Exhibit 10.12
METAVANTE
EXECUTIVE DEFERRED COMPENSATION PLAN
ARTICLE I
Introduction
Pursuant to a corporate separation
transaction Marshall & Ilsley Corporation, a public
company, has been succeeded by two separate unrelated public
companies known, after the effective date of the separation
transaction (the “Separation Date”), as Metavante
Technologies, Inc. and Marshall & Ilsley Corporation.
Prior to the separation transaction, Marshall & Ilsley
Corporation had sponsored the Marshall & Ilsley
Corporation Amended and Restated Executive Deferred Compensation
Plan and the Marshall & Ilsley Corporation 2005 Executive
Deferred Compensation Plan (the “Prior Plans”).
Employees of Metavante Technologies, Inc. and its affiliates had
been covered under the Prior Plans before the separation
transaction.
Metavante Technologies, Inc. has
established the Metavante Executive Deferred Compensation Plan as
the successor to the Prior Plans with respect to employees of
Metavante Technologies, Inc. and its affiliates effective as of the
date of closing of the separation transaction described above. The
obligation to pay the benefits of employees and former employees of
Metavante Technologies, Inc. and its affiliates accrued under the
Prior Plans has been transferred to this Plan effective as of the
Separation Date. In addition, employee deferrals and employer
contributions shall be credited for service rendered to Metavante
Technologies, Inc. and its affiliates in accordance with the terms
and provisions hereof.
This document is intended to comply
with the provisions of Section 409A of the Internal Revenue
Code and regulations thereunder and shall be interpreted
accordingly. If any provision or term of this document would be
prohibited by or inconsistent with the requirements of
Section 409A of the Code, then such provision or term shall be
deemed to be reformed to comply with Section 409A of the Code.
This document describes how this Plan shall be administered for
periods from and after the Separation Date (except to the extent a
later date is otherwise specified for certain provisions). For
periods after 2004 and prior to the Separation Date, the Prior
Plans have been administered in good faith compliance with
applicable provisions of Code Section 409A.
ARTICLE II
Definitions and
Construction
As used herein, the following words
shall have the following meanings:
2.01 Account . The account
maintained for each Participant pursuant to Article V below. The
Participant’s Account shall include such subaccounts as the
Administrator deems necessary or desirable for purposes of
implementing separate Distribution Elections for deferrals and
contributions made in separate years and/or for purposes of
implementing the Participant’s Investment Election or
otherwise. Among the subaccounts in the Plan shall be the SERP
Account described in Section 4.06 and the Participant’s
Pre-2008 Account.
2.02 Administrator . The
Investment Committee. The Investment Committee may delegate its
duties under the Plan pursuant to such conditions or limitations as
the Investment Committee may establish. Any such delegation may be
revoked by the Investment Committee at any time.
2.03 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.
2.04 Base Salary . The
Participant’s Base Salary (prior to deferral by the
Participant under this Plan or any other employee benefit plan of
the Employer or agreement with the Employer). Only Base Salary
earned while an Employee is a Participant in the Plan shall be
taken into account. The term “Base Salary” shall not
include any short or long term bonus, incentive or award or amount
payable under an equity incentive plan or severance or salary
continuation payments or any other payment of compensation not
denominated as base salary.
2.05 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.
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2.06 Bonus . The
Participant’s bonus earned by services performed over the
period of not more than one Plan Year (prior to deferral by the
Participant under this Plan or any other employee benefit plan of
the Employer or agreement with the Employer). Only a Bonus earned
while an Employee is a Participant in the Plan shall be taken into
account. The term “Bonus” shall not include any long
term incentive award or amount payable under an equity incentive
plan or severance or salary continuation payments.
2.07 Change of Control .
“Change of Control” shall have the same meaning as in
the Metavante Corporation 2007 Equity Incentive Plan.
2.08 Code . The Internal
Revenue Code of 1986, as amended.
2.09 Committee . The
Compensation Committee of the of Board of Directors of Metavante
Technologies, Inc.
2.10 Common Stock . The
common stock of Metavante Technologies, Inc.
2.11 Deferral Election . The
election by a Participant, from time to time, to defer Base Salary,
Bonus and/or Equity Award in accordance with the provisions of this
Plan.
