Exhibit 10.11
SPECIMEN SECTION
451
DEFERRED COMPENSATION
PLAN
(For Use With The Adoption Agreement
For
the Specimen Section 451
Deferred Compensation Plan)
SPECIMEN SECTION
451
DEFERRED COMPENSATION
PLAN
TABLE OF
CONTENTS
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ARTICLE 1
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DEFINITIONS
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1.1
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ACCOUNT
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1
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1.2
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AGREEMENT
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1
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1.3
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BENEFICIARY
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1
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1.4
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BOARD
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1
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1.5
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CHANGE IN
CONTROL
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1
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1.6
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CODE
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2
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1.7
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COMPENSATION
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2
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1.8
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COMPENSATION
DEFERRAL ACCOUNT
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2
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1.9
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COMPENSATION
DEFERRALS
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2
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1.10
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DISABILITY
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2
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1.11
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EFFECTIVE
DATE
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2
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1.12
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ELECTION
FORM
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2
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1.13
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ELIGIBLE
EMPLOYEE
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2
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1.14
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EMPLOYER
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2
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1.15
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EMPLOYER
CONTRIBUTION CREDIT ACCOUNT
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2
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1.16
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EMPLOYER
CONTRIBUTION CREDITS
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2
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1.17
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ENTRY
DATE
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3
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1.18
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PARTICIPANT
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3
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1.19
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PERFORMANCE-BASED COMPENSATION
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3
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1.20
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PLAN
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3
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1.21
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PLAN
YEAR
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3
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1.22
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SEPARATION FROM
SERVICE
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3
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1.23
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SPECIFIED
EMPLOYEE
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3
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1.24
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TRUST
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3
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1.25
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TRUSTEE
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3
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1.26
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VALUATION
DATE
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3
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ARTICLE 2
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ELIGIBILITY AND
PARTICIPATION
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2.1
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REQUIREMENTS
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3
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2.2
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RE-EMPLOYMENT
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4
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2.3
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CHANGE OF
EMPLOYMENT CATEGORY
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4
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ARTICLE 3
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CONTRIBUTIONS AND
CREDITS
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3.1
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PARTICIPANT
COMPENSATION DEFERRALS
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4
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3.2
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EMPLOYER
CONTRIBUTION CREDITS
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5
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3.3
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CONTRIBUTIONS
TO THE TRUST
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5
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ARTICLE 4
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ALLOCATION OF
FUNDS
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4.1
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INVESTMENT
AUTHORITY OVER ACCOUNT
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6
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4.2
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ACCOUNTING FOR
DISTRIBUTIONS
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6
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4.3
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SEPARATE
ACCOUNTS
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6
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4.4
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DEEMED
INVESTMENT DIRECTIONS OF PARTICIPANTS
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7
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4.5
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EXPENSES AND
TAXES
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8
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ARTICLE 5
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ENTITLEMENT TO
BENEFITS
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5.1
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PAYMENT
DATES
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8
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5.2
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UNFORESEEABLE
EMERGENCY DISTRIBUTIONS
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9
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5.3
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DEATH;
DISABILITY
