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EXHIBIT 10.3
FIRSTENERGY CORP.
DEFERRED COMPENSATION PLAN FOR OUTSIDE DIRECTORS
Effective December 31, 1997
Amended and Restated January 1, 2005
{00100414.DOC;8}DOC\286RL
TABLE OF CONTENTS
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FIRSTENERGY CORP.
DEFERRED COMPENSATION PLAN FOR OUTSIDE DIRECTORS
ARTICLE 1 — GENERAL
1.1 Preamble
The FirstEnergy Corp. Deferred Compensation Plan for Outside Directors (the “Plan”) was initially established on December 31, 1997 as the FirstEnergy Corp. Deferred Compensation Plan for Directors. The Ohio Edison Company Deferred Compensation Plan for Directors was merged into the Plan effective as of December 31, 1997 and the Centerior Energy Corporation Deferred Compensation Plan for Directors was merged into the Plan effective as of January 1, 2000. The Plan was restated as of November 7, 2001. This restatement of the Plan is effective as of January 1, 2005 in order to comply with Code Section 409A and supersedes all prior versions of this Plan and all prior arrangements and understandings regarding the deferral of fees by Directors.
1.2 P urpose
The purpose of this Plan is to provide a benefit to Directors by giving them the opportunity to defer certain fees in accordance with the provisions of the Plan. The Plan is also intended to advance the interests of the Company and its Affiliates by providing a benefit which attracts and retains the services of qualified persons who are not employees of the Company or its Affiliates to serve as Directors.
1.3 P ayment Method
Payment of an equity retainer is in the form of Company common stock, which can be deferred into a Deferred Stock Fund. Cash retainers, meeting fees, chairperson fees, and any additional annual cash retainer paid to a non-employee Chairman of the Board, will be paid in cash, but can be paid in stock or deferred into a Deferred Fee Account based on an annual election made by the Director.
1.4 Status under Laws
The Plan does not provide benefits to employees of the Company or any Affiliate and, accordingly, is not subject to the provisions of the Employee Retirement Income Security Act of 1974. The Plan shall be unfunded for purposes of the Code and is not intended to qualify under Code Section 401(a).
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1.5 Definitions
As used in the Plan, the following terms shall have the following meanings:
(a) “Accounts” means bookkeeping accounts maintained on behalf of each Participant and includes a Participant’s Deferred Fee Account, Transfer Account and such other accounts as may be established in accordance with the directions of the Committee.
(b) “Administrator” means the Committee or such other person or persons appointed in accordance with Section 7.1 .
(c) “Affiliate” means a member of the affiliated group of corporations as defined in Code Section 414(b) and (c) except that in applying Code Section 1563 “50 percent” shall be substituted for “80 percent” that includes the Company. An Affiliate may elect to participate in this Plan in accordance with Section 9.5 and such election may be approved by the Company.
(d) “Appeals Committee” means the committee appointed to review claims denied by the Administrator and to have such other discretionary powers and duties as provided by Section 8.3 .
(e) “Beneficiary” means one or more persons, trust, estates or other entities, designated in accordance with Article 5 , that are entitled to receive benefits under this Plan upon the death of a Participant. A Beneficiary is a general unsecured creditor of the Company or of the Affiliate which maintains the Accounts and provides any benefits under this Plan.
(f) “Board” means the board of directors of the Company.
(g) “Bonus Credit” means an amount credited to a Participant’s Account as provided in Section 3.5(b)(1).
