Exhibit (10)(o)
MARSHALL & ILSLEY
CORPORATION
2005 EXECUTIVE DEFERRED COMPENSATION
PLAN
as amended December 18,
2008
ARTICLE I
Establishment of Plan and
Purpose
1.01. Establishment of Plan .
Marshall & Ilsley Corporation has established the 2005
Marshall & Ilsley Executive Deferred Compensation Plan,
effective as of December 16, 2004 (the
“Plan”).
1.02. Purpose of Plan . The
Plan shall permit a select group of senior management and highly
compensated employees to enhance the security of themselves and
their beneficiaries following the termination of their employment
with the Companies (as defined herein) by deferring until that time
a portion of the compensation which may otherwise be payable to
them at an earlier date (including the deferral of receipt of
restricted stock). By allowing key management employees to
participate in the Plan, the Company expects the Plan to benefit it
in attracting and retaining the most capable individuals to fill
its executive positions in the Companies.
The parties intend that the
arrangements described herein be unfunded for purposes of Title I
in the Employee Retirement Income Security Act as amended from time
to time.
ARTICLE II
Definitions and
Construction
As used herein, the following words
shall have the following meanings:
2.01. Definitions
.
(a) Accounts . The accounts
(including the sub-accounts) maintained for each Participant
pursuant to Article V, below.
(b) Administrator . The
person or persons selected pursuant to Article VIII below to
control and manage the operation and administration of the
Plan.
(c) Affiliate . Any
corporation or other entity which directly or indirectly controls,
is controlled by, or under common control with, the referenced
entity. Control means the ability to elect a majority of the Board
of Directors of the corporation or other entity, or if there is no
Board of Directors, a majority of the body which governs the
entity.
(d) Beneficiaries . Those
persons designated by a Participant to receive benefits hereunder
or, failing such a designation, the spouse or, if none, the Estate
of a Participant.
(e) Change of Control .
Change of Control shall have the same meaning as in the
Marshall & Ilsley Corporation 2006 Equity Incentive
Plan.
(f) Code . The Internal
Revenue Code of 1986, as amended.
(g) Committee . The
Compensation and Human Resources Committee of the Board of
Directors of the Company.
(h) Common Stock . The
authorized and issued or unissued $1.00 par value common stock of
the Company.
(i) Companies . Prior to the
Separation Transaction, Marshall & Ilsley Corporation and
any subsidiary thereof. After the Separation Transaction, the
publicly-traded corporation with the name Marshall &
Ilsley Corporation, and all entities that are Affiliates
thereof.
(j) Company . Prior to the
Separation Transaction, Marshall & Ilsley Corporation, a
Wisconsin corporation, or a successor thereof. After the Separation
Transaction, the “Company” means the publicly-traded
corporation with the name Marshall & Ilsley
Corporation.
(k) Company Contributions .
The amount contributed or credited by the Company to the account of
the Participant pursuant to Section 4.05 hereof.
(l) Compensation . The total
of the Participant’s base salary, commissions, bonuses, and
incentive pay which shall include amounts deferred by the
Participant under this Plan or any other employee benefit plan of
the Company. In all cases, Compensation shall include only
compensation paid while an employee is a Participant in the Plan.
Compensation shall not include any severance or salary continuation
payments.
(m) Deferral Election . The
election by a Participant, from time to time, to defer Compensation
or Restricted Shares in accordance with the provisions of this
Plan. Forms of Deferral Elections, which can be changed from time
to time at the discretion of the Administrator, are attached hereto
as Exhibit B.
(n) Distribution Election .
The election by a Participant, from time to time, to choose the
method of distribution of his deferrals, and any deemed investment
increases or decreases attributable thereto. The methods of
distribution contained in the forms of Distribution Election can be
changed from time to time at the discretion of the Administrator.
The forms of Distribution Election for deferrals made in 2005 are
attached hereto as Exhibit D.
(o) Disability . A
Participant shall be considered to be suffering from a Disability
if the 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) receiving income replacement
benefits for a period of not less than three months under an
accident and health plan covering employees of the
Participant’s employer or (ii) unable to engage in any
substantial gainful activity.
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(p) Employee . An employee of
any one or more of the Companies.
(q) Employment . Employment
with any one or more of the Companies.
