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Exhibit 10.1 (Rev. 11/26/08) MIDWEST BANC HOLDINGS,
INC. DIRECTORS DEFERRED COMPENSATION PLAN NOTICE OF
SPECIAL RISK OF LOSS A special risk
of loss is associated with a director’s decision to
participate in the Midwest Banc Holdings, Inc. Directors Deferred
Compensation Plan. This special risk of loss is separate and apart
from the risk of loss due to poor performance by the account or
fund to which the Director may suggest be the deemed investment of
his or her account balance. This special risk of loss is that, if
Midwest Banc Holdings, Inc. ever becomes insolvent or bankrupt, the
Director might lose all or a large part of his or her account under
the Plan. This special risk of loss
is a feature of the Plan because, unlike a trust holding the assets
of a tax-qualified retirement plan, this Plan cannot legally be
structured so that it is exempt from the creditors of Midwest Banc
Holdings, Inc. and still provide for the deferral of federal income
taxes. (As Amended and Restated Effective Generally
January 1, 2009)
MIDWEST BANC HOLDINGS, INC.
DIRECTORS DEFERRED COMPENSATION PLAN Table of
Contents
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ARTICLE I BACKGROUND, PURPOSE AND EFFECTIVE
DATE
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1
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1.01
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Background
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1
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1.02
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Purpose
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1
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1.03
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Effective Date
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1
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ARTICLE II DEFINITIONS
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1
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2.01
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"Account"
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1
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2.02
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"Affiliated Employer"
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1
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2.03
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"Annual Deferrals"
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2
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2.04
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"Beneficiary"
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2
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2.05
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"Board"
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2
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2.06
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"Change in Control"
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2
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2.07
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"Code"
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3
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2.08
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"Company"
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3
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2.09
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"Company Stock"
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3
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2.10
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"Company Stock Subaccount"
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3
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2.11
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"Deferred Fees"
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3
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2.12
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"Director"
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3
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2.13
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"Director Fees"
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3
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2.14
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"Election Form"
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4
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2.15
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"Election Period"
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4
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2.16
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"Interest Earning Subaccount"
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4
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2.17
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"Investment Election"
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4
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2.18
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"Participant"
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4
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2.19
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"Plan"
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4
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2.20
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"Plan Administrator"
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4
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2.21
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"Plan Year"
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4
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2.22
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"Separation from Service"
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4
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2.23
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"Specified Employee"
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5
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2.24
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"Trust"
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5
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2.25
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"Trustee"
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5
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2.26
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"Unforeseeable Emergency"
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5
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2.27
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"Valuation Date"
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5
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ARTICLE III PARTICIPATION REQUIREMENTS AND
PARTICIPANT ELECTIONS
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5
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3.01
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Participation Requirements
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5
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3.02
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Initial Election Period for Newly Elected
Directors; Irrevocability of Elections
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5
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3.03
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Subsequent Annual Elections; Irrevocability of
Elections
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5
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3.04
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Cancellation of Deferrals Following An
Unforeseeable Emergency Payment
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5
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3.05
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Amount of Deferral
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5
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3.06
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Manner of Electing Deferral
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5
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ARTICLE IV CREDITING OF PARTICIPANT ACCOUNTS
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5
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4.01
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Maintenance of Accounts
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5
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4.02
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Crediting of Director Fees to Participant
Accounts
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5
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4.03
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Crediting of Earnings and Losses
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5
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4.04
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Crediting of Director Fees to Company Stock
Subaccount
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5
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4.05
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Crediting of Director Fees to Interest Earning
Subaccount
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5
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4.06
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Account Valuation; Participant Statements
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5
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4.07
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Liability
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5
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ARTICLE V FUNDING RESTRICTIONS
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5
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5.01
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Funding Restrictions in General
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5
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5.02
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Optional Establishment of a Trust Subject to Claims
of Creditors
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5
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5.03
