|
Exhibit 10.4 INVACARE CORPORATION DEFERRED
COMPENSATION PLUS PLAN
INVACARE CORPORATION
DEFERRED COMPENSATION PLUS PLAN
(Effective January 1, 2005) Table of Contents
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
|
|
ARTICLE I
|
|
|
1
|
|
|
|
|
|
|
|
|
INTRODUCTION
|
|
|
1
|
|
|
1.1 Name of Plan
|
|
|
1
|
|
|
1.2 Purposes of Plan
|
|
|
1
|
|
|
1.3 "Top Hat" Pension Benefit Plan
|
|
|
1
|
|
|
1.4 Plan Unfunded
|
|
|
1
|
|
|
1.5 Effective Date
|
|
|
1
|
|
|
1.6 Administration
|
|
|
2
|
|
|
|
|
|
|
|
|
ARTICLE II
|
|
|
3
|
|
|
|
|
|
|
|
|
DEFINITIONS AND CONSTRUCTION
|
|
|
3
|
|
|
2.1 Definitions
|
|
|
3
|
|
|
2.2 Number and Gender
|
|
|
9
|
|
|
2.3 Headings
|
|
|
9
|
|
|
|
|
|
|
|
|
ARTICLE III
|
|
|
10
|
|
|
|
|
|
|
|
|
PARTICIPATION AND ELIGIBILITY
|
|
|
10
|
|
|
3.1 Participation
|
|
|
10
|
|
|
3.2 Commencement of Participation
|
|
|
10
|
|
|
3.3 Cessation of Active Participation
|
|
|
10
|
|
|
3.4 Protective Measures
|
|
|
10
|
|
|
|
|
|
|
|
|
ARTICLE IV
|
|
|
11
|
|
|
|
|
|
|
|
|
CONTRIBUTIONS AND VESTING
|
|
|
11
|
|
|
4.1 Deferrals by Participants
|
|
|
11
|
|
|
4.2 Effective Date of Participation and Deferral Election
Form
|
|
|
12
|
|
|
4.3 Modification or Revocation of Election by Participant
|
|
|
12
|
|
|
4.4 Matching Contributions
|
|
|
12
|
|
|
4.5 Make Whole IQC Contributions
|
|
|
12
|
|
|
4.6 Discretionary Contributions
|
|
|
12
|
|
|
4.7 Suspension of Contributions
|
|
|
13
|
|
|
4.8 Vesting
|
|
|
13
|
|
|
4.9 Suspension and Forfeiture Following Accelerated Distribution
of Grandfathered Deferrals
|
|
|
13
|
|
|
|
|
|
|
|
|
ARTICLE V
|
|
|
14
|
|
|
|
|
|
|
|
|
ACCOUNTS
|
|
|
14
|
|
|
5.1 Establishment of Bookkeeping Accounts
|
|
|
14
|
|
|
5.2 Subaccounts
|
|
|
14
|
|
|
5.3 Earnings Elections
|
|
|
14
|
|
|
5.4 Hypothetical Accounts and Creditor Status of
Participants
|
|
|
15
|
|
|
5.5 Investments
|
|
|
15
|
|
|
|
|
|
|
|
|
ARTICLE VI
|
|
|
16
|
|
|
|
|
|
|
|
|
PAYMENT OF ACCOUNT
|
|
|
16
|
|
|
6.1 Timing of Distribution of Accounts
|
|
|
16
|
|
i
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
|
|
6.2 Adjustment for Investment Gains and Losses Upon a
Distribution
|
|
|
16
|
|
|
6.3 Form of Payment
|
|
|
16
|
|
|
6.4 Change in Date or Form of Distribution
|
|
|
17
|
|
|
6.5 Transition Elections
|
|
|
18
|
|
|
6.6 Designation of Beneficiaries
|
|
|
18
|
|
|
6.7 Change of Beneficiary Designation
|
|
|
18
|
|
|
6.8 No Beneficiary Designation
|
|
|
18
|
|
|
6.9 Withdrawals for Unforeseeable Emergency
|
|
|
19
|
|
|
6.10 Withholding
|
|
|
19
|
|
|
|
|
|
|
|
|
ARTICLE VII
|
|
|
20
|
|
|
|
|
|
|
|
|
ADMINISTRATION
|
|
|
20
|
|
|
7.1 Committee
|
|
|
20
|
|
|
7.2 General Powers of Administration
