Exhibit 10.34
SPEEDWAY SUPERAMERICA
LLC
DEFERRED COMPENSATION
PLAN
Effective
January 1,
2009
Table of Contents
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ARTICLE I. Definitions
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1
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ARTICLE II. Eligibility
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2
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ARTICLE III. Deferral of
Compensation
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3
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ARTICLE IV. Other Contributions
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3
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ARTICLE V. Accounting
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4
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ARTICLE VI. Vesting
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4
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ARTICLE VII. Distribution of
Benefits
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4
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ARTICLE VIII. Funding
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5
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ARTICLE IX. Plan Administration
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6
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ARTICLE X. Modification and
Discontinuance
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8
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ARTICLE XI. General Provisions
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9
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SPEEDWAY SUPERAMERICA
LLC
DEFERRED COMPENSATION
PLAN
This document contains the
provisions of the Speedway SuperAmerica LLC Deferred Compensation
Plan (the “Plan”) as of January 1, 2009, and shall
apply only to Accounts that are not fully distributed as of such
date, including 409A Deferrals and Grandfathered Deferrals that are
exempt from Code section 409A.
With respect to the 409A Deferrals,
the Plan, as amended and restated, is intended to conform to the
requirements of Code section 409A and the regulations thereunder,
and, in all respects, shall be administered and construed in
accordance with such requirements. With respect to the
Grandfathered Deferrals, the Plan, as amended and restated, does
not represent a material enhancement of the benefits or rights
available under the Plan on October 3, 2004.
ARTICLE I.
Definitions
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1.1.
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“409A
Deferrals” means
those amounts deferred or that became vested after 2004, with
earnings and losses attributable thereto, as determined in
accordance with Code section 409A.
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1.2.
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“Account” means an unfunded liability of the Employer in
the name of each Participant. “Account” shall refer to
the Participant’s entire benefit accrued under the terms of
the Plan unless a provision refers specifically to any
“Sub-Account” as described in Article VII.
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1.3.
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“Affiliated Company”
means the Company and each related
company or business which is part of the same controlled group
under Code sections 414(b) or 414(c); provided that where specified
by the Employer in accordance with Code section 409A in applying
Code section 1563(a)(1) – (a)(3) for purposes of determining
a controlled group of corporations under Code section 414(b) and in
applying Treasury Regulation section 1.414(c)-2 for purposes of
determining whether trades or businesses are under common control
under Code section 414(c), the phrase “at least 50
percent” is used instead of “at least 80
percent.” The term “Affiliated Company” shall
also include any entity that previously met the requirements of an
Affiliated Company as set forth herein that continues to employ a
Participant to the extent so designated by the Plan
Administrator.
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1.4.
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“Beneficiary”
means any person(s) designated in
writing by a Participant to receive payment under this Plan in the
event of the Participant’s death. In the event the
Participant is married and has designated no other beneficiary (or
if the designated beneficiary has predeceased the Participant),
Beneficiary shall mean the Participant’s spouse. In the event
the Participant is not married at death and has designated no
beneficiary (or if the designated beneficiary has predeceased the
Participant), Beneficiary shall mean the Participant’s
estate.
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1.5.
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“Board” means the Board of Managers of Speedway
SuperAmerica LLC.
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1.6.
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“Code” means the Internal Revenue Code of 1986, as
amended including regulations and other guidance of general
applicability promulgated thereunder.
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1.7.
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“ Code
section 409A ” means, collectively, section 409A of the
Code and any Treasury and Internal Revenue Service regulations and
guidance issued thereunder.
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1.8.
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“Company” means Speedway SuperAmerica LLC.
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1.9.
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“Compensation”
means gross pay as defined in the
Thrift Plan without regard to any Code limitations.
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1.10.
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“Eligible Employee”
means a select group of management
Employees who are nominated by the Board, whose Compensation is
equal to or greater than the amount that is provided in Code
section 414(q)(1)(B) as adjusted annually pursuant to the last
paragraph of Code section 414(q)(1).
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1.11.
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“Employee” means any individual employed by the Company or
an Affiliated Company.
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1.12.
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“Employer” means Speedway SuperAmerica LLC, Speedway
Beverage LLC, SuperAmerica Beverage LLC, SuperAmerica Franchising
LLC and any other Affiliated Company that adopts the Plan with the
Board’s consent.
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1.13.
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“ERISA” means the Employee Retirement Income Security
Act of 1974 as amended.
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1.14.
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“Grandfathered Deferrals”
means those amounts deferred and
vested before January 1, 2005, with earnings and losses
attributable thereto, as determined in accordance with Code section
409A.
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1.15.
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“Grandfathered Deferrals
Sub-Account” means
that portion of a Participant’s Account that consists of the
Grandfathered Deferrals.
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1.16.
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“Participant”
means an Eligible Employee or
Eligible Grandfathered Employee who elects to participate in and/or
receives contributions under the Plan pursuant to Article III or
Article IV of this Plan and includes any individual for whom, as of
January 1, 2009, an Account is maintained pursuant to the Plan
that has not yet been fully distributed.
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1.17.
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“Plan” means The Speedway SuperAmerica LLC Deferred
Compensation Plan as set forth in this document.
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1.18.
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“Plan
Administrator” means C. R. Rough and any successor as
designated by the Board to administer the Plan.
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1.19.
