THIRD AMENDED AND RESTATED
TENET 2001
DEFERRED COMPENSATION PLAN
ARTICLE I
PREAMBLE AND PURPOSE
1.1
Preamble. This Third Amended and Restated Tenet 2001
Deferred Compensation Plan (the Plan) of Tenet Healthcare
Corporation (the Company), adopted on December 4, 2001, by the
Compensation Committee, amends and restates the Second Amended and Restated
Tenet Healthcare Corporation 2001 Deferred Compensation Plan adopted on July 24,
2001, and the First Amended and Restated Tenet Healthcare Corporation 2001
Deferred Compensation Plan adopted on May 22, 2001. The Plan is intended to
permit the Company to attract and retain a select group of management or highly
compensated employees and Directors of the Company.
Effective
as of December 5, 1995, the Company adopted the Tenet Executive Deferred
Compensation and Supplemental Savings Plan (as the same has been amended from
time to time, the Supplemental Plan). The Company intends to
transfer to this Plan amounts held for the benefit of certain participants in
the Supplemental Plan, other than those balances held for the benefit of
physician-employees who participate in the Supplemental Plan and participants
who are in pay-out status as of December 31, 2000, under the Supplemental Plan.
In addition, the Company may adopt one or more trusts to serve as a possible
source of funds for the payment of benefits under this Plan.
1.2
Purpose. Through this Plan, the Company intends to permit
the deferral of compensation and to provide additional benefits to Directors and
a select group of management or highly compensated employees of the Company.
Accordingly, it is intended that this Plan shall not constitute a
qualified plan subject to the limitations of Section 401 (a) of
the Code, nor shall it constitute a funded plan, for purposes of
such requirements. It also is intended that this Plan shall be exempt from the
participation and vesting requirements of Part 2 of Title I of the
Act, the funding requirements of Part 3 of Title I of the Act, and the
fiduciary requirements of Part 4 of Title I of the Act by reason of
the exclusions afforded plans that are unfunded and maintained by an employer
primarily for the purpose of providing deferred compensation for a select group
of management or highly compensated employees.
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1
Definitions. When a word or phrase appears in this Plan
with the initial letter capitalized, and the word or phrase does not commence a
sentence, the word or phrase shall generally be a term defined in this
Section 2.1. The following words and phrases with the initial letter
capitalized shall have the meaning set forth in this Section 2.1, unless a
different meaning is required by the context in which the word or phrase is
used.
(2)
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(a)
Account means one or more of the bookkeeping accounts
maintained by the Company or its agent on behalf of a Participant, as described
in more detail in Section 4.3. |
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(b)
Act means the Employee Retirement Income Security Act of 1974, as amended from
time to time. |
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(c)
Affiliate means a corporation that is a member of a
controlled group of corporations (as defined in Section 414(b) of the Code)
that includes the Company, any trade or business (whether or not incorporated)
that is in common control (as defined in Section 414(c) of the Code) with
the Company, or any entity that is a member of the same affiliated service group
(as defined in Section 414(m) of the Code) as the Company. |
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(d)
Alternate Payee means any spouse, former spouse, child, or
other dependent of a Participant who is recognized by a DRO as having a right to
receive all, or a portion of, the benefits payable under the Plan with respect
to such Participant. |
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(e)
Annual Incentive Plan Award means the amount payable to an
Employee each year, if any, under the Companys 1997 Annual Incentive Plan,
as the same may be amended, restated, modified, renewed or replaced from time to
time. |
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(f)
Basic Deferral means the Compensation deferral made by a Participant pursuant
to Section 4.1(a). |
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(g)
Beneficiary means the person designated by the Participant to
receive a distribution of his/her benefits under the Plan upon the death of the
Participant. If the Participant is married, his/her spouse shall be his/her
Beneficiary, unless his/her spouse consents in writing to the designation of an
alternate Beneficiary. In the event that a Participant fails to designate a
Beneficiary, or if the Participants Beneficiary does not survive the
Participant, the Participants Beneficiary shall be his/her surviving
spouse, if any, or if the Participant does not have a surviving spouse, his/her
estate. The term Beneficiary also shall mean a Participants
