THE CORPORATE EXECUTIVE
BOARD
DEFERRED COMPENSATION PLAN, AS
AMENDED,
EFFECTIVE JANUARY 1,
2008
|
|
|
|
|
|
|
|
|
Page
|
ARTICLE I TITLE AND DEFINITIONS
|
|
|
55
|
|
|
|
|
|
55
|
|
|
|
|
|
|
|
|
|
|
|
57
|
|
|
|
|
|
|
|
ARTICLE III DEFERRAL ELECTIONS
|
|
|
57
|
|
3.1 Elections to Defer Compensation
|
|
|
57
|
|
|
|
|
|
58
|
|
|
|
|
|
|
|
ARTICLE IV DEFERRAL ACCOUNTS AND TRUST
FUNDING
|
|
|
59
|
|
|
|
|
|
59
|
|
4.2 Company Contribution Account
|
|
|
59
|
|
|
|
|
|
60
|
|
|
|
|
|
|
|
|
|
|
|
60
|
|
|
|
|
|
|
|
|
|
|
|
60
|
|
6.1 Distribution of Deferred Compensation and
Discretionary Company Contributions
|
|
|
60
|
|
|
|
|
|
61
|
|
6.3 Hardship Distribution
|
|
|
61
|
|
6.4 Inability to Locate Participant
|
|
|
61
|
|
|
|
|
|
|
|
ARTICLE VII ADMINISTRATION
|
|
|
62
|
|
|
|
|
|
62
|
|
|
|
|
|
62
|
|
7.3 Powers and Duties of the
Committee
|
|
|
62
|
|
7.4 Construction and Interpretation
|
|
|
62
|
|
|
|
|
|
63
|
|
7.6 Compensation, Expenses and
Indemnity
|
|
|
63
|
|
|
|
|
|
63
|
|
|
|
|
|
63
|
|
|
|
|
|
|
|
ARTICLE VIII MISCELLANEOUS
|
|
|
64
|
|
8.1 Unsecured General Creditor
|
|
|
64
|
|
8.2 Restriction Against Assignment
|
|
|
64
|
|
|
|
|
|
64
|
|
8.4 Amendment, Modification, Suspension or
Termination
|
|
|
64
|
|
|
|
|
|
65
|
|
|
|
|
|
65
|
|
8.7 Payments on Behalf of Persons Under
Incapacity
|
|
|
65
|
|
8.8 Limitation of Rights and Employment
Relationship
|
|
|
65
|
|
|
|
|
|
65
|
|
8.10 Section 409A of the Code
|
|
|
65
|
|
|
|
|
|
|
|
|
|
|
|
66
|
|
54
THE CORPORATE EXECUTIVE
BOARD
DEFERRED COMPENSATION
PLAN
The
Corporate Executive Board Company (the “Company”) has
determined that it is in the best interests of the Company to
establish The Corporate Executive Board Deferred Compensation Plan
(the “Plan”) for a select group of management or highly
compensated employees in order to serve as a vehicle for
attracting, incentivizing, and retaining high quality executive
employees. The Plan was originally adopted as of the Effective Date
and has been subsequently amended, effective as of January 1,
2006, to read as follows:
Whenever
the following words and phrases are used in this Plan, with the
first letter capitalized, they shall have the meanings specified
below.
(a)
“Account” or “Accounts” shall mean all of
such accounts as are specifically authorized for inclusion in this
Plan.
(b)
“Base Salary” shall mean a Participant’s annual
base salary and such commissions and bonuses as may be designated
as deferrable as Base Salary by the Committee and which do not
otherwise meet the definition of Incentive Compensation. Base
Salary shall exclude all other bonus, incentive and all other
remuneration for services rendered to Company and shall be
determined prior to reduction for any salary contributions to a
plan established pursuant to Sections 125, 132 or 401(k) of
the Code. In the case of a Participant who is a member of the Board
of Directors, the term “Base Salary” shall also include
any director fees or director retainers otherwise payable to such
Participant.
