualified employee benefit plans.

1.2 Effective Date of Plan . The Plan was established effective as of January 1, 2005 by the Board of Directors of Advanced Medical Optics, Inc., a Delaware corporation (“AMO”), and is hereby amended and restated effective as of January 1, 2005. The Plan shall continue in effect until terminated by the Board.

1.3 Applicability of Code Section 409A . The Plan applies to deferred compensation benefits subject to Code Section 409A. It is intended that the Code Section 409A provisions be regarded as good faith compliance with the requirements of Code Section 409A and be construed in accordance with Code Section 409A, the Treasury regulations, and other guidance issued thereunder.

1.4 Applicability of ERISA . The Plan is intended to be a “top-hat” plan — that is, an unfunded plan maintained primarily for the purpose of providing deferred compensation to a select group of management or highly compensated employees within the meaning of ERISA.

1.5 Predecessor Plan . Deferred compensation benefits that are not subject to Code Section 409A shall be provided solely under the Advanced Medical Optics, Inc. Executive Deferred Compensation Plan (the “Predecessor Plan”) and shall continue to be governed under the terms of the Predecessor Plan.


ARTICLE II

DEFINITIONS

As used herein, the following definitions shall apply unless context clearly indicates to the contrary.

2.1 AMO 401(k) Plan . “AMO 401(k) Plan” means the Advanced Medical Optics 401(k) Plan, as amended from time to time.

2.2 Annual Deferral . “Annual Deferral” means the amount of Base Salary and/or Bonuses which the Participant elects to defer for each Plan Year pursuant to Section 4.1 of the Plan.

2.3 Base Salary . “Base Salary” means the Participant’s annual basic rate of pay from the Company (excluding Bonuses, commissions, and other non-regular forms of compensation) before reductions for deferrals under this Plan, the AMO 401(k) Plan, or a “cafeteria plan” under Code Section 125.

2.4 Beneficiary . “Beneficiary” means the person or persons or entity designated as such in accordance with Section 15.1.

2.5 Board; Board of Directors . “Board” and “Board of Directors” each mean the Board of Directors of AMO. The Organization, Compensation and Corporate Governance Committee of the Board, or any successor thereto, shall exercise any and all rights, duties and obligations that are retained by or assigned to the Board under the Plan.

2.6 Bonuses . “Bonuses” means non-salary amounts earned by the Participant that are designated as bonuses or commissions. Bonuses shall relate to Plan Year for which the services were performed even though they may be paid in the subsequent Plan Year in accordance with Company policy or practice.

2.7 Code . “Code” means the Internal Revenue Code of 1986, as amended.

2.8 Committee . “Committee” means the committee authorized to administer this Plan as set forth in Section 12.1.

2.9 Company . “Company” means Advanced Medical Optics, Inc., a Delaware corporation, and each Affiliated Company (as defined in the AMO 401(k) Plan) designated by the Board of Directors.

2.10 Credited Service . “Credited Service” means the amount of service of a Participant determined by the Committee based on the human resources records maintained by the Company. In the case of an Eligible Employee who was employed by the Company at any time prior to the Effective Date, his or her “Credited Service” as determined under the Predecessor Plan shall be added to such Eligible Employee’s Credited Service under this Plan.

2.11 Death Benefit . “Death Benefit” means a distribution described in Article VIII.

 

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2.12 Deferral Accounts . “Deferral Accounts” means the separate accounts maintained solely for record keeping purposes on behalf of each Participant to which a Participant’s Annual Deferrals, Restoration Credits, and Discretionary Credits for a Plan Year are credited pursuant to Section 5.1 and to which earnings are credited at the Fund Rate pursuant to Section 5.2.

2.13 Deferral Election . “Deferral Election” means an election made by the Participant to defer Base Salary or Bonuses pursuant to Section 4.1.

2.14 Disability . “Disability” means any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than six (6) months and as a result the Participant is unable to perform the duties of his or her position or any substantially similar position.