spouse or former spouse who is entitled to all or a portion of a
Participants benefit pursuant to Section 6.1. |
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(h)
Board means the Board of Directors of the Company. |
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(i)
Bonus means (i) a bonus paid to a Participant in the
form of an Annual Incentive Plan Award, or (ii) any other bonus payment
designated by the PAC as an eligible bonus under the Plan. |
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(j)
Bonus Deferral means the Bonus deferral made by a Participant pursuant to
Section 4.1(b). |
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(k)
Change of Control of the Company shall be deemed to have
occurred if either (i) any person, as such term is used in
Section 13(c) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the Exchange Act), is or becomes the beneficial
owner, directly or indirectly, of securities of the Company representing 20% or
more of the combined voting power |
(3)
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of the Companys then outstanding securities, or (ii) individuals who, as of
August 1, 2000, constitute the Board of the Company (the Incumbent Board)
cease for any reason to constitute at least a majority of the Board at any time;
provided, however, that (a) any individual who becomes a director of the Company
subsequent to August 1, 2000, whose election, or nomination for election by the Companys
stockholders, was approved by a vote of at least a majority of directors then comprising
the Incumbent Board shall be deemed to have been a member of the Incumbent Board, and (b) no
individual who is elected initially (after August 1, 2000) as a director as a result
of an actual or threatened election contest, as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act or any other actual or threatened
solicitations of proxies or consent by or on behalf of any person other than the
Incumbent Board shall be deemed to have been a member of the Incumbent Board. |
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(l)
Code means the Internal Revenue Code of 1986, as amended from time to time. |
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(m)
Company means Tenet Healthcare Corporation. |
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(n)
Compensation means base salaries, commissions, and certain
other amounts of cash compensation payable to the Participant during the Plan
Year. Compensation shall exclude cash bonuses, foreign service pay, hardship
withdrawal allowances and any other pay intended to reimburse the Employee for
the higher cost of living outside the United States, Annual Incentive Plan
Awards, automobile allowances, ExecuPlan payments, housing allowances,
relocation payments, deemed income, income payable under stock incentive plans,
Christmas gifts, insurance premiums, and other imputed income, pensions,
retirement benefits, and contributions to and payments from the 401 (k)
Plan and this Plan. The term Compensation for Directors shall mean
any cash compensation from retainers, meeting fees and committee fees paid
during the Plan Year. |
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(o)
Compensation Committee means the Compensation Committee of
the Board, which has the authority to amend and terminate the Plan as provided
in Article X. The Compensation Committee also will be responsible for
determining the amount of the Discretionary Contribution and Supplemental
Director Contribution, if any, to be made by the Company. |
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(p)
Compensation Deferrals means the Basic Deferrals, Supplemental Deferrals and
Discretionary Deferrals made pursuant to Section 4.1 of the Plan. |
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(q)
Covered Person means a covered employee within the meaning of
Code Section 162(m)(3) or an Employee designated as a Covered Person by the
Compensation Committee. |
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(r)
Director means a member of the Board who is not an Employee of the Company. |
(4)
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(s)
Disability means the total and permanent incapacity of a
Participant, due to physical impairment or mental incompetence, to perform the
usual duties of his/her employment with the Company or an Affiliate. Disability
shall be determined by the Plan Administrator on the basis of (i) evidence
that the Participant has become entitled to receive benefits from a Company
sponsored long-term disability plan or (ii) evidence that the Participant
has become entitled to receive primary benefits as a disabled employee under the
Social Security Act in effect on such date of Disability or (iii) in the case of
Directors, such evidence that the Plan Administrator deems appropriate. |
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(t)
Discretionary Contribution means the contribution made by the Company on
behalf of a Participant as described in Section 4.2(b). |