|
|
|
20
|
|
|
7.3 Indemnification of Committee
|
|
|
21
|
|
|
|
|
|
|
|
|
ARTICLE VIII
|
|
|
22
|
|
|
|
|
|
|
|
|
DETERMINATION OF BENEFITS, CLAIMS PROCEDURE AND
ADMINISTRATION
|
|
|
22
|
|
|
8.1 Claims
|
|
|
22
|
|
|
8.2 Claim Decision
|
|
|
22
|
|
|
8.3 Request for Review of a Denied Claim
|
|
|
23
|
|
|
8.4 Review of Decision
|
|
|
23
|
|
|
8.5 Discretionary Authority
|
|
|
24
|
|
|
|
|
|
|
|
|
ARTICLE IX
|
|
|
25
|
|
|
|
|
|
|
|
|
AMENDMENT AND TERMINATION
|
|
|
25
|
|
|
9.1 Power to Amend or Terminate
|
|
|
25
|
|
|
9.2 Distribution Upon Plan Termination
|
|
|
25
|
|
|
|
|
|
|
|
|
ARTICLE X
|
|
|
27
|
|
|
|
|
|
|
|
|
MISCELLANEOUS
|
|
|
27
|
|
|
10.1 Plan Not a Contract of Employment
|
|
|
27
|
|
|
10.2 Non-Assignability of Benefits
|
|
|
27
|
|
|
10.3 Severability
|
|
|
27
|
|
|
10.4 Governing Laws
|
|
|
27
|
|
|
10.5 Binding Effect
|
|
|
27
|
|
|
10.6 Entire Agreement
|
|
|
27
|
|
|
10.7 No Guaranty of Tax Consequences
|
|
|
28
|
|
ii
INVACARE CORPORATION
DEFERRED COMPENSATION PLUS PLAN
(Effective January 1, 2005) ARTICLE I
INTRODUCTION
1.1
Name of Plan.
Invacare
Corporation (the "Company") hereby adopts the Invacare Corporation
Deferred Compensation Plus Plan (the "Plan").
1.2
Purposes of Plan.
The
purposes of the Plan are to provide deferred compensation for a
select group of management or highly compensated Employees and to
provide eligible Employees the opportunity to defer receipt of a
portion of Base Salary, Bonus Compensation and/or other
compensation.
1.3
"Top Hat" Pension Benefit Plan.
The
Plan is an "employee pension benefit plan" within the meaning of
ERISA Section 3(2). The Plan is maintained, however, for a
select group of management or highly compensated employees and,
therefore, is exempt from Parts 2, 3 and 4 of Title 1 of ERISA. The
Plan is not intended to qualify under Code Section 401(a).
1.4
Plan Unfunded.
The
Plan is unfunded. All benefits will be paid from the general assets
of the Company, which will continue to be subject to the claims of
the Company’s creditors. No amounts will be set aside for the
benefit of Plan Participants or their Beneficiaries.
1.5
Effective Date.
The
Company maintains the Invacare Corporation 401(k) Plus Benefit
Equalization Plan ("Prior Plan") which relates to certain deferred
compensation amounts which were deferred, earned and vested on or
prior to December 31, 2004, plus earnings and losses
attributable thereto. Such amounts remain subject to all terms and
provisions of the Prior Plan which are not intended to be modified
by the terms hereof, or otherwise materially modified, so as to
allow such amounts to be exempt from Code Section 409A.
