Exhibit 10.31
THE MOHAWK INDUSTRIES,
INC.
AMENDED AND
RESTATED
MANAGEMENT DEFERRED COMPENSATION
PLAN
ARTICLE I
ESTABLISHMENT OF
PLAN
1.1 Establishment of the Plan
. Mohawk Industries, Inc. established, effective as of June 1,
1994, a deferred compensation plan known as The Mohawk Industries,
Inc. Management Deferred Compensation Plan (the “Prior
Plan”). Effective as of January 1, 2008, the Prior Plan
is amended and restated as set forth in this document to comply
with Code Section 409A and for certain other purposes (the
“Plan”). Amounts deferred under the Prior Plan prior to
January 1, 2005, plus any earnings or losses thereon, are
governed by the terms of the Prior Plan. Amounts deferred under the
Plan on or after January 1, 2005, plus any earnings or losses
thereon, are governed by the terms of this Plan. The purpose of the
Plan is to enhance the retention of employees occupying selected
positions and to enable those employees to defer receipt of
compensation until a later date, as described herein.
1.2 Plan Intended to be a
“Top Hat” Plan . The Plan is intended to be a
non-qualified, unfunded plan of deferred compensation for a select
group of management or highly compensated employees under the
Employee Retirement Income Security Act of 1974, and shall be so
interpreted.
1.3 Plan Intended to Comply with
Code Section 409A . The Plan is intended to comply with,
and shall be construed so as to provide for deferrals and benefits
that are consistent with the requirements of, Code
Section 409A. The Plan Administrator may authorize changes to
time and form of payment elections but only to the extent
consistent with the transition rules and during the transition
relief period provided under Code Section 409A.
ARTICLE II
DEFINITIONS
Certain terms of this Plan have
defined meanings that are set forth in this Article and that shall
govern unless the context in which they are used clearly indicates
that some other meaning is intended.
2.1 Account shall mean the
bookkeeping account established and maintained under this Plan for
each Participant or their Beneficiaries to which shall be credited
each Participant’s Salary Deferral Amounts, Bonus Deferral
Amounts and earnings allocable thereto pursuant to Section 4.2
No money shall actually be allocated to any individual
Participant’s Account; all such Accounts shall be of a
memorandum nature, maintained by the Committee for accounting
purposes, and shall not represent any specific or identifiable
assets of the Company; provided, however, that once the Company
transfers to the Participant’s sub-trust under the Benefit
Security Trust established in connection with this Plan amounts
that are to be credited to the
Participant’s account under this Plan,
then to that extent the earnings allocable to a Participant under
this Plan shall be determined with reference to the assets held in
a Participant’s sub-trust under such Benefit Security
Trust.
2.2 Beneficiary shall mean
the person or persons designated by a Participant during his
lifetime, in a written instrument, signed and filed with the
Committee, to receive any payments due under this Plan after his
death. Such designation may be revoked at any time and the
Participant may designate more than one Beneficiary and the
proportions to be distributed to each Beneficiary and a contingent
Beneficiary or Beneficiaries to receive distributions after the
death of a primary Beneficiary. If no designated Beneficiary is
living at the time of any payment, distribution shall be made to
the executor, administrator or other personal representative of the
Participant, to be distributed as part of the Participant’s
estate. Additional rules regarding Beneficiary designations may be
determined by the Committee from time to time.
2.3 Benefit Security Trust
shall mean the rabbi trust document executed by the Company and
Fidelity Management Trust Company in connection with the
Plan.
2.4 Board shall mean the
Board of Directors of the Company.
2.5 Bonus shall mean the
Participant’s short-term cash incentive compensation paid
under any incentive plan or bonus arrangement of the Company
relating to services performed during the Plan Year, if any. The
Committee may, in its discretion, limit the types of short-term
incentive compensation that will qualify as Bonus compensation
under the Plan for any given Plan Year.
2.6 Bonus Deferral Amount
shall mean the percentage of the Participant’s Bonus that the
Participant elects to defer to this Plan pursuant to
Section 4.1. Such percentage shall be indicated on the
Election Form.
2.7 Code shall mean the
Internal Revenue Code of 1986, as amended.
2.8 Code Section 409A
shall mean Code Section 409A and the Treasury regulations or
other authoritative guidance issued thereunder.
2.9 Committee shall mean the
Compensation Committee of the Board. The Committee may delegate
pursuant to a written authorization any or all if its
responsibilities set forth in the Plan to one or more individuals,
committees or service providers. In any case, where the Plan
refers to the Committee, such reference is deemed to be a reference
to any delegate of the Committee appointed for such
purpose.
2.10 Company shall mean
Mohawk Industries, Inc. or any successor thereto.
2.11 Effective Date shall
mean January 1, 2008.
- 2 -
2.12 Election Form shall mean
a paper or electronic form adopted by the Committee for purposes of
allowing Participants to indicate deferral elections.
