Exhibit 10.30
THE RYLAND GROUP,
INC.
EXECUTIVE AND
DIRECTOR
DEFERRED COMPENSATION PLAN
II
Effective as of January 1,
2005
THE RYLAND GROUP,
INC.
EXECUTIVE AND DIRECTOR DEFERRED
COMPENSATION PLAN II
Effective as of
January 1, 2005
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
|
1.1
|
ACCOUNT
|
1
|
|
1.2
|
BENEFICIARY
|
1
|
|
1.3
|
CLAIMAINT
|
1
|
|
1.4
|
CODE
|
1
|
|
1.5
|
COMMITTEE
|
1
|
|
1.6
|
COMPANY
|
1
|
|
1.7
|
COMPENSATION
|
2
|
|
1.8
|
COMPENSATION DEFERRAL
ACCOUNT
|
2
|
|
1.9
|
COMPENSATION DEFERRAL
|
2
|
|
1.10
|
DIRECTOR
|
2
|
|
1.11
|
DISPUTE
|
2
|
|
1.12
|
EFFECTIVE DATE
|
2
|
|
1.13
|
EMPLOYEE
|
2
|
|
1.14
|
EMPLOYER
|
2
|
|
1.15
|
EMPLOYER CONTRIBUTION CREDIT
ACCOUNT
|
2
|
|
1.16
|
EMPLOYER CONTRIBUTION
CREDITS
|
2
|
|
1.17
|
ERISA
|
2
|
|
1.18
|
MEASUREMENT FUNDS
|
2
|
|
1.19
|
PARTICIPANT
|
2
|
|
1.20
|
PARTICIPANT ELECTION FORM
|
3
|
|
1.21
|
PLAN
|
3
|
|
1.22
|
PLAN YEAR
|
3
|
|
1.23
|
SEPARATION FROM SERVICE
|
3
|
|
1.24
|
TRUST
|
3
|
|
1.25
|
TRUSTEE
|
3
|
|
1.26
|
VALUATION DATE
|
3
|
ARTICLE 2
ELIGIBILITY AND
PARTICIPATION
|
2.1
|
ELIGIBILITY
|
3
|
|
2.2
|
ENROLLMENT REQUIREMENTS
|
3
|
|
2.3
|
RE-EMPLOYMENT, ETC
|
4
|
|
2.4
|
CHANGE OF STATUS
|
4
|
i
ARTICLE 3
CONTRIBUTIONS AND
CREDITS
|
3.1
|
EMPLOYER CONTRIBUTION
CREDITS
|
4
|
|
3.2
|
PARTICIPANT COMPENSATION
DEFERRALS
|
6
|
|
3.3
|
CONTRIBUTIONS TO THE
TRUST
|
7
|
ARTICLE 4
ALLOCATION OF
FUNDS
|
4.1
|
ALLOCATION OF DEEMED EARNINGS OR
LOSSES ON ACCOUNTS
|
7
|
|
4.2
|
ACCOUNTING FOR
DISTRIBUTIONS
|
9
|
|
4.3
|
EXPENSES
|
9
|
ARTICLE 5
ENTITLEMENT TO
BENEFITS
|
5.1
|
FIXED PAYMENT DATES; SEPARATION FROM
SERVICE; DISABILITY; CHANGE IN CONTROL
|
|
|
5.2
|
UNFORESEEABLE EMERGENCY
DISTRIBUTIONS
|
10
|
|
5.3
|
DEATH
|
11
|
|
5.4
|
TRUST
|
11
|
ARTICLE 6
DISTRIBUTION OF
BENEFITS
|
6.1
|
AMOUNT
|
11
|
|
6.2
|
METHOD OF PAYMENT
|
11
|
|
6.3
|
DEATH BENEFITS
|
12
|
|
6.4
|
WITHHOLDING
|
12
|
|
6.5
|
EMPLOYER DISCRETION
|
13
|
|
6.6
|
PAYMENT OF BENEFITS
|
13
|
ARTICLE 7
BENEFICIARIES; PARTICIPANT
DATA
|
7.1
|
DESIGNATION OF
BENEFICIARIES
|
13
|
|
7.2
|
INFORMATION TO BE FURNISHED BY
PARTICIPANTS AND BENEFICIARIES; INABILITY TO LOCATE PARTICIPANTS OR
BENEFICIARIES
|
13
|
ARTICLE 8
ADMINISTRATION
|
8.1
|
ADMINISTRATIVE AUTHORITY
|
14
|
|
8.2
|
LITIGATION
|
15
|
|
8.3
|
CLAIMS PROCEDURE
|
15
|
ii
ARTICLE 9
AMENDMENT
|
9.1
|
RIGHT TO AMEND
|
18
|
|
9.2
|
AMENDMENTS TO ENSURE PROPER
CHARACTERIZATION OF PLAN
|
18
|
ARTICLE 10
SUSPENSION OR TERMINATION OF