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Ownership of Fund or Trust Fund
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5
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5.04
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Company Contributions to Trust
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5
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ARTICLE VI FORM AND TIMING OF PAYMENT OF
BENEFITS
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5
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6.01
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Forms of Payment and Elections
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5
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6.02
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Timing of Payment of Deferred Fees Upon Separation
From Service
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5
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6.03
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Timing of Payment of Deferred Fees Upon Death
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5
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6.04
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Timing of Payment of Deferred Fees Upon A Change in
Control
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5
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6.05
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Timing of Payment of Deferred Fees Upon An
Unforeseeable Emergency
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5
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6.06
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Payment of Deferred Fees to Satisfy Domestic
Relations Order
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5
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6.07
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Limited Cashouts
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5
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6.08
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Change in Form or Timing of Payments
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5
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6.09
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Restriction on Timing of Payment
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5
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6.10
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No Loans
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5
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6.11
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Accounting for Payments
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5
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ARTICLE VII DESIGNATION OF BENEFICIARY
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5
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ARTICLE VIII PLAN ADMINISTRATION
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5
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8.01
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Plan Administrator; Expenses
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5
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8.02
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Powers and Duties
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5
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8.03
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Interpretation of Plan Provisions; Finality of
Rules and Decisions
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5
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8.04
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Exhaustion of Administrative Remedies Required
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5
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8.05
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Claims Procedures
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5
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8.06
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Claims Review Procedures: Appeals of Adverse
Determinations
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5
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ARTICLE IX AMENDMENT AND TERMINATION
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5
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9.01
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Amendment
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5
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9.02
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Termination
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5
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9.03
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Plan Terminations Under Section 409A
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5
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ARTICLE X MISCELLANEOUS
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5
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10.01
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Anti-Alienation
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5
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ii
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10.02
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State Law
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5
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10.03
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No Guarantee of Continued Service
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5
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10.04
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Notice, Designation, Election, Consent, and
Waiver
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5
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10.05
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Action by Company
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5
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10.06
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Conditions Upon Issuance of Company Stock
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5
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10.07
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Change in Corporate Capitalization
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5
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10.08
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Two-Year Time Limitation on Legal Actions
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5
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10.09
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Compliance With Section 409A of the Code
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iii
MIDWEST BANC HOLDINGS, INC.
DIRECTORS DEFERRED COMPENSATION PLAN ARTICLE I
BACKGROUND, PURPOSE AND EFFECTIVE DATE
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1.01
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Background . The Midwest Banc Holdings, Inc. Directors
Deferred Compensation Plan (the "Plan") is a deferred compensation
plan maintained by Midwest Banc Holdings, Inc. (the "Company").
Benefits are paid only to the extent and under the circumstances
set forth in the Plan. The Plan was originally adopted effective
January 1, 2006. The Plan is now being amended to comply with
the April 2007 Treasury regulations promulgated under
Section 409A of the Internal Revenue Code.
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1.02
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Purpose. The purpose of the Plan is to provide
non-employee Directors with an opportunity to defer receipt of fees
earned for services as a Director until after termination of such
service. It is intended that the Plan shall aid the Company in
retaining and attracting Directors whose abilities, experience and
judgment can contribute to the continued success of the
Company.
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1.03
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Effective Date. Except as otherwise provided in this
document, the Plan as amended and restated in this document is
effective as of January 1, 2009, and applies to, and only to,
non-employee Directors of the Company on or after January 1,
2009.
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ARTICLE II
DEFINITIONS
The
following words and phrases shall have the following meanings when
used in the Plan, unless a different meaning is plainly required by
the context. All other defined terms in this Plan shall have the
meanings specified in the various Articles of the Plan in which
they appear.
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2.01
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"Account" means the separate bookkeeping account or
accounts established for each Participant under the Plan pursuant
to Article IV to which Annual Deferrals with respect to such
Participant are credited from time to time and valued in accordance
with the performance of the investment choice in which the Deferred
Fees are notionally invested. No funds are actually contributed to
an Account and there are no assets in any Account.
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2.02
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"Affiliated Employer" means any corporation, trade or
business that is a member of a controlled group of corporations (as
defined in Section 414(b) of the Code by reference to
Section 1563 of the Code) that includes the Company, any trade
or business (whether or not incorporated) that is under common
control (as defined in Section 414(c) of the Code) with the
Company; any entity (whether or not incorporated) which is a member
of an affiliated service group (as defined in Section 414(m) of the
Code) that includes the Company; and any other entity required to
be aggregated with the Company pursuant to regulations under
Section 414(o) of the Code. An Affiliated Company shall be
considered an Affiliated Company only for the time during which it
satisfies the above conditions for being an Affiliated
Employer.
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1
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2.03
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"Annual Deferrals" means with respect to a Plan Year, a
Participant’s Director Fees deferred under the Plan.