(h) “Change in Control” means any of the following:
(1) The acquisition by any Person (as such term is used in Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange Act”), as amended) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of fifty percent (50%) or more (twenty five percent (25%) if such Person proposes any individual for election to the Board or any member of the Board is a representative of such Person) of either (i) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of Directors (the “Outstanding Company Voting Securities”); provided, however, that the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly from the Company (excluding an acquisition by virtue of the exercise of a conversion privilege); (ii) any acquisition by the Company; (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company; or (iv) any acquisition by any corporation pursuant to a reorganization, merger or consolidation (collectively “Reorganization”) if, following such Reorganization the conditions described in clauses (i), (ii), and (iii) of paragraph (3) of this Subsection (h) are satisfied; or
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(2) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (within the meaning of solicitations subject to as such terms are used in Rule 14a 12(c) of Regulation 14A promulgated under the Exchange Act or any such successor rule) or other actual or threatened solicitation of proxies or consent by or on behalf of a Person other than the Board; or
(3) Consummation of a Reorganization, merger, or consolidation or sale or other disposition of all or substantially all of the assets of the Company, in each case, unless, following such Reorganization (i) more than seventy-five percent (75%) of, respectively, the then outstanding shares of common stock of the corporation resulting from such Reorganization, merger or consolidation or acquiring such assets and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Reorganization, merger, consolidation or sale or other disposition of assets in substantially the same proportions as their ownership, immediately prior to such Reorganization of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company, any holding company formed by the Company to become the parent of the Company, any employee benefit plan (or related trust) of the Company or such corporation resulting from such Reorganization and any Person beneficially owning, immediately prior to such Reorganization directly or indirectly, twenty-five percent (25%) or more of, respectively, the Outstanding Company Common Stock, or Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, twenty-five percent (25%) or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Reorganization or the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Reorganization were members of the Incumbent Board at the time of the execution of the initial agreement providing for such Reorganization; or
(4) Approval by the shareholders of the Company of (i) a complete liquidation or dissolution of the Company. A Change in Control may occur only with respect to the Company. A change in ownership of common stock of an Affiliate or subsidiary, change in membership of a board of directors of an Affiliate or subsidiary, the sale of assets of an Affiliate or subsidiary, or any other event described in this Subsection (h) that occurs only with respect to an Affiliate or subsidiary does not constitute a Change in Control.
(i) “Code” means the Internal Revenue Code of 1986, as amended and any regulations or other guidance promulgated thereunder.
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(j) “Committee” means the Compensation Committee of the Board.
(k) “Company” means FirstEnergy Corp., an Ohio corporation.
(l) “Corporate Secretary” means the Corporate Secretary of FirstEnergy Corp.
(m) “Default” means a failure by the Company or Affiliate to contribute to the Trust, within thirty (30) days of receipt of written notice from its trustee, any of the following amounts:
(1) The full amount of any insufficiency in assets of the Trust or any subtrust of the Trust that is required to pay any Plan benefit payable by the trustee pursuant to directions by the Administrator or disputed by the Administrator after a Special Circumstance and determined by the trustee to be payable; or
(2) Any contribution which is then required to be made by the Company or Affiliate to the Trust or any subtrust of the Trust.
If, after the occurrence of a Default, the Company or Affiliate at any time cures such Default by contributing to the Trust all amounts which are then required under paragraphs (1) and (2) above, it shall then cease to be deemed that a Default has occurred or that a Special Circumstance has occurred by reason of such Default.
(n) “Deferred Fee Account” means a bookkeeping account established by the Company or an Affiliate which maintains record of deferred Director’s Fees including expenses and earnings, gains and losses. All amounts credited to a Director’s Deferred Fee Account shall constitute a general, unsecured liability of the Company or of the Affiliate for which the Director serves when Director’s Fees are deferred.
(o) “Deferred Stock Fund” means an Investment Fund which is deemed to be invested in FirstEnergy Corp. common stock.
(p) “Director” means a member of the Board, a member of the board of directors of any Affiliate and any individual designated as a Director by the Committee incident to a merger of or acquisition by the Company of an Affiliate. A Director may not be an employee of the Company or any Affiliate.
(q) “Director’s Fees” means the equity retainer fees, cash retainer fees, meeting fees, chairperson fees, and any additional annual cash retainer for a non-employee Chairman of the Board, payable for services as a Director whether payable in cash or in equity instruments.
(r) “Disability” means a period of disability during which the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which 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 twelve (12) months. A Participant shall not be considered to be Disabled unless he or she furnishes proof of the existence of Disability in the form and manner as required by the Administrator.