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9
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5.4
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FORFEITURES
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9
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ARTICLE 6
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DISTRIBUTION OF
BENEFITS
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6.1
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AMOUNT
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10
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6.2
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METHOD OF
PAYMENT
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10
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6.3
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ACCELERATIONS
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10
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6.4
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DEATH OR
DISABILITY BENEFITS
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11
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ARTICLE 7
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BENEFICIARIES; PARTICIPANT
DATA
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7.1
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DESIGNATION OF
BENEFICIARIES
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11
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7.2
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INFORMATION TO
BE FURNISHED BY PARTICIPANTS AND BENEFICIARIES; INABILITY TO LOCATE
PARTICIPANTS OR BENEFICIARIES
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11
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ARTICLE 8
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ADMINISTRATION
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8.1
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ADMINISTRATIVE
AUTHORITY
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12
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8.2
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LITIGATION
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13
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8.3
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CLAIMS
PROCEDURE
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13
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ii
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ARTICLE 9
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AMENDMENT
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9.1
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RIGHT TO
AMEND
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17
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9.2
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AMENDMENTS TO
ENSURE PROPER CHARACTERIZATION OF PLAN
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17
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ARTICLE 10
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TERMINATION
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10.1
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EMPLOYER’S RIGHT TO TERMINATE OR SUSPEND
PLAN
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17
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10.2
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AUTOMATIC
TERMINATION OF PLAN
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17
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10.3
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SUSPENSION OF
DEFERRALS
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17
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10.4
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ALLOCATION AND
DISTRIBUTION
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17
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10.5
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SUCCESSOR TO
EMPLOYER
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18
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ARTICLE 11
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THE TRUST
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11.1
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ESTABLISHMENT
OF TRUST
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18
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ARTICLE 12
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MISCELLANEOUS
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12.1
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LIABILITY OF
EMPLOYER; LIMITATIONS ON LIABILITY OF EMPLOYER OR
EMPLOYER
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18
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12.2
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CONSTRUCTION
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18
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12.3
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SPENDTHRIFT
PROVISION
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19
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12.4
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AGGREGATION OF
EMPLOYERS
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19
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12.5
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TAX
WITHHOLDING
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19
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iii
SPECIMEN SECTION
451
DEFERRED COMPENSATION
PLAN
RECITALS
By executing the attached Adoption
Agreement (the “Agreement”), the Employer, as
identified in the Agreement, has adopted this Specimen
Section 451 Deferred Compensation Plan (the
“Plan”) effective as provided in the Agreement. This
Plan is intended to offer a select group of the Employer’s
management or highly compensated employees an opportunity to elect
to defer the receipt of compensation in order to provide deferred
compensation benefits taxable pursuant to section 451 of the
Internal Revenue Code of 1986, as amended (the “Code”),
and to provide a deferred compensation vehicle to which the
Employer, in its discretion, may credit certain amounts on behalf
of participants. The Plan is intended to be a “top-hat”
plan (i.e., an unfunded deferred compensation plan maintained for a
select group of management or highly-compensated employees) under
sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”). The
Plan also is intended to comply with the requirements of Code
section 409A. Participation in this Plan shall not be construed to
create an employment contract between any Participant and the
Employer.
Accordingly, the following Plan is
adopted.
ARTICLE 1
DEFINITIONS
Whenever used in the Plan or the
Agreement, the following terms shall have the meanings as set forth
in this Article unless a different meaning is clearly required by
the context.
1.1 ACCOUNT means the balance
credited to a Participant’s or Beneficiary’s Plan
account, including amounts credited to the Participant’s
Compensation Deferral Account (if any) and the Participant’s
Employer Contribution Credit Account (if any) and deemed income,
gains and losses (as determined by the Employer, in its discretion)
credited to those Accounts (if any). A Participant’s or
Beneficiary’s Account shall be determined as of the date of
reference.
1.2 AGREEMENT means the
Adoption Agreement for the Specimen Section 451 Deferred
Compensation Plan that was executed by the Employer.
1.3 BENEFICIARY means any
person or person so designated in accordance with the provisions of
Article 7.
1.4 BOARD means the
Employer’s Board of Directors, or a committee of the
Employer’s Board of Directors duly authorized to make
determinations and act for the Board under this Plan.
1.5 CHANGE IN CONTROL means a
change in the ownership of the Employer within the meaning of Code
section 409A and IRS guidance under Code section 409A (e.g.,
Q&A 12 of IRS Notice 2005-1).
1
1.6 CODE means the Internal
Revenue Code of 1986 and the Treasury regulations and other
authoritative guidance issued under the Code, as amended from time
to time.
