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EXHIBIT 4 COMMERCIAL BANCSHARES, INC. DEFERRED
COMPENSATION PLAN (As Amended and Restated Effective
January 1, 2006) ARTICLE 1
INTRODUCTION 1.1 PURPOSE OF PLAN
Commercial Bancshares, Inc. has
adopted the Plan set forth herein to provide a means by which
certain key employees and members of the Board of Directors may
elect to defer receipt of designated percentages or amounts of
their Compensation and to provide a means for certain other
deferrals of Compensation. 1.2 STATUS OF PLAN
The Plan is intended to be a plan
that is unfunded and is maintained by an employer primarily for the
purpose of providing deferred compensation for non-employee
directors and a "select group of management or highly compensated
employees" within the meaning of Sections 201(2) and 301(a)(3)
of the Employee Retirement Income Security Act of 1974 ("ERISA"),
and shall be interpreted and administered to the extent possible in
a manner consistent with that intent. ARTICLE 2
DEFINITIONS Wherever used herein,
the following terms have the meanings set forth below, unless a
different meaning is clearly required by the context: 2.1 ACCOUNT
means, for each Participant, the account established for his or her
benefit under Section 5.1. 2.2 BOARD OF DIRECTORS means the
Board of Directors of the Corporation. 2.3 CHANGE OF CONTROL
means:
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a.
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the purchase or other acquisition by any individual, entity or
group of persons acting as a group (within the meaning of Treasury
Regulation Section 1.409A-3(i)(5)(v)(B) or any successor
regulation) or any comparable successor provisions, in one or more
transactions during the 12-month period, of beneficial ownership
(within the meaning of Rule 13d-3 of Securities Exchange Act
of 1934) of outstanding shares of common stock of the Corporation
possessing 30% or more of the combined voting power of the
Corporation’s then outstanding voting securities entitled to
vote generally; or
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b.
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the approval by the stockholders of the Corporation of a
reorganization, merger, or consolidation, in each case, with
respect to which persons who were stockholders of the Corporation
immediately prior to such reorganization, merger or consolidation
do not immediately thereafter own more than 50 percent of the
combined voting power of the reorganized, merged or consolidated
Employer’s then outstanding securities that are entitled to
vote generally in the election of directors; or
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c.
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the purchase by any individual, entity or group of persons
acting as a group not controlled by or affiliated with the
Corporation of a substantial portion of the Employer’s
assets. (For this purpose, assets that have a total gross fair
market value equal to or more than 40% of the total gross fair
market value of all assets of the Corporation immediately prior to
such acquisition)
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No Change in Control will be considered to have occurred under
this Subsection 2.3 when there is a transfer to an entity that is
controlled by the shareholders of the Corporation immediately after
the transfer, as provided in this paragraph. A transfer of assets
by the Corporation or any Employer shall not be treated as a change
in the ownership of such assets if the assets are transferred to
(i) A shareholder of the Corporation
(immediately before the asset transfer) in exchange for or with
respect to its stock; (ii) An entity,
50 percent or more of the total value or voting power of which
is owned, directly or indirectly, by the Corporation;
(iii) A person, or more than one
person acting as a group, that owns, directly or indirectly,
50 percent or more of the total value or voting power of all
the outstanding stock of the Corporation; or
(iv) An entity, at least
50 percent of the total value or voting power of which is
owned, directly or indirectly, by a person described in paragraph
(iii). For purposes of this paragraph and except as otherwise
provided, a person’s status is determined immediately after
the transfer of the assets. For example, a transfer to a
corporation in which the transferor corporation has no ownership
interest before the transaction, but which is a majority-owned
subsidiary of the transferor corporation after the transaction is
not treated as a change in the ownership of the assets of the
transferor corporation. 2.4 CODE means the Internal Revenue Code of
1986, as amended from time to time. Reference to any section or
subsection of the Code includes reference to any comparable or
succeeding provisions of any legislation that amends, supplements
or replaces such section or subsection.
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2.5 COMMON SHARES means shares of the common stock of the
Corporation. 2.6 COMPENSATION is used to determine the amount of
Elective Deferrals a Participant can elect. Compensation under the
Plan is defined as:
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a.