THE PLAN
|
10.1
|
RIGHT TO SUSPEND PLAN
|
19
|
|
10.2
|
AUTOMATIC TERMINATION OF
PLAN
|
19
|
|
10.3
|
TERMINATION AND LIQUIDATION OF THE
PLAN
|
19
|
ARTICLE 11
THE TRUST
|
11.1
|
ESTABLISHMENT OF TRUST
|
19
|
ARTICLE 12
MISCELLANEOUS
|
12.1
|
LIMITATIONS ON LIABILITY OF
EMPLOYER
|
20
|
|
12.2
|
CONSTRUCTION
|
20
|
|
12.3
|
SPENDTHRIFT PROVISION
|
20
|
|
12.4
|
LEAVE OF ABSENCE
|
20
|
|
12.5
|
LEGAL FEES
|
21
|
|
12.6
|
NONASSIGNABILITY
|
21
|
|
12.7
|
UNSECURED GENERAL
CREDITOR
|
21
|
|
12.8
|
COURT ORDER
|
22
|
|
12.9
|
CODE SECTION 409A
|
22
|
|
12.10
|
UNVESTED ACCOUNT BALANCES UNDER
PRIOR PLAN
|
22
|
|
12.11
|
AGGREGATION OF EMPLOYERS
|
22
|
|
12.12
|
AGGREGATION OF PLANS
|
22
|
|
12.13
|
USERRA
|
22
|
iii
THE RYLAND GROUP,
INC.
EXECUTIVE AND DIRECTOR DEFERRED
COMPENSATION PLAN II
Effective as of
January 1, 2005
RECITALS
The Ryland Group, Inc.
Executive and Director Deferred Compensation Plan II (the
“Plan”), is adopted by The Ryland Group, Inc.,
effective as of January 1, 2005. The Plan is maintained
for the benefit of certain of the Employer’s executive
employees and Directors.
The purpose of the Plan is to offer
participants an opportunity to elect to defer the receipt of
compensation in order to provide deferred compensation benefits
taxable pursuant to Code section 451, and to provide a deferred
compensation vehicle to which the Employer may credit certain
amounts on behalf of participants. The Plan is intended to be
a “top-hat” plan under sections 201(2),
301(a)(3) and 401(a)(1) of ERISA. The Plan is also
intended to comply with the requirements of section 409A of the
Code, as added by the American Jobs Creation Act of 2004, and the
Treasury regulations or any other authoritative guidance issued
thereunder.
Accordingly, the following Plan is
adopted.
ARTICLE 1
DEFINITIONS
1.1
ACCOUNT means the sum of the amounts credited to a
Participant’s or Beneficiary’s Plan Employer
Contribution Credit Account and Compensation Deferral Account,
including contribution credits and deemed income, gains and losses
credited thereto, as such accounts are defined in
Article 3. A Participant’s or Beneficiary’s
Account shall be determined as of the date of reference.
1.2
BENEFICIARY
means any person or persons so
designated in accordance with the provisions of
Article 7.
1.3
CLAIMANT is defined in Section 8.3.
1.4
CODE means the Internal Revenue Code of 1986 and the
regulations thereunder, as amended from time to time.
