Exhibit 10.28
MPS GROUP, INC.
EXECUTIVE DEFERRED COMPENSATION
PLAN
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I
E STABLISHMENT AND P URPOSE
MPS Group, Inc. (the
“Company”) hereby amends and restates the MPS Group,
Inc. Executive Deferred Compensation Plan (the “Plan”),
effective January 1, 2009.
The purpose of the MPS Group, Inc.
Executive Deferred Compensation Plan (“Plan”) is to aid
the Company in retaining and attracting executive employees and
Directors by providing them with tax deferred savings
opportunities. The Plan provides a select group of management and
highly compensated employees within the meaning of Sections 201(2),
301(a)(3) and 401(a)(l) of the Employee Retirement Income Security
Act of 1974, as amended (ERISA) of the Company and Directors with
the opportunity to elect to defer receipt of specified portions of
compensation, and to have these deferred amounts treated as if
invested in specified hypothetical investment benchmarks. The Plan
shall be effective for Base Salary, Bonus Compensation, commission
earnings, and Director’s Fees earned for periods beginning on
or after January 1, 2005. The Modis Professional Services,
Inc. Executive Deferred Compensation Plan as in effect on
December 31, 2004 (the “Grandfathered Plan”) shall
continue to apply with respect to deferrals made from compensation
earned for periods before January 1, 2005. In addition, for
administrative convenience, the Administrative Committee shall
maintain a separate Deferral Account under this Plan for each
participant in the Management Savings Plan to record any amounts
payable to such participant under the Management Savings
Plan.
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II
D EFINITIONS
Section 2.1
Account. Account means a bookkeeping account maintained
by the Committee to record the payment obligation of a
Participating Employer to a Participant as determined under the
terms of the Plan. The Committee may maintain an Account to record
the total obligation to a Participant and component Accounts to
reflect amounts payable at different times and in different forms.
Reference to an Account means any such Account established by the
Committee, as the context requires. Accounts are intended to
constitute unfunded obligations within the meaning of Sections
201(2), 301(a)(3) and 401(a)(l) of ERISA.
Section 2.2
Account Balance.
Account Balance means, with respect
to any Account, the total payment obligation owed to a Participant
from such Account as of the most recent Valuation Date.
Section 2.3
Administrative
Committee .
“Administrative Committee” means the committee
appointed by the Committee pursuant to Article III.
Section 2.4
Adopting Employer.
Adopting Employer means an Affiliate
who, with the consent of the Company, has adopted the Plan for the
benefit of its eligible employees.
Section 2.5
Affiliate.
Affiliate means a corporation, trade
or business that, together with the Company, is treated as a single
employer under Code Section 414(b) or (c).
Section 2.6
Beneficiary.
Beneficiary means a natural person,
estate, or trust designated by a Participant to receive payments to
which a Beneficiary is entitled in accordance with provisions of
the Plan. The Participant’s spouse, if living, otherwise the
Participant’s estate, shall be the Beneficiary if:
(i) the Participant has failed to properly designate a
Beneficiary, or (ii) all designated Beneficiaries have
predeceased the Participant.
A former spouse shall have no
interest under the Plan, as Beneficiary or otherwise, unless the
Participant designates such person as a Beneficiary after
dissolution of the marriage, except to the extent provided under
the terms of a domestic relations order as described in Code
Section 414(p)(1)(B).
Section 2.7
Business Day
. Business Day means each day on
which the New York Stock Exchange is open for business.
Section 2.8
Change in Control
. Change in Control means, with
respect to a Participating Employer that is organized as a
corporation, any of the following events: (i) a change in the
ownership of the Participating Employer, (ii) a change in the
effective control of the Participating Employer, or (iii) a
change in the ownership of a substantial portion of the assets of
the Participating Employer.