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For an Eligible Employee, the Eligible Employee’s wages,
salaries, fees for professional services and other amounts received
(without regard to whether or not an amount is paid in cash) for
personal services actually rendered in the course of employment
with the Employer or an Affiliate to the extent that the amounts
are includable in gross income, including but not limited to
commissions paid to salesmen, compensation for services on the
basis of percentage of profits, commissions on insurance premiums,
tips, bonuses, fringe benefits, reimbursements, and expense
allowances, but not including those items excludable from the
definition of compensation under Treas. Reg. section
1.415-2(d)(3).
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b.
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For a Non-Employee Director, the annual fees for serving as a
member of the Board of Directors, as well as meeting fees and
additional compensation for serving on Committees of the Board of
Directors.
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2.7 CORPORATION means Commercial Bancshares, Inc. 2.8 EFFECTIVE
DATE means January 1, 1999. 2.9 ELECTION FORM means the
participation election form as approved and prescribed by the Plan
Administrator. 2.10 ELECTIVE DEFERRAL means the portion of
Compensation that is deferred by a Participant under
Section 4.1. 2.11 ELIGIBLE EMPLOYEE means, on the Effective
Date or any Entry Date thereafter, each employee of the Employer
who satisfies the criteria established in Article 3 below.
2.12 EMPLOYER means the Corporation and any subsidiary of the
Corporation or other entity that is affiliated with the
Corporation, which adopts the Plan with the consent of the
Corporation, provided that the Corporation shall have the sole
power to amend this Plan and shall be the Plan Administrator if no
other person or entity is so serving at any time. 2.13 ERISA means
the Employee Retirement Income Security Act of 1974, as amended
from time to time. Reference to any section or subsection of ERISA
includes reference to any comparable or succeeding provisions of
any legislation that amends, supplements or replaces such section
or subsection.
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2.14 INSOLVENT means either (i) the Employer is unable to
pay its debts as they become due, or (ii) the Employer is subject
to a pending proceeding as a debtor under the United States
Bankruptcy Code. 2.15 KEY EMPLOYEE means an Eligible Employee who
meets the requirements for a "key employee" of the Employer as that
term is defined in Section 416(i) of the Code. This shall include
any Eligible Employee who is (i) a 5-percent owner of the
Corporation’s common stock, or (ii) an officer of the
Corporation with annual compensation from the Corporation of
$130,000 or more, or (iii) a 1-percent owner of
Corporation’s common stock with annual compensation from the
Corporation of $150,000 or more (or such higher annual limit as may
be in effect for years subsequent to 2005 pursuant to indexing
under Section 416(i) of the Code). 2.16 NON-EMPLOYEE DIRECTOR means
any member of the Board of Directors who is not employed by the
Corporation or any Employer. 2.17 PARTICIPANT means any
Non-Employee Director or Eligible Employee who participates in the
Plan in accordance with Article 3. 2.18 PLAN means this
Commercial Bancshares, Inc. Deferred Compensation Plan and all
amendments thereto. 2.19 PLAN ADMINISTRATOR means the person,
persons or entity designated by the Board of Directors to
administer the Plan and to serve as the agent for the "Company"
with respect to the Trust as contemplated by the agreement
establishing the Trust. If no such person or entity is so serving
at any time, the Employer shall be the Plan Administrator. 2.20
PLAN YEAR means the period of 12 consecutive months ending
December 31. 2.21 RETIREMENT AGE means, for a member of the
Board of Directors, age 70, and, for an Eligible Employee, the age
at which he or she is eligible for retirement under the
Employer’s tax-qualified retirement plan. 2.22 TOTAL AND
PERMANENT DISABILITY means the inability of a Participant to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months, and the
permanence and degree of which shall be supported by medical
evidence satisfactory to the Plan Administrator. 2.23 TRUST means
the trust established by the Employer that identifies the Plan as a
plan with respect to which assets are to be held by the Trustee.
2.24 TRUSTEE means the trustee or trustees under the Trust. 2.25
YEAR OF SERVICE means the computation period and service
requirement elected in the Adoption Agreement.
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ARTICLE 3
PARTICIPATION 3.1 ELIGIBLE EMPLOYEES The following persons or
classes of persons shall be Participants.
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a.
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Members of the Board of Directors.
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b.