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(u)
Discretionary Deferral means the Compensation deferral described in Section
4.1 (d) made by a Participant. |
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(v)
DRO means a Domestic Relations Order that is a judgment,
decree, or order (including one that approves a property settlement agreement)
that relates to the provision of child support, alimony payments or marital
property rights to a spouse, former spouse, child or other dependent of a
Participant and is rendered under a state (within the meaning of Section
7701(a)(10) of the Code) domestic relations law (including a community property
law) and that: |
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(i)
Creates or recognizes the existence of an Alternate
Payees right to, or assigns to an Alternate Payee the right to receive all or a
portion of the benefits payable with respect to a Participant under the Plan; |
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(ii)
Does not require the Plan to provide any type or form of benefit, or any option, not
otherwise provided under the Plan; |
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(iii)
Does not require the Plan to provide increased benefits (determined on the basis of
actuarial value); |
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(iv)
Does not require the payment of benefits to an Alternate Payee that are required
to be paid to another Alternate Payee under another order previously determined
to be a DRO; and |
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(v)
Clearly specifies: the name and last known mailing address of the Participant
and of each Alternate Payee covered by the DRO; the amount or percentage of the
Participants benefits to be paid by the Plan to each such Alternate Payee,
or the manner in which such amount or percentage is to be determined; the number
of payments or payment periods to which such order applies; and that it is
applicable with respect to this Plan. |
(5)
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(w)
Effective Date means January 1, 2001. |
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(x)
Election Form means the written form(s) provided by the PAC
or the Plan Administrator pursuant to which the Participant consents to
participation in the Plan and makes elections with respect to deferrals,
requested investment crediting rates and distributions hereunder. |
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(y)
Eligible Employee means (i) each Employee who is
eligible for the Companys Annual Incentive Plan Award for the applicable
Plan Year, (ii) each Director and (iii) all aviation personnel who are
designated as captains. In addition, the term Eligible Employee
shall include any Employee designated as an Eligible Employee by the PAC. The
PAC may, in its sole and absolute discretion, limit the classification of
Employees who are eligible to participate in the Plan for a Plan Year without
the need for an amendment to the Plan. Any such limitation shall be set forth in
a resolution by the PAC and attached hereto as an Exhibit to the Plan. |
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(z)
Emergency means a Foreseeable Emergency or
Unforeseeable Emergency that makes a Participant eligible for a Financial
Necessity Distribution under Section 5.5. |
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(aa)
Employee means each select member of management or highly
compensated employee receiving remuneration, or who is entitled to remuneration,
for services rendered to the Company or to an Affiliate who has adopted this
Plan, in the legal relationship of employer and employee. |
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(bb)
Fair Market Value means the closing price of a share of Stock
on the New York Stock Exchange on the date as of which fair market value is to
be determined. |
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(cc)
Foreseeable Emergency means a severe financial
hardship to the Participant resulting from an event that, although foreseeable,
is outside the Participants control, as determined by the Plan
Administrator in its sole and absolute discretion. Such potentially foreseeable
but uncontrollable events include the following: (i) expenses for medical care described in
Section 213(d) of the Code incurred by the Participant, the Participants spouse, or
any dependents of the Participant (as defined in Section 152 of the Code) or necessary for
those persons to obtain medical care described in Section 213(d) of the Code; (ii) such
other events deemed by the Plan Administrator, in its sole and absolute discretion, to constitute
a Foreseeable Emergency. |
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(dd)
401 (k) Plan means the Tenet Healthcare
Corporation Retirement Savings Plan or the Tenet 401 (k) Retirement Savings
Plan, as such plans may be amended, restated, modified, renewed or replaced from
time to time. |
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(ee)
Matching Contribution means the contribution made by
