Exhibit
10.33
MACY’S, INC.
DIRECTOR DEFERRED COMPENSATION
PLAN
1. Purpose of the Plan . The
purpose of this Plan is to encourage the highest level of
performance of Directors by providing Directors with a proprietary
interest in the Company’s success and progress by offering
long-term incentives in addition to current cash
compensation.
2. Definitions . In addition
to the terms defined elsewhere herein, the following terms have the
following meanings when used herein with initial capital
letters:
Average Price
means the average closing price of
the Common Shares on the New York Stock Exchange for the last 20
trading days of the applicable calendar month (or, if there are
less than 20 trading days in such month, for the full number of
trading days in such month).
Board means the board of directors of the
Company.
Change in Control
means the occurrence of any of the
following events:
(i) The Company is merged,
consolidated, or reorganized into or with another corporation or
other legal entity, and as a result of such merger, consolidation,
or reorganization less than a majority of the combined voting power
of the then-outstanding securities of such corporation or entity
immediately after such transaction is held in the aggregate by the
holders of the then-outstanding securities entitled to vote
generally in the election of directors of the Company (the
“Voting Stock”) immediately prior to such
transaction;
(ii) The Company sells or otherwise
transfers all or substantially all of its assets to another
corporation or other legal entity and, as a result of such sale or
transfer, less than a majority of the combined voting power of the
then-outstanding securities of such other corporation or entity
immediately after such sale or transfer is held in the aggregate by
the holders of Voting Stock of the Company immediately prior to
such sale or transfer;
(iii) There is a report filed on
Schedule 13D or Schedule TO (or any successor schedule, form, or
report or item therein), each as promulgated pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), disclosing that any person (as the term
“person” is used in Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term “beneficial owner” is
defined under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of securities representing 30%
or more of the combined voting power of the Voting Stock of the
Company;
(iv) If, during any period of two
consecutive years, individuals who at the beginning of any such
period constitute the directors of the Company cease for any reason
to constitute at least a majority thereof; provided, however, that
for purposes of this clause (v) each director who is first
elected, or first nominated for election by the Company’s
stockholders, by a vote of at least two-thirds of the directors of
the Company (or a committee thereof) then still in office who were
directors of the Company at the beginning of any such period will
be deemed to have been a director of the Company at the beginning
of such period.
Notwithstanding the foregoing
provisions of clause (iii) above, unless otherwise determined
in a specific case by majority vote of the Board, a “Change
in Control” will not be deemed to have occurred for purposes
of clause (iii) solely because (1) the Company,
(2) a Subsidiary, or (3) any employee stock ownership
plan or any other employee benefit plan of the Company or any
Subsidiary either files or becomes obligated to file a report or a
proxy statement under or in response to Schedule 13D, Schedule TO,
Form 8-K, or Schedule 14A (or any successor schedule, form, or
report or item therein) under the Exchange Act disclosing
beneficial ownership by it of shares of Voting Stock, whether in
excess of 30% or otherwise.
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Common Shares means the common stock of Company.
Company means Macy’s, Inc., a Delaware
corporation.
Director means a member of the Board who is not a
full-time employee of the Company or any Subsidiary.
Director Compensation
means the Retainer and the Meeting
Fees as established by the Board from time to time. The amounts of
Director Compensation shall be denominated initially in dollars,
subject to the other terms of this Plan and, during each Plan Year,
shall be credited and paid in accordance with the provisions of
this Plan.
Elective Compensation
means Director Compensation that is
not Mandatory Stock Compensation.
Elective Stock Credits
means stock equivalents that are
equal to the number of Common Shares that could be purchased with
an amount of Elective Compensation as described in
Section 5.
Mandatory Stock
Compensation means an
amount equal to fifty percent of the Director
Compensation.
Mandatory Stock
Credits means stock
equivalents that are equal to the number of Common Shares that
could be purchased with an amount of Mandatory Stock Compensation
as described in Section 4.
Meeting Fees
means the amounts, if any, payable
to a Director for attendance at meetings of the Board or a
committee of the Board during a Plan Year.
Plan Year means each calendar year during the term of this
Plan.
Retainer means the amounts payable to a Director as an
annual retainer fee, if any, for his or her service as a Director
during a Plan Year and the fees, if any, for serving as chairperson
of a committee of the Board during a Plan Year.
Specified Employee
means a “specified
employee” as determined under procedures adopted by the
Company in compliance with Section 409A of the Internal
Revenue Code of 1986 (the “Code”).
Subsidiary
has the meaning specified in Rule
405 promulgated under the Securities Act of 1933, as amended (or in
any successor rule substantially to the same effect).