2.15 Effective Date . “Effective Date” means January 1, 2005 for this amended and restated Plan.

2.16 Eligible Employee . “Eligible Employee” means:

(a) Any employee of the Company who is a United States-based payroll employee, a Puerto Rico-based payroll employee, or any expatriate employee of the Company who is a United States citizen or permanent resident and who is either exempt grade 8E and above (“Eligible by Grade”) or is employed in another executive or management position as approved by the Committee (“Eligible by Designation”); or

(b) For Plan Years beginning on or after January 1, 2008, any employee of the Company who is a United States-based payroll employee or a Puerto Rico-based payroll employee employed in a sales position, who is classified below grade 8E, whose annual compensation exceeds the limit in Code Section 401(a)(17), and who is not an Eligible Employee under subsection (a) above (“Eligible Salesperson”);

provided, that in each case (i) he or she is not classified or paid as an independent contractor (regardless of his or her classification for federal tax or other legal purposes) by the Company and (ii) he or she does not perform services for the Company pursuant to an agreement between the Company and any other person including a leasing organization.

2.17 ERISA . “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

2.18 Enrollment Forms . “Enrollment Forms” means, collectively, the form or forms prescribed by the Committee for enrollment in the Plan including (i) a “Deferral Election Form” pursuant to which a Participant agrees to defer Base Salary and/or Bonuses for a Plan Year, (ii) a “Distribution Election Form” pursuant to which a Participant elects or changes the form and time of benefit payment for amounts related to each Plan Year, and (iii) an “Investment Election Form” pursuant to which a Participant allocates his or her Annual Deferrals or transfers amounts in his or her Deferral Accounts among the Fund Media.

2.19 Financial Hardship Withdrawal . “Financial Hardship Withdrawal” means a withdrawal requested by the Participant that is payable in accordance with Article X.

 

3


2.20 Fund Rate , “Fund Rate” means, with respect to any portion of a Deferral Account for which the Fund Rate is applicable, the rate of return based on the income, gains, losses and expenses of the insurance funds or other investment vehicles (collectively called “Fund Media”) selected by the Participant in accordance with Section 5.4.

2.21 Open Enrollment Period . “Open Enrollment Period” means the enrollment period during which an Eligible Employee may enroll in the Plan for a Plan Year or the remainder of the Plan Year. Open Enrollment Periods shall be established as determined by the Company subject to any limitations or requirements set forth under the terms of the Plan.

2.22 Participant . “Participant” means any Eligible Employee who enrolls or commences participation in the Plan as provided under Article III.

2.23 Plan . “Plan” means this Advanced Medical Optics, Inc. 2005 Executive Deferred Compensation Plan as it may be amended from time to time.

2.24 Plan Entry Date . “Plan Entry Date” means, in the case of an Eligible Employee other than an Eligible Salesperson, the first day of the calendar quarter immediately following the day an employee first satisfies the requirements of Section 2.16(a).

2.25 Plan Year . “Plan Year” means the calendar year.

2.26 Predecessor Plan . “Predecessor Plan” means the Advanced Medical Optics, Inc. Executive Deferred Compensation Plan originally effective as of the date Allergan, Inc., a Delaware corporation (“Allergan”) distributed the shares of common stock, par value $0.01 per share, of AMO to the stockholders of Allergan.

2.27 Retirement Benefit . “Retirement Benefit” means a distribution described in Article VI.

2.28 Retirement Date . “Retirement Date” means the later of the Participant’s fifty-fifth (55th) birthday or completion of five (5) years of Credited Service.

2.29 Scheduled In-Service Withdrawal . “Scheduled In-Service Withdrawal” means a withdrawal elected by the Participant pursuant to Article IX that is payable or commences prior to Termination of Employment.

2.30 Specified Employee . “Specified Employee” means any Participant who on Termination of Employment is an exempt Grade 10E or above.

2.31 Termination Benefit . “Termination Benefit” means a distribution described in Article VII.

2.32 Termination of Employment . “Termination of Employment” means the termination of a Participant’s employment with the Company for any reason whatsoever, whether voluntary or involuntary.

 

4


ARTICLE III

ENROLLMENT AND PARTICIPATION

3.1 Open Enrollment . For each Plan Year, an Eligible Employee, other than an Eligible Salesperson, may elect to enroll in the Plan by completing Enrollment Forms during the Open Enrollment Period preceding such Plan Year. If an Eligible Employee fails to complete Enrollment Forms during an Open Enrollment Period, he or she shall not be eligible to make Annual Deferrals for such Plan Year but shall remain eligible to do so for a subsequent Plan Year; provided, that he or she continues his or her status as an Eligible Employee and completes Enrollment Forms during a subsequent Open Enrollment Period.