For purposes of this Section, a
change in the ownership of the Participating Employer occurs on the
date on which any one person, or more than one person acting as a
group, acquires ownership of stock of the Participating Employer
that, together with stock held by such person or group constitutes
more than 50% of the total fair market value or total voting power
of the stock of the Participating Employer. A change in the
effective control of the Participating Employer occurs on the date
on which either: (i) a person, or more than one person acting
as a group, acquires ownership of stock of the Participating
Employer possessing 30% or more of the total voting power of the
stock of the Participating Employer, taking into account all such
stock acquired during the 12-month period ending on the date of the
most recent acquisition, or (ii) a majority of the members of
the Participating Employer’s Board of Directors is replaced
during any 12-month period by directors whose appointment or
election is not endorsed by a majority of the
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members of such Board of Directors
prior to the date of the appointment or election, but only if no
other corporation is a majority shareholder of the Participating
Employer. A change in the ownership of a substantial portion of
assets occurs on the date on which any one person, or more than one
person acting as a group, other than a person or group of persons
that is related to the Participating Employer, acquires assets from
the Participating Employer that have a total gross fair market
value equal to or more than 40% of the total gross fair market
value of all of the assets of the Participating Employer
immediately prior to such acquisition or acquisitions, taking into
account all such assets acquired during the 12-month period ending
on the date of the most recent acquisition.
An event constitutes a Change in
Control with respect to a Participant only if the Participant
performs services for the Participating Employer that has
experienced the Change in Control, or the Participant’s
relationship to the affected Participating Employer otherwise
satisfies the requirements of Treasury Regulation
Section 1.409A-3(i)(5)(ii).
Notwithstanding anything to the
contrary herein, with respect to a Participating Employer that is a
partnership, Change in Control means only a change in the ownership
of the partnership or a change in the ownership of a substantial
portion of the assets of the partnership, and the provisions set
forth above respecting such changes relative to a corporation shall
be applied by analogy.
The determination as to the
occurrence of a Change in Control shall be based on objective facts
and in accordance with the requirements of Code
Section 409A.
Section 2.9
Claimant. Claimant means a Participant or Beneficiary
filing a claim under Article III of this Plan.
Section 2.10
Code. Code means the Internal Revenue Code of 1986, as
amended from time to time.
Section 2.11
Code
Section 409A. Code
Section 409A means section 409A of the Code, and regulations
and other guidance issued by the Treasury Department and Internal
Revenue Service thereunder.
Section 2.12
Committee.
Committee means the Compensation
Committee of the Board of Directors of the Company. The
Compensation Committee may establish and appoint the members of the
Administrative Committee to be responsible for the day to day
administration of the Plan. If no designation is made, the senior
Human Resources officer or his delegate shall have and exercise the
powers of the Administrative Committee.
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Section 2.13
Company. Company means MPS Group, Inc.
Section 2.14
Company Contribution.
Company Contribution means a credit
by a Participating Employer to a Participant’s Account(s) in
accordance with the provisions of Article VI of the Plan. Company
Contributions are credited at the sole discretion of the
Participating Employer and the fact that a Company Contribution is
credited in one year shall not obligate the Participating Employer
to continue to make such Company Contribution in subsequent years.
Unless the context clearly indicates otherwise, a reference to
Company Contribution shall include Earnings attributable to such
contribution.
Section 2.15
Company Stock.
Company Stock means phantom shares
of common stock issued by Company.
Section 2.16
Compensation.
Compensation means a
Participant’s base salary, bonus, commission, Director fees,
and such other cash or equity-based compensation (if any) approved
by the Committee as Compensation that may be deferred under this
Plan. Compensation shall not include any compensation that has been
previously deferred under this Plan or any other arrangement
subject to Code Section 409A.
Section 2.17
Compensation Deferral
Agreement. Compensation
Deferral Agreement means an agreement between a Participant and a
Participating Employer that specifies: (i) the amount of each
component of Compensation that the Participant has elected to defer
to the Plan in accordance with the provisions of Article V, and
(ii) the Payment Schedule applicable to one or more Accounts.
The Committee may permit different deferral amounts for each
component of Compensation and may establish a minimum or maximum
deferral amount for each such component. Unless otherwise specified
by the Committee in the Compensation Deferral Agreement,
Participants may defer up to (90%) of their base salary and up
to (100%) of other types of Compensation for a Plan Year.