1.7 COMPENSATION means the
cash remuneration paid by the Employer to an Eligible Employee with
respect to his or her service for the Employer (as determined in
accordance with the Agreement).
1.8 COMPENSATION DEFERRAL
ACCOUNT is described in Section 3.1.
1.9 COMPENSATION DEFERRALS is
described in Section 3.1.
1.10 DISABILITY means a
Participant becoming disabled within the meaning of Code section
409A (i.e., a Participant (i) is unable to engage in any
substantial gainful activity 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 twelve months, (ii) 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, receiving income
replacement benefits for a period of not less than three months
under an accident and health plan covering employees of the
Employer or (iii) is determined to be totally disabled by the
Social Security Administration).
1.11 EFFECTIVE DATE means the
effective date of this Plan specified in the Agreement.
1.12 ELECTION FORM means the
form or forms on which a Participant elects to defer Compensation
under this Plan and the Agreement and/or on which the Participant
makes certain other designations as required under this Plan and
the Agreement.
1.13 ELIGIBLE EMPLOYEE means,
for any Plan Year (or applicable portion thereof), an employee of
the Employer who is determined by the Employer to be a member of a
select group of management or highly compensated employees of the
Employer and who is designated by the Board to be an Eligible
Employee under the Plan.
Prior to the beginning of each Plan
Year, the Employer shall notify those individuals, if any, who will
be Eligible Employees for the next Plan Year. If the Employer
determines that an individual first becomes an Eligible Employee
during a Plan Year, the Employer shall notify such individual of
its determination and the individual shall first become an Eligible
Employee as of the date of the notification.
1.14 EMPLOYER means
(individually or collectively, as required by the context), the
entity or entities that execute the Agreement as the Employer (or
affiliated employers), or any successors that adopt the
Plan.
1.15 EMPLOYER CONTRIBUTION CREDIT
ACCOUNT is described in Section 3.2.
1.16 EMPLOYER CONTRIBUTION
CREDITS is described in Section 3.2.
2
1.17 ENTRY DATE with respect
to an individual means the first day of the pay period following
the date on which the individual becomes an Eligible Employee or
the date(s) specified as Entry Date(s) in the Adoption
Agreement.
1.18 PARTICIPANT means any
person so designated in accordance with the provisions of Article
2, including, where appropriate according to the context of the
Plan, any former employee who is or may become (or whose
Beneficiaries may become) eligible to receive a benefit under the
Plan.
1.19 PERFORMANCE-BASED
COMPENSATION means that portion of an Eligible Employee’s
Compensation which is based on the performance by the Eligible
Employee of services for the Employer over a period of at least
twelve (12) months and which qualifies as
“performance-based compensation” under Code section
409A.
1.20 PLAN means this Specimen
Section 451 Deferred Compensation Plan, as amended from time
to time.
1.21 PLAN YEAR means the
twelve (12) month period ending on the December 31 of
each year during which the Plan is in effect. The Plan may
experience a short Plan Year from its Effective Date until the
following December 31.
1.22 SEPARATION FROM SERVICE
means separation from service within the meaning of Code section
409A.
1.23 SPECIFIED EMPLOYEE
means, with respect to a corporation any stock of which is publicly
traded on an established securities market or otherwise, a key
employee, as defined in Code section 416(i) (without regard to
paragraph (5) of that section) to mean an employee of the
Employer who, at any time during the Plan Year, is (1) an
officer of the Employer having an annual compensation greater than
one hundred thirty-five thousand dollars ($135,000) for 2005
(indexed for inflation in future years); (ii) a five-percent
(5%) owner of the Employer; or (iii) a one-percent
(1%) owner of the Employer having an annual compensation from
the Employer of more than one hundred fifty thousand dollars
($150,000).
1.24 TRUST means (if a Trust
is elected in the Agreement) the Trust described in Article
11.
1.25 TRUSTEE means (if a
Trust is elected in the Agreement) the trustee of the Trust
described in Article 11.