2.12 Distribution Date . In
the case of a lump sum distribution, “Distribution
Date” means February 15 following the year in which
Separation from Service occurs or, if later, the first day of the
seventh month following the date of Separation from Service. In the
case of an installment distribution, “Distribution
Date” means January 1 of the year following the year in
which the Participant’s Separation from Service occurs, or,
if later, the first day of the seventh month following the date of
the Participant’s Separation from Service. Notwithstanding
the foregoing, if the Participant has elected an In-Service Payment
Date with respect to his Pre-2008 Account, if any, which is earlier
than the date of the Participant’s Separation from Service,
then the In-Service Payment Date shall be the Distribution Date
with respect to his Pre-2008 Account, rather than the date
specified in either of the preceding two sentences.
2.13 Distribution Election(s)
. The election(s) by a Participant to choose the method of
distribution of his Account. As described in Section 7.02(b),
a Participant may have multiple Distribution Elections in
effect.
2.14 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.
2.15 Employee . An employee
of the Employer.
2.16 Employer . Metavante
Technologies, Inc. and each of its Affiliates; provided, however,
that for purposes of the power to amend or terminate the Plan or
take any other action under or with respect to the Plan, except for
the payment of benefits, the term “Employer” shall
refer only to Metavante Technologies, Inc.
2.17 Employment . Employment
with the Employer.
2.18 Equity Award . An award
of restricted stock, restricted stock units, performance stock,
performance units or other similar award granted to a Participant
under the Metavante 2007 Equity Incentive Plan or other equity
compensation plan of the Employer.
2.19 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.
2.20 In-Service Payment Date
. The date, if any, specified by the Participant pursuant to
Section 7.03 as the date upon which distribution of his
Pre-2008 Account shall begin. An In-Service Payment Date must be
the first day of a month, may be no earlier than December 1,
2008 and shall only apply to a Participant’s Pre-2008
Account.
2.21 Investment Election .
The form filed by the Participant from time to time which
designates the Participant’s investment choices.
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2.22 Participant . An
employee who is a key management or highly compensated Employee
eligible to participate in the Plan for a Plan Year under
Section 3.01 (such person shall be known as an “Active
Participant” for such Plan Year) and any person who
previously participated in the Plan or one or both of the Prior
Plans and is entitled to benefits.
2.23 Plan . The Metavante
Executive Deferred Compensation Plan set forth herein and as
amended from time to time.
2.24 Plan Year . The
Employer’s fiscal year which is the calendar year.
2.25 Pre-2008 Account . The
subaccount in the Plan representing the deferrals and Employer
contributions made for the Participant under the Prior Plans and
this Plan for services performed in periods prior to 2008, as well
as any earnings thereon.
2.26 Separation from Service
. “Separation from Service” shall have the meaning set
forth in IRS Regulation Section 1.409A-1, the requirements of
which are summarized in part as follows:
(a) In General . The
Participant shall have a Separation from Service with the Employer
if the Participant dies, retires, or otherwise has a termination of
employment with the Employer. However, for purposes of this
Section 2.26, the employment relationship is treated as
continuing intact while the individual is on military leave, sick
leave, or other bona fide leave of absence if the period of such
leave does not exceed six months, or if longer, so long as the
individual retains a right to reemployment with the Employer under
an applicable statute or by contract. For purposes of this
paragraph (a) of this Section 2.26, a leave of absence
constitutes a bona fide leave of absence only if there is a
reasonable expectation that the Participant will return to perform
services for the Employer. If the period of leave exceeds six
months and the individual does not retain a right to reemployment
under an applicable statute or by contract, the employment
relationship is deemed to terminate on the first date immediately
following such six-month period. Notwithstanding the foregoing,
where a leave of absence is due to any medically determinable
physical or mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not
less than six months, where such impairment causes the Participant
to be unable to perform the duties of his or her position of
employment or any substantially similar position of employment, a
29-month period of absence may be substituted for such six-month
period.