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2.04
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"Beneficiary" means a person or persons (including legal
entities) designated by a Participant who is or may become entitled
to a benefit under the Plan following a Participant’s death.
A Beneficiary who becomes entitled to a benefit under the Plan
remains a Beneficiary under the Plan until the Trustee has fully
distributed to the Beneficiary his or her Plan benefit. A
Beneficiary’s right to (and the Plan Administrator’s or
a Trustee’s duty to provide to the Beneficiary) information
or data concerning the Plan does not arise until the Beneficiary
first becomes entitled to receive a benefit under the Plan.
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2.05
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"Board" means the Board of Directors of the Company.
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2.06
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"Change in Control" means a change in the ownership or
effective control of the Company, or in the ownership of a
substantial portion of the assets of the Company as provided in
Section 409A(a)(2)(A)(v) of the Code and the final Treasury
regulations thereunder. In accordance with the final Treasury
regulations, "Change in Control" means any one of the events
described below:
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(a) Change in Ownership. A change
in the ownership of the Company occurs on the date that any person
or persons acting as a group acquires ownership of stock of the
Company that, together with stock held by such person or group,
constitutes more than fifty (50) percent of the total fair market
value or total voting power of the stock of such Company. If a
person or group is considered to own more than fifty
(50) percent of the total fair market value or total combined
voting power of the stock of the Company, the acquisition of
additional stock by the same person or persons is not considered to
cause a change in the ownership of the Company (or to cause a
change in the "effective control of the Company" within the meaning
of paragraph (b)). (b) Change in
Effective Control. A change in the effective control of the Company
occurs on the date that a majority of the Company’s Board is
replaced during any 12-month period by directors whose appointment
or election is not endorsed by a majority of the members of the
Company’s Board prior to the date of the appointment or
election. (c) Change in Ownership of
a Substantial Portion of the Company’s Assets. A change in
the ownership of a substantial portion of the Company’s
assets occurs on the date that any person or group acquires (or has
acquired during the 12-month period ending on the date of the most
recent acquisition by such person or persons) assets from the
Company that have a total gross fair market value equal to or more
than fifty (50) percent of the total gross fair market value
of all of the assets of the Company immediately prior to such
acquisition or acquisitions.
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2.07
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"Code" means the Internal Revenue Code of 1986, as
amended, and any subsequent amendment or replacement thereof.
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2
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2.08
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"Company" means Midwest Banc Holdings, Inc. and any
successor which shall maintain this Plan; and any predecessor which
has maintained this Plan. Where the context requires, the term
"Company" shall include an Affiliated Employer that has adopted
this Plan by appropriate resolution.
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2.09
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"Company Stock" means the common stock of Midwest Banc
Holdings, Inc.
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2.10
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"Company Stock Subaccount" means an Account that is
credited, at the Participant’s election, with a specified
portion of the Participant’s Director Fees that is deemed
invested in shares of Company Stock pursuant to
Section 4.04 .
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2.11
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"Deferred Fees" means the total Annual Deferrals under
the Plan of a Participant in the current and prior Plan Years,
adjusted for tracking investment gain or loss as provided
herein.
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2.12
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"Director" means any person duly elected to the Board who
is not an employee of the Company.
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2.13
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"Director Fees" means any remuneration or fees payable
for services rendered as a Director (which amounts shall include
fees for services as a member of one or more Committee(s) of the
Board and meeting attendance fees, if any (among other fees), as
applicable from time to time) that are otherwise payable to the
Director in cash.
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2.14
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"Election Form" means the enrollment and election forms
provided to a Director to enable him or her to elect to defer
Director Fees, to elect the time and form of payment, and to change
elections under the Plan.
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2.15
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"Election Period" means the enrollment period for making
Investment Elections under this Plan immediately preceding the
beginning of each Plan Year established by the Plan Administrator,
such period to be applied on a uniform and nondiscriminatory basis
for all Directors and Participants. However, a newly elected
Director’s initial Election Period shall be determined
pursuant to Section 3.02 .
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2.16
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"Interest Earning Subaccount" means an Account that is
credited, at the Participant’s election, with a specified
portion of the Participant’s Director Fees and allocable
interest calculated pursuant to Section 4.05 .
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2.17
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"Investment Election" means an irrevocable election made
by a Participant with regard to the allocation of Director Fees
into the Company Stock Subaccount and/or the Interest Earning
Subaccount.
