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SPECIMEN SECTION 451 DEFERRED COMPENSATION PLAN

Executive Compensation Plan Agreement

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FUEL SYSTEMS SOLUTIONS, INC.

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Title: SPECIMEN SECTION 451 DEFERRED COMPENSATION PLAN
Date: 3/10/2009
Industry: Auto and Truck Parts     Sector: Consumer Cyclical

SPECIMEN SECTION 451 DEFERRED COMPENSATION PLAN, Parties: fuel systems solutions  inc.
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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

 

ARTICLE 1

DEFINITIONS

1.1

  

ACCOUNT

  

1

1.2

  

AGREEMENT

  

1

1.3

  

BENEFICIARY

  

1

1.4

  

BOARD

  

1

1.5

  

CHANGE IN CONTROL

  

1

1.6

  

CODE

  

2

1.7

  

COMPENSATION

  

2

1.8

  

COMPENSATION DEFERRAL ACCOUNT

  

2

1.9

  

COMPENSATION DEFERRALS

  

2

1.10

  

DISABILITY

  

2

1.11

  

EFFECTIVE DATE

  

2

1.12

  

ELECTION FORM

  

2

1.13

  

ELIGIBLE EMPLOYEE

  

2

1.14

  

EMPLOYER

  

2

1.15

  

EMPLOYER CONTRIBUTION CREDIT ACCOUNT

  

2

1.16

  

EMPLOYER CONTRIBUTION CREDITS

  

2

1.17

  

ENTRY DATE

  

3

1.18

  

PARTICIPANT

  

3

1.19

  

PERFORMANCE-BASED COMPENSATION

  

3

1.20

  

PLAN

  

3

1.21

  

PLAN YEAR

  

3

1.22

  

SEPARATION FROM SERVICE

  

3

1.23

  

SPECIFIED EMPLOYEE

  

3

1.24

  

TRUST

  

3

1.25

  

TRUSTEE

  

3

1.26

  

VALUATION DATE

  

3

ARTICLE 2

ELIGIBILITY AND PARTICIPATION

2.1

  

REQUIREMENTS

  

3

2.2

  

RE-EMPLOYMENT

  

4

2.3

  

CHANGE OF EMPLOYMENT CATEGORY

  

4

 

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ARTICLE 3

CONTRIBUTIONS AND CREDITS

3.1

  

PARTICIPANT COMPENSATION DEFERRALS

  

4

3.2

  

EMPLOYER CONTRIBUTION CREDITS

  

5

3.3

  

CONTRIBUTIONS TO THE TRUST

  

5

ARTICLE 4

ALLOCATION OF FUNDS

4.1

  

INVESTMENT AUTHORITY OVER ACCOUNT

  

6

4.2

  

ACCOUNTING FOR DISTRIBUTIONS

  

6

4.3

  

SEPARATE ACCOUNTS

  

6

4.4

  

DEEMED INVESTMENT DIRECTIONS OF PARTICIPANTS

  

7

4.5

  

EXPENSES AND TAXES

  

8

ARTICLE 5

ENTITLEMENT TO BENEFITS

5.1

  

PAYMENT DATES

  

8

5.2

  

UNFORESEEABLE EMERGENCY DISTRIBUTIONS

  

9

5.3

  

DEATH; DISABILITY

  

9

5.4

  

FORFEITURES

  

9

ARTICLE 6

DISTRIBUTION OF BENEFITS

6.1

  

AMOUNT

  

10

6.2

  

METHOD OF PAYMENT

  

10

6.3

  

ACCELERATIONS

  

10

6.4

  

DEATH OR DISABILITY BENEFITS

  

11

ARTICLE 7

BENEFICIARIES; PARTICIPANT DATA

7.1

  

DESIGNATION OF BENEFICIARIES

  

11

7.2

  

INFORMATION TO BE FURNISHED BY PARTICIPANTS AND BENEFICIARIES; INABILITY TO LOCATE PARTICIPANTS OR BENEFICIARIES

  

11

ARTICLE 8

ADMINISTRATION

8.1

  

ADMINISTRATIVE AUTHORITY

  

12

8.2

  

LITIGATION

  

13

8.3

  

CLAIMS PROCEDURE

  

13

 

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ARTICLE 9

AMENDMENT

9.1

  

RIGHT TO AMEND

  

17

9.2

  

AMENDMENTS TO ENSURE PROPER CHARACTERIZATION OF PLAN

  

17

ARTICLE 10

TERMINATION

10.1

  

EMPLOYER’S RIGHT TO TERMINATE OR SUSPEND PLAN

  

17

10.2

  

AUTOMATIC TERMINATION OF PLAN

  

17

10.3

  

SUSPENSION OF DEFERRALS

  

17

10.4

  

ALLOCATION AND DISTRIBUTION

  

17

10.5

  

SUCCESSOR TO EMPLOYER

  

18

ARTICLE 11

THE TRUST

11.1

  

ESTABLISHMENT OF TRUST

  

18

ARTICLE 12

MISCELLANEOUS

12.1

  

LIABILITY OF EMPLOYER; LIMITATIONS ON LIABILITY OF EMPLOYER OR EMPLOYER

  

18

12.2

  

CONSTRUCTION

  

18

12.3

  

SPENDTHRIFT PROVISION

  

19

12.4

  

AGGREGATION OF EMPLOYERS

  

19

12.5

  

TAX WITHHOLDING

  

19

 

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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.

 

8


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).

 

9


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


 
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