the Company pursuant to Section 4.2(a) on behalf of a Participant who
either makes Supplemental Deferrals to the Plan as described in Section 4.1
(c), or is not eligible for an employer matching contribution under the
401 (k) Plan. |
(6)
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(ff)
Non-Scheduled Withdrawal means an election by a
Participant in accordance with Section 5.4 to receive a withdrawal of amounts
from his/her Account prior to the time at which such Participant otherwise would
be entitled to such amounts. |
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(gg)
Open Enrollment Period means the period prior to the
beginning of the Plan Year during which an Eligible Employee may make his/her
elections concerning Compensation Deferrals pursuant to Article IV, and
distribution elections in accordance with Article V. |
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(hh)
PAC means the Pension Administration Committee of the Company
established by the Compensation Committee of the Board, and whose members have
been appointed by such Compensation Committee. The PAC shall have the
responsibility to administer the Plan and make final determinations regarding
claims for benefits, as described in Article VIII. |
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(ii)
Participant means each Eligible Employee who has been
designated for participation in this Plan and each Employee or former Employee
whose participation in this Plan has not terminated. |
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(jj)
Plan shall have the meaning set forth in Section 1.1 above. |
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(kk)
Plan Administrator means the individual or entity
appointed by the PAC to handle the day-to-day administration of the Plan,
including but not limited to determining a Participants eligibility for
benefits and the amount of such benefits and complying with all applicable
reporting and disclosure obligations imposed on the Plan. If the PAC does not
appoint an individual or entity as Plan Administrator, the PAC shall serve as
the Plan Administrator. |
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(ll)
Plan Year means the fiscal year of this Plan, which shall
commence on January 1 each year and end on December 31 of such year. |
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(mm)
Scheduled Withdrawal Date means the distribution date elected
by the Participant for an in-service withdrawal of amounts of Basic Deferrals
and Bonus Deferrals deferred in a given Plan Year, and earnings or
losses attributable thereto, as set forth on the Election Form for such Plan
Year. |
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(nn)
Stock means the common stock, par value $0.075 per share, of the Company. |
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(oo)
Stock Unit means a non-voting, non-transferable unit of
measurement that is deemed for bookkeeping and distribution purposes only to
represent one outstanding share of Stock. |
(7)
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(pp)
Supplemental Deferral means the Compensation Deferral described in Section
4.1(c). |
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(qq)
Supplemental Director Contribution means the contribution made by the Company
on behalf of a Director as described in Section 4.2(c). |
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(rr)
Supplemental Plan shall have the meaning set forth in Section 1.1 of this Plan. |
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(ss)
Unforeseeable Emergency means a severe financial hardship to the Participant
resulting from (i) a sudden and unexpected illness or accident of the Participant or
one of the Participants dependents (as defined under Section 152(a) of the
Code); (ii) loss of the Participants property due to casualty; or (iii) such
other similar extraordinary and unforeseeable circumstances arising as a result of an
unforeseeable event or events beyond the control of the Participant, as determined by the
Plan Administrator in its sole and absolute discretion. |
2.2
Construction. If any provision of this Plan is determined
to be for any reason invalid or unenforceable, the remaining provisions of this
Plan shall continue in full force and effect. All of the provisions of this Plan
shall be construed and enforced in accordance with the laws of the State of
California and shall be administered according to the laws of such state, except
as otherwise required by the Act, the Code or other applicable federal law. The
term delivered to the PAC or Plan Administrator, as used in this
Plan, shall include delivery to a person or persons designated by the PAC or
Plan Administrator, as applicable, for the disbursement and the receipt of
administrative forms. Delivery shall be deemed to have occurred only when the
form or other communication is actually received. Headings and subheadings are
for the purpose of reference only and are not to be considered in the
construction of this Plan.