The
Company now establishes the Invacare Corporation Deferred
Compensation Plus Plan, effective January 1, 2005, which
relates to (i) amounts deferred after December 31, 2004,
and (ii) any amounts previously deferred under the Prior Plan but
which were not vested prior to January 1, 2005 (all
liabilities with respect to such amounts being hereby transferred
to this Plan), plus earnings and losses attributable thereto. The
Plan is effective as of the Effective Date; provided, however, that
in general this document reflects the provisions of the Plan in
effect for periods on and after January 1, 2009. For the
period between the Effective Date and
1
January 1, 2009, the Plan was operated in good faith
compliance with Code Section 409A and applicable transition
guidance and relief thereunder (including but not limited to Notice
2007-86), but this document is not intended to fully reflect the
operation of the Plan during such period.
1.6
Administration.
The
Plan shall be administered by the Committee or its delegates, as
set forth in Section 7.1.
2
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1
Definitions.
For
purposes of the Plan, the following words and phrases shall have
the respective meanings set forth below, unless their context
clearly requires a different meaning:
|
|
(a)
|
|
"Account" means the bookkeeping account or accounts maintained
by the Company to reflect the Participant’s Base Salary
Deferrals, Bonus Deferrals, Matching Contributions, IQC
Contributions, Discretionary Contributions and Prior Plan Unvested
Amounts, together with all earnings, gains and losses thereon.
Accounts shall be further denominated as Retirement Accounts or
In-Service Distribution Accounts.
|
|
|
|
|
|
|
|
(b)
|
|
"Affiliate" means any corporation or business organization
during any period during which it would be treated, together with
the Company, as a single employer for purposes of Code Sections
414(b) or (c).
|
|
|
|
|
|
|
|
(c)
|
|
"Base Salary" means the base rate of cash compensation,
including commissions, paid by the Company to or for the benefit of
a Participant for services rendered or labor performed while a
Participant, including base pay a Participant could have received
in cash in lieu of (i) deferrals pursuant to Section 4.1
and (ii) contributions made on his behalf to any qualified
plan maintained by the Company or to any cafeteria plan under Code
Section 125 maintained by the Company.
|
|
|
|
|
|
|
|
(d)
|
|
"Base Salary Deferral" means the amount of a Participant’s
Base Salary which the Participant elects to have withheld hereunder
and credited to his Account pursuant to Section 4.1.
|
|
|
|
|
|
|
|
(e)
|
|
"Beneficiary" means the person or persons designated by the
Participant in accordance with Section 6.6 or, in the absence
of an effective designation, the person or entity described in
Section 6.8.
|
|
|
|
|
|
|
|
(f)
|
|
"Board" means the Board of Directors of the Company.
|
|
|
|
|
|
|
|
(g)
|
|
"Bonus Compensation" means the amount that is awarded to a
Participant for a Plan Year under any bonus arrangement maintained
by the Company and is "performance-based compensation" under Code
Section 409A.
|
|
|
|
|
|
|
|
(h)
|
|
"Bonus Deferral" means the amount of a Participant’s Bonus
Compensation which the Participant elects to have withheld
hereunder and credited to his Account pursuant to
Section 4.1.