3.2 First Year of Eligibility . An employee who becomes an Eligible Employee, other than an Eligible Salesperson, on or after the first day of a Plan Year, may for his or her first year of initial eligibility, complete Enrollment Forms during the Open Enrollment Period that shall end no later than 30 days after the Eligible Employee’s Plan Entry Date. In the event an Eligible Employee completes Enrollment Forms during the Open Enrollment Period following his or her Plan Entry Date, such elections made thereunder shall only apply to compensation paid for services performed following receipt of such Enrollment Forms by the Company. In the event an Eligible Employee fails to complete Enrollment Forms during such Open Enrollment Period, he or she shall not be eligible to make Annual Deferrals under the Plan for the remainder of the Plan Year but shall remain eligible to do so for a subsequent Plan Year; provided, that he or she continues his or her status as an Eligible Employee and completes Enrollment Forms during a subsequent Open Enrollment Period. This Section 3.2 shall not apply to any Eligible Employee who was a former Eligible Employee at any time during the 24-month period ending on such Eligible Employee’s subsequent Plan Entry Date unless the balance of all Deferral Accounts was paid to the Eligible Employee prior to his or her subsequent Plan Entry Date.

3.3 Automatic Enrollment for Restoration or Discretionary Credits . An Eligible Employee who fails to enroll in the Plan for a Plan Year during an Open Enrollment Period or an Eligible Salesperson shall automatically be enrolled in the Plan for any Plan Year for which he or she is entitled to a “Profit Sharing Restoration Credit” or a “Discretionary Credit” as described in Sections 5.1(b) and 5.1(d), respectively.

 

5


ARTICLE IV

DEFERRAL ELECTIONS

4.1 Deferral Election . For each Plan Year, an Eligible Employee may make a Deferral Election on a voluntary basis by properly completing and submitting Enrollment Forms during the applicable Open Enrollment Period for the Plan Year subject to the following:

(a) A Deferral Election shall be irrevocable for the Plan Year or, if applicable, the remainder of the Plan Year unless terminated under Section 4.4.

(b) If an Eligible Employee ceases to be an Eligible Employee during a Plan Year, a Deferral Election shall continue in effect for the remainder of the Plan Year unless terminated under Section 4.4.

(c) A Deferral Election may only apply to amounts paid for an Eligible Employee’s services performed after the date he or she properly completes and submits his or her Deferral Election Form.

(d) A Deferral Election shall be subject to the requirements set forth in Sections 4.2 and 4.3 below.

4.2 Maximum Deferral Amount . An Eligible Employee may elect to defer up to one hundred percent (100%) of Base Salary or, in the case of an Eligible Employee who enrolls in the Plan under Section 3.1, up to one hundred percent (100%) of any Bonus earned during the Plan Year. The Committee, in its sole discretion, may change the maximum deferral percentage for a Plan Year or may replace or provide other Deferral Election options, including that an Eligible Employee may elect to defer a specified dollar amount or a percentage of any Bonus earned during the Plan Year but limited to the extent such Bonus exceeds a specified dollar amount. A Deferral Election shall be automatically reduced or adjusted if the Committee determines that such action is necessary or appropriate to meet Federal, State or other applicable tax withholding obligations or, to the extent permitted by Code Section 409A, to pay for benefits or other obligations arising from the Participant’s relationship with the Company.

4.3 Minimum Deferral Amount . An Eligible Employee must elect to defer at least five thousand dollars ($5,000) (or such other amount as may be designated by the Committee) for a Plan Year from either Base Salary or, if eligible, from any Bonus or a combination of Base Salary and Bonus. Compliance with this Section 4.3 shall be determined prior to the beginning of each Plan Year or, in the case of an enrollment pursuant to Section 3.2, by the end of the Open Enrollment Period. If an Eligible Employee’s Deferral Election is stated in the form of a percentage of Base Salary or, if eligible, Bonus, the adequacy of the deferral amount shall be based on the Base Salary and any Bonus earned by the Eligible Employee in the Plan Year preceding the current Plan Year. If it is determined that a Deferral Election does not meet the minimum deferral requirements of this Section after it has been placed in effect for a Plan Year, the Deferral Election, notwithstanding this Section, shall continue in effect for the Plan Year.

