Exhibit 10.34
UNITED STATIONERS SUPPLY
CO.
AMENDED AND RESTATED DEFERRED
COMPENSATION PLAN
(Effective as of January 1,
2009)
ARTICLE I.
Purpose
The purpose of the Plan is to assist a select
group of key management in their financial and retirement planning
by providing a means for the deferral of a portion of their current
compensation. It is anticipated that this will aid in
attracting and retaining the key management required for the
continued growth and profitability of United Stationers Inc. and
its subsidiaries. This Plan is an amendment and restatement
as of January 1, 2009 (“Effective Date”) of the
United Stationers Supply Co. Deferred Compensation Plan in effect
prior to the Effective Date. The Plan is not intended to
qualify under section 401(a) of the Internal Revenue Code of
1986, as amended (“Code”), or to be subject to
Part 2, 3 or 4 of Subtitle B of Title I of the Employee
Retirement Income Security Act of 1974, as amended
(“ERISA”). It is intended that the provisions of
the Plan conform to the requirements of section 409A of the Code
and the Plan will be interpreted in all respects in accordance with
such requirements. Any references in the Plan to section 409A
of the Code include references to applicable guidance issued
thereunder.
ARTICLE II.
Participation
1.
Eligibility
. All exempt employees
classified as Grade 1, 2, 3, 4 or 5 of United Stationers Supply Co.
or any other direct or indirect subsidiary of United Stationers
Inc. permitted to participate in the Plan by the Committee (as
hereafter defined) (“Company”) are eligible to
participate in the Plan.
2.
Election to Defer
.
(a)
Each Participant may elect to defer
any portion of future compensation, either base salary or cash
bonus, or both (and in no event will any deferral election be given
effect with respect to a stock option or stock appreciation right),
(“Deferred Amount”) by filing with the Committee (or
its delegate) a properly completed Deferred Amount
Form(s) (“Deferral Election Form”) stating the
percentage of base salary and/or percentage of cash bonus to be
deferred. Subject to the following two sentences, the
election to defer base salary and/or cash bonus must be submitted
no later than the last day of the designated election period that
ends on or prior to December 31 of the calendar year
immediately preceding the calendar year to which the election
applies. [However, for the period commencing on the Effective
Date, the Participant must make the election or reelect with
respect to amounts deferred under the Plan prior to the Effective
Date.] For the first year in which the employee becomes
eligible, the Participant must make the election within 30 days
after the date the employee becomes eligible. A new Deferral
Election Form must be submitted each year. For any year
the Company may establish minimum or maximum deferral
amounts.
(b)
If a Participant receives a hardship
withdrawal from a qualified retirement plan of the Company or any
other Related Company and, as a result of such withdrawal, is
precluded by the terms of the qualified retirement plan from making
deferrals under the Plan, then the Participant’s deferral
election shall be cancelled and any future deferral elections by
such Participant shall be subject to the provisions of subparagraph
(a) immediately above. The term “Related
Company” means any corporation or trade or business during
any period which it is, along with United Stationers, Inc., a
member of a controlled group of trades or businesses, as described
in section 414(b) and 414(c),
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respectively, of the Code; provided,
however that whether a corporation, trade or business is a Related
Company shall be determined by substituting “more than 50
percent” for “at least 80 percent” where
applicable with respect to sections 414(b) and
414(c).
3.
Deferred Accounts
.
(a)
The Company shall establish an
unfunded notional deferred account (“Account”) for each
Participant. Such Account shall be credited with the amount
of compensation deferred and reduced by each payment.
(b)
Prior to the Effective Date for
Accounts as of the Effective Date and with each Deferral Election
Form executed by a Participant on or after the Effective Date,
each Participant shall elect an investment preference for purposes
of calculating a rate of return on the Participant’s Account,
in accordance with procedures established by the committee
administering the Plan as set forth in Article IV
(“Committee”). Within the month of
December to be effective as of January 1
st of the following calendar year or at such
other time or times determined by the Committee, each Participant
may change the Participant’s election of an investment
preference for purposes of calculating a rate of return on the
Participant’s Account, in accordance with procedures
established by the Committee. Unless determined otherwise by
the Committee, the investment preferences among which the
Participant may elect shall be the investment funds under the
United Stationers 401(k) Savings Plan
(“401(k) Savings Plan”). The investment
preference selected by the Participant shall remain in effect until
a new investment election is filed in accordance with procedures
established by the Committee, provided such procedures comply with
section 409A of the Code. Unless otherwise determined
appropriate by the Committee, the investment preference selected by
the Participant shall be the investment fund (“Investment
Fund”) used as a measure for determining a rate of return for
the Participant’s Account.