(r) Fair Market Value . The
closing sale price of the Common Stock on the New York Stock
Exchange as reported in the Midwest Edition of the Wall Street
Journal for the applicable date; provided that , if
no sales of Common Stock were made on said exchange on that date,
“Fair Market Value” shall mean the closing sale price
of the Common Stock as reported for the next succeeding day on
which sales of Common Stock are made on said exchange, or, failing
any such sales, such other market price as the Committee may
determine in conformity with pertinent law and regulations of the
Treasury Department.
(s) Investment Election . The
form filed by the Participant from time to time, substantially in
the form of Exhibit A hereto, which designates the
Participant’s investment choices.
(t) Metavante . After the
Separation Transaction, the publicly-traded parent of the group of
companies that includes the Company’s former subsidiary,
Metavante Corporation.
(u) Participants . Such
senior management and highly compensated Employees whom the
Administrator has identified as eligible to defer Compensation
hereunder and who elect to participate by deferring
Compensation.
(v) Plan . The
Marshall & Ilsley Corporation 2005 Executive Deferred
Compensation Plan, as stated herein and as amended from time to
time.
(w) Plan Year . The period
beginning on January 1, 2005 and ending on December 31,
2005, and each 12-month period ending on each subsequent
December 31.
(x) Restricted Shares . An
award of stock under a plan of the Company, which may contain
transferability or forfeiture provisions (including a requirement
of future services), all as set forth in an award
agreement.
(y) Restricted Stock Units .
Units held in a Participant’s Account B which are received
upon surrender of Restricted Shares or directly as a grant from the
Company, and which have transferability or forfeiture provisions
(which may include a requirement of future services). Each
Restricted Unit represents one share of Common Stock.
(z) Retirement . As to each
Participant, the termination of his employment on or after
attaining age 55, other than by reason of death or Disability, with
at least 10 years of Service.
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(aa) Separation Transaction .
The transaction whereby Metavante and the Company become separate
publicly-traded companies.
(bb) Service . As to each
Participant, the period during which he has been employed by one or
more of the Companies, including such period of time that he was
employed by a predecessor in interest to one of the
Companies.
(cc) Termination of
Employment . For all purposes of this Plan, the determination
of whether a Participant’s employment has terminated will be
made in accordance with Treas. Reg. §1.409A-1(h)(1)(ii)
promulgated under Section 409A of the Code.
(dd) Unforeseeable Emergency
. A severe financial hardship to a Participant resulting from an
illness or accident of the Participant, the Participant’s
spouse, the Participant’s beneficiary, or the
Participant’s dependent (as defined in Section 152 of
the Code, without regard to Section 152(b)(1), (b)(2), and
(d)(1)(B) of the Code) of the Participant, loss of the
Participant’s property due to casualty (including the need to
rebuild a home following damage to a home not otherwise covered by
insurance, for example, not as a result of a natural disaster), or
other similar extraordinary and unforeseeable circumstances arising
as a result of events beyond the control of the
Participant.
2.02. Construction . The laws
of the State of Wisconsin, as amended from time to time, without
giving effect to their conflict of laws provisions, shall govern
the construction and application of this Agreement, unless Employee
Retirement Income Security Act (“ERISA”) supersedes
Wisconsin law. Words used in the masculine gender shall include the
feminine and words used in the singular shall include the plural,
as appropriate. The words “hereof,”
“herein,” “hereunder” and other similar
compounds of the word “here” shall refer to the entire
Agreement, not to a particular section. All references to statutory
sections shall include the section so identified as amended from
time to time or any other statute of similar import. If any
provisions of the Internal Revenue Code, ERISA or other statutes or
regulations render any provisions of this Plan unenforceable, such
provision shall be of no force and effect only to the minimum
extent required by such law.
ARTICLE III
Eligibility
3.01. Conditions of
Eligibility . The Administrator shall, from time to time,
specify the senior management and highly compensated Employees
eligible to participate herein. Eligibility to participate in the
Plan for one Plan Year does not guarantee eligibility for a
subsequent Plan Year.
3.02. Commencement of
Participation . An individual identified as eligible to
participate in the Plan for that Plan Year shall commence
participation, by either (a) electing a deferral of
Compensation, (b) surrendering Restricted Shares for
Restricted Stock Units, on the applicable form provided by the
Administrator, or (c) receiving an award of Restricted Stock
Units, in accordance with the procedures established by this Plan
and the Administrator.