Directors may defer up to 100% of their meeting, retainer and other
fees. A Compensation Deferral Agreement may also specify the
investment allocation described in Section 9.4.
Section 2.18
Death Benefit.
Death Benefit means the benefit
payable under the Plan to a Participant’s Beneficiary(ies)
upon the Participant’s death as provided in Section 7.1
of the Plan.
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Section 2.19
Deferral. Deferral means a credit to a Participant’s
Account(s) that records that portion of the Participant’s
Compensation that the Participant has elected to defer to the Plan
in accordance with the provisions of Article V. Unless the context
of the Plan clearly indicates otherwise, a reference to Deferrals
includes Earnings attributable to such Deferrals.
Deferrals shall be calculated with
respect to the gross cash Compensation payable to the Participant
prior to any deductions or withholdings, but shall be reduced by
the Committee as necessary so that it does not exceed 100% of the
cash Compensation of the Participant remaining after deduction of
all required income and employment taxes, employee benefit
deductions, and other deductions required by law. Changes to
payroll withholdings that affect the amount of Compensation being
deferred to the Plan shall be allowed only to the extent
permissible under Code Section 409A.
Section 2.20
Director. Director means a member of the Board of
Directors of the Company.
Section 2.21
Earnings . Earnings means an adjustment to the value of
an Account in accordance with Article IX.
Section 2.22
Effective Date.
Effective Date means January 1,
2009.
Section 2.23
Eligible Employee.
Eligible Employee means a member of
a “select group of management or highly compensated
employees” of a Participating Employer within the meaning of
Sections 201(2), 301(a)(3) and 401(a)(l) of ERISA, as determined by
the Committee from time to time in its sole discretion.
Section 2.24
Employee. Employee means a common-law employee of an
Employer.
Section 2.25
Employer. Employer means, with respect to Employees it
employs, the Company and each Affiliate.
Section 2.26
ERISA. ERISA means the Employee Retirement Income
Security Act of 1974, as amended from time to time.
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Section 2.27
Fiscal Year
Compensation. Fiscal Year
Compensation means Compensation earned during one or more
consecutive fiscal years of a Participating Employer, all of which
is paid after the last day of such fiscal year or years.
Section 2.28
Grandfathered Account.
Grandfathered Account means amounts
deferred under the Grandfathered Plan prior to January 1, 2005
that were vested as of December 31, 2004.
Section 2.29
Participant.
Participant means an Eligible
Employee or a Director who has received notification of his or her
eligibility to defer Compensation under the Plan under
Section 4.1 and any other person with an Account Balance
greater than zero, regardless of whether such individual continues
to be an Eligible Employee or a Director. A Participant’s
continued participation in the Plan shall be governed by
Section 4.2 of the Plan.
Section 2.30
Participating
Employer. Participating
Employer means the Company and each Adopting Employer.
Section 2.31
Payment Schedule.
Payment Schedule means the date as
of which payment of an Account under the Plan will commence and the
form in which payment of such Account will be made.
Section 2.32
Performance-Based
Compensation. Performance-Based Compensation means
Compensation where the amount of, or entitlement to, the
Compensation is contingent on the satisfaction of pre-established
organizational or individual performance criteria relating to a
performance period of at least 12 consecutive months.
Organizational or individual performance criteria are considered
pre-established if established in writing by not later than 90 days
after the commencement of the period of service to which the
criteria relate, provided that the outcome is substantially
uncertain at the time the criteria are established. The
determination of whether Compensation qualifies as
“Performance-Based Compensation” will be made in
accordance with Treas. Reg. Section 1.409A-1(e) and subsequent
guidance.
Section 2.33
Plan. Generally, the term Plan means the “MPS
Group, Inc. Executive Deferred Compensation Plan” as
documented herein and as may be amended from time to
time
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hereafter. However, to the extent
permitted or required under Code Section 409A, the term Plan
may in the appropriate context also mean a portion of the Plan that
is treated as a single plan under Treas. Reg.
Section 1.409A-1(c), or the Plan or portion of the Plan and
any other nonqualified deferred compensation plan or portion
thereof that is treated as a single plan under such
section.
