Exhibit 10.1
TAYLOR CAPITAL GROUP, INC.
DEFERRED COMPENSATION PLAN
WHEREAS, Taylor Capital Group, Inc. (the
“Company”) heretofore adopted the “Taylor Capital
Group. Inc. Deferred Compensation Plan” (the
“Plan”), an unfunded plan maintained for the purpose of
providing deferred compensation for a select group of management or
highly compensated employees within the meaning of the United
States Code of Federal Regulations Section 2520.104-23 and
Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement
Income Security Act of 1974 (“ERISA”); and
WHEREAS, the Company desires to amend the Plan to satisfy
the requirements of Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”);
NOW, THEREFORE,
effective December 30, 2008,
the Plan is amended and restated to comply with the final
regulations under Section 409A of the Code, with the Plan
being operated in good faith compliance with Code Section 409A
for the period January 1, 2005 to December 31,
2008.
SECTION 1. PURPOSE OF
PLAN
The Plan is unfunded and is
maintained for the purpose of providing deferred compensation to a
select group of management and highly compensated employees of the
Company within the meaning of the United States Code of Federal
Regulations Section 2520.104-23 and Sections 201(2), 301(a)(3)
and 401(a)(1) of the ERISA. The Plan will be administered in
accordance with such purpose and in accordance with the provisions
of Section 409A of the Code.
SECTION 2.
DEFINITIONS
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2.1
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“Administrator”
means the Board or the committee or
subcommittee appointed pursuant to Section 16.1.
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2.2
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“Beneficiary”
means the person or entity
determined to be a Participant’s beneficiary pursuant to
Section 14.
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2.3
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“Board” means the board of directors of the
Company.
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2.4
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“Change in Control”
means a “change in
control” as defined in the Taylor Capital, Inc. Senior
Officer Change in Control Severance Plan.
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2.5
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“Code” means the Internal Revenue Code of 1986, as
amended from time to time.
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2.6
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“Company ” means Taylor Capital Group,
Inc.
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1
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2.7
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“Compensation”
means the base salary, commissions,
and bonus under the Taylor Capital Group, Inc. Incentive Bonus Plan
paid to a Participant for the Plan Year.
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2.8
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“Disability” means a condition in which the Participant is
unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which, in
the opinion of the Administrator, can be expected to result in
death or can be expected to last for a continuous period of not
less than 12 months.
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2.9
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“Early
Retirement Age” means sixty-two (62) and ten
(10) years of service.
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2.10
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“ERISA” means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
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2.11
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“401(k) Plan”
means the Taylor Capital Group, Inc.
401(k) and Profit Sharing Plan, as amended from time to
time.
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2.12
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“Normal Retirement Age
” means sixty-five
(65).
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2.13
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“Participant”
means an employee of the Company who
is eligible to participate in the Plan pursuant to
Section 3.
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2.14
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“Plan” means the Taylor Capital Group, Inc. Deferred
Compensation Plan, as set forth herein and as amended from time to
time.
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2.15
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“Plan
Year ” means the
calendar year.
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SECTION 3. ELIGIBLE
EMPLOYEES
The Administrator shall determine
which management employees and highly compensated employees of the
Company shall be eligible to participate in the Plan from time to
time, the eligibility waiting period and such other conditions as
may be applicable from time to time.
SECTION 4. ELECTION TO DEFER
COMPENSATION
A Participant may elect to defer a
specified percentage of his or her base salary and commissions
(from one percent (1%) to seventy-five percent (75%) for
a Plan Year by filing an election with the Administrator (pursuant
to Section 5) on or prior to November 30 (or such other
date not later than December 31 that the Administrator may
specify) of the preceding Plan Year. A Participant may elect to
make a separate deferral election with respect to any annual bonus
paid under the Taylor Capital Group, Inc. Incentive Bonus Plan
(“success bonus”) to be earned for a Plan Year. Any
election so made shall not be binding for any following Plan Year,
and thus a new election must be filed for any following Plan Year
on or before November 30 (or such other date not later than
December 31 that the Administrator may specify) of the
immediately preceding Plan Year. Provided, however, that, subject
to the provisions of Section 409A of the Code, a Participant
who first becomes eligible to participate in the Plan after the
beginning of a Plan Year shall be entitled to make a deferral
election (with respect to Compensation and any success bonus to be
earned after the date of the election) within thirty (30) days
of becoming eligible.