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(s) “Financial Hardship” means a severe financial hardship to the Participant resulting from a sudden and unexpected illness or accident of the Participant, the Participant’s spouse, or of a Participant’s dependent (as defined in Code Section 152 without regard to sections 152(b)(1), (b)(2) and (d)(1)(B)), loss of the Participant’s property due to casualty, or other extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. Financial Hardship shall be determined by the Administrator on the basis of information supplied by the Participant to the Administrator.
(t) “Investment Fund” means an investment fund in which Accounts may be deemed to be invested. An Investment Fund may be any open-ended fund, closed-end fund, a fund which is deemed to be invested in a particular stock or other investment, or a fund which credits a fixed or variable interest rate determined by the Committee.
(u) “Participant” means a Director or former Director who is owed a benefit under this Plan. A Participant is a general unsecured creditor of the Company or of the Affiliate which maintains the Accounts and provides any benefits under this Plan.
(v) “Plan” means the FirstEnergy Corp. Deferred Compensation Plan for Outside Directors.
(w) “Plan Year” means the period beginning on each January 1 and ending on the following December 31.
(x) “Potential Change in Control” means any of the following:
(1) Any Person (as defined in Section 13(d)(3) of the Exchange Act) other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company, delivers to the Company a statement containing the information required by Schedule 13 D under the Exchange Act, or any amendment to any such statement (or the Company becomes aware that any such statement or amendment has been filed with the Securities and Exchange Commission pursuant to applicable Rules under the Exchange Act), that shows that such Person has acquired, directly or indirectly, the beneficial ownership of (i) more than twenty percent (20%) of any class of equity security of the Company entitled to vote as single class in the election or removal from office of directors, or (ii) more than twenty percent (20%) of the voting power of any group of classes of equity securities of the Company entitled to vote as a single class in the election or removal from office of directors;
(2) The Company becomes aware that preliminary or definitive copies of a proxy statement and information statement or other information have been filed with the Securities and Exchange Commission pursuant to Rule 14a-6, Rule 14c-5, or Rule 14f-1 under the Exchange Act relating to a Potential Change in Control of the Company;
(3) Any Person delivers to the Company pursuant to Rule 14d-3 under the Exchange Act a Tender Offer Statement relating to Voting Securities of the Company (or the Company becomes aware that any such statement has been filed with the Securities and Exchange Commission pursuant to applicable Rules under the Exchange Act);
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(4) Any Person (other than the Company) publicly announces an intention to take actions which if consummated would constitute a Change in Control;
(5) The Company enters into an agreement or arrangement, the consummation of which would result in the occurrence of a Change in Control;
(6) The Board approves a proposal, which if consummated would constitute a Change in Control; or
(7) The Board adopts a resolution to the effect that, for purposes of this Plan, a Potential Change in Control has occurred.
Notwithstanding the foregoing, a Potential Change in Control shall not be deemed to occur as a result of any event described in paragraphs (1) through (6) above, if a number of directors (who were serving on the Board immediately prior to such event and who continue to serve on the Board) equal to a majority of the members of the Board as constituted prior to such event determines that the event shall not constitute a Potential Change in Control.
If a Potential Change in Control ceases to exist for any reason except for the occurrence of a Change in Control, it shall then cease to be deemed that a Potential Change in Control has occurred as a result of any event described in paragraphs (1) through (7) above, or that a Special Circumstance has occurred by reason of such Potential Change in Control.
A Potential Change in Control may occur only with respect to the Company. A change in ownership of common stock of an Affiliate or subsidiary, change in membership of a board of directors of an Affiliate or subsidiary, the sale of assets of an Affiliate or subsidiary, or any other event described in this Subsection (x) that occurs only with respect to an Affiliate or subsidiary does not constitute a Change in Control.
(y) “Retirement” means (i) with respect to amounts that were vested and accrued as of December 31, 2004 including earnings, gains and losses credited thereon after that date, a Separation from Service on or after the attainment of age sixty-nine (69), and (ii) with respect to amounts that accrue and vest after December 31, 2004 including earnings, gains and losses credited thereon after that date, a Separation from Service on or after the attainment of age fifty-five (55).