Section 2.34
Plan Year.
Plan Year means January 1
through December 31.
Section 2.35
Retirement.
Retirement means a
Participant’s Separation from Service after attainment of age
55.
Section 2.36
Retirement Benefit.
Retirement Benefit means the benefit
payable to a Participant under the Plan following the Retirement of
the Participant.
Section 2.37
Retirement/Termination
Account. Retirement/Termination Account means an Account
established by the Committee to record the amounts payable to a
Participant upon Separation from Service. Unless the Participant
has established a Specified Date Account, all Deferrals and Company
Contributions shall be allocated to a Retirement/Termination
Account on behalf of the Participant.
Section 2.38
Separation from
Service. Separation from
Service means an Employee’s termination of employment with
the Employer. Whether a Separation from Service has occurred shall
be determined by the Committee in accordance with Code
Section 409A.
Except in the case of an Employee on
a bona fide leave of absence as provided below, an Employee is
deemed to have incurred a Separation from Service if the Employer
and the Employee reasonably anticipated that the level of services
to be performed by the Employee after a date certain would be
reduced to 20% or less of the average services rendered by the
Employee during the immediately preceding 36-month period (or the
total period of employment, if less than 36 months), disregarding
periods during which the Employee was on a bona fide leave of
absence.
An Employee who is absent from work
due to military leave, sick leave, or other bona fide leave of
absence shall incur a Separation from Service on the first date
immediately following the later of: (i) the six month
anniversary of the commencement of the leave, or (ii) the
expiration of the Employee’s right, if any, to reemployment
under statute or contract.
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If a Participant is both a Director
and an Employee, the services provided as a Director shall be
disregarded in determining whether there has been a Separation from
Service as an Employee, and the services provided as an Employee
shall be disregarded in determining whether there has been a
Separation from Service as a Director, provided the portion of the
Plan in which the Participant participates as a Director is
substantially similar to arrangements covering non-Employee
Directors.
For purposes of determining whether
a Separation from Service has occurred, the Employer means the
Employer as defined in Section 2.25 of the Plan, except that
in applying Code sections 1563(a)(l), (2) and (3) for
purposes of determining whether another organization is an
Affiliate of the Company under Code Section 414(b), and in
applying Treasury Regulation Section 1.414(c)-2 for purposes
of determining whether another organization is an Affiliate of the
Company under Code Section 414(c), “at least 50
percent” shall be used instead of “at least 80
percent” each place it appears in those sections.
The Committee specifically reserves
the right to determine whether a sale or other disposition of
substantial assets to an unrelated party constitutes a Separation
from Service with respect to a Participant providing services to
the seller immediately prior to the transaction and providing
services to the buyer after the transaction. Such determination
shall be made in accordance with the requirements of Code
Section 409A.
Section 2.39
Specified Date
Account. Specified Date
Account means an Account established by the Committee to record the
amounts payable at a future date as specified in the
Participant’s Compensation Deferral Agreement. Unless
otherwise determined by the Committee, a Participant may maintain
no more than five Specified Date Accounts. A Specified Date Account
may be identified in enrollment materials as an “In-Service
Account” or such other name as established by the Committee
without affecting the meaning thereof.
Section 2.40
Specified Date
Benefit. Specified Date
Benefit means the benefit payable to a Participant under the Plan
in accordance with Section 7.1(c).
Section 2.41
Specified Employee.
Specified Employee means an Employee
who, as of the date of his or her Separation from Service, is a
“key employee” of the Company or any Affiliate, any
stock of which is actively traded on an established securities
market or otherwise.
An Employee is a key employee if he
or she meets the requirements of Code Section 416(i)(1)(A)(i),
(ii), or (iii) (applied in accordance with applicable
regulations thereunder and without regard to Code
Section 416(i)(5)) at any time during the 12-month period
ending on the Specified Employee Identification Date. Such Employee
shall be treated as a key employee for the entire 12-month period
beginning on the Specified Employee Effective Date.
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For purposes of determining whether
an Employee is a Specified Employee, the compensation of the
Employee shall be determined in accordance with the definition of
compensation provided under Treas. Reg.