ARTICLE III
PARTICIPATION AND FORFEITABILITY OF BENEFITS
3.1
Eligibility and Participation. It is intended that
eligibility to participate in the Plan shall be limited to Eligible Employees,
as determined by the PAC, in its sole and absolute discretion. Prior to the
beginning of each Plan year, each Eligible Employee will be contacted and
informed that he/she may elect to defer portions of his/her Compensation and/or
Bonus and shall be provided with an Election Form, investment crediting
rate preference designation and such other forms as the PAC or the Plan
Administrator shall determine. An Eligible Employee shall become a Participant
by completing all required forms and making a deferral election pursuant to
Section 4.1. Eligibility to become a Participant for any Plan Year shall
not entitle an Eligible Employee to continue as an active Participant
for any subsequent Plan Year.
If
an Eligible Employee is hired/retained during the Plan Year and
designated by the PAC to be a Participant for such year, such Eligible
Employee may elect to participate within 30 days from the date
he/she is notified that he/she is eligible to participate in
(8)
the Plan, for the remainder of such Plan Year, by completing all
required forms and making a deferral election pursuant to Section 4.1. Designation
as a Participant for the Plan Year in which he/she is hired/retained shall not entitle
the Eligible Employee to continue as an active Participant for any subsequent Plan Year.
A
Participant under this Plan who separates from employment with the Company, or
who ceases to be a Director, will continue as an inactive Participant under this
Plan until the Participant has received payment of all amounts payable to
him/her under this Plan. In the event that an Eligible Employee shall
cease active participation in the Plan because the Eligible Employee
is no longer described as a Participant pursuant to this Section 3.1, or
because he/she shall cease making deferrals of Compensation and/or Bonuses, the
Eligible Employee shall continue as an inactive Participant under
this Plan until he/she has received payment of all amounts payable to him/her
under this Plan.
3.2
Forfeitability of Benefits. Except as provided in
Section 5.4 and Section 6.1, a Participant shall at all times have a
nonforfeitable right to amounts credited to his/her Account pursuant to
Section 4.3, subject to the distribution provisions of Article V. As
provided in Section 7.2, however, each Participant shall be only a general
creditor of the Company or the Participants employing Affiliate with
respect to the payment of any benefit under this Plan.
ARTICLE IV
DEFERRAL, COMPANY CONTRIBUTIONS, ACCOUNTING
AND INVESTMENT CREDITING RATES
4.1
Deferral. An Eligible Employee who is designated by the PAC
to be an Eligible Employee for a Plan Year may become a Participant for such
Plan Year by electing to defer Compensation and/or his/her Bonus pursuant to an
Election Form. Such Election Form shall be submitted to the Company not later
than a date to be set by the Plan Administrator and shall be effective with
respect to deferral elections with the first paycheck dated on or after the next
following January 1. In the case of an Eligible Employee who is
hired/retained during the Plan Year, the Election Form shall be
entered into within 30 days after the Eligible Employee is provided with notice
of his/her eligibility to participate in the Plan and shall only be effective
with respect to deferral elections with respect to Compensation and/or Bonuses
earned after the date such Election Form is received by the Plan Administrator.
A Participants Election Form shall only be effective with respect to a
single Plan Year and shall be irrevocable for the duration of such Plan Year.
Deferral elections for each subsequent Plan Year of participation shall be made
pursuant to a new Election Form.
Compensation
deferred by a Participant may be distributed, at the Participants
election, either in a lump sum or, in certain instances as described herein, in
equal monthly installments over a period of not less than one year nor more than
15 years. On each Election Form, the Participant shall specify the method in
which Compensation and/or Bonuses deferred under the Plan shall be paid. If the
Participant, during the Open Enrollment Period, elects a different method of
payment on a subsequent Election Form, such form
(9)
of payment election shall supersede any prior payment elections made on
an earlier Election Form, provided such election has been in effect for 12 months.
