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
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Page
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ARTICLE I -
INTRODUCTION
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1
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1.1
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Plan
Purpose
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1
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1.2
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Effective Date
of Plan
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1
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1.3
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Applicability
of Code Section 409A
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1
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1.4
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Applicability
of ERISA
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1
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1.5
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Predecessor
Plan
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1
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ARTICLE II
– DEFINITIONS
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2
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2.1
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AMO 401(k)
Plan
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2
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2.2
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Annual
Deferral
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2
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2.3
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Base
Salary
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2
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2.4
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Beneficiary
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2
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2.5
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Board; Board of
Directors
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2
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2.6
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Bonuses
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2
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2.7
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Code
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2
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2.8
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Committee
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2
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2.9
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Company
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2
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2.10
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Credited
Service
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2
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2.11
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Death
Benefit
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2
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2.12
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Deferral
Accounts
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3
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2.13
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Deferral
Election
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3
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2.14
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Disability
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3
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2.15
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Effective
Date
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3
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2.16
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Eligible
Employee
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3
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2.17
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ERISA
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3
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2.18
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Enrollment
Forms
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3
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2.19
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Financial
Hardship Withdrawal
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3
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2.20
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Fund
Rate
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4
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2.21
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Open Enrollment
Period
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4
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2.22
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Participant
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4
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2.23
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Plan
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4
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2.24
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Plan Entry
Date
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4
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2.25
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Plan
Year
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4
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2.26
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Predecessor
Plan
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4
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2.28
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Retirement
Benefit
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4
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2.28
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Retirement
Date
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4
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2.29
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Scheduled
In-Service Withdrawal
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4
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2.30
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Specified
Employee
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4
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ADVANCED MEDICAL OPTICS,
INC.
2005 EXECUTIVE DEFERRED
COMPENSATION
(2009 RESTATEMENT)
TABLE OF
CONTENTS
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Page
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2.31
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Termination
Benefit
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4
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2.32
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Termination of
Employment
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4
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ARTICLE III -
ENROLLMENT AND PARTICIPATION
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5
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3.1
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Open
Enrollment
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5
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3.2
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First Year of
Eligibility
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5
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3.3
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Automatic
Enrollment for Restoration or Discretionary Credits
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5
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ARTICLE IV -
DEFERRAL ELECTIONS
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6
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4.1
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Deferral
Election
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6
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4.2
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Maximum
Deferral Amount
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6
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4.3
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Minimum
Deferral Amount
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6
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4.4
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Termination of
Deferral Election
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6
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4.5
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Time and Form
of Payment
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7
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ARTICLE V -
DEFERRAL ACCOUNTS
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8
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5.1
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Deferral
Accounts
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8
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5.2
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Investment
Earnings on Deferral Accounts
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9
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5.3
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Participant
Investment Elections
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9
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5.4
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Fund
Media
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9
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5.5
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Statement of
Accounts
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9
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ARTICLE VI -
RETIREMENT BENEFIT DISTRIBUTIONS
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10
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6.1
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Entitlement to
Retirement Benefits
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10
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6.2
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Time of
Commencement
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10
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6.3
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Form of
Retirement Benefits
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10
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6.4
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Change in Time
or Form of Payment
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11
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ARTICLE VII -
TERMINATION BENEFIT DISTRIBUTIONS
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12
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7.1
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Entitlement to
Termination Benefits
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12
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7.2
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Time of
Commencement
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12
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7.3
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Form of
Termination Benefits
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12
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7.4
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Change in Time
or Form of Payment
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13
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ii
ADVANCED MEDICAL OPTICS,
INC.
2005 EXECUTIVE DEFERRED
COMPENSATION
(2009 RESTATEMENT)
TABLE OF
CONTENTS
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Page
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ARTICLE VIII
– DEATH BENEFIT DISTRIBUTIONS
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14
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8.1
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Entitlement to
Death Benefits
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14
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8.2
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Time of
Commencement
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14
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8.3
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Form of Death
Benefits
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14
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8.4
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Change in Time
or Form of Payment
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15
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8.5
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Investments
After Death
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15
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ARTICLE IX -
SCHEDULED IN-SERVICE WITHDRAWALS
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17
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9.1
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Entitlement to
Scheduled In-Service Withdrawal
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17
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9.2
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Time of
Commencement
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17
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9.3
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Form of
Scheduled In-Service Withdrawal
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17
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9.4
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Change in Time
or Form of Payment
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17
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ARTICLE X -
FINANCIAL HARDSHIP WITHDRAWALS
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18
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10.1
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Entitlement to
Financial Hardship Withdrawal
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18
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10.2
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Termination of
Deferral Election
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18
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10.3
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Financial
Hardship Defined
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18
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10.4
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Amount of
Financial Hardship Withdrawal
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18
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10.5
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Source of
Financial Hardship Withdrawal
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19
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ARTICLE XI -
ADDITIONAL BENEFIT PAYMENT RULES
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20
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11.1
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Constructive
Receipt
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20
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11.2
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Postponement of
Payment
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20
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11.3
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Installment
Payments
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20
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11.4
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Transition
Election Rule
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20
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ARTICLE XII -
ADMINISTRATION OF THE PLAN
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21
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12.1
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Administration
by Committee
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21
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12.2
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Committee
Authority; Rules and Regulations
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21
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12.3
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Appointment of
Agents
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21
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12.4
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Application for
Benefits
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21
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12.5
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Action on
Application
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21
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12.6
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Appeal
Procedures
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22
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iii
ADVANCED MEDICAL OPTICS,
INC.
2005 EXECUTIVE DEFERRED
COMPENSATION
(2009 RESTATEMENT)
TABLE OF
CONTENTS
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Page
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ARTICLE XIII -
CHANGE IN CONTROL
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24
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13.1
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Effect of a
Change in Control
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24
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13.2
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Change in
Control Defined
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24
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ARTICLE XIV -
TRUST AND INSURANCE CONTRACTS
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26
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14.1
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Trust
Information
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26
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14.2
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Funding of
Trust
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26
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14.3
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Investment in
Insurance Contracts
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26
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14.4
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Investment in
Fund Media
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26
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ARTICLE XV -
MISCELLANEOUS PROVISIONS
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27
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15.1
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Designation of
Beneficiary
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27
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15.2
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Payments During
Incapacity
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27
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15.3
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Domestic
Relations Orders
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27
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15.4
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Prohibition
Against Assignment
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27
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15.5
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Binding
Effect
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28
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15.6
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No Transfer of
Interest
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28
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15.7
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Amendment or
Termination of the Plan
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28
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15.8
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No Right to
Employment
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28
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15.9
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Notices
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28
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15.10
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Governing
Law
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29
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15.11
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Titles and
Headings; Gender of Terms
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29
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15.12
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Severability
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29
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15.13
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Tax Effect of
Plan
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29
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APPENDIX A
– Fund Media
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A-1
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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.
2
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