1.5
COMMITTEE shall mean the Committee chosen by the Company
to oversee the administration of the Plan.
1.6
COMPANY means The Ryland Group, Inc. and its
successors and assigns.
1
1.7
COMPENSATION
means the annual cash compensation
relating to services performed during any calendar year, whether or
not paid in such calendar year or included on the Federal Income
Tax Form W-2 for such calendar year, excluding TRG Incentive
Plan, Personal Health and Services Allowance, Executive Health and
Fitness, any discretionary bonus, fringe benefits, stock options,
relocation expenses, non-monetary awards and automobile and other
allowances paid to a Participant for employment services rendered
(whether or not such allowances are included in the
Participant’s gross income). Compensation shall be calculated
before reduction for compensation voluntarily deferred or
contributed by the Participant pursuant to all qualified or
non-qualified plans of any Employer and shall be calculated to
include amounts not otherwise included in the Participant’s
gross income under Code Sections 125, 402(e)(3), 402(h), or
403(b) pursuant to plans established by any Employer;
provided, however, that all such amounts will be included in
compensation only to the extent that had there been no such plan,
the amount would have been payable in cash to the Employee.
Compensation includes for Directors who participate in the Plan
retainer fees or stock awards payable in the Employer’s
common stock in addition to cash payments.
1.8
COMPENSATION DEFERRAL
ACCOUNT is defined in
Section 3.2.
1.9
COMPENSATION DEFERRAL
is defined in
Section 3.2.
1.10
DIRECTOR means a non-employee member of the Board of
Directors of The Ryland Group, Inc.
1.11
DISPUTE is defined in Section 12.5.
1.12
EFFECTIVE DATE
means the general effective date of
the Plan, which shall be January 1, 2005.
1.13
EMPLOYEE means a person who is an employee of the
Employer.
1.14
EMPLOYER means The Ryland Group, Inc. and its
successors and assigns unless otherwise herein provided, or any
other corporation or business organization which, with the consent
of The Ryland Group, Inc., or its successors or assigns,
assumes the Employer’s obligations hereunder, or any other
corporation or business organization which agrees, with the consent
of The Ryland Group, Inc., to become a party to the
Plan.
1.15
EMPLOYER CONTRIBUTION CREDIT
ACCOUNT is defined in
Section 3.1.
1.16
EMPLOYER CONTRIBUTION
CREDITS is defined in
Section 3.1.
1.17
ERISA means the Employee Retirement Income Security
Act of 1974.
1.18
MEASUREMENT FUNDS
is defined in
Section 4.1(c).
2
1.19
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 or former member of the Employer’s Board of
Directors who is or may become (or whose Beneficiaries may become)
eligible to receive a benefit under the Plan.
1.20
PARTICIPANT ELECTION
FORM means the form
or forms on which a Participant elects to defer Compensation
hereunder and/or on which the Participant makes certain other
designations as required thereon.
1.21
PLAN is defined in the Recitals.
1.22
PLAN YEAR means the 12-month period ending on
December 31 of each year during which the Plan is in
effect.
1.23
SEPARATION FROM
SERVICE means the
Participant’s “separation from service” within
the meaning of Code section 409A, treating as a Separation from
Service an anticipated permanent reduction in the level of bona
fide services to be performed by the Participant to 20% or less of
the average level of bona fide services performed by the
Participant over the immediately preceding 36 month period (or the
full period during which the Participant performed services for the
Employer, if that is less than 36 months).
1.24
TRUST means the Trust established pursuant to
Article 11.
1.25
TRUSTEE means the trustee of the Trust established
pursuant to Article 11.
1.26
VALUATION DATE
means the last day of each Plan Year
and any other date that the Employer, in its sole discretion,
designates as a Valuation Date.