(c)
“Beneficiary” or “Beneficiaries” shall mean
the person or persons, including a trustee, personal representative
or other fiduciary, last designated in writing by a Participant in
accordance with procedures established by the Committee to receive
the benefits specified hereunder in the event of the
Participant’s death. No beneficiary designation shall become
effective until it is filed with the Committee. Any designation
shall be revocable at any time through a written instrument filed
by the Participant with the Committee with or without the consent
of the previous Beneficiary. No designation of a Beneficiary other
than the Participant’s spouse shall be valid unless consented
to in writing by such spouse. If there is no such designation or if
there is no surviving designated Beneficiary, then the
Participant’s surviving spouse shall be the Beneficiary. If
there is no surviving spouse to receive any benefits payable in
accordance with the preceding sentence, the Participant’s
estate, as represented by the duly appointed and currently acting
personal representative of the Participant’s estate (which
shall include either the Participant’s probate estate or
living trust) shall be the Beneficiary. In any case where there is
no such personal representative of the Participant’s estate
duly appointed and acting in that capacity within ninety
(90) days after the Participant’s death (or such
extended period as the Committee determines is reasonably necessary
to allow such personal representative to be appointed, but not to
exceed one hundred eighty (180) days after the
Participant’s death), then Beneficiary shall mean the person
or persons who can verify by affidavit or court order to the
satisfaction of the Committee that they are legally entitled to
receive the benefits specified hereunder. In the event any amount
is payable under the Plan to a minor, payment shall not be made to
the minor, but instead be paid (a) to that person’s
living parent(s) to act as custodian, (b) if that
person’s parents are then divorced, and one parent is the
sole custodial parent, to such custodial parent, or (c) if no
parent of that person is then living, to a custodian selected by
the Committee to hold the funds for the minor under the Uniform
Transfers or Gifts to Minors Act in effect in the jurisdiction in
which the minor resides. If no parent is living and the Committee
decides not to select another custodian to hold the funds for the
minor, then payment shall be made to the duly appointed and
currently acting guardian of the estate for the minor or, if no
guardian of the estate for the minor is duly appointed and
currently acting within sixty (60) days after the date the
amount becomes payable, payment shall be deposited with the court
having jurisdiction over the estate of the minor. Payment by
Company pursuant to any unrevoked Beneficiary designation, or to
the Participant’s estate if no such designation exists, of
all benefits owed hereunder shall terminate any and all liability
of Company.
(d)
“Board of Directors” or “Board” shall mean
the Board of Directors of Company.
55
(f)
“Code” shall mean the Internal Revenue Code of 1986, as
amended.
(g)
“Committee” shall mean the Compensation Committee of
the Board, which shall administer the Plan in accordance with
Article VII.
(h)
“Company” shall mean The Corporate Executive Board
Company.
(i)
“Company Contribution Account” shall mean the
bookkeeping account maintained by the Committee for each
Participant that is credited with an amount equal to the
Participant’s Company Discretionary Contribution Amount, if
any, and Company Matching Contribution Amount, if any, and earnings
and losses on such amounts pursuant to Section 4.2.
(j)
“Company Discretionary Contribution Amount” shall mean
such discretionary amount if contributed by the Company for a
Participant for a Plan Year. Such amount may differ from
Participant to Participant in amount, including no contribution and
including differences expressed as different percentages of
Compensation.
(k)
“Company Matching Contribution Amount” shall mean such
amount, if any, contributed by the Company for each Participant for
a Plan Year. Such amount may differ from Participant to Participant
in amount, including no contribution and including differences
expressed as different percentages of Compensation.
(l)
“Compensation” shall mean Base Salary, Incentive
Compensation and Ad Hoc Awards.
(m)
“Deferral Account” shall mean the bookkeeping account
maintained by the Committee for each Participant that is credited
with amounts equal to (1) the portion of the
Participant’s Compensation that he or she elects to defer,
and (2) earnings and losses pursuant to
Section 4.1.
(n)
“Disabled” or “Disability” shall mean the
Participant has, 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 (12) months, received income replacement benefits for a
period of not less than three months under a disability program
covering employees of the Company. The Committee shall determine
whether or not a Participant has become Disabled for purposes of
the Plan.
(o)
“Distributable Amount” shall mean the vested balance in
the Participant’s Deferral Account and Company Contribution
Account.
(p)
“Effective Date” shall be July 1, 2005
(q)
“Eligible Employee” shall mean (i) those employees
who job titles are listed in Exhibit A attached hereto and
(ii) any outside director of the Company.
(r)
“Fund” or “Funds” shall mean one or more of
the investment funds selected by the Committee pursuant to
Section 3.2(b).