(b) Termination of Employment
. Whether a termination of employment has occurred is determined
based on whether the facts and circumstances indicate that the
Employer and Participant reasonably anticipated that no further
services would be performed after a certain date or that the level
of bona fide services the Participant would perform after such date
(whether as an employee or as an independent contractor) would
permanently decrease to no more than 20 percent 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 to the Employer if the
Participant has been providing services to the Employer less than
36 months). Facts and circumstances to be considered in making this
determination include, but are not limited to, whether the
Participant continues to be treated as an employee for other
purposes (such as continuation of salary and participation in
employee benefit programs), whether similarly situated service
providers have been treated consistently, and whether the
Participant is permitted, and realistically available, to perform
services for other service recipients in the same line of business.
The Participant is presumed to have Separated from Service where
the level of bona fide services performed decreases to a level
equal to 20 percent or less of the average level of services
performed by the Employee during the immediately preceding 36-month
period. The Participant will be presumed not to have Separated from
Service where the level of bona fide services performed continues
at a level that is 50 percent or more of the average level of
service performed by the Participant during the immediately
preceding 36-month period. No presumption applies to a decrease in
the level of bona fide services performed to a level that is more
than 20 percent and less than 50 percent of the average level of
bona fide services performed during the immediately preceding
36-month period. The presumption is rebuttable by demonstrating
that the Employer and the Participant reasonably anticipated that
as of a certain date the level of bona fide services would be
reduced permanently to a level less than or equal to 20 percent of
the average level of bona fide services provided during the
immediately preceding 36-month period or the full period of
services to the Employer if the Participant has been providing
services to the Employer less than 36 months (or that the level of
bona fide services would not be so reduced). For example, the
Participant may demonstrate that the Employer and the Participant
reasonably anticipated that the Participant would cease providing
services, but that, after the original cessation of services,
business circumstances such as termination of the
Participant’s replacement caused the Participant to return to
employment. Although the Participant’s return to employment
may cause the Participant to be presumed to have continued in
employment because the Participant is providing services at a rate
equal to the rate at which the Participant was providing services
before the termination of employment, the facts and circumstances
in this case would demonstrate that at the time the Participant
originally ceased to provide services, the Employer reasonably
anticipated that the Participant would not provide services in the
future. For purposes of this paragraph (b), for periods during
which the Participant is on a paid bona fide leave of absence (as
defined in paragraph (a) of this Section 2.26) and has
not otherwise terminated employment pursuant to paragraph
(a) of this Section 2.26, the Participant is treated as
providing bona fide services at a level equal to the level of
services that the Participant would have been required to perform
to receive the compensation paid with respect to such leave of
absence. Periods during which the Participant is on an unpaid bona
fide leave of absence (as defined in paragraph (a) of this
Section 2.26) and has not otherwise terminated employment
pursuant to paragraph (a) of this Section 2.26, are
disregarded for purposes of this paragraph (b) of this
Section 2.26 (including for purposes of determining the
applicable 36-month (or shorter) period).
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(c) Asset Purchase
Transactions . Where as part of a sale or other disposition of
assets by the Employer as seller to an unrelated service recipient
(buyer), a Participant of the Employer would otherwise experience a
Separation from Service with the Employer, the Employer and the
buyer may retain the discretion to specify, and may specify,
whether a Participant providing services to the Employer
immediately before the asset purchase transaction and providing
services to the buyer after and in connection with the asset
purchase transaction has experienced a Separation from Service,
provided that the asset purchase transaction results from bona
fide, arm’s length negotiations, all service providers
providing services to the Employer immediately before the asset
purchase transaction and providing services to the buyer after and
in connection with the asset purchase transaction are treated
consistently (regardless of position at the Employer) for purposes
of applying the provisions of any nonqualified deferred
compensation plan, and such treatment is specified in writing no
later than the closing date of the asset purchase transaction. For
purposes of this paragraph (c), references to a sale or other
disposition of assets, or an asset purchase transaction, refer only
to a transfer of substantial assets, such as a plant or division or
substantially all the assets of a trade or business.
(d) Dual Status . If a
Participant provides services both as an employee of the Employer
and as an independent contractor of the Employer, the Participant
must separate from service both as an employee and as an
independent contractor to be treated as having Separated from
Service. If a Participant ceases providing services as an
independent contractor and begins providing services as an
employee, or ceases providing services as an employee and begins
providing services as an independent contractor, the Participant
will not be considered to have a Separation from Service until the
Participant has ceased providing services in both capacities.