1.26 VALUATION DATE means
each day of each Plan Year.
ARTICLE 2
ELIGIBILITY AND
PARTICIPATION
2.1 REQUIREMENTS . Every
Eligible Employee on the Effective Date shall be eligible to become
a Participant on the Effective Date. Every other Eligible Employee
shall be eligible to become a Participant on his or her first Entry
Date. No individual shall become a Participant, however, if he or
she is not an Eligible Employee on the date his or her
participation is to begin.
3
Participation in the Compensation
Deferral portion of the Plan (if Compensation Deferrals are elected
in the Agreement) is voluntary. In order to participate in the
Compensation Deferral portion of the Plan, an otherwise Eligible
Employee must make written application on an Election Form at such
time and in such manner as may be required by Section 3.1 and
by the Employer and must agree to make Compensation Deferrals as
provided in Article 3.
Participation in the Employer
Contribution Credit Account portion of the Plan (if Employer
Contribution Credits are elected in the Agreement) is automatic and
does not require a Participant’s election to
participate.
2.2 RE-EMPLOYMENT . Subject
to Code section 409A, if a Participant whose employment with the
Employer is terminated is subsequently re-employed, he or she shall
become a Participant in accordance with the provisions of
Section 2.1.
2.3 CHANGE OF EMPLOYMENT
CATEGORY . During any period in which a Participant remains in
the employ of the Employer, but ceases to be an Eligible Employee,
he or she shall not be eligible to make Compensation Deferrals or
receive Employer Contribution Credits.
ARTICLE 3
CONTRIBUTIONS AND
CREDITS
3.1 PARTICIPANT COMPENSATION
DEFERRALS . If Compensation Deferrals are elected in the
Agreement, subject to the remaining paragraphs of this Section and
in accordance with rules established by the Employer and subject to
such amount limitations as might be imposed by the Employer in its
discretion, a Participant may elect to defer Compensation which is
due to be earned and which would otherwise be paid to the
Participant, in any fixed periodic dollar amounts or percentages
designated by the Participant. Amounts so deferred will be
considered a Participant’s “Compensation
Deferrals.” Except as provided below, a Participant shall
make such election(s) under this paragraph with respect to a coming
twelve (12) month Plan Year during the period beginning sixty
days before the end of the Plan Year and ending on the last day of
the Plan Year, or during such other period as might be established
by the Employer, which period ends no later than the last day of
the Plan Year preceding the Plan Year in which the services giving
rise to the Compensation to be deferred are to be
performed.
In the case of the first Plan Year
in which an Eligible Employee becomes eligible to become a
Participant, if and to the extent permitted by the Employer, the
Eligible Employee may make an election no later than thirty
(30) days after the date he or she becomes eligible to become
a Participant to defer Compensation for services to be performed
after the election.
If and to the extent permitted by
the Employer, a Participant may make an election to defer
Performance-Based Compensation no later than six (6) months
prior to the last day of the period over which the services giving
rise to the Performance-Based Compensation are
performed.
4
Compensation Deferrals shall be made
through regular payroll deductions or through an election by the
Participant to defer the payment of a bonus, if applicable. The
Participant may change or revoke his or her Compensation Deferral
election only if and to the extent permitted by the Employer and in
accordance with the provisions of Code section 409A specifically
relating to the change and/or revocation of deferral elections.
Generally, Compensation Deferral elections are
irrevocable.
Compensation Deferrals shall be
deducted by the Employer from the pay of a deferring Participant
and shall be credited to the Compensation Deferral Account of the
deferring Participant.
There shall be established and
maintained a separate Compensation Deferral Account in the name of
each Participant to which shall be credited or debited:
(a) amounts equal to the Participant’s Compensation
Deferrals; and (b) amounts equal to any deemed earnings or
losses (to the extent realized, based upon deemed fair market value
of the Compensation Deferral Account’s deemed assets, as
determined by the Employer, in its discretion) attributable or
allocable thereto.