(z) “Separation” means (i) with respect to amounts that were accrued and vested as of December 31, 2004 including earnings, gains and losses credited thereon after that date, a Separation from Service prior to age sixty-nine (69); and (ii) with respect to amounts that accrue and vest after December 31, 2004 including earnings, gains and losses credited thereon after that date, a Separation from Service prior to age fifty-five (55).
(aa) “Separation from Service” means the expiration of all contracts under which the Director performs services for the Company and any Affiliate where expiration constitutes a good faith and complete termination of the contractual relationship.
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(bb) “Special Circumstance” means a Change in Control, a Potential Change in Control, or a Default.
(cc) “Transfer Account” means a bookkeeping account established by the Company or an Affiliate which maintains record of deferred Directors’ Fees transferred from another plan including expenses and earnings. All amounts credited to a Directors’ Transfer Account shall constitute a general, unsecured liability of the Company or of the Affiliate for which the Director serves.
(dd) “Trust” means the FirstEnergy Corp. Trust for Outside Directors.
(ee) “Year of Service” means a period of time commencing on a date during a calendar year and ending on the day immediately preceding such date in the subsequent calendar year throughout which an individual serves as a Director. A Year of Service shall commence for specified purposes such as vesting of the Bonus Credit under Section 3.5(b)(2) on the date as set forth in the Plan.
ARTICLE 2 — DEFERRALS
2.1 Written Election to Defer Fees
A Director may elect, by notice to the Company, either in writing or through electronic means approved by the Committee, given on or before December 31, to defer receipt of all or any specified part of his or her Director’s Fees earned for services performed during the calendar year next following his or her election to defer.
2.2 Election Upon Becoming a Director
Any person who becomes a Director and who was not a Director on the preceding December 31 may elect, by notice to the Company, either in writing or through electronic means approved by the Committee, given within thirty (30) days after becoming a Director, to defer receipt of all or any specified part of his or her Director’s Fees earned for services performed subsequent to such election and for the balance of that calendar year.
2.3 Election Irrevocable
An election to defer Director’s Fees shall be irrevocable as of December 31 preceding the Plan Year for which an election is made or, in the event of an election made upon becoming a Director pursuant to Section 2.2 , as of the thirtieth (30 th ) day after become a Director.
2.4 T ransfers from Other Plans
If permitted by the Committee and the provisions of this Plan, a Director may transfer his or her benefits from another nonqualified plan to this Plan as provided in this Section.
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(a) An individual who was a member of a board of directors of a corporation which is merged into the Company, who was not an employee of such corporation, who is not an employee of the Company or any Affiliate, and who is either selected to serve as a member of the Board or designated as a Director with respect to the Company for purposes of this Plan by the Committee may elect to transfer his or her benefit under a nonqualified plan sponsored by the corporation merged into the Company. Any account balance transferred shall be credited to a Transfer Account established and maintained under this Plan and shall be a liability of the Company. Any other benefit transferred shall be identified in Attachment 2.4.
(b) An individual who was a member of a board of directors of a corporation which is merged into an Affiliate or which is acquired and becomes an Affiliate, who was not an employee of such corporation, who is not an employee of the Company or any Affiliate and who is either a member of the board of directors of an Affiliate after such merger or acquisition or designated as a Director with respect to an Affiliate for purposes of this Plan by the Committee may elect to transfer his or her benefit under a nonqualified plan sponsored by the corporation merged into an Affiliate or acquired by the Company. Any account balance transferred shall be credited to a Transfer Account established and maintained under this Plan and shall be a liability of the Affiliate into which the corporation is merged or which the corporation becomes. Any other benefit transferred shall be identified in Attachment 2.4.
(c) Any balance transferred shall become payable under the terms and conditions of this Plan; provided however, that the Director’s beneficiary elections made under the plan from which the benefit is transferred shall continue to be effective under this Plan unless such designation is amended or changed under the terms of this Plan.
(d) Provisions regarding such transfers and terms of participation in this Plan by the Director for whom a benefit is transferred shall be established by the Committee and shall be set forth in Attachment 2.4 of this Plan.