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Executive officers of the Employer who have been designated by
the Human Resources Committee of the Board of Directors as eligible
to participate in this Plan.
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3.2 COMMENCEMENT OF PARTICIPATION
Any individual who elects to defer
part of his or her Compensation in accordance with Section 4.1
shall become a Participant in the Plan as of the date such
deferrals commence in accordance with Section 4.1. Any
individual who is not already a Participant and whose Account is
credited with an Incentive Contribution shall become a Participant
as of the date such amount is credited. 3.3 CONTINUED PARTICIPATION
A Participant in the Plan shall
continue to be a Participant so long as any amount remains credited
to his or her Account. ARTICLE 4
ELECTIVE DEFERRALS 4.1 ELECTIVE DEFERRALS
An individual who is an Eligible
Employee or Non-Employee Director on the Effective Date may, by
completing an Election Form and filing it with the Plan
Administrator within 30 days following the Effective Date,
elect to defer a percentage or dollar amount of one or more
payments of Compensation, on such terms as the Plan Administrator
may permit, which would otherwise be payable to the Participant
after the date on which the individual files the Election Form.
Any individual who becomes an
Eligible Employee or Non-Employee Director after the Effective Date
may, by completing an Election Form and filing it with the Plan
Administrator within 30 days following the date on which the
Human Resources Committee of the Board of Directors first
determines that such individual is an Eligible Employee (or for a
Non-Employee Director, the date on which the individual becomes a
member of the Board of Directors), elect to defer a percentage or
dollar amount of one or more payments of Compensation, on such
terms as the Plan Administrator may permit, which would otherwise
be payable to the Participant after the date on which the
individual files the Election Form.
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Any Eligible Employee or
Non-Employee Director who has not otherwise initially elected to
defer Compensation in accordance with this paragraph 4.1 may elect
to defer a percentage or dollar amount of one or more payments of
Compensation, on such terms as the Plan Administrator may permit,
commencing with Compensation paid in the next succeeding Plan Year,
by completing an Election Form prior to the first day of such
succeeding Plan Year. A
Participant’s Compensation shall be reduced in accordance
with the Participant’s election hereunder and amounts
deferred hereunder shall be paid by the Employer to the Trust as
soon as administratively feasible and credited to the
Participant’s Account as of the date the amounts are received
by the Trustee. An election to defer
a percentage or dollar amount of Compensation for any Plan Year
shall apply for subsequent Plan Years unless changed or revoked. A
Participant may change or revoke his or her deferral election as of
the first day of any Plan Year by giving written notice to the Plan
Administrator before the first day of such Plan Year (or any such
earlier date as the Plan Administrator may prescribe). ARTICLE
5
ACCOUNTS 5.1 ACCOUNTS The Plan
Administrator shall establish an Account for each Participant
reflecting Elective Deferrals (if any) made for the
Participant’s benefit together with any adjustments for
income, gain or loss and any payments for the Account. The Plan
Administrator may cause the Trustee to maintain and invest separate
asset accounts corresponding to each Participant’s Account.
The Plan Administrator shall
establish sub-accounts for each Participant that has more than one
election in effect under Section 7.1 and such other
subaccounts as are necessary for the proper administration of the
Plan. As of the last business day of each calendar quarter, the
Plan Administrator shall provide the Participant with a statement
of his or her Account reflecting the income, gains and losses
(realized and unrealized), amounts of deferrals, and distributions
of such Account since the prior statement. 5.2 INVESTMENTS
The assets of the Trust shall be
invested solely in shares of the common stock of the Corporation
("Common Shares"). All dividends payable on Common Shares held by
the Trustee shall be reinvested in additional Common Shares as soon
as reasonably practicable.
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ARTICLE 6
VESTING 6.1 GENERAL A Participant
shall be immediately vested in (i.e., shall have a nonforfeitable
right to), all Elective Deferrals, and all income and gain
attributable thereto, credited to his or her Account. 6.2 VESTING
SERVICE For purposes of applying the
vesting schedule in this Article VI, a Participant shall be
considered to have completed a Year of Service for each complete
year of full-time service with the Employer or an Affiliate,
measured from the Participant’s first date of such
employment, unless the Employer also maintains a 401(k) plan that
is qualified under section
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