ARTICLE 2
ELIGIBILITY AND
PARTICIPATION
2.1
ELIGIBILITY
. Participation in the Plan
shall be limited to a select group of management and highly
compensated Employees and/or Directors, as determined by the
Company in its sole discretion. From that group, the Company
shall select, in its sole discretion, Employees and/or Directors to
participate in the Plan. In order to participate in the
matching contribution feature of this Plan, an otherwise eligible
Employee must make the maximum amount of salary deferrals to the
Employer’s 401(k) Plan.
2.2
ENROLLMENT
REQUIREMENTS . As a
condition to participation, each selected Employee or Director
shall complete, execute and return to the Company a Participant
Election Form within 30 days after he or she is selected to
participate in the Plan. In addition, the Company shall
establish from time to time such other enrollment requirements as
it determines in its sole discretion are necessary. Provided
an Employee or Director selected to participate in the Plan has met
all enrollment requirements set forth in this Plan and required by
the Company, including returning all required documents to the
Company within the specified time period, that Employee or
Director
3
shall commence participation in the
Plan on a specified date as determined by the Company in its sole
discretion. Upon commencement of such participation, the
Employee or Director shall become a Participant in the Plan.
If an Employee or Director fails to meet all such requirements
within the period required, that Employee or Director shall not be
eligible to participate in the Plan until the first day of the Plan
Year following the delivery to and acceptance by the Company of the
required documents.
2.3
RE-EMPLOYMENT, ETC
. If a Participant whose
employment or Director status with the Employer is terminated and
that Participant is subsequently re-employed by or subsequently
becomes a Director of the Employer, he or she may become a
Participant in accordance with the provisions of Section 2.1
and the terms and conditions of the Plan.
2.4
CHANGE OF STATUS
. If the Company determines in
good faith that a Participant no longer qualifies as a member of a
select group of management or highly compensated Employees, as
membership in such group is determined in accordance with
Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA,
the Company shall have the right, in its sole discretion, to
prevent the Participant from making future deferral
elections.
ARTICLE 3
CONTRIBUTIONS AND
CREDITS
3.1
EMPLOYER CONTRIBUTION
CREDITS . There
shall be established and maintained a separate Employer
Contribution Credit Account in the name of each Participant who is
an Employee. Such account shall be credited or debited, as
applicable, with (a) amounts equal to the Employer’s
Contribution Credits credited to that account, if any, and
(b) any deemed earnings and losses (to the extent realized,
based upon deemed fair market value of the account’s deemed
assets) allocated to that account.
The Employer’s Contribution
Credits attributable to a Participant who is an Employee shall
consist of the following:
(i)
matching contribution amounts with
respect to each pay period (but contributed with a frequency
determined by the Employer) equal to the Participant’s
Compensation Deferral amounts for that pay period, provided however
that the total Employer matching contribution amounts under the
Employer’s 401(k) plan and this Plan for any pay period
shall not exceed six percent of the Participant’s
Compensation from the Employer for that pay period; and
(ii)
for a particular Plan Year, any
discretionary Employer contribution amounts that the Employer
wishes to contribute, but is prohibited under applicable law from
contributing, as discretionary Employer contribution amounts, under
the Employer’s 401(k) plan.
Notwithstanding the foregoing, any
matching contributions credited to a Participant’s Employer
Contribution Credit Account with respect to any pay period in
excess of the limit provided
4
in paragraph (i) above, as
determined by the Employer in good faith, shall be returned to the
Employer.
Participants shall become vested in
amounts credited to their Employer Contribution Credit Accounts
pursuant to the following vesting schedule:
|
Years of Service
|
|
Vested Percentage
|
|
Less than 1
|
|
0%
|
|
1
|
|
33%
|
|
2
|
|
66%
|
|
3
|
|
100%
|
For purposes of the foregoing, each
Participant employed by the Employer will be credited with one Year
of Service for each 12-month period of employment with the
Employer.