|
3
|
|
(i)
|
|
"Change of Control" means the first time on which, after the
Effective Date:
|
|
|
(i)
|
|
There is a report filed on Schedule 13D or
Schedule 14D-1 (or any successor schedule, form, or report),
each as adopted under the Securities Exchange Act of 1934, as
amended, disclosing the acquisition, in a transaction or series of
transactions, by any person (as the term "person" is used in
Section 13(d) and Section 14(d)(2) of the Securities Exchange
Act of 1934, as amended), other than (1) A. Malachi Mixon
and/or any Affiliate of A. Malachi Mixon, (2) Invacare or any
of its subsidiaries, (3) any employee benefit plan or employee
stock ownership plan or related trust of Invacare or any of its
subsidiaries, or (4) any person or entity organized, appointed
or established by Invacare or any of its subsidiaries for or
pursuant to the terms of any such plan or trust, of such number of
shares of Invacare as entitles that person to exercise 30% or more
of the voting power of Invacare in the election of Directors;
or
|
|
|
|
|
|
|
|
(ii)
|
|
During any period of 24 consecutive calendar months, individuals
who at the beginning of such period constitute the Directors of
Invacare cease for any reason to constitute at least a majority of
the Directors of Invacare unless the election of each new Director
of Invacare (over such period) was approved or recommended by the
vote of at least two-thirds of the Directors of Invacare then still
in office who were Directors of Invacare at the beginning of the
period; or
|
|
|
|
|
|
|
|
(iii)
|
|
There is a merger, consolidation, combination (as defined in
Section 1701.01(Q), Ohio Revised Code), majority share
acquisition (as defined in Section 1701.01(R), Ohio Revised
Code), or control share acquisition (as defined in
Section 1701.01(Z)(1), Ohio Revised Code, or in
Invacare’s Articles of Incorporation) involving Invacare and,
as a result of which, the holders of shares of Invacare prior to
the transaction become, by reason of the transaction, the holders
of such number of shares of the surviving or acquiring corporation
or other entity as entitles them to exercise less than fifty
percent (50%) of the voting power of the surviving or acquiring
corporation or other entity in the election of Directors; or
|
|
|
|
|
|
|
|
(iv)
|
|
There is a sale, lease, exchange, or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of Invacare, but only if the
|
4
|
|
|
|
transferee of the assets in such transaction is not a subsidiary
of Invacare; or
|
|
|
(v)
|
|
The shareholders of Invacare approve any plan or proposal for
the liquidation or dissolution of Invacare, but only if the
transferee of the assets of Invacare in such liquidation or
dissolution is not a subsidiary of Invacare.
|
|
|
|
|
If an event described in any of Clauses (a), (b), (c), (d), and
(e) occurs, a Change of Control shall be deemed to have occurred
for all purposes of this Agreement and that Change of Control shall
be irrevocable.
|
|
|
|
|
|
|
|
(j)
|
|
"Code" means the Internal Revenue Code of 1986, as amended. In
general, a reference to the Code will include all lawful
regulations and pronouncements promulgated thereunder, including
without limitation, all applicable transition relief with respect
to Code Section 409A.
|
|
|
|
|
|
|
|
(k)
|
|
"Committee" means the administrative committee named to
administer the Plan pursuant to Section 7.1.
|
|
|
|
|
|
|
|
(l)
|
|
"Company" means Invacare Corporation and any successor
thereto.
|
|
|
|
|
|
|
|
(m)
|
|
"Deferral Period" means the period of time for which a
Participant elects to defer receipt of the Base Salary Deferrals
and Bonus Deferrals credited to such Participant’s In-Service
Account(s).
|
|
|
|
|
|
|
|
(n)
|
|
"Directors" means the Board of Directors of the Company.
|
|
|
|
|
|
|
|
(o)
|
|
"Disability" means, with respect to any Participant, that such
Participant is, by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can
be expected to last for a continuous period of not less than
12 months, either (i) unable to engage in any substantial
gainful activity, or (ii) receiving income replacement
benefits for a period of not less than 3 months under an
accident and health plan covering employees of the Company. Without
limitation, for purpose of this Plan, a Participant will be deemed
to have a Disability if the Participant is determined to be totally
disabled by the Social Security Administration, or is determined to
be disabled in accordance with a disability insurance program of
the Company or any Affiliate (provided that the definition of
disability applied under such disability insurance program complies
with the requirements of Section 409A).
|
5
|
|
(p)
|
|
"Discretionary Contribution" means the Company’s
contribution, if any, made pursuant to Section 4.6.
|
|
|
|
|
|
|
|
(q)
|
|
"Effective Date" means January 1, 2005, except where a
different date is specifically set forth.
|
|
|
|
|
|
|
|
(r)
|
|
"Employee" means any common-law employee of the Company or any
Affiliate.
|
|
|
|
|
|
|
|
(s)
|
|
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended. In general, a reference to ERISA will include all
lawful regulations and pronouncements promulgated thereunder.
|
|
|
|
|
|
|
|
(t)
|
|
"401(k) Plan" means the Invacare Retirement Savings Plan, as in
effect on January 1, 2005, and as amended from time to time
thereafter.