Notwithstanding the foregoing, if a Participant provides services
both as an employee of the Employer and a member of the board of
directors of the Employer, the services provided as a director are
not taken into account in determining whether the Participant has a
Separation from Service as an employee for purposes of this Plan
unless this Plan is aggregated with any plan in which the
Participant participates as a director under IRS Regulation
Section 1.409A-1(c)(2)(ii).
2.27 Vesting Service . As to
each Participant, the period during which he has been employed by
the Employer, including such period of time that he was employed by
a predecessor in interest to the Employer, which is credited under
the Employer’s tax qualified retirement plan.
2.28 Unforeseeable Emergency
. A severe financial hardship to a Participant resulting from an
illness or accident of the Participant or the Participant’s
spouse or dependent (as defined in Section 152(a) of the Code,
without regard to Section 151 (b)(1), (b)(2) and (d)(1)(B)),
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, 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. For example, the imminent foreclosure of or
eviction from the Participant’s primary residence may
constitute an Unforeseeable Emergency. In addition, the need to pay
for medical expenses, including non-refundable deductibles, as well
as for the costs of prescription drug medication, may constitute an
Unforeseeable Emergency. Finally, the need to pay for funeral
expenses of a spouse or a dependent (as defined in Code
Section 152(a), without regard to Section 151
(b)(1),(b)(2) and (d)(1)(B)) may also constitute an Unforeseeable
Emergency. Except as otherwise provided above, the purchase of a
home and the payment of college tuition are not Unforeseeable
Emergencies. Whether a Participant is faced with an Unforeseeable
Emergency is to be determined based on the relevant facts and
circumstances of each case.
ARTICLE III
Eligibility
3.01 Conditions of
Eligibility . Within a reasonable period of time prior to the
beginning of a Plan Year or at any time during a Plan Year, the
Employer shall specify the senior management and highly compensated
Employees eligible to participate herein as Group A Participants or
Group B Participants. An Employee designated as a Group A
Participant for a Plan Year shall remain a Group A Participant
until the Employee’s Separation from Service or, if earlier,
until the Employer takes action to terminate such Employee’s
Group A participation effective on the first day of any Plan
Year subsequent to the date of such action by the Employer. Each
person designated as a Group A Participant for a Plan Year
shall be an Active Participant for that Plan Year for all purposes
of the Plan, including Section 4.06. In addition, each
Employee who is designated as a Group B Participant who is
prevented from receiving a contribution under the Employer’s
tax qualified retirement plan during a Plan Year because of the
limitations of Sections 401(a)(17) and/or 415 of the Code for any
Plan Year shall be an Active Participant only for purposes of the
second sentence of Section 4.06.
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ARTICLE IV
Deferrals and Other
Contributions
4.01 Deferral Elections
.
(a) Salary Payments . A Group
A Participant may elect to defer up to 80% of his Base Salary for
services performed during a Plan Year by completing and filing such
forms as required by the Employer prior to the first day of the
Plan Year or by such earlier date required pursuant to
Section 5.02(b)(ix). A Participant may elect that his
deferrals shall be taken either at a uniform percentage rate or in
a uniform dollar amount from each of his Base Salary payments
during the Plan Year. Base Salary deferred shall be retained by the
Employer, credited to the Participant’s Account pursuant to
Section 5.01 and paid in accordance with the terms and
conditions of the Plan. An Employee who is not already a Group B
Participant and is not already eligible to participate in any other
nonqualified deferred compensation plan of the account balance type
who becomes a Group A Participant for the first time during a Plan
Year (for example, an Employee designated to be a Group A
Participant by the Employer upon hire or promotion) may, subject to
Section 5.02(b)(ix), within 30 days after the effective date
of participation make an election to defer a uniform percentage or
uniform dollar amount of Base Salary to be paid to him for services
to be performed subsequent to the deferral election (not to exceed
80% of such payments).