Four
types of deferrals may be made under the Plan:
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(a)
Basic Deferral. Each Eligible Employee may elect to defer a stated dollar
amount, or designated full percentage, of Compensation to the Plan up to a
maximum percentage of 75% (100% for Directors) of the Eligible Employees
Compensation for such Plan Year. The Company shall not make any Matching
Contributions with respect to any Basic Deferrals made to the Plan. |
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(b)
Bonus Deferral. Each Eligible Employee may elect to defer a stated dollar
amount, or designated full percentage, of his/her Bonus to the Plan up to a
maximum percentage of 100% (97% if a Supplemental Deferral is elected pursuant
to Section 4.1(c)) of the Employees Bonus for such Plan Year. The Company
shall not make any Matching Contributions with respect to any Bonus Deferrals
made to the Plan. |
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(c)
Supplemental Deferral. Each Eligible Employee may elect to make Supplemental Deferrals to
the Plan in accordance with the following provisions of this Section 4.1(c). |
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(i)
Statutory Limits. Each Eligible Employee who is also a participant in the
401 (k) Plan may elect to automatically have 3% of his/her Compensation
deferred under the Plan when he/she reaches any of the following statutory
limitations under the 401 (k) Plan: (A) the limitation on Compensation
under Section 401(a)(17) of the Code, as such limit is adjusted for cost of
living increases; (B) the limitation imposed on elective deferrals under
Section 402(g) of the Code, as such limit is adjusted for cost of living
increases; (C) the limitations on contributions and benefits under
Section 415 of the Code; or (D) the limitations on contributions imposed by
the 401(k) Plan administrator in order to satisfy the limitations on
contributions under sections 401 (k) and 401 (m) of the Code. |
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(ii)
Bonus. Each Eligible Employee who is also a participant in the
401 (k) Plan may elect to automatically have 3% of his/her Bonus deferred
under the Plan as a Supplemental Deferral whether or not the Eligible Employee
has reached the statutory limitations under the 401 (k) Plan described in
Section 4.1(c)(i). This Supplemental Deferral shall be applied to that
portion of the Eligible Employees Bonus in excess of that deferred as a
Bonus Deferral under Section 4.1(b). For example, if the Eligible Employee
elects to defer 50% of his/her Bonus under Section 4.1(b) and also elects
to make a Supplemental Deferral under this Section 4.1(c), 50% of the
Eligible Employees Bonus will be deferred under Section 4.1(b) and 3%
of the Eligible Employees Bonus will be deferred under this
Section 4.1(c). |
(10)
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(iii)
401(k) Plan Before-Tax Savings Contribution Eligibility. Each Eligible
Employee who elects to participate in this Plan prior to the date on which
he/she becomes eligible to make before-tax savings contributions to the 401(k)
Plan, may elect, until such 401(k) Plan before-tax contribution eligibility
date, to defer 3% of his/her Compensation under the Plan as a Supplemental
Deferral for such Plan Year. Upon the Eligible Employees 401 (k) Plan
before-tax contribution eligibility date, his/her Supplemental Deferrals under
this Section 4.1(c)(iii) shall cease and any subsequent Supplemental
Deferrals shall only be made by the Employee pursuant to
Section 4.1(c)(i) or Section 4.1(c)(ii), as applicable. |
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(d)
Discretionary Deferral. The PAC may authorize an Eligible Employee to
defer a stated dollar amount, or designated full percentage, of Compensation to
the Plan as a Discretionary Deferral. The PAC, in its sole and absolute
discretion, may limit the amount or percentage of Compensation an Eligible
Employee may defer to the Plan as a Discretionary Deferral. The Company shall
not make any Matching Contributions pursuant to Section 4.2(a) with respect
to any Discretionary Deferrals, but may elect to make a Discretionary
Contribution to the Plan with respect to such Discretionary Deferrals in the
form of a discretionary matching contribution as described in
Section 4.2(b). |
4.2
Company Contributions.
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(a)
Matching Contribution. The Company shall make a Matching Contribution to
the Plan each Plan Year on behalf of each Participant who makes a Supplemental
Deferral to the Plan. Such Matching Contribution shall equal 100% of the
Participants Supplemental Deferrals for such Plan Year. In addition, the
Company shall make a Matching Contribution to the Plan for the Plan Year on
behalf of each Participant who is eligible to participate in the 401 (k)
Plan but is not eligible to receive an employer matching contribution under the
401 (k) Plan by reason of the one year eligibility service requirement.