|
|
|
|
|
|
|
|
(u)
|
|
"In-Service Distribution Accounts" means an Account(s) to which
a Participant’s Base Salary Deferrals and Bonus Deferrals are
credited pursuant to the terms of the Plan and the election of a
Participant. Each of a Participant’s In-Service Distribution
Accounts is distributable in a future calendar year which is not
less than two (2) years following the end of the Plan Year in
which the deferral of compensation was made and which is selected
by the Participant pursuant to Section 4.1 hereof. A
Participant may have up to two (2) In-Service Distribution
Accounts under the Plan at any one time.
|
|
|
|
|
|
|
|
(v)
|
|
"IQC Contributions" means the amount, if any, of Invacare
Quarterly Contributions made by the Company under the 401(k) Plan
for a Plan Year.
|
|
|
|
|
|
|
|
(w)
|
|
"Key Employee" means a "specified employee" within the meaning
of Code Section 409A(a)(2)(B)(i). For purposes of this Plan,
"Key Employees" will be identified on the basis of the 12 month
period ending each December 31 and each such identification
will apply during the 12 month period commencing on the
succeeding April 1.
|
|
|
|
|
|
|
|
(x)
|
|
"Make Whole IQC Contribution" means a contribution equal to the
Invacare Quarterly Contribution that would have been made to the
401(k) Plan for a Participant but for the limitation on
compensation contained in Code Section 401(a)(17).
|
|
|
|
|
|
|
|
(y)
|
|
"Matching Contribution" means the matching amount, as determined
by the Company each year, that would be credited to the
Participant’s Account based on Base Salary Deferrals and
|
6
|
|
|
|
Bonus Deferrals under the 401(k) Plan if such deferrals had been
deferred by the Participant into the 401(k) Plan (but without
regard to the limitations of Code Section s 401(a)(17), 415
or other relevant limitations under the Code), reduced by the
actual matching contributions made on deferrals under the 401(k)
Plan. Any Matching Contribution shall be credited by the Company to
the Retirement Account of each Participant at such time or times as
the Company determines.
|
|
|
|
|
|
|
|
(z)
|
|
"Participant" means each Employee who has been selected for
participation in the Plan, who has become a Participant pursuant to
Article III and who retains an Account under this Plan.
|
|
|
|
|
|
|
|
(aa)
|
|
"Participation and Deferral Election Form" means the written
agreement pursuant to which the Participant elects the amount of
his Base Salary and/or his Bonus Compensation to be deferred
pursuant to the Plan, the Account to which such deferrals are to be
credited, the Deferral Period, if applicable, the deemed investment
of amounts deferred and the time and form of payment of such
amounts and such other matters as the Committee shall determine
from time to time.
|
|
|
|
|
|
|
|
(bb)
|
|
"Plan" means the Invacare Corporation Deferred Compensation Plus
Plan, as in effect on the Effective Date, and as amended from time
to time hereafter.
|
|
|
|
|
|
|
|
(cc)
|
|
"Plan Year" means the 12-consecutive month period commencing
January 1 of each year ending on the following
December 31.
|
|
|
|
|
|
|
|
(dd)
|
|
"Prior Plan Unvested Amounts" means any unvested amount credited
to a Participant’s Account under the Invacare Corporation
401(k) Benefit Equalization Plus Plan as of December 31, 2004
which is transferred to the Participant’s Retirement Account
under this Plan on or after the Effective Date.
|
|
|
|
|
|
|
|
(ee)
|
|
"Retirement" means a Participant’s Termination of
Employment after the attainment of age fifty-five (55) and
completion of ten (10) Years of Service or more.
|
|
|
|
|
|
|
|
(ff)
|
|
"Retirement Account" means an Account to which Base Salary
Deferrals and Bonus Deferrals are credited pursuant to the terms of
the Plan and the election of a Participant. A Participant’s
Retirement Account shall also be credited with any Matching
Contributions, Make Whole IQC Contributions, Profit Sharing
Contributions and Discretionary Contributions creditable to a
Participant under the terms of the Plan. A Participant’s
Retirement Account is generally payable upon his Retirement.