A Participant shall at all times be
100% vested in amounts credited to his or her Compensation Deferral
Account.
If the Employer elects in the
Agreement to link this Plan to the Employer’s qualified
retirement plan, a Participant may elect to defer Compensation
which is due to be earned by the Participant in any fixed periodic
dollar or percentage amount that does not exceed the limit with
respect to elective deferrals under Code section 402(g) in effect
for the taxable year in which such deferrals are made (not taking
into account any catch-up contributions permitted under Code
section 414(v)).
3.2 EMPLOYER CONTRIBUTION
CREDITS . If Employer Contribution Credits are elected in the
Agreement, there shall be established and maintained a separate
Employer Contribution Credit Account in the name of each
Participant. Each such Employer Contribution Credit Account shall
be credited or debited, as applicable, with (i) amounts equal
to the Employer’s Contribution Credits, if any, credited to
that Account; and (ii) amounts equal to any deemed earnings
and losses (to the extent realized, based upon deemed fair market
value of the Account’s deemed assets as determined by the
Employer, in its discretion) allocated to that Account.
The Employer Contribution Credits
credited to a Participant’s Employer Contribution Credit
Account for any particular Plan Year shall be an amount (if any)
identified in the Agreement. The Employer shall credit such
contributions on behalf of such individuals, in such amounts and
with such frequency as the Board determines in its sole discretion.
A Participant shall become vested in amounts credited to his or her
Employer Contribution Credit Account according to the vesting
schedule established in the Agreement.
3.3 CONTRIBUTIONS TO THE
TRUST . An amount shall be contributed by the Employer to the
Trust (if any) maintained under Section 11.1 equal to the
amount(s) required to be credited to the Participant’s
Account under Sections 3.1 and 3.2. The Employer shall make a good
faith effort to contribute these amounts to the Trust as soon as
practicable following the date on which the contribution credit
amount(s) are determined.
5
If elected in the Agreement, as soon
as administratively feasible following the end of each Plan Year
(or as otherwise required by the Code), the Employer or the
Trustee, if any, shall transfer, on behalf of each Participant,
from the general assets of the Employer or the Trust, if any, to
the trust established for the Employer’s qualified retirement
plan, an amount equal to the lesser of (a) the maximum amount
of pre-tax deferrals that the Participant could have made to the
Employer’s qualified retirement plan for that previous Plan
Year, within the limits imposed under the terms of the
Employer’s qualified retirement plan and the Code (including
Code sections 402(g), 401(k) and 401(m)), or (b) the amount of
Compensation Deferrals the Participant actually deferred under the
terms of this Plan for that Plan Year; provided however, the
Employer or the Trustee shall not transfer any amounts attributable
to earnings, and the Trustee shall not transfer an amount of
Compensation Deferrals that exceeds the limit with respect to
elective deferrals under Code section 402(g) in effect for the
taxable year for which such transfer occurs.
ARTICLE 4
ALLOCATION OF
FUNDS
4.1 INVESTMENT AUTHORITY OVER
ACCOUNT .
(a) Participant Direction .
If elected in the Agreement, each Participant shall have the right
to direct the Employer as to how amounts in his or her Compensation
Deferral Account and/or Employer Contribution Credit Account (as
applicable) shall be deemed to be invested.
(b) Employer Direction . If
elected in the Agreement, the Employer (or its designee) shall have
the right to direct how amounts in a Participant’s
Compensation Deferral Account and/or Employer Contribution Credit
Account (as applicable) shall be deemed to be invested.
(c) Update on Accounts to Reflect
Investment Performance . On a daily basis, a
Participant’s Account will be credited or debited to reflect
the Participant’s deemed pro rata portion of the value of
each deemed investment position maintained under the
Plan.