Term means
(i) with respect to individuals who
are Directors at the beginning of the 2007 Plan Year, the period of
service commencing on the first day of the 2007 Plan Year and
ending on the date upon which the Director ceases to be a member of
the Board, including by reason of: (a) the Director fails to
be reelected to the Board by the shareholders of the Company,
(b) the Director’s voluntary resignation from the Board
upon retirement or otherwise by notice duly given and accepted by
the Board, or (c) the Director’s death or disability;
and
(ii) with respect to individuals who
become Directors after the first day of the 2007 Plan Year, the
period of service commencing on the effective date upon which the
Director is elected to the Board as a Director and ending on the
date upon which the Director ceases to be a member of the Board,
including by reason of: (a) the Director fails to be reelected
to the Board by the shareholders of the Company, (b) the
Director’s voluntary resignation from the Board upon
retirement or otherwise by notice duly given and accepted by the
Board, or (c) the Director’s death or
disability;
provided in either case, the Term
will not end earlier than the date on which the Director incurs a
“separation from service” as that phrase is defined for
purposes of Section 409A of the Code.
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3. Shares Available Under the Plan .
Subject to adjustment as provided in Section 7, the maximum
number of Common Shares that may be issued as Mandatory Stock
Compensation under the Plan is 250,000 shares.
4. Mandatory Stock
Compensation .
4.1. Terms of the Mandatory Stock
Compensation .
(a) The Mandatory Stock Compensation
shall be payable to the Director in Common Shares. The Mandatory
Stock Compensation shall be credited as earned to a deferral
account (the “Account”) maintained for the Director as
provided in this Agreement.
(b) The Mandatory Stock Compensation
shall be paid to the Director no sooner than three years after the
end of the calendar quarter in which it is earned. The times at
which the Mandatory Stock Compensation shall be paid to the
Director shall be determined pursuant to the following provisions
of the Plan.
(c) The Director may elect (prior to
the Plan Year in which the Mandatory Stock Compensation is to be
earned as provided in Section 6) to have his or her Mandatory
Stock Compensation deferred until the later of
(i) the expiration of the Term,
or
(ii) three years after the end of
the calendar quarter in which the Mandatory Stock Compensation is
earned.
4.2. Deferral of Mandatory Stock
Compensation .
(a) On the last day of each month,
the Director’s Account shall be credited with
(i) Mandatory Stock Credits equal to
the number of Common Shares that could be purchased with the amount
of the Mandatory Stock Compensation payable to the Director during
such month based upon the Average Price of such Common Shares,
and
(ii) the dollar amount of any part
of such Mandatory Stock Compensation that is not convertible into a
full Common Share.
(b) The Mandatory Stock Credits in
the Account shall be credited, on the last day of each calendar
quarter, with a dividend equivalent which shall be in an amount
determined by multiplying the dividends paid, either in cash or
property (other than Common Shares), on a Common Share to a
stockholder of record during such quarter, by the number of
Mandatory Stock Credits in the Account at the beginning of such
calendar quarter (with appropriate adjustment to reflect any
increase or decrease during the calendar quarter in the number of
Mandatory Stock Credits in the Account as a result of the
application of Section 7). In the case of dividends payable in
property, the dividend equivalent shall be based on the fair market
value of the property at the time of distribution of the dividend,
as determined by the Company. If, on the last day of any calendar
quarter, the dollar amounts credited to the Director in the Account
equal or exceed the closing price of a Common Share on the last
trading day of such quarter, such amount shall be treated as if it
were an allotment of Mandatory Stock Credits made on such date and
such dollar amount shall be reduced accordingly.
(c) At the end of each calendar
quarter, the Mandatory Stock Credits in the Account at the end of
such calendar quarter (including any Mandatory Stock Credits
credited to the Account for such calendar quarter as a result of
the conversion of dividend equivalents and the operation of
Section 4.2(b) above) shall, to the extent a contribution to a
grantor trust maintained by the Company would not be treated as
property transferred in connection with the performances of
services for purposes of Code Section 83, as provided in
Section 409A(b)(3) of the Code, be converted into actual
Common Shares and credited to a Grantor (Rabbi) Trust, intended to
meet the safe harbor provisions of RevProc 92-64 (the
“Trust”). The Mandatory Stock Credits in the Account
shall be converted to Common Shares through transfer to the Trust,
or purchase by the Trust, of Common Shares, which shall be held for
the benefit of the Director. Notwithstanding the conversion of
Mandatory Stock Credits into Common Shares as
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described herein, the Mandatory Stock Credits
shall continue to be tracked in the Director’s Account for
purposes of determining the Director’s entitlements
hereunder.
4.3. Payment and Distribution
.
(a) With respect to Mandatory Stock
Compensation for a calendar quarter that the Director has not
elected to defer as provided in Section 4.1(c), the
distribution of Common Shares relating to such Mandatory Stock
Compensation shall be paid on the first Tuesday following the end
of the calendar quarter during which the date that is three years
from the date the Mandatory Stock Compensation was initially earned
occurs.
(b) With respect to Mandatory Stock
Compensation for a calendar quarter that the Director has elected
to defer as provided in Section 4.1(c), the distribution of
Common Shares relating to such Mandatory Stock Compensation
shal
