EXHIBIT 10.15
WEST CORPORATION
NONQUALIFIED DEFERRED
COMPENSATION PLAN
(as amended and restated
effective January 1, 2008)
ARTICLE I.
INTRODUCTION
1.1 Name and Purpose . The
Employer has established and maintains the West Corporation
Nonqualified Deferred Compensation Plan, for the benefit of the
Company’s Directors and a select group of management or
highly compensated employees of the Employer. The Plan is intended
to be a deferred compensation plan for a select group of management
or highly compensated employees, as described in Sections 201(2),
301(a)(3) and 401(a)(1) of ERISA. The Employer intends that the
Plan (and any grantor trust described in Section 6.1) shall be
treated as unfunded for tax purposes and for purposes of Title I of
ERISA. The Employer’s obligations hereunder, if any, to a
Participant (or to a Participant’s beneficiary) shall be
unsecured and shall be a mere promise by the Employer to make
payments hereunder in the future. A Participant (or the
Participant’s beneficiary) shall be treated as a general,
unsecured creditor of the Employer. The Plan is not intended to
qualify under section 401(a) of the Code.
1.2 Effective Date . The
Effective Date of this Plan, as restated herein, is January 1,
2008.
ARTICLE II.
ELIGIBILITY AND
PARTICIPATION
2.1 Eligibility . Before the
beginning of each Plan Year, the Compensation Committee will
designate the Directors and employees who are eligible to
participate in the Plan for such Plan Year; provided, however, that
any employee so designated shall be from a select group of
management or highly compensated employees, which means Executive
Vice Presidents and above and other officers whose Compensation was
$100,000 or more in the year prior to the year in which the
Participant makes a Deferral Election pursuant to Section 3.1.
An individual’s eligibility to make a deferral to the Plan in
any given Plan Year does not guarantee that individual the right to
make a deferral in any subsequent Plan Year.
2.2 Participation and Cessation
of Participation . An Eligible Individual for any Plan Year may
make a Deferral Election on a timely basis as described in
Section 3.1, and if the Eligible Individual makes such a
Deferral Election he or she shall be a Participant until he or she
has received a distribution of his or her entire Deferral Account.
A Participant who, for any reason, Separates from Service will
cease to be eligible to defer compensation under this Plan and will
become entitled to distributions as described in Article
VI.
ARTICLE III.
ENROLLMENT AND DEFERRAL
ELECTIONS
3.1 Participant Elections to
Defer . Each Eligible Individual who intends to participate in
the Plan shall make a Deferral Election, in a form acceptable to
the Administrator, with regard to that portion of his annual
Compensation (if any) that shall be deferred hereunder, in
accordance with the following:
(a) Salary Deferral Elections
. An Eligible Employee may elect to defer, in whole percentage
increments, up to 50% of his Salary (or such other percentage as
authorized by the Compensation Committee of the
Directors).
(b) Bonus Deferral . An
Eligible Employee may elect to defer, either in whole percentage
increments or a flat-dollar amount, a portion of any periodic bonus
payable to him or her; provided, however, that such election may
not exceed 100% of any amount that would otherwise be paid as a
periodic bonus. For the avoidance of doubt, the term
“periodic bonus” shall include bonuses payable under
the Company’s Senior Management Transaction Bonus
Plan and Senior Management Retention Plan, in each case
as in effect from time to time.
(c) Director Fee Deferral .
An Eligible Director may elect to defer, either in whole percentage
increments or a flat-dollar amount, a portion of the fees he will
be paid for serving as a Director; provided, however, that such
election may not exceed 100% of any amount that would otherwise be
paid for such services.
(d) Minimum and Maximum
Deferral . Notwithstanding any other provision of the Plan, an
Eligible Individual who elects to defer a portion of his
Compensation must elect to defer a combination of Salary, periodic
bonus, and Director fees in an amount that is expected to be no
less than $10,000, and in no event in excess of $500,000, during
any one Plan Year.