(s)
“Hardship Distribution” shall mean a severe financial
hardship to the Participant resulting from an unforeseeable
emergency. An unforeseeable emergency shall mean 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 Section 152(a) of the Code) of the Participant, loss
of the Participant’s property due to casualty or other
similar extraordinary and unforeseeable circumstances arising as a
result of events beyond the control of the Participant. The
circumstances that would constitute an unforseeable emergency will
depend upon the facts of each case, but, in any case, a Hardship
Distribution may not be made to the extent that such hardship is or
may be relieved (i) through reimbursement or compensation by
insurance or otherwise, (ii) by liquidation of the
Participant’s assets, to the extent the liquidation of assets
would not itself cause severe financial hardship, or (iii) by
cessation of deferrals under this Plan.
(t)
“Incentive Compensation” shall mean such bonuses and/or
commissions as may be designated as deferrable as Incentive
Compensation by the Committee and which are based on services
performed for the Company over a period of at least twelve
(12) months and which meet the requirements of
“performance-based compensation” as defined in
Section 409A(a)(4)(B)(iii) of the Code.
56
(u)
“Initial Election Period” shall mean the thirty
(30) day period prior to the Effective Date of the Plan, or
the thirty (30) day period following the time an employee
shall first be designated by the Company as an Eligible
Employee.
(v)
“Interest Rate” shall mean, for each Fund, an amount
equal to the net gain or loss on the assets of such Fund determined
on a daily basis.
(w)
“Key Employee” shall mean those employees defined under
Section 416(i) of the Code without regard to paragraph
(5) thereof.
(x)
“Participant” shall mean any Eligible Employee who
becomes a Participant in this Plan in accordance with
Article II.
(y)
“Payment Date” shall be the date selected by the
Participant to receive or to commence receipt of benefits under the
Plan, subject to the rules set forth under the Plan or the date on
which the rules of the Plan otherwise provide for a payment to the
Participant or the Participant’s Beneficiary.
(z)
“Plan” shall be The Corporate Executive Board Deferred
Compensation Plan.
(aa)
“Plan Year” shall be January 1 to December 31. The
first Plan Year shall be July 1, 2005 to December 31,
2005.
(bb)
“Scheduled Withdrawal Date” shall mean the distribution
date elected by the Participant for an in-service withdrawal of
amounts from the Participant’s Accounts which were deferred
in a given Plan Year, and earnings and losses attributable thereto,
as set forth on the election form for such Plan Year.
(cc)
“Trust” shall mean the grantor trust initially
established between the Company and First American Trust,
FSB.
(dd)
“Trustee” shall mean First American Trust,
FSB.
(ee)
“Ad Hoc Award” shall mean an award in cash or property
that is subject to a forfeiture condition requiring the continued
performance of services for a period of at least twelve (12) months
from the date of grant and is also subject to the initial election
rules set forth in Section 3.1(d).
(ff)
“Separation from Service” shall mean the definition set
forth in Treas. Reg. § 1.409A-1(h).
(gg)
“Termination of employment” shall mean separation from
Separation from Service.
An
Eligible Employee shall become a Participant in the Plan by
completing certain electronic enrollment procedures, including any
required insurance applications. Effective January 1, 2008, an
Eligible Employee shall first become a Participant in the Plan as
of the later of (i) the first day of the month following the
date on which an individual first becomes an Eligible Employee or
(ii) the date upon which the Eligible Employee completes all
applicable electronic enrollment procedures, including any required
insurance applications.
3.1 Elections
to Defer Compensation .
(a)
Initial Election Period . Subject to the provisions of
Article II, each Eligible Employee may elect to defer
Compensation by filing with the Committee an election that conforms
to the requirements of this Section 3.1, following certain
electronic election procedures established by the Committee, no
later than the last day of his or her Initial Election
Period.
57
(b)
General Rule . The amount of Compensation which an Eligible
Employee may elect to defer is such Compensation earned on or after
the time at which the Eligible Employee elects to defer in
accordance with Sections 1.1(u) and 3.1(a) and shall be a
percentage which shall not exceed One Hundred Percent (100%) of the
Eligible Employee’s Compensation, provided that the total
amount deferred by a Participant shall be limited in any calendar
year, if necessary, by the amounts needed to satisfy Social
Security Tax (including Medicare), income tax and employee benefit
plan withholding requirements all as determined in the sole and
absolute discretion of the Committee. The minimum contribution
which may be made in any Plan Year by an Eligible Employee shall
not be less than Five Thousand Dollars ($5,000), provided such
minimum contribution can be satisfied from any element of
Compensation. Notwithstanding the previous sentence, the minimum
contribution shall be reduced for the first Plan Year to the amount
of Three Thousand Dollars ($3,000).