(b) Bonus Payments . A Group
A Participant may elect to defer a specified percentage or
specified dollar amount of his Bonus payments made to him for a
Bonus earned for services performed during a Plan Year (not to
exceed 100% of such payments) by completing and filing such forms
as required by the Employer. To be effective, the deferral election
must be filed prior to the beginning of the Plan Year in which are
performed the services for which such Bonus is payable or by such
earlier date required pursuant to Section 5.02(b)(ix). An
Employee who is not already a Group B Participant and is not
already eligible to participate in any other nonqualified deferred
compensation plan sponsored by the Employer of the account balance
type who becomes a Group A Participant for the first time
during a Plan Year (for example, an Employee designated to be a
Participant by the Employer upon hire or promotion) may, subject to
Section 5.02(b)(ix), within 30 days after the effective date
of participation, make an election to defer a specified percentage
or specified dollar amount of any Bonus payment for which the
service period has already begun and, in such event, the election
shall apply to the portion of Bonus compensation equal to the total
Bonus compensation to be paid to the Participant with respect to
services performed in the Plan Year multiplied by a fraction of
which the numerator is the number of days remaining in the Plan
Year and the denominator is the total number of days in the Plan
Year.
(c) Equity Awards . A Group A
Participant may elect to defer a specified percentage or specified
dollar amount of an Equity Award by completing and filing such
forms as required by the Employer. An Equity Award that is based
solely on the Participant’s continued employment may only be
deferred if the Participant is required to provide services for at
least twelve months after the date the Equity Award is granted. To
be effective, the deferral election must be made on or before the
thirtieth day after the date of grant and at least twelve months in
advance of the earliest vesting date. An Equity Award that is based
in whole or in part upon a performance condition or conditions may
only be deferred if the performance period is at least twelve
months. To be effective, the election must be made on or before the
date that is six months before the end of the performance period,
provided that the Participant performs services continuously from
the beginning of the performance period through the date an
election is made, and provided further that in no event may an
election to defer a performance-based Equity Award be made after
such compensation has become readily ascertainable. An election to
defer an Equity Award may also be subject to such earlier deferral
election date required pursuant to
Section 5.02(b)(ix).
4.02 Continued Effect of
Elections .
(a) Salary Payments . A
Group A Participant’s deferral election with respect to
a Plan Year under Section 4.01(a) shall be irrevocable after
the last date upon which it may be filed pursuant to
Section 4.01(a) and shall continue in effect each subsequent
Plan Year until prospectively revoked or amended in writing. For a
revocation or amendment to be effective with respect to salary
payments during a Plan Year, it must be filed by the last date for
which an effective deferral election is permitted to be filed with
respect to those salary payments under
Section 4.01(a).
(b) Bonus Payments . A
Group A Participant’s deferral election under
Section 4.01(b) with respect to a Bonus shall be irrevocable
after the last date upon which it may be filed pursuant to
Section 4.01(b) and shall continue in effect with respect to
bonuses earned in subsequent Plan Years until prospectively revoked
or amended in writing. For a revocation or amendment to be
effective for any Bonus payment, it must be filed by the last date
for which an effective deferral election is permitted to be filed
with respect to that Bonus payment under
Section 4.01(b).
(c) Equity Awards . A Group A
Participant’s deferral election under Section 4.01(c)
with respect to an Equity Award shall be irrevocable after the last
date upon which it may be filed pursuant to Section 4.01(c).
For a revocation or amendment to be effective for any Equity Award,
it must be filed by the last date for which an effective deferral
election is permitted to be filed with respect to that Equity Award
under Section 4.01(c). A separate deferral election shall be
required for each Equity Award. A deferral election under
Section 4.01(c) shall not apply to subsequent Equity
Awards.
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4.03 Prior Deferral Elections
. Any deferral election made prior to calendar year 2007 in effect
under the M & I 2005 Executive Deferral Compensation Plan shall
be treated as a deferral election described in Section 4.01(a)
and/or Section 4.01(b), as the case may be, and shall continue
in effect until modified as described in Section 4.02
above.
4.04 Unforeseeable Emergency
. In the event that a Participant makes application for a hardship
distribution under Section 7.05 and the Employer determines
that an Unforeseeable Emergency exists, all deferral elections
otherwise in effect under this Article IV and any other
nonqualified deferred compensation plan of the account balance type
sponsored by the Employer shall immediately terminate upon such
determination. To resume deferrals thereafter, a Participant must
make an election satisfying the provisions of Section 4.01(a),
(b) and/or (c), as the case may be, as those provisions apply
to someone who is already a Group A Participant in the
Plan.