(e) Timing of Elections . No
later than December 31 of each Plan Year, or such earlier date
as the Plan Administrator shall determine, each Eligible Individual
shall be permitted to make a Deferral Election with regard to a
portion of his or her annual Compensation attributable to services
performed in the immediately following Plan Year. A Deferral
Election shall remain in effect only for the Plan Year to which it
relates. An Eligible Individual must make a separate Deferral
Election before each December 31 in order to make a deferral
for the following Plan Year. Once made, a Deferral Election is
irrevocable, subject only to the early distribution provisions of
Section 6.1, the one-time redeferral provision of
Section 6.2, and the one-time acceleration provision of
Section 6.3.
(f) Period of Deferral . Each
Deferral Election made by an Eligible Individual shall include an
election of the date on which the amount of such deferral (together
with any investment gains thereon) will be distributed. Such date
shall be no earlier than the fifth year following the Plan Year to
which the Deferral Election relates, subject only to the early
distribution provisions of Section 6.1, the one-time
redeferral provision of Section 6.2, or the one-time
acceleration provision of Section 6.3.
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3.2 Deferral Account . The
Compensation Committee shall maintain a Deferral Account in the
name of each Participant for deferrals made in accordance with
Section 3.1. A Participant’s Deferral Account shall
include a subaccount for each deferral made under the Plan and any
Employer contributions made to the Participant under the Plan
pursuant to a Deferral Election for a given Plan Year. Each such
subaccount shall reflect: (i) the amount deferred or
contributed during that Plan Year, (ii) any amounts
distributed during that Plan Year, and (iii) the total
Earnings on the Deferral Account described in Section 3.3.
Deferred amounts shall be credited to subaccounts as soon as
practicable following the date Compensation would otherwise have
been paid to the Participant but for his Deferral Election. The
portion of a Participant’s Deferral Account that is
attributable to any Deferral Election (and any Earnings thereon)
shall be nonforfeitable at all times.
3.3 Investment of Deferral
Account .
(a) In General . A
Participant shall have the right to direct the investment of
amounts deferred to his or her Deferral Account on or after
October 24, 2006 by electing to have his or her Deferral
Account notionally invested, in percentages elected by the
Participant, in hypothetical investment options, the value of which
shall track either Equity Strips or Measurement Funds.
An election by a Participant to
invest or not to invest his or her Deferral Account in Equity
Strips is an irrevocable election. Investment elections to any
Measurement Fund may be changed quarterly by the Participant (but
only among such Measurement Funds and under no circumstances from a
Measurement Fund to Equity Strips) on such date and in such manner
as determined by the Compensation Committee in its sole
discretion.
Notwithstanding any other provision
of this Plan that may be interpreted to the contrary, Equity Strips
and the Measurement Fund(s) are to be used for measurement purposes
only, and the allocation of each Participant’s Deferral
Account to such Equity Strips and Measurement Fund(s), the
calculation of additional amounts, and the crediting or debiting of
such additional amounts to such Participant’s Deferral
Account shall not be considered or construed in any manner as an
actual investment of such Participant’s Deferral Account in
any such Equity Strips or Measurement Fund(s).
(b) One-Time Reallocation of
Deferral Accounts . Notwithstanding any then-current or prior
Investment Designation, each Participant’s Deferral Account
shall be reallocated effective as of October 24, 2006
according to this Section 3.3(b).
(i) In General .
Notwithstanding any Participant’s prior Investment
Designation directing all or a portion of his or her Deferral
Account to be invested in common stock of the Company, unless
otherwise provided in Section 3.3(b)(ii), the entire amount of
each Participant’s Deferral Account shall be converted into
Measurement Funds as provided in this Section 3.3(b)(i).
Subject to Section 3.3(b)(ii), each Deferral Account will be
allocated among the Measurement Funds available under the Plan
based on the Participant Investment Designation in effect
immediately prior to October 24, 2006, without regard to any
election to invest all or a portion of his or her Deferral Account
in Company common stock; provided, that if a Participant’s
Investment Designation in effect immediately prior to
October 24, 2006 does
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not direct any portion of his or her Deferral
Account to be invested in Measurement Funds, amounts in his or her
Deferral Account will be reallocated into notional shares of a
money market fund selected by the Company until such Participant
makes an election to invest the Deferral Account in Measurement
Fund(s) in accordance with the terms of the Plan.