ARTICLE 3 — ACCOUNTS AND INVESTMENT FUNDS
3.1 Deferred Fee Account
Any Director’s Fees earned and deferred while serving as a member of the Board shall be credited by the Company to the Participant’s Deferred Fee Account established and maintained by the Company as of the date the Director’s Fees would otherwise be payable. Any Director’s Fees earned while serving as a member of the board of directors of an Affiliate shall be credited by the Affiliate to the Participant’s Deferred Fee Account established and maintained by such Affiliate as of the date the Director’s Fees would otherwise be payable.
3.2 T ransfer Account
Any account balances transferred to this Plan pursuant to Section 2.4 shall be credited to the Participant’s Transfer Account established and maintained by the Company or the applicable Affiliate.
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3.3 Other Accounts and Subaccounts
The Committee may establish such other Accounts and subaccounts as it may deem necessary for the administration of the Plan including subaccounts where the Participant has specified different methods of payment, or where necessary to maintain the vested portion of a Participant’s Account. Such Accounts and subaccounts shall be credited in accordance with procedures adopted by the Committee.
3.4 Investment Funds
A Participant’s Accounts shall be adjusted for gains and losses as if the Accounts held assets and such assets were invested in one or more Investment Funds selected by the Committee. The Investment Funds in which a Participant is deemed to be invested shall be determined in accordance with Section 3.5 . The Committee shall have sole discretion in the selection, number and types of Investment Funds for this Plan and may change or eliminate Investment Funds from time to time in its sole discretion except that no change may be made that would constitute a material modification to the Plan under Code Section 409A.
3.5 Credits to Investment Funds
The Committee shall credit Director’s Fees deferred under this Plan and transferred from another plan to Investment Funds in accordance with this Section unless other rules for transferred amounts are set forth in Attachment 2.4.
(a) Rules and Limitations Regarding Deferrals and Transfers:
(1) Equity Retainer Fees and Transfers Distributable only in Stock. Equity retainer fees that are deferred under this Plan and any account balance transferred directly to this Plan from another plan in accordance with Section 2.4 where such account balance may only be distributed in stock from the other plan upon an event permitting distribution and such stock has been or is to be exchanged for Company common stock under a plan of merger with the Company shall be credited to the Deferred Stock Fund.
(2) All Other Deferred Director’s Fees and Transfers. Unless and until another procedure is established by the Committee for designation of Investment Funds, a Participant may direct that all deferred Director’s Fees and transfers except those Director’s Fees and transfers identified in Section 3.5(a)(1) shall be deemed to be invested in any one or more of the Investment Funds selected by the Committee. In the event a Participant does not direct the Investment Funds in which his or her Accounts are deemed to be invested, the deferrals and transfers shall be deemed to be invested in an Investment Fund that reflects the investment performance of a money market fund selected by the Committee.
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(b) Rules and Limitations Regarding Bonus Credit:
(1) Bonus Credit. At the time Director’s Fees are initially deferred under this Plan and credited for investment into the Deferred Stock Fund, such Director’s Fees except equity retainer fees shall be increased by a Bonus Credit equal to twenty percent (20%) of such Director’s Fees credited to the Deferred Stock Fund. Any account balance transferred to this Plan from another plan in accordance with Section 2.4 that may be credited to the Deferred Stock Fund shall not be increased by the Bonus Credit.
(2) Vesting of Bonus Credit. A Participant shall be fully vested in his or her Bonus Credit and all associated earnings, gains and losses if he or she has three (3) Years of Service from the date the Bonus Credit is credited to the Participant’s Account. In addition, a Participant shall be fully vested in his or her Bonus Credit and all associated earnings, gains and losses if he or she has a Separation from Service due to death, Retirement, or Disability. Furthermore, a Participant shall be fully vested in the Bonus Credit and all associated earnings, gains and losses upon a Special Circumstance or where such Participant has a Separation due to ineligibility to stand for reelection due to circumstances unrelated to the Participant’s performance as a Director.
(3) Forfeiture of Bonus Credit. If a Participant incurs a Separation for any reason other than the events set forth in paragraph (2) above, takes an accelerated distribution under Section 4.2 or withdraws a portion of his Deferred Stock Fund under Section 4.3, any unvested Bonus Credit attributable to Director’s Fees to be distributed shall be forfeited.