4.2 ACCOUNTING FOR
DISTRIBUTIONS . As of the date of any distribution under this
Plan, the distribution made to the Participant or his or her
Beneficiary or Beneficiaries shall be charged to such
Participant’s Account. The amount of the distribution shall
be charged on a pro rata basis against the investments in which the
Participant’s Account is deemed to be invested (or shall be
charged in any other manner acceptable to the Employer and directed
by the person or entity with investment authority over the
Account).
The fact that an allocation has been
made will not operate to vest in any Participant any right, title
or interest in any benefit under the Plan. Vesting shall occur only
as provided in Article 3 and in the Agreement.
4.3 SEPARATE ACCOUNTS . A
separate bookkeeping account under the Plan shall be established
and maintained by the Employer to reflect the Account for each
Participant with bookkeeping sub-accounts to show separately the
Participant’s Compensation Deferral Account (if applicable)
and the Participant’s Employer Contribution Credit Account
(if applicable). Each sub-account will separately account for the
credits and debits described in Article 3.
6
4.4 DEEMED INVESTMENT
DIRECTIONS . Subject to such limitations as may from time to
time be required by law, imposed by the Employer, the Trustee (if
applicable) or contained elsewhere in the Plan, and subject to such
operating rules and procedures as may be imposed from time to time
by the Employer, the person or entity having control over the
investment of the Account (as determined in the Agreement) will
have the right to make the initial investment election by
submission of a written form or an electronic form via a web site.
Each person or entity having control over the investment of an
Account may give the Employer a direction (in accordance with (a),
below) as to how the applicable Plan Account should be deemed to be
invested among such categories of deemed investments as may be made
available by the Employer under this Plan, which may be unlimited,
at the Employer’s sole discretion. Such direction shall
designate the percentage (in any whole percent multiples) of each
portion of the Participant’s Plan Accounts which is requested
to be deemed to be invested in such categories of deemed
investments, and shall be subject to the following
rules:
(a) Any initial or subsequent deemed
investment direction shall be in writing, on a form supplied by and
filed with the Employer, and/or, as required or permitted by the
Employer, shall be by oral designation and/or electronic
transmission designation. A designation shall be effective as of
the date following the date the direction is received and accepted
by the Employer on which it would be reasonably practicable for the
Employer to effect the designation. Generally, any initial or
subsequent deemed investment direction shall be effective no later
than the second business day after which the investment direction
is received.
(b) All amounts credited to the
Participant’s Account shall be deemed to be invested in
accordance with the then effective deemed investment direction, and
as of the effective date of any new deemed investment direction,
all or a portion of the Participant’s Account at that date
shall be reallocated among the designated deemed investment funds
according to the percentages specified in the new deemed investment
direction unless and until a subsequent deemed investment direction
shall be filed and become effective. An election concerning deemed
investment choices shall continue indefinitely as provided in the
Participant’s most recent investment direction form provided
by and filed with the Employer.
(c) If the Employer receives an
initial or revised deemed investment direction which it deems to be
incomplete, unclear or improper, the Participant’s investment
direction then in effect shall remain in effect (or, in the case of
a deficiency in an initial deemed investment direction, the
Participant shall be deemed to have filed no deemed investment
direction) until the Participant completes a new investment
direction.
(d) If the Employer possesses (or is
deemed to possess as provided in (c), above) at any time directions
as to the deemed investment of less than all of a
Participant’s Account, the Participant shall be deemed to
have directed that the undesignated portion of the Account be
deemed to be invested in a fund made available under the Plan as
determined by the Employer in its discretion.
7
(e) Each Participant, as a condition
to his or her participation in this Plan, agrees to indemnify and
hold harmless the Employer and its agents and representatives from
any losses or damages of any kind relating to the deemed investment
of the Participant’s Account.
(f) Each reference in this Section
to a Participant shall be deemed to include, where applicable, a
reference to a Beneficiary of a deceased Participant.