2.13 Participant shall mean
an Employee of the Company or a corporation that is controlled by
the Company who is designated as a Participant pursuant to
Section 3.1 and who elects to participate in this Plan by
deferring a portion of his compensation to this Plan.
2.14 Plan shall mean the
Mohawk Industries, Inc. Amended and Restated Management Deferred
Compensation Plan as set forth in this document together with any
subsequent amendments hereto.
2.15 Plan Year shall mean the
annual period from January 1 through the following
December 31.
2.16 Salary shall mean the
Participant’s eligible base compensation and commissions, if
any.
2.17 Salary Deferral Amount
shall mean the percentage of the Participant’s Salary that
the Participant elects to defer to this Plan pursuant to
Section 4.1. Such percentage shall be indicated on the
Election Form.
2.18 Separation from Service
shall mean separation from service within the meaning of
Section 409A.
2.19 Specified Employee shall
mean a specified employee within the meaning of Code
Section 409A.
2.20 Valuation Date shall
mean each business day of the Plan Year during which Plan assets
are traded on a national exchange or such other day as selected by
the Committee.
ARTICLE III
PARTICIPATION
3.1 Participation
.
(a) An employee of the Company shall
be eligible to participate in this Plan if he is designated as a
Participant hereunder by the chief executive officer of the Company
or his designee.
(b) Any employee who is eligible to
participate in this Plan must, in order to become a Participant,
complete and deliver to the Committee an Election Form approved by
the Committee that identifies the compensation that the employee
wishes to defer hereunder. Such Election Form must be delivered
prior to the first day of the Plan Year with respect to which the
services giving rise to the Salary or Bonus will be
performed.
- 3 -
(c) Once delivered, an Election Form
may be changed or revoked by a new Election Form delivered to the
Committee or its designee only up until the day an Election Form
must be delivered pursuant to subparagraph (b) above; and
after such date, the Election Form shall be irrevocable for the
Plan Year to which it relates. An Election Form, once submitted,
shall be deemed to remain in effect for subsequent Plan Years until
a new Election Form is delivered to the Committee on a timely basis
as described in this Section 3.1.
(d) Notwithstanding paragraph
(b) above, for the first Plan Year in which the employee is
eligible to participate, such Election Form must be delivered to
the Committee no later than thirty (30) days following the
date the employee becomes eligible to participate.
(e) Under all circumstances, any
deferral election shall apply only to compensation payable for
services to be performed after the date it is delivered to the
Committee.
ARTICLE IV
PLAN BENEFITS
4.1 Salary and Bonus
Deferrals .
(a) Salary and Bonus Deferral
Amounts . A Participant may elect to defer from 1% to 25 %
of his Salary to the Plan. Effective January 1, 2008, a
Participant may make a separate deferral election to defer from 1%
to 100% of his Bonus to the Plan. All elections must be made in
accordance with the terms of the Plan and the Election
Forms.
(b) Method for Crediting
Accounts . The Participant’s Salary Deferral Amount and
Bonus Deferral Amount shall be withheld from the
Participant’s compensation and credited to the
Participant’s Account hereunder as soon as practicable after
such salary or bonus would (but for the operation of this Plan)
have been paid to the Participant, but no later than thirty
(30) days after such salary or bonus would have been paid to
the Participant.
4.2 Earnings on Accounts .
The earnings on a Participant’s Account under this Plan shall
consist of the earnings (meaning earnings, appreciation and
depreciation, whether realized or unrealized) on the
Participant’s sub-trust under the Benefit Security Trust. At
any time when there exist under the Benefit Security Trust two or
more investment funds to serve as investment vehicles in connection
with such Trust, then in such event the Participants under this
Plan may request that the Company and the Trustee allocate the
Participant’s sub-trust under the Benefit Security Trust
among such investment vehicles in accordance with the
Participant’s preferences, but the final decision concerning
the allocation of the Participant’s sub-trust shall be made
in the sole discretion of the Company and the Trustee (under terms
set forth in the Benefit Security Trust document).
4.3 Form of Payment . A
Participant’s Account shall be paid to the Participant (or to
his or her Beneficiary in the event of his death) under one of the
following options, as elected by the Participant on his or her
Election Form:
- 4 -
(a) A single lump sum no more than
ninety (90) days following the Participant’s Separation
from of Service (with the exact date to be determined by the
Committee); provided, however , that this shall be the only
option if the value of the Participant’s Account as of the
Valuation Date that coincides with or next follows the
Participant’s Separation from Service does not exceed
$10,000.
(b) Annual installments elected by
the Participant (not to exceed ten (10)), commencing no more than
ninety (90) days following the Participant’s Separation
from Service (with the exact date to be determined by the
Committee) and continuing thereafter on each applicable anniversary
of the initial distribution date. In the event payment is made in
installments, the Participant’s Account shall continue to be
adjusted for earnings as pr