|
7
|
|
(gg)
|
|
"Termination of Employment" means the separation from service of
a Participant from the Company and all Affiliates for any reason,
which includes:
|
|
|
(i)
|
|
a voluntary resignation;
|
|
|
|
|
|
|
|
(ii)
|
|
involuntary discharge for any reason, with or without cause;
|
|
|
|
|
|
|
|
(iii)
|
|
Retirement;
|
|
|
|
|
|
|
|
(iv)
|
|
death;
|
|
|
|
|
|
|
|
(v)
|
|
a leave of absence (including military leave, sick leave, or
other bona fide leave of absence) but only at the point that such
leave exceeds the greatest of (i) six months, (ii) the
period for which the Participant’s right to reemployment is
guaranteed either by statute or by contract, or
(iii) 12 months if such leave constitutes sick leave
arising by reason of an injury to, or sickness of, the Participant,
which, in either case, involves a medically determinable physical
or mental impairment that (y) is expected to result in death or to
last for a continuous period of not less than 6 months, and
(z) renders the Participant unable to perform the duties of
his position of employment or any substantially similar position of
employment; or
|
|
|
|
|
|
|
|
(vi)
|
|
a permanent decrease in the Participant’s service to a
level that is no more than twenty percent (20%) of its prior
level.
|
In determining whether a Termination of Employment has occurred,
this definition shall be interpreted in accordance with regulations
under Code Section 409A, with respect to separation from
service, including, without limitation, whether it is reasonably
anticipated that no further services will be performed by the
Participant after a certain date or that the level of bona fide
services the Participant will perform after such date (whether as
an employee or as an independent contractor) would permanently
decrease to no more than twenty percent (20%) of the average level
of bona fide services performed (whether as an employee or an
independent contractor) over the immediately preceding 36-month
period (or the full period of services if the Participant has been
providing services less than 36 months). The transfer of a
Participant from the Company to an Affiliate or from an Affiliate
to the Company or another Affiliate shall not constitute a
Termination of Employment for purposes of this Plan. In addition,
without limiting the generality of the foregoing, in
8
determining Affiliates for purposes of applying this definition
of Termination of Employment, the usual "at least 80%" standard in
Code Section 1563(a)(1), (2) and (3) shall read "at
least 50%" (or, where the Compensation Committee has determined
that there is a good business reason for such lower limit, "at
least 20%") for purposes of construing Code Sections 414(b) and
414(c).
|
|
(hh)
|
|
"Unforeseeable Emergency" means a severe financial hardship to a
Participant within the meaning of Code Section 409A resulting from:
(i) an illness or accident of the Member or the Member’s
spouse or dependent (as defined in Code Section 152 without
regard to Code Sections 152(b)(1), (b)(2) and (d)(1)(B));
(ii) loss of the Participant’s property due to casualty;
or (iii) other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of
the Participant.
|
|
|
|
|
|
|
|
(ii)
|
|
"Valuation Date" means each business day.
|
|
|
|
|
|
|
|
(jj)
|
|
"Years of Service" shall have the same meaning as in the 401(k)
Plan.
|
2.2 Number and Gender.
Wherever
appropriate herein, words used in the singular shall be considered
to include the plural and words used in the plural shall be
considered to include the singular. The masculine gender, where
appearing in the Plan, shall be deemed to include the feminine
gender.
2.3
Headings.
The
headings of Articles and Sections herein are included solely for
convenience, and if there is any conflict between such headings and
the rest of the Plan, the text shall control.
9
ARTICLE III
PARTICIPATION AND ELIGIBILITY
3.1
Participation.
Participants
in the Plan are those Employees who are (a) subject to the
income tax laws of the United States, (b) members of a select
group of highly compensated or management Employees, and (c)
selected by the Committee or its delegates, in its sole discretion,
as Participants. The Committee shall notify each Participant of his
selection as a Participant. An Employee who satisfies the
eligibility requirements set forth in subsections (a) and
(b) shall remain eligible to continue participation in the
Plan for each Plan Year following his selection by the Committee as
a Participant unless the Committee shall determine otherwise.