Notwithstanding the foregoing, a
Participant will become immediately vested in amounts credited to
his or her Employer Contribution Credit Account upon his or her
death, his or her long-term disability (as determined by the
Employer, in its discretion), his or her retirement from service to
the Employer on or after age 65, or a “Change in
Control” of the Company. For this purpose, a Change in
Control shall occur upon any of the following:
(i)
the acquisition by any person, other
than the Employer or any employee benefit plan(s) of the
Employer, of beneficial ownership of 20% or more of the combined
voting power of Company’s then outstanding voting
securities;
(ii)
the first purchase under a tender
offer or exchange offer, other than an offer by the Employer or any
employee benefit plan(s) of the Company, pursuant to which
shares of common stock of the Company have been
purchased;
(iii)
during any period of two consecutive
years, individuals who, at the beginning of such period constitute
the Board of Directors of the Company cease for any reason to
constitute at least a majority thereof, unless the election or the
nomination for the election by stockholders of the Company of each
new Director was approved by a vote of at least two-thirds of the
Directors then still in office who were Directors at the beginning
of the period; or
(iv)
approval by stockholders of the
Company of a merger, consolidation, liquidation or dissolution of
the Company, or the sale of all or substantially all of the assets
of the Company.
When a Participant becomes vested in
his or her Employer Contribution Credits, plus earnings thereon,
the Employer shall withhold from the Participant’s salary
and/or bonus that is not deferred, in a manner determined by the
Employer, the Participant’s share of FICA and other
employment taxes. If necessary, the Employer may reduce the
vested portion of the Participant’s Employer Contribution
Credit Account to comply with this requirement.
5
3.2
PARTICIPANT COMPENSATION
DEFERRALS . In
connection with a Participant’s commencement of participation
in the Plan (or if a Participant again becomes eligible after
having been ineligible for at least 24 months), the Participant may
make an irrevocable election, no later than 30 days after the date
he or she becomes eligible to become a Participant, to defer
Compensation to be earned for services to be performed after the
election, and must make such other elections as the Company deems
necessary or desirable under the Plan. For this purpose, an
election will be deemed to apply to bonus Compensation for services
performed after the election if the election applies to no more
than an amount equal to the total bonus for the performance period
multiplied by the ratio of the number of days remaining in the
performance period after the election over the total number of days
in the performance period. For these elections to be valid,
the Participant Election Form must be completed and signed by
the Participant and timely delivered to the Company as described in
Section 2.2.
For each succeeding Plan Year, an
irrevocable deferral of Compensation election for that Plan Year,
and such other elections as the Company deems necessary or
desirable under the Plan, shall be made by timely delivering to the
Company, in accordance with its rules and procedures, before
the end of the Plan Year preceding the Plan Year in which the
services giving rise to the Compensation to be deferred are to be
performed (or such earlier time as the Company may establish, in
its sole discretion), a new Participant Election Form. If no
such Participant Election Form is timely delivered for a Plan
Year, the Participant’s Compensation Deferral for that Plan
Year shall be zero.
Notwithstanding the foregoing, the
Committee may, in its sole discretion, determine that certain
Compensation qualifies as “performance-based
compensation” under Code Section 409A. If and to
the extent permitted by the Company, a Participant may make an
election to defer that portion (if any) of his or her Compensation
which qualifies as Performance-Based Compensation no later than
(and the election shall become irrevocable no later than) six
months prior to the last day of the period over which the services
giving rise to the Performance-Based Compensation are performed
(provided that the Participant performs services continuously from
the later of the beginning of the performance period or the date
the performance criteria are established through the date of the
deferral election, and provided further that in no event may an
election to defer be made with respect to any portion of the
Performance-Based Compensation that has become reasonably
ascertainable, as defined under Code section 409A, prior to making
the election). “Performance-Based Compensation”
means that portion (if any) of a Participant’s Compensation
which is contingent on the satisfaction of pre-established
organizational or individual performance criteria related to a
performance period of at least 12 consecutive months, and which
meets the requirements for “performance-based
compensation” under Code section 409A, including the
requirement that the performance criteria be established in writing
by not later than (i) 90 days after the commencement of
the period of service to which the criteria relates and
(ii) the date the outcome ceases to be substantially
uncertain.