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3.03. Termination of
Participation . An individual’s right to (a) defer
Compensation or (b) surrender Restricted Shares for Restricted
Stock Units hereunder shall cease as of the earlier of (i) a
Participant’s Termination of Employment or (ii) failure
of the Administrator to designate him or her as an Employee
eligible to participate herein.
ARTICLE IV
Deferrals and Company
Contributions
4.01. Amount and
Manner of Deferral of Compensation . A Participant must sign
and return the Deferral Election, substantially in the form of
Exhibit B hereto, to the Company, no later than the date specified
by the Company, indicating the amount or percentage of the
Participant’s salary or other Compensation for such Plan Year
which he elects to defer hereunder, which election shall become
irrevocable on December 31 st of the immediately preceding
Plan Year. A Participant may defer (i) any portion not to
exceed eighty percent (80%) of his base salary or (ii) up
to 100% of his incentive or (iii) both, provided ,
however , that (a) the Participant may not defer less
than $5,000 in a Plan Year and (b) the Participant’s
Deferral Election for a Plan Year shall relate to Compensation
earned by him during such Plan Year whether or not paid during that
Plan Year.
If a Participant elects to defer a
portion of his salary, the Company shall reduce the
Participant’s regular salary by an equal amount in each pay
period during the Plan Year of deferral. If a Participant elects to
defer all or a portion of his incentive, the Company shall reduce
each such Compensation payment by the percentage or dollar amount
elected by the Participant.
4.02. Amount and Manner of
Deferral of Compensation for Participants Who Commence
Participation in the Plan after the Beginning of a Plan Year .
If an Employee becomes eligible to participate in the Plan after
the beginning of a Plan Year because he is newly hired by the
Companies, or because he receives a promotion which results in him
becoming eligible to participate in the Plan, the Employee must
make his or her initial Deferral Election and Distribution Election
no later than 30 days after the Employee first becomes eligible to
participate in the Plan. Such Deferral Election may apply only to
compensation paid for services to be performed after the election.
In the case of an incentive or bonus payment, only that portion of
the incentive or bonus payment that relates to services performed
after the date of the election may be deferred. Notwithstanding the
foregoing, if an Employee initially becomes a Participant solely
because of company contributions credited to the SERP Account, as
defined below in Section 4.05 hereof, the Distribution
Election for the initial year such amounts are credited can be made
no later than the first 30 days after such year. If no such
Distribution Election is made, the default rules shall
apply.
4.03. Amount and Manner of
Deferral of Restricted Shares . A Participant may elect to
defer an award of Restricted Shares by returning an Election to
Convert Restricted Shares Into Restricted Units, substantially in
the form of Exhibit C hereto, to the Company, no later than the
date specified by the Company, containing the information
requested. Such Election shall
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become irrevocable
as regards awards of Restricted Shares in a Plan Year on
December 31 st of the immediately preceding
Plan Year, or, if a later deferral election is allowed pursuant to
Section 409A of the Code, upon the Company’s receipt of
the election. Any Election which elects to defer all future grants
of Restricted Shares shall become irrevocable as to awards of
Restricted Shares in a Plan Year on December 31
st
of the immediately
preceding Plan Year.
4.04. Cessation of Deferral
Election . In the event of an Unforeseeable Emergency, a
Participant may request in writing that deferrals of Compensation
elected by that Participant hereunder cease for the then current
Plan Year. If the Administrator determines that such an
Unforeseeable Emergency exists, the deferrals of Compensation for
such Plan Year shall cease as to the Participant. If the
Administrator determines that no such emergency exists, the
deferrals shall continue as originally elected. If a
Participant’s election deferral is cancelled for a Plan Year
due to an Unforeseeable Emergency, the Participant may not resume
deferrals of Compensation hereunder (if otherwise eligible
therefore) until the Plan Year following the Plan Year in which
such cessation occurred.
4.05. Other Contributions .
In the event that deferrals made by a Participant pursuant to this
Plan cause a reduction in the contributions by the Company for the
benefit of that Participant to any other qualified or nonqualified
retirement plan maintained by the Company, and such reduction is
not contributed or credited to any other nonqualified retirement
plan, the Company shall credit to the Participant’s account
under this Plan an amount equal to such net reductions in benefits.
