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ESMARK INCORPORATED NON-EMPLOYEE DIRECTORS DEFERRED COMPENSATION PLAN

Executive Compensation Plan Agreement

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ESMARK INCORPORATED

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Title: ESMARK INCORPORATED NON-EMPLOYEE DIRECTORS DEFERRED COMPENSATION PLAN
Governing Law: Delaware     Date: 5/20/2008

ESMARK INCORPORATED NON-EMPLOYEE DIRECTORS DEFERRED COMPENSATION PLAN, Parties: esmark incorporated
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Exhibit 10.9

ESMARK INCORPORATED

NON-EMPLOYEE DIRECTORS DEFERRED COMPENSATION PLAN

Effective as of February 13, 2008

 


TABLE OF CONTENTS

 

          Page
1.    PURPOSE    1
2.    DEFINITIONS    1
3.    PARTICIPATION IN THE PLAN    2
4.    STOCK RESERVED FOR THE PLAN    3
5.    DEFERRAL OF ANNUAL RETAINER AND MEETING FEES    3
6.    STOCK UNIT ACCOUNT    4
7.    DISTRIBUTIONS    5
8.    TRUST    5
9.    NO ACCELERATION OF BENEFITS    6
10.    EFFECT OF STOCK DIVIDENDS AND OTHER CHANGES TO COMPANY STOCK    6
11.    INTERPRETATION AND ADMINISTRATION OF THE PLAN    6
12.    TERM OF THE PLAN    6
13.    AMENDMENT OF THE PLAN    6
14.    RIGHTS UNDER THE PLAN    7
15.    BENEFICIARY    7
16.    NOTICE    7
17.    CONSTRUCTION    7

 

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ESMARK INCORPORATED

NON-EMPLOYEE DIRECTORS DEFERRED COMPENSATION PLAN

 

  1. Purpose

The Esmark Incorporated Non-Employee Directors Deferred Compensation Plan (the “Plan”) provides a mechanism for the Board of Directors of Esmark Incorporated to pay compensation to its non-employee directors in cash or Esmark common stock. The Plan also allows such directors to defer receipt of such compensation until a future date, if desired. The Plan is intended to constitute a deferred compensation plan for non-employee Directors that meets the requirements of Section 409A of the Internal Revenue Code (the “Code”).

 

  2. Definitions

As used in the Plan, the following terms have the meanings indicated:

(a) “ Annual Cash Retainer ” means that portion of a Director’s Annual Retainer payable in cash (any portions of which may be elected to be paid in Company Stock if so determined by the Board).

(b) “ Annual Retainer ” means the annual base retainer paid to a Director for service on the Board and/or a Board committee, consisting of the Annual Cash Retainer and the Annual Stock Retainer.

(c) “ Annual Stock Retainer ” means that portion of a Director’s Annual Retainer payable in Company Stock.

(d) “ Board ” means the Board of Directors of the Company.

(e) “ Code ” means the Internal Revenue Code of 1986, as amended.

(f) “ Company ” means Esmark Incorporated, or any successor business by merger, purchase or otherwise that maintains the Plan.

(g) “ Committee ” means a committee of the Board.

(h) “ Company Stock ” means the common stock of Esmark Incorporated. In the event of a change in the capital structure of the Company, the shares resulting from such a change shall be deemed to be the Company Stock (as provided in Section 10) within the meaning of the Plan.

(i) “ Deferral Election ” has the meaning provided in Section 5(a).

(j) “ Deferred Cash ” means the amount credited to a Director’s Deferred Cash Account pursuant to an election to defer an Annual Cash Retainer or cash Meeting Fees.

 

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(k) “ Deferred Cash Account ” means the bookkeeping account for Deferred Cash established for a Director pursuant to Section 5.

(l) “ Director ” means a member of the Company’s Board who is not (i) a current employee of the Company, or (ii) a former employee of the Company entitled to compensation for current or prior services. For purposes of this Section 2(m), the term “compensation” shall exclude payments to which the Director is entitled pursuant to the terms of any tax-qualified or non-qualified retirement plan or program sponsored by the Company.

(m) “ Effective Date ” means February 13, 2008.

(n) “ Fair Market Value ” means the closing price of a share of Company Stock, as reported in the Wall Street Journal , on a specified date.

(o) “ Meeting Fees ” means the fees paid to a Director for attending Board and Committee meetings, as determined by the Board according to the Company’s established rules for compensating Directors, excluding any expense reimbursements or similar items.

(p) “ Plan Year ” means a calendar year.

(q) “ Separation from Service ” is intended to have the same meaning as this term is defined under Treasury Regulation section 1.409A-1(h).

(r) “ Stock Unit ” means a hypothetical share of Company Stock. Each Stock Unit held in a Stock Unit Account shall be deemed to have the same value, from time to time, as a share of Company Stock, provided that Stock Units shall not confer upon any Director any of the rights associated with Company Stock, including, without limitation, the right to vote or to receive distributions.

(s) “ Stock Unit Account ” means the bookkeeping account for all of a Director’s Stock Units.

(t) “ Trust ” has the meaning provided in Section 8.

 

  3. Participation in the Plan

(a) Annual Retainer . For service during a Plan Year to the extent provided by the Board, a Director may receive an Annual Retainer, consisting of the Annual Cash Retainer and the Annual Stock Retainer. The Board shall determine the amount and the frequency of payment of each portion of the Annual Retainer, if any. Unless otherwise determined by the Board, a Director may elect whether to receive all or a portion of the Annual Cash Retainer in the form of Company Stock in increments of 20%. To the extent permitted by the Board, a Director also may elect to defer receipt of all or a portion of the Annual Cash Retainer paid in Company Stock pursuant to Section 5. Additionally, to the extent permitted by the Board, a Director also may elect to defer receipt of all or a portion of the Annual Cash Retainer paid in cash pursuant to Section 5.

 

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(b) Meeting Fees. In addition to any Annual Retainer, a Director may also receive Meeting Fees in cash based on his or her attendance at Company Board and Committee meetings during a Plan Year. The Board shall determine the amount of Meeting Fees, if any, for each meeting. To the extent allowed by the Board, a Director also may elect to defer receipt of all or a portion of his or her Meeting Fees as provided in Section 5.

 

  4. Stock for the Plan

The shares of Company Stock available for distribution to Directors are shares authorized under the Esmark Incorporated Incentive Compensation Plan for distribution to Directors.

 

  5. Deferral of Annual Retainer and Meeting Fees

(a) Automatic Deferral of Annual Stock Retainer. Unless otherwise provided by the Board, all of a Director’s Annual Stock Retainer shall be deferred. A deferred Annual Stock Retainer shall be credited in the form of Stock Units to the Director’s Stock Unit Account. The number of Stock Units credited to the Stock Unit Account shall be e


 
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