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“Plan
Year” means the
12-consecutive month period beginning each January 1 and
ending each December 31.
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1.20.
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“Salary Deferral”
means the total amount deferred by
the Participant from Compensation under Article III.
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1.21.
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“Separation from Service”
shall have the same meaning as set
forth under Code section 409A with respect to an Affiliated
Company.
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1.22.
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“
Specified Employee ” shall have the meaning as set
forth under Code section 409A and as determined by the Employer in
accordance with its established policy.
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1.23.
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“
Thrift Plan ” shall mean the Speedway SuperAmerica LLC
Retirement Savings Plan.
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ARTICLE II.
Eligibility
An Eligible Employee is eligible to
participate in the Plan upon receipt of a written offer of
participation and in accordance with the rules established for such
purpose by the Plan Administrator, consistent with Code section
409A. Eligible Employees are selected annually by the
Board.
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2.2.
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Termination
of Participation
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In the event that a Participant
ceases to be an Eligible Employee, the Participant’s current
Salary Deferral election shall remain in effect, and thereafter,
the Participant shall make no further deferrals unless and until
the Participant again becomes eligible under
Section 2.1.
ARTICLE III. Deferral of
Compensation
Each Participant may elect, prior to
the first day of any Plan Year, to make Salary Deferrals (in 1%
increments) of up to 25% of his or her Compensation for the Plan
Year as provided in the deferral election form. A newly hired
Eligible Employee who becomes a Participant in the year of hire may
elect to make Salary Deferrals of his or her Compensation for such
year pursuant to rules established for such purpose by the Plan
Administrator, consistent with Code section 409A.
A Participant’s Salary
Deferrals may be taken from the Participant’s Compensation
ratably during the applicable Plan Year or in any other manner
determined by the Plan Administrator; provided that such Salary
Deferrals during the Plan Year, in the aggregate, reflect the
Participant’s Salary Deferral election in accordance with
Code section 409A.
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3.3.
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General
Election Rules
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The Plan Administrator may
establish, in its discretion, from time to time, rules allowing
deferral elections to be made later than prescribed in this Article
III to the extent permitted under Code section 409A. Deferral
elections shall be in the form and manner required by the Plan
Administrator, shall be irrevocable and shall not defer more than
that amount which is otherwise available for payment to the
Participant net of any and all required federal, state and local
withholding obligations (determined taking into account the effect
of the deferral) and other qualified plan and pre-tax salary
deferrals. Notwithstanding any other provision of this Article III,
the Plan Administrator may require that a Participant submit
deferral elections prior to the date otherwise specified in this
Article III.
ARTICLE IV. Matching
Contributions
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4.1.
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Matching
Contributions on Salary Deferrals
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A Participant shall be credited each
year with a match equal to sixty-seven cents ($.67) for each dollar
($1.00) of the first six percent (6%) of such
Participant’s Salary Deferrals during the year. The maximum
match shall be four percent (4%) of Compensation.
Matching contributions under this
Article IV may be credited on a pay-period basis or in any other
manner determined by the Plan Administrator; provided that such
matching contributions during the Plan Year, in the aggregate,
reflect the correct amount determined under this Article
IV.
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ARTICLE V.
Accounting
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5.1.
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Allocation
to Participant’s Account
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Any Salary Deferrals under Article
III or matching contributions under Article IV shall be credited to
the Participant’s Account in the manner designated by the
Plan Administrator.
A Participant may select from a list
of hypothetical investment options that will be the same as the
investment options offered and modified from time to time under the
terms of the Thrift Plan (other than the stock of Marathon Oil
Corporation). Earnings, gains and losses received on the
investments will be credited to the Participant’s Account in
the manner designated by the Plan Administrator. The Plan
Administrator shall develop such accounting procedures as it, in
its sole discretion, deems advisable to properly reflect the value
attributable to the Participant’s Account.
ARTICLE VI.
Vesting
A Participant’s Accounts shall
always be immediately vested.
ARTICLE VII. Distribution of
Benefits
A Participant shall be entitled to a
cash distribution of the Participant’s Account as provided in
this Article VII.
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7.1.
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General Rule
for Distributions
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Except as otherwise provided in this
Article VII, a Participant’s Account shall be paid in a lump
sum on Separation from Service for any reason other than death.
Participants who Separate from Service on or after January 1,
2009 may elect to receive the lump sum within 90 days of Separation
from Service or on February 1 of the calendar year following
the calendar year in which the Separation from Service occurs. This
election shall be made by the later of: a) December 31, 2008,
or b) the date the Participant first submits a timely election to
Salary Deferral contributions to the Plan.
In the event of the death of a
Participant, the Participant’s Account shall be paid to the
Participant’s Beneficiary in a lump sum within 90 days of the
Participant’s death or, if earlier, within the 90-day period
following the Participant’s Separation from Service as
described in Section 7.1 (or, in the event of a Separation
from Service of a Specified Employee not on account of death, the
90-day period described in Section 7.5).
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A Participant may request a hardship
distribution of all or a portion of his Accounts. A request for a
hardship distribution shall be made to the Plan Administrator. Such
request shall be made in writing to the Plan Administrator and
shall be made in accordance with the rules established by the Plan
Administrator. A hardship distribution shall only be made in the
event of an unforeseeable emergency that would result in financial
hardship to the Participant if hardship distributions were not
permitted. Withdrawal of amounts becau
