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Exhibit
10.9
ESMARK
INCORPORATED
NON-EMPLOYEE DIRECTORS
DEFERRED COMPENSATION PLAN
Effective as of
February 13, 2008
TABLE OF CONTENTS
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| 1. |
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PURPOSE |
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| 2. |
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DEFINITIONS |
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| 3. |
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PARTICIPATION IN THE PLAN |
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2 |
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| 4. |
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STOCK
RESERVED FOR THE PLAN |
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3 |
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| 5. |
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DEFERRAL OF ANNUAL RETAINER AND MEETING FEES |
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3 |
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STOCK
UNIT ACCOUNT |
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4 |
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| 7. |
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DISTRIBUTIONS |
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5 |
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| 8. |
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TRUST |
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5 |
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| 9. |
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NO
ACCELERATION OF BENEFITS |
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6 |
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| 10. |
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EFFECT
OF STOCK DIVIDENDS AND OTHER CHANGES TO COMPANY
STOCK |
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| 11. |
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INTERPRETATION AND ADMINISTRATION OF THE
PLAN |
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6 |
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| 12. |
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TERM
OF THE PLAN |
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6 |
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| 13. |
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AMENDMENT OF THE PLAN |
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6 |
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| 14. |
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RIGHTS
UNDER THE PLAN |
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7 |
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| 15. |
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BENEFICIARY |
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7 |
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| 16. |
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NOTICE |
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| 17. |
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CONSTRUCTION |
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-i-
ESMARK
INCORPORATED
NON-EMPLOYEE DIRECTORS
DEFERRED COMPENSATION PLAN
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”).
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.
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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.
The shares of Company Stock
available for distribution to Directors are shares authorized under
the Esmark Incorporated Incentive Compensation Plan for
distribution to Directors.
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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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