As of the last day of each calendar
quarter or such shorter applicable period or such date as
determined by the Committee, each Account shall be credited or
debited with a rate of return which reflects the earnings, gains
and losses equal to the amount the Account would have earned,
gained or lost if actually invested in the applicable Investment
Funds. For purposes of determining such rate of return, the
Committee shall establish such procedures as it deems
appropriate. The Committee may at any time or from time to
time change or otherwise modify the basis or the method of
calculating and crediting such rate of return.
Separate accounting shall apply with
respect to each Deferred Amount.
4.
Company Liability
. The rights granted to the
Participant or any beneficiary shall be solely those of a general
unsecured creditor. The Plan constitutes a mere promise by
the Company to make benefit payments in the future. The
Company shall not be required to fund or otherwise segregate assets
to be used for payment of benefits under the Plan. The
Company may maintain a trust (“Trust”) to hold assets
to be used for payment of benefits under the Plan and may make
investments in amounts equal or unequal to amounts payable
hereunder but the Company shall not be under any obligation to
establish a Trust or make such investments and the assets of any
such Trust and such investments shall remain an asset of the
Company subject to the claims of the Company’s general
creditors. Any payments by the Trust to a Participant of
benefits under the Plan shall be considered payments by the Company
and shall discharge the Company of any liability under the Plan for
such payments. The Plan, and any action taken pursuant to it,
are not to be construed as creating a fiduciary relationship of any
kind.
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ARTICLE III. Payment of
Deferred Amounts
1.
Time and Method of
Payment .
(a)
Subject to the provisions of
paragraphs 2 and 3 of this Article III, the following
provisions of this paragraph 1, and the other terms and conditions
of the Plan, payment of a Participant’s Account balance,
determined as of [the last day of the calendar month]
immediately preceding the Payment Date (as defined below) shall be
made (or shall begin to be distributed) to the Participant with
respect to the applicable permitted Payment Events (as defined
below) and in the permitted Payment Methods, each as elected by the
Participant in his or her first deferral election under the Plan
(or, with respect to any person who was a Participant in the Plan
immediately prior to the Effective Date, as elected in the Deferral
Election Form on file with respect to the Participant on
December 31, 2008) and simultaneously with the filing of
subsequent Deferral Election Forms. For purposes of the Plan,
with respect to each Deferred Amount:
(i)
permissible “Payment
Methods” are (A) a lump sum payment or (B) a series
of periodic installments (if monthly installments, to be not less
than 12 nor more than 120 or, if annual installments, to be not
more than 10); and
(ii)
permissible “Payment
Events” are (A) occurrence of the date specified by the
Participant, (B) the Participant’s death,
(C) termination of the Participant’s employment with the
Company and all Related Companies by reason of the
Participant’s incurrence of a Disability, (D) a Change
of Control of United Stationers, Inc., or (E) termination
of the Participant’s employment with the Company and all
Related Companies for any reason [other than the
Participant’s death or Disability] .
The Participant may elect to receive
payment upon the earliest to occur of one or more of the
permissible Payment Events as selected by the Participant in his or
her Deferral Election Form and the Participant’s payment
election shall designate the calendar year in which payments shall
commence or such other manner and pursuant to such other procedures
as the Committee may prescribe, provided such other manner and
procedures comply with section 409A of the Code. The
“Payment Date” with respect to a Deferred Amount (as
adjusted for deemed earnings and losses in accordance with
paragraph 3 of Article II) shall be the date on which payment
is made in full (in the case of an election to receive a single
lump sum payment) or the date on which payment commences (in the
case of an election to receive periodic installment
payments). If a Participant elects a lump sum payment, the
Payment Date for such lump sum payment will be January
[15] of the calendar year selected by the Participant.
If a Participant elects periodic installment payments, the Payment
Date for the initial installment payment will be January
[15] of the calendar year selected by the Participant.
If a Participant fai