For each Plan Year, the deferral of
compensation shall be withheld from each regularly scheduled salary
payroll in the percentage elected by the Participant. The
bonus portion of the Compensation Deferral shall be withheld at the
time the bonus would otherwise be paid to the Participant.
For each Plan Year in which Compensation is deferred, the Employer
shall withhold from that portion of the Participant’s salary
and bonus that is not being deferred, in a manner
6
determined by the Employer, the
Participant’s share of FICA and other employment taxes on
such deferral amount, together with such other withholdings for
employee benefits as would the Employer otherwise withhold.
Subject to Code Section 409A, if necessary, the Employer may
reduce the deferral amount in order to comply with this
requirement.
After the deadline for making a
deferral election (as set forth above) has passed, the Participant
may not change or revoke his or her Compensation Deferral election
until the following Plan Year, except to the extent permitted by
the Company and under Code section 409A upon a disability,
unforeseeable emergency distribution, or a hardship distribution
from the Ryland Retirement Savings Opportunity Plan pursuant to
section 1.401(k)-1(d)(3) of the Treasury Regulations.
For purposes of this paragraph only, “disability” means
any medically determinable physical or mental impairment resulting
in the Participant’s inability to perform the duties of his
or her position or any substantially similar position, where such
impairment can be expected to result in death or can be expected to
last for a continuous period of not less than six
months.
There shall be established and
maintained by the Employer 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 account’s deemed assets) attributable or
allocable thereto. The amounts deferred shall be referred to
as the Compensation Deferrals.
A Participant shall at all times be
100% vested in amounts credited to his or her Compensation Deferral
Account.
3.3
CONTRIBUTIONS TO THE
TRUST . Amounts
shall be contributed by the Employer to the Trust maintained under
Section 11.1 equal to the amounts 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 is practicable after such amounts
are determined. Employer contributions to the Trust shall be
made in cash or in common stock of the Employer, as determined by
the Company.
ARTICLE 4
ALLOCATION OF
FUNDS
4.1
ALLOCATION OF DEEMED EARNINGS OR
LOSSES ON ACCOUNTS . In accordance with, and subject to, the
rules and procedures that are established from time to time by
the Company, in its sole discretion, amounts shall be credited or
debited to a Participant’s Account in accordance with the
following rules:
(a)
A Participant, in connection with
his or her initial deferral election shall elect one or more
Measurement Fund(s) (as described below) to be used to
determine the additional amounts to be credited or debited to his
or her Account. A Participant may (but is not required to)
elect to add or delete one or more available Measurement
Fund(s) to be used to determine the additional amounts to be
credited or debited to his or her Account, or to change the portion
of his or
7
her Account allocated to each
previously or newly elected Measurement Fund. A Participant
may elect to make such a change by submitting a Participant
Election Form, whether written or electronic (as determined by the
Company from time to time and in its sole discretion), to the
Company (or its designee). Any election so made and accepted
by the Company (or its designee) shall apply as soon as is
reasonably practicable following the Company’s (or its
designee’s) acceptance of the election. Any such
election shall continue to apply, unless subsequently changed in
accordance with this Section 4.1(a).
(b)
In making any election described in
Section 4.1(a), the Participant shall specify on the
applicable form which may be completed on-line, in increments of
one percentage point, the percentage of his or her Account to be
allocated to a Measurement Fund (as if the Participant were making
an investment in that Measurement Fund with that portion of his or
her Account).
(c)
A Participant may elect one or more
Measurement Funds (the “Measurement Funds”) from among
those selected by the Company for the purpose of crediting or
debiting additional amounts to his or her Account. As
necessary, the Company may, in its sole discretion, discontinue,
substitute or add Measurement Funds. Each such action will
take effect as of the first day of the calendar month that follows
by 30 days or more the day on which the Company gives Participants
advance written notice of such change. In selecting the
Measurement Funds that are available from time to time, neither the
Company nor any Employer shall be liable to any Participant for
such selection or adding, deleting or continuing any available
Measurement Fund.
(d)
The performance of each elected
Measurement Fund (either positive or negative) will be reasonably
determined by the Company. A Participant’s Account
shall be credited or debited on a daily basis based on the
performance of each Measurement Fund selected by the
Participant.