(c)
Duration of Compensation Deferral Election . In the case of
an Eligible Employee who first becomes eligible to participate in
the Plan as of the Effective Date, such Eligible Employee’s
initial election to defer Compensation must be prior to the
Effective Date and is to be effective with respect to Compensation
earned after such deferral election is processed. Such election
shall be irrevocable for a Plan Year and shall continue in effect
unless and until modified for subsequent Plan Years. The Committee
may, in its discretion and on a year by year basis, permit a
Participant to make separate elections in respect of (i) the
component of Base Salary which does not consist of bonus and/or
commissions and (ii) the component of Base Salary which does
consist of bonus and/or commissions. A Participant may increase,
decrease or terminate a deferral election with respect to Base
Salary for any subsequent Plan Year by filing a new election not
less than fifteen (15) days prior to the beginning of the next
calendar year. A Participant may increase, decrease or terminate a
deferral election with respect to Incentive Compensation for any
subsequent Plan Year by filing a new election within such time
frame as may be determined by the Committee but which shall in no
event be less than six months prior to the end of twelve
(12) month performance period on which such Incentive
Compensation is based. In the case of an employee who becomes an
Eligible Employee after the Effective Date, such Eligible Employee
shall have thirty (30) days after the date he or she has
become an Eligible Employee to make an Initial Election with
respect to Compensation. Such election shall be for the remainder
of the Plan Year, in the event the Plan Year has commenced. In the
event that an election which is made in respect of a Plan Year
covers a component of Base Salary which is earned in part during
such Plan Year and in part during the immediately succeeding Plan
Year, such election shall not apply to any portion of such
component of Base Salary at the time such component of Base Salary
becomes otherwise payable in such immediately succeeding Plan Year.
Instead, any deferral relating to such component of Base Salary
must instead be made (i) through a separate election during
the calendar year preceding the calendar year in which such
component of Base Salary otherwise becomes payable or
(ii) through a continuation of the original election into such
subsequent Plan Year through a failure to modify or revoke such
original election.
(d)
Elections other than Elections during the Initial Election
Period . Subject to the limitations of Section 3.1(b)
above, any Eligible Employee who has terminated a prior
Compensation deferral election may elect to again defer
Compensation, by filing an election, on a form provided by the
Committee, to defer Compensation as described in
Sections 3.1(b) and 3.1(c) above. An election to defer
Compensation must be filed in a timely manner in accordance with
Section 3.1(c).
(e)
Elections to defer Ad Hoc Awards . Notwithstanding any other
provision set forth in this Section 3.1 to the contrary, any
Eligible Employee may elect to defer an Ad Hoc Award pursuant to
certain procedures established by the Committee so long as the
initial election is made no later than thirty (30) days after
the date of grant of the Ad Hoc Award. Pursuant to the definition
of Ad Hoc Award, the election must be made at least twelve
(12) months before the Eligible Employee has earned a
nonforfeitable right to any portion of such Ad Hoc
Award.
3.2 Investment
Elections .
(a) At
the time of making the deferral elections described in
Section 3.1, the Participant shall designate, on a form
provided by the Committee, the types of investment funds in which
the Participant’s Account shall be deemed to be invested for
purposes of determining the amount of earnings to be credited to
that Account. In making the designation pursuant to this
Section 3.2, the Participant may specify that all or any
percentage of his or her Account be deemed to be invested, in whole
percentage increments, in one or more of the types of investment
funds provided under the Plan as communicated from time to time by
the Committee. A Participant may change the designation made under
this Section 3.2 by filing an election, on a form provided by
the Committee, which change shall be made effective as soon as
reasonably practicable after receipt by the Committee of such form.
If a Participant fails to elect a type of fund under this
Section 3.2, he or she shall be deemed to have elected the
money market type of investment fund.
(b) Although
the Participant may designate the type of investment funds used to
measure the earnings or losses to be credited to the
Participant’s Accounts, the Committee shall have the right to
change the range and type of available investment funds for these
purposes at any time and from time to
|