(ii) Key Employee Election .
Notwithstanding any provision of this Section 3.3(b) to the
contrary, the Compensation Committee may designate certain
Participants listed on the attached Schedule A to make a one-time
election to redesignate all or a portion of the part of the
Participant’s Deferral Account that is notionally invested in
shares of Company common stock or Measurement Funds to be
notionally invested in Equity Strips. Such election must be made on
or before September 11, 2006, in a form acceptable to the Plan
Administrator. For purposes of implementing such a redesignation,
the value of a share of Company common stock shall be $48.75 and
the value of an Equity Strip shall be set at $100.00.
3.4 Valuation of Equity
Strips . The value of an Equity Strip, for purposes of the Plan
(including, but not limited to the distribution provisions of
Article VI), shall be determined by the Compensation Committee,
based on the most recent annual valuation of the Company. For all
Plan Years beginning prior to January 1, 2008, the value of an
Equity Strip shall be set at $100.00.
3.5 Adjustment of
Participants’ Deferral Accounts .
(a) In General . A
Participant’s Deferral Account shall be credited or debited
each Accounting Date (or, with respect to that portion of a
Participant’s Deferral Account attributable to periodic
bonuses or Director fees, each time such amount is deferred into
the Plan) based on the then-applicable value of Equity Strips and
the performance of each Measurement Fund selected by the
Participant, as though (i) the Participant’s deferrals
were invested in the Equity Strips and Measurement Fund(s) in the
percentages applicable to such payroll period as of the date that
they are credited to the Participant’s Deferral Account; and
(ii) any distributions made to the Participant that decrease
the Participant’s Deferral Account balance ceased being
invested in the Equity Strips and Measurement Fund(s) in the
percentages applicable to such payroll period, as of a date no
earlier than the last business day of the payroll period preceding
the date of distribution, at the closing price on such date. The
Participant’s Deferral Account will be revalued on each
Accounting Date, based on the price of the Equity Strips in effect
on that date, as determined by the Compensation Committee pursuant
to Section 3.4, the value of the Measurement Funds on that
date, and the percentages in which the Participant is invested in
Equity Strips and each of the Measurement Funds.
To the extent a Participant’s
Account is deemed to be invested in Measurement Funds and is not
entirely distributed within three years from the date the
Participant Separates from Service for any reason, the
Participant’s entire vested Deferral Account shall thereafter
be deemed to be invested in a money market fund designated by the
Compensation Committee until such Deferral Account is fully
distributed to the Participant.
(b) Procedure . As of each
Accounting Date, the Compensation Committee shall:
(i) First, charge to the proper
Deferral Accounts all payments or distributions made since the last
preceding Accounting Date;
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(ii) Next, credit each
Participant’s Deferral Account with amounts deferred on
behalf of the Participant made since the last preceding Accounting
Date;
(iii) Next, credit each
Participant’s Deferral Account with any Employer
Contributions (as defined in Section 4.1) made on behalf of
the Participant since the last preceding Accounting Date;
and
(iv) Next, adjust each
Participant’s Deferral Account for applicable Earnings since
the last preceding Accounting Date.
In the event of a corporate
transaction involving the Company (including, without limitation,
any stock dividend, stock split, extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination, or exchange of shares), the Compensation
Committee shall adjust the portion of each Participant’s
Deferral Accounts deemed to be invested in Equity Strips in order
to preserve the benefits or potential benefits of such Deferral
Accounts. Any adjustments shall be made in a manner that the
Compensation Committee in its sole discretion determines to be
equitable.
3.6 Additional Limitation on
Deferral Elections . Notwithstanding anything in this Section
to the contrary, the Plan Administrator may reduce amounts credited
or to be credited to the Participant hereunder if, as a result of
any election, a Participant’s Compensation from the Employers
would be insufficient to cover taxes and withholding applicable to
the Participant, but only to the extent consistent with the
requirements of Section 409A of the Code.
ARTICLE IV.