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In connection with a Participant’s
deferral election, each Participant may elect to establish up to
ten (10) separate “college education” and/or
“personal goals” sub-accounts, to which shall be
credited such portion of his or her deferrals as the Participant
may designate. Any amounts not credited to a subaccount shall be
credited to a Participant’s retirement account. Any Company
matching contributions made on behalf of a Participant under
Section 7 shall be evenly allocated among the accounts
established for the Participant under the Plan. Any discretionary
Company contributions made under Section 7 shall be allocated
in accordance with the percentage by which a Participant’s
deferrals are to be allocated among such accounts. Subject to the
provisions of Section 11, any college education and/or
personal goal sub-accounts established for a Participant shall be
distributed as of July 1 of the year selected by the
Participant on the election form used to make his or her deferral
election.
SECTION 5. MANNER OF
ELECTION
Any election(s) made by a
Participant pursuant to this Plan shall be made by executing such
form(s) as the Administrator shall from time to time
prescribe.
SECTION 6.
ACCOUNTS
If a Participant elects to establish
one or more “college education” or “personal
goals” sub-account under Section 4, such account(s)
shall be established and maintained on the Company’s books
and shall record (a) any Compensation deferred by the
Participant under the Plan which the Participant has elected to be
credited to the applicable account, and any Company contributions
made on his behalf which have been allocated to the applicable
sub-account(s) pursuant to Section 4, and (b) the
allocation of any hypothetical investment experience. There shall
also be established for each Participant a separate
“retirement account” which shall record (a) any
Compensation deferred by the Participant, and any Company
contributions made on his behalf, which have not been specifically
allocated to any such sub-account(s) and (b) the allocation of
any hypothetical investment experience.
SECTION 7. COMPANY
CONTRIBUTIONS
For any Plan Year, the Company may
elect to credit to the account of each Participant, or any
Participant designated by the Board, an additional discretionary
amount equal to a specified percentage of such Participant’s
Compensation, a flat dollar amount and/or an amount equal to a
specified percentage of any Compensation deferred under
Section 4. Any such credit shall be made entirely at the
discretion of the Board.
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SECTION 8. ADJUSTMENTS TO
ACCOUNTS
Each Participant’s account(s)
shall be reduced by the amount of any distributions to the
Participant from the applicable account, and by any federal, state
and/or local tax withholding and any social security withholding
tax as may be required by law. Pursuant to procedures established
by the Administrator, each Participant’s account(s) shall be
adjusted as of each business day the New York Stock Exchange is
open to reflect the earnings or losses of any hypothetical
investment media as may be designated by the
Administrator.
SECTION 9. INVESTMENT OF
ACCOUNTS
For purposes of determining the
amount of earnings and appreciation and losses and depreciation to
be credited to a Participant’s account(s), each
Participant’s account(s) shall be deemed invested in the
investment options (designated by the Administrator as available
under the Plan) as the Participant may elect, from time to time, in
accordance with such rules and procedures as the Administrator may
establish. However, no provision of the Plan shall require the
Company to actually invest any amounts in any fund or in any other
investment vehicle.
SECTION 10. VESTED
STATUS
Subject to the following provisions
of the Plan, if a Participant “separates from service”
with the Company (within the meaning of Code Section 409A) for
any reason on or after his Normal Retirement Age or Early
Retirement Age, or prior to those dates as a result of the
Participant’s Disability or death, such Participant shall
have a nonforfeitable (vested) right to the fair market value of
the Participant’s account(s). If a Participant separates from
service prior to his Normal Retirement Age or Early Retirement Age
for any other reason other than his death or Disability, such
Participant shall be entitled to receive the vested value of his or
her account(s). For this purpose, each Participant shall at all
times have a nonforfeitable (vested) right to his or her account(s)
derived from any Compensation deferred pursuant to Section 4.
However, with respect to any Company contributions made on the
Participant’s behalf pursuant to Section 7, the
Participant shall have a nonforfeitable (vested) right to a
percentage of the fair market value of such portion of his or her
applicable account as follows:
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Vested Percentage
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Less than 1 year
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0
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%
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1 year but less than 2
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20
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%
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2 years but less than 3
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40
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%
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3 years but less than 4
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60
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%
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4 years but less than 5
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80
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%
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5 years or more
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100
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%
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For this purpose, a Participant
shall be credited with a Year of Service for each year of
“vesting service” earned under the 401(k)
Plan.
The nonvested portion of a
Participant’s account, as determined above, shall be
forfeited as of the Participant’s separation from service (or
payment date in the case of a personal goals sub-account), and
shall be used to reduce Company contributions under Section 7
and/or used to