(c) Rules and Limitations Regarding Transfers Among Investment Funds:
(1) Deferred Stock Fund. No amount credited to the Deferred Stock Fund may be transferred and credited to any other Investment Fund, and no amount credited to an Investment Fund other than the Deferred Stock Fund may be transferred and credited to the Deferred Stock Fund.
(2) All Other Investment Funds. Any amount credited to an Investment Fund other than the Deferred Stock Fund may be transferred and credited to any other Investment Fund except the Deferred Stock Fund at the direction of the Participant. Any such direction from a Participant will become effective as of the date it is received by the Committee.
(d) Investment Fund Performance. The earnings, gains and losses of each Investment Fund shall be determined by the Committee, in its reasonable discretion, based on the performance of the Investment Funds themselves. The balance of a Participant’s Accounts shall be credited or debited on a daily basis based on the performance of each Investment Fund in which a Participants’ Accounts are deemed to be invested, such performance and the crediting of such performance being determined by the Committee in its sole discretion.
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(e) Committee Procedures. The Committee may establish such rules and procedures as it determines to be appropriate for the crediting of deferrals and transfers to Investment Funds, for transfers among Investment Funds and for crediting earnings, gains and losses of an Investment Fund.
3.6 Reporting
The Company shall provide a statement to each Director who has any amount credited to his or her Accounts at least annually.
ARTICLE 4 — PAYMENT TO DIRECTOR
4.1 Distribution Election—Separation from Service
A Participant’s Accounts shall be distributed upon a Separation from Service in accordance with the Plan and Participants’ elections on file with the Committee. A Participant’s Accounts allocated to Investment Funds other than the Deferred Stock Fund shall be paid to the Participant in cash, and the Participant’s Deferred Stock Fund shall be paid in the form of Company common stock.
(a) Time of Election. At the time a Participant makes his or her deferral election pursuant to either Section 2.1 or 2.2 herein, such Participant shall also make an election as to the time of distribution and form of payment of benefits by the Plan with respect to that year’s deferrals.
Notwithstanding the above, distribution elections made with respect to deferrals made between January 1, 2005 and December 31, 2007 may be changed no later than December 31, 2007 in accordance with IRS Notice 2006-79 and Code Section 409A.
(b) Form of Payment. A Participant may elect to receive benefits under this Plan in a lump sum or in substantially equal annual installments over a period not to exceed ten (10) years. In the absence of an election, such Participant’s Accounts shall be distributed in a lump sum payment in the calendar year next following the Participant’s Separation, Retirement, death or Disability but not later than January 31 of such calendar year.
(c) Time of Payment. A Participant may elect to receive benefits under this Plan in the later of:
(1) the taxable year of the Participant next following the year in which the Participant has a Separation from Service; or
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(2) the taxable year of the Participant specified by the Participant, but not later than the taxable year next following the year the Participant attains age seventy-two (72).
(3)
Payments under subsection (c)(1) and (2) shall be made no later than January 31 of the taxable year elected by the Participant.
(d) Amendment of Grandfathered Distribution Election. Solely with respect to Accounts that are accrued and vested as of December 31, 2004 and deemed earnings, gains and losses credited thereon after that date, a Participant may change the form and/or time of payment of his or her Account by filing a new superseding election with the Company at any time prior to the 120 day period ending on the day prior to the day on which the Participant is entitled to distribution under this Plan. If a Participant requests any change in the date of the distribution of his Deferred Stock Fund, the request must be approved by the Committee.
(e) Amendment of Other Distribution Elections. Solely with respect to Account balances that accrue and/or vest after December 31, 2004 including deemed earnings, gains and losses credited thereon after that date, a Participant may change his or her elections regarding the time and/or form of benefit payment provided:
(1) Such election is submitted to the Committee in writing at least twelve (12) months prior to the date any amount is to be distributed from the Plan;
(2) Such election shall not take effect until twelve (12) months after it is submitted to the Committee in writing; and
(3) The payment of any benefits under this Plan shall not commence until at | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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