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2.18
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"Participant" means any Director who elects to defer
Director Fees under the terms of the Plan and any former Director
who is or may become (or whose Beneficiaries may become) eligible
to receive a benefit under the Plan.
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2.19
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"Plan" means the Midwest Banc Holdings, Inc. Directors
Deferred Compensation Plan, as set forth herein and as amended from
time to time.
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3
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2.20
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"Plan Administrator" means the Company or such other
person designated by the Company to hold the position of Plan
Administrator.
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2.21
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"Plan Year" means the twelve-month period ending each
December 31st.
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2.22
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"Separation from Service" means termination of the
Director’s services with the Company for reasons other than
death. Whether a Separation from Service has occurred is determined
based on whether the facts and circumstances indicate that the
Company and Director reasonably anticipated that no further
services would be performed after a certain date or that the level
of bona fide services the Director would perform after such date
(whether as a director or as an independent contractor) would
permanently decrease to no more than forty-nine (49%) of the
average level of bona fide services performed (whether as a
director or an independent contractor) over the immediately
preceding twelve (12) month period (or the full period of
services to the Company if the Director has been providing services
to the Company less than twelve (12) months).
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2.23
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"Specified Employee" means an employee who, as of the
date of the employee’s Separation from Service, is a key
employee of the Company. Notwithstanding the foregoing, an employee
is a Specified Employee only if the stock of the Company or any
entity with whom the Company would be considered a single employer
under Section 414(b) or Section 414(c) of the Code is publicly
traded on an established securities market or otherwise. For
purposes of this Plan, an employee is a key employee if the
employee meets the requirements of Section 416(i)(1)(A)(i),
(ii), or (iii) of the Code (applied in accordance with the
regulations thereunder and disregarding Section 416(i)(5)) at
any time during the twelve (12) month period ending on
December 31 (the "identification period"). For purposes of
identifying a Specified Employee, the definition of compensation
under Treasury Regulation Section 1.415(c)-2(a) is used,
applied as if the Company were not using any safe harbor provided
in Treasury Regulation Section 1.415(c)-2(d), were not using
any of the special timing rules provided in Treasury
Regulation Section 1.415(c)-2(e), and were not using any
of the special rules provided in Treasury
Regulation Section 1.415(c)-2(g). If the employee is a
key employee during an identification period, the employee is
treated as a key employee for purposes of this Agreement during the
twelve (12) month period that begins on the first day of April
following the close of the identification period.
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2.24
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"Trust" means a grantor trust or trusts established by
the Company and created at the option of the Company under the
provisions of this Plan to set aside assets to satisfy the
Company’s promises under the Plan.
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2.25
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"Trustee" means an independent third party who may be
granted corporate trustee powers under state law, such as a bank
trust department or other similar party, and designated as the
Trustee in the Trust Agreement.
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4
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2.26
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"Unforeseeable Emergency" means a severe financial
hardship to the Participant resulting from one of the following
circumstances:
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(a) 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));
(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, not as a result of a natural disaster); or
(c) other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond
the control of the Participant.
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2.27
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"Valuation Date" means the last day of each calendar
quarter and such interim dates as the Plan Administrator deems
necessary or appropriate to value the Participant’s benefits
under this Plan.
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ARTICLE III
PARTICIPATION REQUIREMENTS AND PARTICIPANT ELECTIONS
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3.01
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Participation Requirements.
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Each
Director shall be eligible to participate in the Plan, but shall
not commence participation in the Plan until the date described in
Section 3.02 or Section 3.03 .
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3.02
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Initial Election Period for Newly Elected Directors;
Irrevocability of Elections.
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(a) A newly elected Director who
wishes to defer Director Fees shall make an election within the
30-day period following his or her election to the Board, which
election shall only apply to Director Fees earned for services
performed after the date of such election and before the subsequent
Plan Year. Subsequent annual elections shall be made pursuant to
Section 3.03 . (b) Any
election made by a Participant pursuant to this
Section 3.02 shall be irrevocable through the end of
the applicable Plan Year.
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3.03
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Subsequent Annual Elections; Irrevocability of
Elections.