EMPLOYER
CONTRIBUTIONS
4.1 Employer Matching
Contributions . To the extent a Participant makes a Deferral
Election and makes an Investment Designation that such deferrals
and Earnings thereon initially be measured by Equity Strips, the
Employer will make an Employer Matching Contribution. All Employer
Matching Contributions shall be designated to be invested in Equity
Strips and shall remain hypothetically invested in Equity Strips.
No Employer Matching Contribution will be made with respect to any
amount deferred by the Participant for which Earnings are measured
based on an Investment Designation other than Equity Strips. For
the avoidance of doubt, no Employer Matching Contribution shall be
made on amounts that are notionally invested in Equity Strips as a
result of a one-time reallocation election made pursuant to
Section 3.3(b)(ii).
4.2 Accounting for Employer
Matching Contributions . Employer Contributions on behalf of a
Participant will be recorded in a separate subaccount maintained in
the Participant’s Deferral Account as of the Crediting Date
of the underlying deferral. Such subaccount will be deemed to be
invested in Equity Strips and will be adjusted from time to time in
the same manner as described in Article III.
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4.3 Vesting of Employer Matching
Contributions . As of October 24, 2006, each Participant
who is then actively employed by an Employer shall be fully vested
in the Employer Matching Contributions that have been allocated to
such Participant’s Deferral Account as of such date.
Effective for Employer Matching Contributions allocated to Deferral
Accounts after October 24, 2006 each Participant’s
nonforfeitable interest in such Employer Matching Contributions
will equal 20%, multiplied by the Participant’s Years of
Service following the later to occur of (A) January 1,
2007 and (B) the first day of the Plan Year in which the
Participant participates in the Plan. A Participant shall forfeit
immediately any non-vested portion of his or her Deferral Account
if such Participant: (i) voluntarily terminates employment
with the Employer and does not immediately thereafter serve as a
Director; or (ii) ceases to be an Employee or Director due to
Cause. A Participant’s Deferral Account will become
nonforfeitable immediately if: (i) the Participant dies or
becomes Disabled or is terminated by the Employer without Cause;
(ii) a Change in Control occurs; or (iii) the Plan
terminates. Notwithstanding the preceding, to the extent and solely
to the extent that a Participant has elected to receive a
distribution of 100% of his or her 2006 Plan Year deferrals
pursuant to Section 6.3 below, any Employer Matching
Contributions in respect of 2006 deferrals made on or after
October 24, 2006 shall be nonforfeitable as of the Crediting
Date on which such Employer Matching Contributions are
credited.
ARTICLE V.
FUNDING
The Employer, in its sole and
absolute discretion, may (or may not) acquire any investment
product or any other instrument or otherwise invest any amount to
provide the funds from which it can satisfy its obligation to make
benefit payments under this Plan. Any investment product or other
item so acquired for the convenience of the Employer shall be the
sole and exclusive property of the Employer (or a Trust established
by the Employer) with the Employer (or the Trust) named as sole
owner and sole beneficiary thereof. To the extent that a
Participant or his or her Beneficiary acquires a right to receive
payments from the Employer under the provisions hereof, such right
shall be no greater than the right of any unsecured general
creditor of the Employer.
ARTICLE VI.
TIMING AND FORM OF BENEFIT
PAYMENTS
6.1 Timing of Distribution .
The vested portion of a Participant’s Deferral Account shall
be distributed on the earlier to occur of:
(a) The deferred distribution date
indicated on the Participant’s Deferral Election and in
accordance with subsection 3.1(f); and
(b) The date that the Participant
Separates from Service;
provided, however, that such
distribution shall occur within 90 days following such
date.
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Notwithstanding the foregoing or any
provision of this Plan to the contrary, in the case of a
Participant who is a “specified employee” within the
meaning of Section 409A of the Code, payment of such
Participant’s Deferral Account due to Separation from Service
shall not be made before the date which is six (6) months
after the date of Separation from Service or, if earlier, the date
of death of such Participant. Any distribution delayed pursuant to
the immediately preceding sentence shall be paid to the Participant
as soon as practicable, and in no event more than six