Section 1.415(c)-2(d)(3) (wages within the meaning of Code
section 3401 (a) for purposes of income tax withholding at the
source, plus amounts excludible from gross income under section
125(a), 132(f)(4), 402(e)(3), 402(h)(l)(B), 402(k) or 457(b),
without regard to rules that limit the remuneration included in
wages based on the nature or location of the employment or the
services performed); provided, however, that, with respect to a
nonresident alien who is not a Participant in the Plan,
compensation shall not include compensation that is not includible
in the gross income of the Employee under Code Sections 872, 893,
894, 911, 931 and 933, provided such compensation is not
effectively connected with the conduct of a trade or business
within the United States.
Notwithstanding anything in this
paragraph to the contrary: (i) if a different definition of
compensation has been designated by the Company with respect to
another nonqualified deferred compensation plan in which a key
employee participates, the definition of compensation shall be the
definition provided in Treas. Reg. Section 1.409A-1(i)(2), and
(ii) the Company may through action that is legally binding
with respect to all nonqualified deferred compensation plans
maintained by the Company, elect to use a different definition of
compensation.
In the event of corporate
transactions described in Treas. Reg. Section 1.409A-l
(i) (6), the identification of Specified Employees shall be
determined in accordance with the default rules described therein,
unless the Employer elects to utilize the available alternative
methodology through designations made within the timeframes
specified therein.
Section 2.42
Specified Employee Identification
Date. Specified Employee
Identification Date means December 31, unless the Employer has
elected a different date through action that is legally binding
with respect to all nonqualified deferred compensation plans
maintained by the Employer.
Section 2.43
Specified Employee Effective
Date. Specified Employee
Effective Date means the first day of the fourth month following
the Specified Employee Identification Date, or such earlier date as
is selected by the Committee.
Section 2.44
Substantial Risk of
Forfeiture. Substantial
Risk of Forfeiture means the description specified in Treas. Reg.
Section 1.409A-1(d).
Section 2.45
Termination Benefit.
Termination Benefit means the
benefit payable to a Participant under the Plan following the
Participant’s Separation from Service prior to
Retirement.
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Section 2.46
Unforeseeable
Emergency. Unforeseeable
Emergency means a severe financial hardship to the Participant
resulting from an illness or accident of the Participant, the
Participant’s spouse, the Participant’s dependent (as
defined in Code section 152, without regard to section 152(b)(l),
(b)(2), and (d)(l)(B)), or a Beneficiary; 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. The
types of events which may qualify as an Unforeseeable Emergency may
be limited by the Committee.
Section 2.47
Valuation Date.
Valuation Date means each Business
Day.
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III
ADMINISTRATION
Section 3.1
Committee and Administrative
Committee Duties . This
Plan shall be administered by the Committee. A majority of the
members of the Committee shall constitute a quorum for the
transaction of business. All resolutions or other action taken by
the Committee shall be by a vote of a majority of its members
present at any meeting or, without a meeting, by an instrument in
writing signed by all its members. Members of the Committee may
participate in a meeting of such Committee by means of a conference
telephone or similar communications equipment that enables all
persons participating in the meeting to hear each other, and such
participation in a meeting shall constitute presence in person at
the meeting and waiver of notice of such meeting. The Committee
shall be responsible for the administration of this Plan and shall
have all powers necessary to administer this Plan, including
discretionary authority to determine eligibility for benefits and
to decide claims under the terms of this Plan, except to the extent
that any such powers are vested in any other person administering
this Plan by the Committee. The Committee may from time to time
establish rules for the administration of this Plan, and it shall
have the exclusive right to interpret this Plan and to decide any
matters arising in connection with the administration and operation
of this Plan. All rules, interpretations and decisions of the
Committee shall be conclusive and binding on the Company,
Participants and Beneficiaries.
The Committee has delegated to the
Administrative Committee responsibility for performing certain
administrative and ministerial functions under this Plan. The
Administrative Committee shall be responsible for the day-to-day
operation of the Plan and shall have such authority as is required
to perform its responsibilities except to the extent such authority
or responsibility is res