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(a) During the Election Period
prior to each subsequent Plan Year, each Director shall be given
the opportunity to elect to defer Director Fees by completing an
Election Form and returning it to the Plan Administrator. Any such
election shall only apply to Director Fees earned for services
performed during the Plan Year that follows the end of the Election
Period. (b) A Participant who made an
election to defer Director Fees for the prior Plan Year and does
not make a new election during the Election Period will not retain
his
5
or her election for the subsequent Plan Year. Such Participant
will be deemed to have elected not to defer his or her Director
Fees in the subsequent Plan Year. (c)
Any election made by a Participant pursuant to this
Section 3.03 shall be irrevocable through the end of
the applicable Plan Year.
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3.04
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Cancellation of Deferrals Following An Unforeseeable
Emergency Payment.
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Notwithstanding
Section 3.02(b) and Section 3.03(c) , upon
a payment to a Participant for an Unforeseeable Emergency, such
Participant’s deferral election will be cancelled for the
remainder of the Plan Year.
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A
Director may elect to defer receipt of all or a specified portion
of his or her Director Fees.
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3.06
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Manner of Electing Deferral.
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Each
Director who wishes to defer Director Fees to the Plan shall sign
and deliver to the Plan Administrator before becoming a Participant
an Election Form. The Election Form shall contain the following
information: (a) the percentage or
amount of Director Fees to be deferred;
(b) an allocation of the Director
Fees between the "Company Stock Subaccount" or the "Interest
Earning Subaccount"; (c) in the case
of a Director’s initial election only, an election of a lump
sum payment or of a number of annual installments (not to exceed
ten (10) years) for the payment of the Deferred Fees. Any
payment election made by a Director in connection with his or her
initial election to participate in the Plan shall apply to all
Deferred Fees, whether covered by the initial deferral election or
a subsequent deferral election; provided, however, that this
paragraph (c) shall not preclude subsequent modifications to
the payment election described immediately above that are made in
connection with a Director’s Separation from Service and in
compliance with Section 409A of the Code. ARTICLE IV
CREDITING OF PARTICIPANT ACCOUNTS
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4.01
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Maintenance of Accounts.
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The
Plan Administrator shall cause a separate Account to be established
and maintained for each Participant, and within such Account, a
separate Company Stock Subaccount and Interest Earning Subaccount.
References herein to a Participant’s "Account" shall refer to
the Participant’s Company Stock Subaccount and the Interest
Earning Subaccount in the aggregate. A Participant’s Company
Stock Subaccount and Interest Earning Subaccount shall be charged,
as
6
applicable, with any payments from the respective subaccounts on
the date such payments are made pursuant to Section 6.11
.
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4.02
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Crediting of Director Fees to Participant Accounts.
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An
amount equal to amount of Director Fees that a Participant elects
to defer will be credited to the Participant’s Account on the
last business day of each calendar quarter or at more frequent
intervals as determined to be necessary or appropriate by the Plan
Administrator.
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4.03
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Crediting of Earnings and Losses.
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As
of each Valuation Date, the Plan Administrator will adjust each
Participant’s Account to reflect the crediting of deemed
earnings, losses, and charges to each such Account as if an amount
equal to the Participant’s Account balance had been invested
in accordance with the directions such Participant is permitted to
make pursuant to Section 3.06 . Adjustments may be made
at more frequent intervals as determined to be necessary or
appropriate by the Plan Administrator.
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4.04
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Crediting of Director Fees to Company Stock
Subaccount.
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The
Plan Administrator shall credit a Director’s Annual Deferrals
to his or her Company Stock Subaccount as follows:
(a) On the last day of each calendar
quarter, the amount of the Annual Deferrals deferred to the Company
Stock Subaccount will be converted to that number of hypothetical
shares of Company Stock (computed to the nearest 1/1000 of a share)
that could have been purchased on such date with such amount, using
the closing price for the Company Stock on such date (or, if such
date is not a trading day, on the next preceding trading day) on
the Nasdaq Stock Market’s National Market System, or, if the
Company Stock is not then listed or quoted on Nasdaq, the principal
stock exchange on which the Company Stock is then traded;
(b) On each date on which a dividend
is paid on the Company Stock, the Company Stock Subaccount will be
credited with that number of hypothetical shares of Company Stock
(computed to the nearest 1/1000 of a share) which theoretically
could have been purchased with the amount of dividends payable on
the number of hypothetical shares of Company Stock credited to the
Participant’s Company Stock Subaccount immediately prior to
the payment of such dividend; the number of additional shares of
Company Stock shall be calculated as in Section 4.04(a)
; and (c) On the date of the
occurrence of any event described in Section 10.07 ,
the Company Stock Subacc
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