If, as a result of limitations contained in Sections 401(a)(17)
and/or 415 of the Code, or as a result of amounts deferred under
the Plan, the contributions made to the profit sharing component of
the retirement program of the Company on behalf of a person
eligible to participate in the Plan are reduced, the Company shall
credit an amount equal to such reduction to an account established
for such person (the “SERP Account”). The SERP Account
shall be a separate bookkeeping account and shall vest once the
person has five years of vesting service as determined under the
profit sharing component of the retirement program of the Company,
taking into account service prior to the date hereof. Aside from
the vesting requirement, the SERP Account shall be treated for all
purposes of the Plan in the same manner as the Participant’s
Account A, including division into sub-accounts consistent with the
Distribution Election made for the Plan Year to which the Company
contribution relates. In addition, to the extent any amounts owing
to a Participant under any incentive compensation plan are in
excess of amounts which would be deductible by the Company under
Section 162(m) of the Internal Revenue Code of 1986, as
amended, and the applicable Plan or the Committee requires that
such excess amounts be deferred, such amounts shall be credited to
the relevant sub-account of Participant’s Account A or
Account B, as provided below in Section 5.01, consistent with
the Distribution Election for such Plan Year.
ARTICLE V
Accounts and Sub-Accounts
5.01. Establishment of Accounts;
Sub-Accounts . Only for the purpose of measuring payments due
Participants hereunder, the Company shall maintain on behalf of
each Participant two Accounts: Account A and Account B, which shall
each be divided into four sub-accounts
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reflecting the four distribution options
available for cash and Common Stock distributions as set forth in
the Distribution Election. If the Company increases the number of
distribution options available, the number of sub-accounts shall
likewise be increased. All amounts deferred pursuant to Sections
4.01, 4.02 and 4.05 shall be credited to the relevant sub-accounts
of Account A, which shall be denominated in cash. All amounts
deferred pursuant to Section 4.03 shall be credited to the
relevant sub-accounts of Account B, which shall be denominated in
shares of Common Stock.
5.02. Nature of Accounts;
Sub-Accounts . The Accounts and sub-accounts hereunder, and
assets, if any, acquired by the Company to measure a
Participant’s benefits hereunder, shall not constitute or be
treated for any reason as a trust for, property of or a security
interest for the benefit of, a Participant, his Beneficiaries or
any other person. The Participant and the Company acknowledge that
the Plan constitutes a promise by the Company to pay benefits to
the Participants or their Beneficiaries, that Participants’
rights hereunder (by electing to defer Compensation or Restricted
Stock Units hereunder) are limited to those of general unsecured
creditors of the Company and that the establishment of the Plan,
acquisition of assets to measure Participant’s benefits
hereunder or deferral of all or any portion of a
Participants’ Compensation, or Restricted Stock Units
hereunder does not prevent any property of the Company from being
subject to the right of all the Company’s creditors. The
Company shall contribute all contributions hereunder to a trust
created by the Company which will conform in all material respects
to the terms of the Internal Revenue Service’s model trust,
as described in Revenue Procedure 92-64, or any successor
thereto.
5.03. Maintenance of Account
A .
a. Accounts shall be reconciled on a
quarterly basis. The Company shall increase the relevant
sub-account of Account A of each Participant by (i) the
amount, if any, of his Compensation deferred during any calendar
quarter based on the Distribution Election for such Plan Year,
(ii) the amount, if any, contributed by the Company pursuant
to Section 4.05 hereof during such Plan Year and
(iii) any income or gains resulting as if the sub-account,
computed in accordance with subsection b, below, were invested
pursuant to the timely-filed Investment Election in effect for such
quarter and decrease each Participant’s sub-account by
(iv) any withdrawals or distributions from the relevant
sub-account of Account A during any calendar quarter and
(v) any losses resulting as if the sub-account, computed in
accordance with subsection b, below, were invested pursuant to the
timely-filed Investment Election in effect for such calendar
quarter.
b. For purposes of computing the
investment return on any sub-account of Account A for any quarter,
the principal balance as of the first day of the relevant quarter
shall equal the balance as of the end of the preceding quarter,
increased by 50% of the Participant’s and the Company’s
contributions, if any, made to the relevant sub-account of Account
A during the quarter pursuant to Sections 4.01, 4.02 and 4.05
hereof, and decreased by any distributions made to the Participant
or his Beneficiaries from the relevant sub-account during the
quarter.
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5.04. Maintenance of Account
B .
a. Accounts shall be
reconci