4.5 EXPENSES AND TAXES .
Expenses, including Trustee fees (if any), associated with the
administration or operation of the Plan shall be paid by the
Employer from its general assets unless the Employer elects to
charge such expenses against the appropriate Participant’s
Account or Participants’ Accounts. Any taxes allocable to an
Account (or portion thereof) maintained under the Plan which are
payable prior to the distribution of the Account (or portion
thereof), as determined by the Employer, shall be paid by the
Employer unless the Employer elects to charge such taxes against
the appropriate Participant’s Account or Participants’
Accounts.
ARTICLE 5
ENTITLEMENT TO
BENEFITS
5.1 PAYMENT DATES . This
Section shall apply only as elected by the Employer in the
Agreement.
At the earlier of the time the
Participant makes his or her initial Compensation Deferral election
or the time Employer Contribution Credits are first credited to his
or her Account, a Participant shall elect to receive payment of his
or her vested Account, which payment will be valued and payable
according to the provisions of Article 6: (i) ninety
(90) days following the Participant’s Separation from
Service with the Employer for any reason (including death or
Disability); (ii) on a fixed payment date or dates (the
“Fixed Payment Date(s)”); (iii) at the earlier of
the preceding event or date(s); or (iv) at the earlier of
ninety (90) days after a Change in Control and one or more of
the preceding events or date(s).
Notwithstanding the foregoing, if
and when the Employer becomes a corporation whose stock is publicly
traded on an established securities market or otherwise, any
Participant who is a Specified Employee and who incurs a Separation
from Service with the Employer shall not be entitled to receive any
portion of his or her vested Account under this Section prior to
the date which is at least six (6) months after the date or
his or her Separation from Service (or, if earlier, his or her
death).
Any Fixed Payment Date elected by a
Participant must be a date no earlier than the January 1 of
the third calendar year after the calendar year in which the
earliest Compensation Deferrals and/or Employer Contribution
Credits subject to the Fixed Payment Date are to be made by or on
behalf of the Participant (or, if applicable, the January 1 of
the third calendar year in which a new Compensation Deferral and/or
Employer Contribution Credit is made after the Participant has
received a distribution of his or her previously vested Account).
By way of example, an Eligible Employee who enrolls as a
Participant in the Plan in November 2006 and who elects to defer
Compensation to be earned during 2007 may elect at that time as his
or her initial Fixed Payment Date any date which is no earlier than
January 1, 2010, in which case the Participant’s vested
Plan Account as of December 31, 2009 (including his or her
2007, 2008 and 2009 Compensation Deferrals and/or Employer
Contribution Credits, and any earnings on those amounts) shall be
paid on January 1, 2010.
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If permitted by the Employer in the
Agreement, any Fixed Payment Date may be delayed, to a later Fixed
Payment Date, so long as any election to delay the date is made by
the Participant at least twelve (12) months prior to the date
on which the distribution is to be made and such delay is at least
five (5) full calendar years in length. Such Fixed Payment
Date may not be accelerated, except as provided in the remaining
Sections of this Article.
5.2 UNFORESEEABLE EMERGENCY
DISTRIBUTIONS . If permitted by the Employer in the Agreement,
in the event the Participant incurs an unforeseeable emergency, as
defined below, the Participant may apply to the Employer for the
distribution of all or any part of his or her Account attributable
to Compensation Deferrals and/or fully vested Employer Contribution
Credits. The Employer shall consider the circumstances of each such
case, and the best interests of the Participant and his or her
family, and shall have the right, in its sole discretion, if
applicable, to allow such distribution, or, if applicable, to
direct a distribution of part of the amount requested, or to refuse
to allow any distribution; provided, however, that such
distribution shall be permitted solely to the extent permitted
under Code section 409A. Upon a finding of unforeseeable emergency,
the Employer shall direct that the appropriate distribution is made
to the Participant with respect to the Participant’s vested
Account in a lump sum payment. In no event shall the aggregate
amount of the distribution exceed either the full value of the
Participant’s vested Account or the amount determined by the
Employer to be necessary to satisfy the unforeseeable emergency
plus amounts necessary to pay taxes reasonably anticipated as a
result of the distribution, after taking into account the extent to
which the hardship is or may be relieved through reimbursement or
compensation by insurance or otherwise or by liquidation of the
Participant’s assets (to the extent the liquidation of assets
would not itself cause severe financial hardship). For purposes of
this Section, the value of the Participant’s vested Account
shall be determined as of the date of the distribution.