(e)
Notwithstanding any other provision
of this Plan that may be interpreted to the contrary, the
Measurement Funds are to be used for measurement purposes only, and
a Participant’s election of any such Measurement Fund, the
allocation to his or her Account thereof, the calculation of
additional amounts and the crediting or debiting of such amounts to
a Participant’s Account shall not be considered
or construed in any manner as an actual investment of his or her
Account in any such Measurement Fund. In the event that the
Company or the Trustee, in its sole discretion, decides to invest
funds in any or all of the Measurement Funds, no Participant shall
have any rights in or to such investments themselves. Without
limiting the foregoing, a Participant’s Account shall at all
times be a bookkeeping entry only and shall not represent any
investment made on his or her behalf by the Company or the Trustee;
and the Participant shall at all times remain an unsecured creditor
of the Company.
(f)
Notwithstanding the foregoing
provisions of this Section 4.1, the Company shall retain the
overriding discretion regarding the Participant’s designation
of Measurement Funds under this Section 4.1. If a
Participant fails to designate any Measurement Fund under this
Section 4.1, the Participant shall be deemed to have elected
the money market fund, or such other fund as determined from time
to time by the Company in its sole discretion.
8
(g)
The Participant shall bear full
responsibility for all results associated with his or her selection
of Measurement Funds under this Section 4.1, and the Employer
shall have no responsibility or liability with respect to the
Participant’s selection of such Measurement Funds. Each
Participant hereunder, as a condition to his or her participation
hereunder, 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 hereunder.
(h)
Notwithstanding any contrary
provision of the Plan, Participants shall not have the right to
direct the deferral of Director retainer fees or awards that
otherwise would have been payable in Employer common stock.
Rather, such deferrals shall initially be deemed to be invested in
the common stock of the Employer. Once deferred, the
Participant may thereafter elect to have some or all of such
deferral amounts, plus earnings thereon, reallocated to one or more
of the non-Employer common stock Measurement Funds available under
the Plan; provided, however, that the Employer may impose such
restrictions on such transfers as the Employer deems necessary or
advisable in order to comply with federal or state securities laws
(including, but not limited to, Rule 16b-3 of the Securities
Exchange Act of 1934, as amended). Any Participant subject to
such restrictions shall be notified by the Employer. Once a
Participant has transferred an amount out of the Employer common
stock Measurement Fund, he or she may not subsequently reallocate
into that Measurement Fund.
(i)
Each reference in this
Article to a Participant shall be deemed to include, where
applicable, a reference to a Beneficiary.
4.2
ACCOUNTING FOR
DISTRIBUTIONS . As
of the date of any distribution hereunder, the distribution made
hereunder to the Participant or his or her Beneficiary or
Beneficiaries shall be charged to such Participant’s
Account.
4.3
EXPENSES . Expenses, including Trustee fees,
allocable to the administration or operation of an Account
maintained under the Plan shall be paid by the Employer unless, in
the discretion of the Employer, the Employer elects to charge such
expenses, or any portion thereof, against the appropriate
Participant’s Account or Participants’
Accounts.
ARTICLE 5
ENTITLEMENT TO
BENEFITS
5.1
FIXED PAYMENT DATES; SEPARATION
FROM SERVICE; DISABILITY; CHANGE IN CONTROL . The Participant’s
vested Account will be valued and paid according to the provisions
of Article 6 on the payment date elected by a Participant at
the earlier of the time of initial deferral or the time the
Participant first has a legally binding right to Employer
Contribution Credits (or as otherwise required by Code section
409A).
The Participant may elect to receive
payment of his or her vested Account at Separation from Service
with the Employer, upon a fixed payment date, or at the earlier of
(or later of) a fixed payment date, Separation from Service,
Disability, and/or Change in Control of the Company or
9
Employer. In any case, the
extension and non-acceleration rules discussed in this Plan
shall apply to such timing of payment elections.
The “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 initial election is made (or if