4.05 401(k) Hardship . Any
deferral elections in effect under this Article IV shall be
cancelled as required due to a hardship distribution described in
IRS Regulation Section 1.401(k)-1(d)(3) or any successor
thereto. To resume deferrals after the required suspension period,
a Participant must make an election satisfying the provisions of
Section 4.01(a), (b) and/or (c), as the case may be, as
those provisions apply to someone who is already an Active
Participant in the Plan.
4.06 Other Contributions . In
the event that deferrals made by a Participant pursuant to this
Plan cause a reduction in the contributions by the Employer for the
benefit of that Participant to any other qualified or nonqualified
retirement plan maintained by the Employer, and such reduction is
not contributed or credited to any other nonqualified retirement
plan, the Employer 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 and/or
matching contribution component of the tax-qualified retirement
plan of the Employer on behalf of a Participant are reduced, the
Employer shall credit an amount equal to such reduction to a
separate subaccount (the “SERP Account”) within the
Account established for such person. In determining the matching
contributions to be credited under the preceding sentence for years
after 2007, it shall be assumed that the Participant deferred the
amount to the tax-qualified retirement plan which, in the absence
of the limits described in Code Section 401(a)(17), 402(g) and
415, would have entitled the Participant to the maximum matching
contribution available under the tax-qualified retirement plan in
the absence of those same limits. To the extent that the
contributions described in this Section 4.06 were not made to
the Marshall & Ilsley Corporation 2005 Executive Deferred
Compensation Plan for the period beginning January 1, 2007 and
ending immediately prior to the Separation Date, contributions for
that period shall be made by the Employer under this
Section 4.06 as well as for periods beginning from and after
the Separation Date. The Employer credits under this
Section 4.06 shall be made at such time and in accordance with
such rules as may be established by the Employer.
ARTICLE V
Accounts and
Sub-Accounts
5.01 Credits to Account .
Bookkeeping amounts equal to the amounts deferred by a Participant
pursuant to Article IV (or contributed by the Employer
pursuant to Section 4.06) shall, subject to the fourth
sentence of Section 5.02(b)(vii), be credited to the
Participant’s Account as of the date the deferred
compensation would otherwise have been paid to such Participant in
the absence of deferral (or, in the case of the contributions
pursuant to Section 4.06, as of the date the qualified plan
contributions they replace would have been made).
5.02 V aluation of Account
.
(a) The Participant’s Account
shall be credited or charged with deemed earnings or losses as if
it were invested in accordance with paragraph (b)
below.
(b) (i) The investment options
available hereunder for the deemed investment of the Account shall
be the Common Stock option and the other options specified in
Section 5.03. However, in no event shall the Employer be
required to make any such investment in the Common Stock option or
any other investment option and, to the extent such investments are
made, such investments shall remain an asset of the Employer
subject to the claims of its general creditors.
(ii) On the date deferrals and
contributions are credited to the Participant’s Account under
Section 5.01, such amounts shall be deemed to be invested in
one or more of the investment options designated by the Participant
for such deemed investment pursuant to Section 5.03. Once
made, the Participant’s investment designation shall continue
in effect for existing Account balances and all future deferrals
and contributions until changed by the Participant. (After a date
which is prospectively established by the Administrator, the
Participant may make separate investment designations for existing
Account
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balances and future deferrals and
contributions.) Any such change may be prospectively elected by the
Participant at the times established by the Administrator, which
shall be no less frequently than semi-annually, and shall be
effective only from and after the effective date of such change.
Until such time as the Administrator takes action to the contrary,
such changes may be elected at the times specified in
Section 5.03.
(iii) (1) For periods ending before
July 1, 2008, a Participant’s balance in the Common
Stock option shall be determined as though deferrals and
contributions credited to the Participant’s Account allocated
to that option are invested in Common Stock by purchase at the Fair
Market Value price of such stock on the date the amounts are
credited to the Participant’s Account.
(2) For periods ending after
June 30, 2008, deferrals and contributions credited during a
quarter which the Participant has designated for investment in the
Common Stock option shall be held in a separate subaccount and
deemed to be immediately invested in the default option under
Section 5.03(b) on the date credited to the
Participant’s Account pursuant to Section 5.01. On the
last day of the quarter in which credited, the amounts in such
subaccount, including investment earnings, shall be deemed invested
in the Common Stock option by purchase at the Fair Market Value
price of such stock using the amounts credited to such
subaccount.
(iv)