3.2
Commencement of Participation.
Except
as provided in the following sentence, an Employee shall become a
Participant effective as of the first day of the Plan Year
following the date on which his Participation and Deferral Election
Form becomes effective.
3.3
Cessation of Active Participation.
Notwithstanding
any provision herein to the contrary, an individual who has become
a Participant in the Plan shall cease to be a Participant
hereunder, effective as of such date as may be designated by the
Committee, provided that for purposes of ceasing Base Salary
Deferrals and Bonus Deferrals, such date may only occur as of the
end of a Plan Year, except to the extent otherwise permitted under
Code Section 409A. Any such Committee action shall be
communicated to such Participant prior to the effective date of
such action.
3.4
Protective Measures.
If the
Administrator determines, in its sole discretion, that a
Participant is not, or may not be, a member of a "select group of
management or highly compensated employees" within the meaning of
Section 201(2), 301(a)(3), 401(a)(1) or 4021(b)(6) of ERISA,
then the Administrator may, in its sole discretion, terminate the
Participant’s participation in the Plan as of the last day of
the then current Plan Year. Such Participant’s deferral
election(s) shall also be cancelled as of the last day of such Plan
Year. Such termination of participation shall not impact the time
and form of payment of the amounts credited to such
Participant’s Accounts, which will be distributed by the
Company in accordance with the other provisions hereof.
10
ARTICLE IV
CONTRIBUTIONS AND VESTING
4.1
Deferrals by Participants.
No
later than the last day of the Plan Year immediately preceding the
Plan Year to which the Participation and Deferral Election Form
relates, a Participant who elects to make Base Salary Deferrals
must file with the Committee a Participation and Deferral Election
Form pursuant to which such Participant elects to make Base Salary
Deferrals.
A
Participant must file a Participation and Deferral Election Form to
make Bonus Deferrals at a time prescribed by the Committee which
time shall be not later than six (6) months before the end of
the 12 month period over which the services upon which the
Bonus Compensation is based are performed, provided that in no
event may an election to defer be made after such Bonus
Compensation to which the Bonus Deferral relates has become readily
ascertainable.
A
deferral election will be irrevocable as of the last permissible
date for making such election, as described in this
Section 4.1.
A
Participant shall be entitled to defer a whole percent of his Base
Salary or Bonus Compensation, subject to a maximum deferral of
fifty percent (50%) of Base Salary and one hundred percent (100%)
of Bonus Compensation.
At the
time a Participant completes a Participation and Deferral Election
Form, he shall elect to have his Base Salary Deferrals and Bonus
Deferrals credited to a Retirement Account or an In-Service
Distribution Account.
An
election to have amounts credited to an In-Service Distribution
Account shall specify the Deferral Period applicable to such
amounts by specifying the calendar year in which payment of amounts
in such In-Service Distribution Account shall be made or shall
commence to be made in accordance with Section 6.1, which
shall be no sooner than two full years following the Plan Year to
which such deferrals relate and whether the distribution is to be
paid in a lump sum or in annual installments amortized over a
specified period of years not to exceed five (5) years in
accordance with Section 6.3(b). A Participant shall be
permitted a maximum of two In-Service Distribution Accounts in
existence at any time. Once a Participant has two In-Service
Distribution Accounts established, he may make further In-Service
Distribution elections only if the amount subject to such further
elections can be properly allocated to an existing In-Service
Distribution Account. In the event an election to have amounts
credited to an In-Service Distribution Account fails to specify a
valid Deferral Period, then any amounts subject to such election
shall be credited to an In-Service Distribution Account with a
Deferral Period of two full years following the Plan Year to which
the deferrals relate. If the Participant already has two existing
In-Service Distribution Accounts, the amounts subject to the
election shall be credited to the Account that has a remaining
Deferral Period that is closest to but not less than two years.
11
Base
|
