Exhibit (10)(k)
MARSHALL & ILSLEY
CORPORATION
AMENDED AND RESTATED
EXECUTIVE DEFERRED COMPENSATION PLAN
as of August 16,
2007
ARTICLE I
Establishment of Plan and
Purpose
1.01. Establishment of Plan .
Marshall & Ilsley Corporation has established the
Marshall & Ilsley Executive Deferred Compensation Plan,
effective as of January 1, 1997 (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 stock option
gains and 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
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) Committee . The
Compensation and Human Resources Committee of the Board of
Directors of the Company.
(g) Common Stock . The
authorized and issued or unissued $1.00 par value common stock of
the Company.
(h) 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.
(i) 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.
(j) Company Contributions .
The amount contributed or credited by the Company to the account of
the Participant pursuant to Section 4.05 hereof.
(k) 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.
(l) Disability . Disability
as defined in the Company’s Long-Term Disability Income
Plan.
(m) Employee . An employee of
any one or more of the Companies.
(n) Employment . Employment
with any one or more of the Companies.
(o) 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.
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(p) 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.
(q) Metavante . After the
Separation Transaction, the publicly-traded parent of the group of
companies that includes the Company’s former subsidiary,
Metavante Corporation.
(r) Net Shares . Net Shares
means the difference between the number of shares of Common Stock
subject to a stock option for which an election has been made
pursuant to Section 4.02 hereof, and the number of shares of
Common Stock delivered, directly or by attestation, to satisfy the
stock option exercise price. The value of the Common Stock for
purposes of determining the number of Net Shares shall be Fair
Market Value.
(s) 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.
(t) Plan . The
Marshall & Ilsley Corporation Executive Deferred
Compensation Plan, as stated herein and as amended from time to
time.
(u) Plan Year . The period
beginning on January 1, 1997 and ending on December 31,
1997, and each 12-month period ending on each subsequent
December 31.
(v) Restricted Shares . An
award of stock under an Executive Stock Option and Restricted Stock
Plan of the Company, or any similar plan, which may contain
transferability or forfeiture provisions (including a requirement
of future services), all as set forth in an award
agreement.
(w) Restricted Units . Units
held in a Participant’s Account B which are received upon
surrender of Restricted Shares and have the same transferability or
forfeiture provisions (including the requirement of future
services) as the Restricted Shares surrendered in exchange
therefor. Each Restricted Unit represents one share of Common
Stock.
(x) 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.
(y) Separation Transaction .
The transaction whereby Metavante and the Company become separate
publicly-traded companies.
(z) 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.
(aa) Unforeseeable Emergency
. An Unforeseeable Emergency is a severe financial hardship to a
Participant resulting from a sudden and unexpected illness or
accident of
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the Participant or of a dependent (as defined in
Section 152(a) of the Internal Revenue Code) of the
Participant or loss of the Participant’s property due to
casualty 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. 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,
Employee Retirement Income Security Act 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) electing a deferral of Net Shares, or
(c) surrendering Restricted Shares for Restricted Units, on
the applicable form provided by the Administrator, in accordance
with the procedures established by this Plan and the
Administrator.
3.03. Termination of
Participation . An individual’s right to (a) defer
Compensation, (b) defer Net Shares (including exercise of the
associated option) or (c) surrender Restricted Shares for
Restricted Units hereunder shall cease as of the earlier of the
(i) the termination of his Employment or (ii) failure of
the Administrator to designate him 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 of the Participant’s salary or
other Compensation for such Plan Year which he elects to defer
hereunder, which election shall become irrevocable immediately upon
commencement of such Plan Year. A Participant may
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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 Net Shares . A Participant must sign and return an
Election to Defer Stock Option Gains, substantially in the form of
Exhibit C hereto, to the Company, no later than the date specified
by the Company, containing the information requested, which
election shall become irrevocable immediately upon return to the
Company.
4.03. Amount and Manner of
Deferral of Restricted Stock Units . A Participant must return
a Restricted Stock Unit Agreement, substantially in the form of
Exhibit D hereto, to the Company, no later than the date specified
by the Company, containing the information requested, which
agreement shall become irrevocable immediately upon return to the
Company.
4.04. Cessation of Deferral .
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. Such
Unforeseeable Emergency must inflict hardship upon the Participant
and must arise from causes beyond the Participant’s control.
The Administrator shall, in its reasonable judgment, determine
whether such an Unforeseeable Emergency exists. Circumstances that
will constitute an Unforeseeable Emergency shall depend on the
facts of each case, consistent with the provisions of Treasury
Regulation Section 1.457-2(h)(4) and (5). 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, consistent with this paragraph, ceases deferrals in a
Plan Year, the Participant may not resume deferrals of Compensation
hereunder (if otherwise eligible therefore) until the second 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 Internal Revenue Code of 1986, as amended, 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
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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 other
Accounts. 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 Committee requires that such excess amounts be
deferred, such amounts shall be credited to the Participant’s
Account A, as provided below in Section 5.01.
ARTICLE V
Accounts
5.01. Establishment of
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. All amounts
deferred pursuant to Sections 4.01 and 4.05 shall be credited to
Account A, which shall be denominated in cash. All amounts deferred
pursuant to Sections 4.02 and 4.03 shall be credited to Account B,
which shall be denominated in shares of Common Stock.
5.02. Nature of Accounts .
The 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. 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, Net Shares or Restricted 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, Net Shares or
Restricted 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.
5.03. Maintenance of Account
A .
a. Accounts shall be reconciled on a
quarterly basis. The Company shall increase the Account A of
each Participant by (i) the amount, if any, of his
Compensation deferred during any calendar quarter, (ii) the
amount, if any, contributed by the Company pursuant to
Section 4.05 hereof and (iii) any income or gains
resulting as if the Account A, 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 Account A by (iv) any
withdrawals or distributions from the Account A during any calendar
quarter and (v) any losses resulting as if the Account A,
computed in accordance with subsection b, below, were invested
pursuant to the timely-filed Investment Election in effect for such
calendar quarter.
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b. For purposes of computing the
investment return on the 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 Account A during the quarter pursuant to Sections
4.01 and 4.05 hereof, and decreased by any distributions made to
the Participant or his Beneficiaries during the quarter.
5.04. Maintenance of Account
B .
a. Accounts shall be reconciled on a
quarterly basis. The Company shall increase the Account B of
each Participant by (i) the amount, if any, of the Net Shares
deferred upon the exercise of a nonstatutory stock option by the
Participant, (ii) the amount, if any, of the Restricted Units
deferred by the Participant (Net Shares and Restricted Units being
hereafter referred to as “Credited Shares”), and
(iii) to the extent Credited Shares are held on the record
date for any dividend, a number of additional Credited Shares
resulting from the reinvestment of dividends on a common investment
date, which will typically be any of the first five business days
after the payment of the dividend, determined in the sole
discretion of an independent brokerage agent. The Company shall
decrease each Participant’s Account B by
(iv) any withdrawals or distributions from the Account B
during any calendar quarter and (v) any Restricted Units which
fail to vest because the Participant forfeits the Restricted Units.
Consistent with the treatment of Restricted Stock, any dividends
credited as regards Restricted