4.4 Termination of Deferral Election . An Eligible Employee’s Deferral Election for a Plan Year shall be immediately terminated upon his or her Termination of Employment, a hardship withdrawal under the AMO 401(k) Plan, or a Financial Hardship Withdrawal under

 

6


Article X. An Eligible Employee may request that his or her Deferral Election for a Plan Year be terminated upon Disability or severe financial hardship as defined in Section 10.1; provided, that, in the case of Disability, the Deferral Election is terminated by the 15 th day of the third month following the date the Eligible Employee incurs the Disability. If an Eligible Employee’s Deferral Election is terminated under this Section, any Deferral Election for a subsequent Plan Year shall be made in accordance with Article III.

4.5 Time and Form of Payment . During the applicable Open Enrollment Period, an Eligible Employee shall elect the time and/or form of payment for each Plan Year’s Deferral Account upon payment as a Retirement Benefit, Termination Benefit, Death Benefit or Scheduled In-Service Withdrawal. If an Eligible Employee fails to timely submit a properly completed Distribution Election Form during an Open Enrollment Period, e.g., is automatically enrolled in the Plan pursuant to Section 3.3, the time and form of payment of such Plan Year’s Deferral Account shall default to the time and form of payment as hereinafter provided.

 

7


ARTICLE V

DEFERRAL ACCOUNTS

5.1 Deferral Accounts . Solely for record keeping purposes, a Deferral Account for each Plan Year shall be established and maintained for each Eligible Employee enrolled in the Plan (hereinafter referred to as “Participant.”) and credited with the following:

(a) Annual Deferrals, if any, at the time such amounts would otherwise have been paid to the Participant for the Plan Year;

(b) “Profit Sharing Restoration Credit(s)” equal to the excess, if any, of (i) the Participant’s “Profit Sharing Contribution” (as defined in the AMO 401(k) Plan) for the Plan Year under the AMO 401(k) Plan, determined as if the Participant’s “Compensation” (as defined in the AMO 401(k) Plan) had been calculated without deducting Annual Deferrals made under this Plan, and as if the “Profit Sharing Contribution” (as defined in the AMO 401(k) Plan) had been calculated without regard to the limitations imposed by Code Sections 401(a)(4), 401(a)(17) and 415, over (ii) such Participant’s actual “Profit Sharing Contribution” (as defined in the AMO 401(k) Plan) for such Plan Year under the AMO 401(k) Plan;

(c) “Matching Contribution Restoration Credit(s)” equal to the excess, if any, of (i) the Participant’s “Matching Contributions” (as defined in the AMO 401(k) Plan) for the Plan Year under the AMO 401(k) Plan, determined based on such Participant’s “Matched Deposits” (as defined in the AMO 401(k) Plan), and as if the Participant’s “Compensation” (as defined in the AMO 401(k) Plan) had been calculated without deducting Annual Deferrals made under this Plan, and as if the “Matching Contributions” (as defined in the AMO 401(k) Plan) had been calculated without regard to the limitations imposed by Code Sections 401(a)(4), 401(k), 401(m) and 415, over (ii) such Participant’s actual “Matching Contributions” (as defined in the AMO 401(k) Plan) for such Plan Year under the AMO 401(k) Plan; provided, however, that the Participant’s Deferral Account shall be credited with a “Matching Contribution Restoration Credit” only if he or she has contributed the maximum “Before Tax Deposits” (as defined in the AMO 401(k) Plan) permitted under the terms of the AMO 401(k) Plan for the Plan Year; and

(d) “Discretionary Credit(s)” in such amounts as the Committee may deem appropriate (but not to exceed two hundred thousand dollars ($200,000) for any Participant in any Plan Year), on such terms, including the time and form of payment of the Discretionary Credit, and subject to such further limits or conditions, including the maintenance of a separate Deferral Account for all or portion of such Discretionary Credit for the Plan Year, as the Board or Committee may prescribe. If a time and form of payment is not specified by the Board or Committee, that portion of a Discretionary Credit not subject to a valid Distribution Election Form (as determined under Code Section 409A) shall be maintained under a separate Deferral Account and the time and form of payment of that Deferral Account shall default to the time and form of payment as hereinafter provided.

 

8


The amounts (if any) to be credited to a Participant’s Deferral Account pursuant to paragraphs (b) and (c) above shall be credited after the end of the Plan Year to which such credits relate and after such Participant’s actual “Profit Sharing Contribution” and actual “Matching Contributions” (each as defined in the AMO 401(k) Plan) for such Plan Year under the AMO 401(k) Plan are determined, but not later than the end of the Plan Year following the Plan Year to which such credits relate.