For purposes of this Section,
“unforeseeable emergency” means (a) a severe
financial hardship to the Participant resulting from an illness or
accident of the Participant, the Participant’s spouse or a
dependent (as defined in Code section 152(a)) of the Participant,
(b) loss of the Participant’s property due to casualty,
or (c) other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of
the Participant, each as determined to exist by the Employer. A
distribution may be made under this Section only with the consent
of the Employer.
5.3 DEATH, DISABILITY . Upon
the Participant’s death or Disability, the
Participant’s vested Account shall be valued and paid to the
Participant or the Participant’s designated Beneficiary(ies),
as applicable, as provided in Article 6.
5.4 FORFEITURES . The vested
portion of a Participant’s Plan Account shall be payable as
provided in this Article. The unvested portion of such Plan Account
shall be forfeited and allocated in the manner described below.
Forfeitures of Employer Contribution Credits may be used first to
pay any expenses payable by the Trust (if any) for the Plan Year
and then shall be used to reduce the Employer Contribution Credits,
if any, for the Plan Year (or shall be returned to the Employer if
future Employer Contributions equal to the amount of the
forfeitures are not anticipated).
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ARTICLE 6
DISTRIBUTION OF
BENEFITS
6.1 AMOUNT . A Participant
(or his or her Beneficiary) shall become entitled to receive, on
the date or dates determined in accordance with Article 5, a
distribution (or commencement of distributions) in an aggregate
amount equal to the Participant’s vested Account. If a Trust
is elected under the Agreement, any payment due under the terms of
the Plan from the Trust which is not paid by the Trust for any
reason will be paid by the Employer from its general
assets.
6.2 METHOD OF PAYMENT
.
(a) Cash Payments . All
payments under the Plan shall be made in cash.
(b) Timing and Manner of
Payment . Except as otherwise provided in this Plan, on the
date or dates determined in accordance with Article 5, an aggregate
amount equal to the Participant’s vested Account will be paid
by the Trust or the Employer, as provided in Section 6.1 (and
as elected in the Agreement), in (i) a lump sum, or
(ii) in up to ten annual installments (adjusted for gains and
losses), as selected by the Participant at the time he or she makes
his or her initial Compensation Deferral election or the time
Employer Contribution Credits are first credited to his or her
Account. If a Participant fails to designate properly the manner of
payment of the Participant’s benefit under the Plan, the
Participant will be deemed to have elected a lump sum payment. If a
Participant fails to designate properly the timing of payment of
the Participant’s benefit under the Plan, the Participant
will be deemed to have elected payment of his or her vested Account
ninety (90) days following Separation from Service (subject to
the six month delay rule described in Section 5.1).
Subject to Section 6.3 and if
elected by the Employer in the Agreement, the Participant may
change his or her above-described timing and manner of payment
elections (or deemed elections) by submitting a new Election Form
to the Employer, provided that any such Election Form is submitted
at least twelve (12) months prior to the date on which the
distribution is to be made (or commence) and delays the
distribution (or commencement of distributions) date at least five
(5) full calendar years from the previously scheduled
distribution date.
If the whole or any part of a
payment under this Plan is to be in installments, the total to be
so paid shall continue to be deemed to be invested pursuant to
Article 4 under such procedures as the Employer may establish, in
which case any deemed income, gain, loss or expense or tax
allocable thereto (as d