5.2 Investment Earnings on Deferral Accounts . The Deferral Accounts of a Participant shall be credited with investment earnings at the Fund Rate as provided in Section 5.3.

5.3 Participant Investment Elections

(a) Amounts credited under Section 5.1 with respect to a Plan Year beginning on or after the Effective Date shall be credited with investment earnings at the Fund Rate.

(b) The Participant may prospectively change the investment allocation to Fund Media on a monthly basis in whole or part by submitting an Investment Election Form or by using such electronic means and under such procedures as the Committee may permit.

5.4 Fund Media . The initial Fund Media under the Plan as of the Effective Date shall be as set forth on Appendix A , attached hereto. The Committee may add or delete Fund Media in its sole discretion from time to time. In the event of a deletion of a Fund Media, the Committee is not required to provide a new Fund Media option with similar investment objectives as those of the deleted Fund Media. For any amounts for which a deleted Fund Media had been selected, the Committee, in its sole discretion, may select an alternative Fund Media, either a fixed income Fund Media or an existing Fund Media that has similar investment objectives as the deleted Fund Media, to which to assign those amounts until the Participant selects otherwise. The Committee shall have no liability or responsibility with respect to the absolute or relative return of such alternative Fund Media to which it assigns such amounts. Participants must make an investment allocation to Fund Media in whole percentages equal to one hundred percent (100%), in the aggregate, of the amount invested in his or her Deferral Accounts.

5.5 Statement of Accounts . The Committee shall provide to each Participant periodic statements setting forth the balance of the Deferral Accounts maintained for such Participant. Notwithstanding anything contained in such statements, the provisions of the Plan shall govern exclusively the actual rate of interest or investment earnings to be credited and paid.

 

9


ARTICLE VI

RETIREMENT BENEFIT DISTRIBUTIONS

6.1 Entitlement to Retirement Benefits . Upon Termination of Employment on or after Retirement Date, the Company shall pay to the Participant his or her Deferral Accounts as Retirement Benefits at such times and in such forms as provided in Sections 6.2 and 6.3 or as permitted in Section 6.4.

6.2 Time of Commencement . The payment of a Deferral Account payable as a Retirement Benefit shall commence or shall be made within sixty (60) days following the date of Termination of Employment (the “default commencement election”). A Participant may elect during the applicable Open Enrollment Period that payment of such Deferral Account (other than a Deferral Account established for a Participant while he or she was an Eligible Salesperson) commence or be made (i) on the first business day of January of the next following calendar year, or (ii) on the first business day of January of a later year (not to exceed ten (10) years from the date of Termination of Employment or, if earlier, the year in which the Participant attains age seventy (70)). Notwithstanding a default commencement election or a Participant election to the contrary, the time of payment of a Retirement Benefit shall be subject to the following rules:

(a) Six-Month Delay. In the case of a Participant who is a Specified Employee, the payment of a Participant’s Retirement Benefit shall (i) commence or shall be made no earlier than (1) the first business day after six (6) months following the Participant’s Termination of Employment or (2) the death of the Participant, whichever occurs first and (ii) any payments to which such Participant would have been entitled to during the six-month delay shall be paid on the first day of the seventh month.

(b) Limited Cash-Out . If the total sum of a Participant’s Deferral Accounts on the date of his or her Termination of Employment (as adjusted for amounts accrued as of that date but not yet credited) is less than the applicable dollar amount under Code Section 402(g)(1)(B) in effect for the Plan Year ($15,500 for the 2008 Plan Year), in which Termination of Employment occurs, the balance of such Participant’s Deferral Accounts shall be paid following the date of Termination of Employment subject to subsection (a) above. This subsection (b) shall be effective January 1, 2009.

(c) Administrative Delay of Payment . For purposes of this Section 6.2, the payment of a Retirement Benefit shall be treated as made upon the date specified herein, if, in the sole discretion of the Company, payment commences or is made by (i) the last day of the calendar year which contains the scheduled payment date, (ii) the last day of the calendar year in which a six month delay (as described in subsection (a)) expires, or (iii) the 15 th day of the third calendar month following the scheduled payment date or delayed payment date, whichever is the latest to occur.

6.3 Form of Retirement Benefits . A Deferral Account payable as a Retirement Benefit shall be paid in the form of sixty (60) quarterly installments or, in the case of an Eligible Salesperson, a single lump sum (the “default payment form election


 
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