Such Matching Contribution shall equal 3% of the Participants Compensation
earned during the period beginning on the date on which such Participant elects
to make Supplemental Deferrals to the Plan in accordance with
Section 4.1(c)(iii). |
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(b)
Discretionary Contribution. The Company may elect to make a Discretionary
Contribution to a Participants Account in such amount, and at such time,
as shall be determined by the Compensation Committee. If a Participant who is a
Covered Person receives a Discretionary Contribution, that Participant shall not
be permitted to receive that Discretionary Contribution until such
Participants employment with the Company is terminated; provided, however,
that if such Participant has elected to receive a distribution upon the
occurrence of a Change of Control and a Change of Control occurs, such
Participant shall be entitled to receive such Change of Control distribution in
accordance with Section 5.9 of this Plan. |
(11)
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(c)
Supplemental Director Contribution. The Company shall make a Supplemental
Director Contribution to the Plan on behalf of each Director who makes a Basic
Deferral and makes a request for amounts deferred to be invested in Stock Units
pursuant to Section 4.4(b). On each date on which a Directors Basic
Deferral is invested in Stock Units, the Company will make a Supplemental
Director Contribution in an amount equal to 15% of the amount of the
Directors Basic Deferral invested in Stock Units on such date. Such
Supplemental Director Contribution shall be invested in Stock Units for the
account of such Director. |
4.3
Accounting for Deferred Compensation.
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(a)
Cash Account. If a Participant has made an election to defer his/her
Compensation and/or Bonus and has made a request for amounts deferred to be
invested pursuant to Section 4.4(a), the Company may, in its sole and absolute
discretion, establish and maintain a cash Account for the Participant under this
Plan. Each cash Account shall be adjusted at least quarterly to reflect the
Basic Deferrals, Bonus Deferrals, Supplemental Deferrals, Discretionary
Deferrals, Matching Contributions and Discretionary Contributions credited
thereto, earnings or losses credited on such Basic Deferrals, Bonus Deferrals,
Supplemental Deferrals, Discretionary Deferrals, Matching Contributions and
Discretionary Contributions, and any payment or withdrawal of such Basic
Deferrals, Bonus Deferrals, Supplemental Deferrals, Discretionary Deferrals and,
Matching Contributions and Discretionary Contributions. The amounts of Basic
Deferrals, Bonus Deferrals, Supplemental Deferrals, Discretionary Deferrals and
Matching Contributions shall be credited to the Participants cash Account
within five business days of the date on which such Compensation and/or Bonus
would have been paid to the Participant had the Participant not elected to defer
such amount pursuant to the terms and provisions of the Plan. Any Discretionary
Contributions shall be credited to each Participants cash Account at such
times as determined by the Compensation Committee. In the sole and absolute
discretion of the Plan Administrator, more than one cash Account may be
established for each Participant to facilitate record-keeping convenience and
accuracy. Each such cash Account shall be credited and adjusted as provided in
this Plan. |
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(b)
Stock Unit Account. If a Participant has made an election to defer
his/her Compensation and/or Bonus and has made a request for amounts deferred to
be invested in Stock Units pursuant to Section 4.4(b), the Company may, in its
sole and absolute discretion, establish and maintain a Stock Unit
Account and credit the Participants Stock Unit Account, within
five business days of the date on which such Compensation
and/or Bonus otherwise would have been payable, with a number of Stock Units
determined by dividing an amount equal to the Basic Deferrals, Bonus Deferrals,
Supplemental Deferrals, Discretionary Deferrals, Matching Contributions and
Discretionary Contributions made as of such date by the Fair Market Value of a
share of Stock on the fifth day following the date such Compensation and/or Bonus
otherwise would have been |
(12)
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payable.
In the sole and absolute discretion of the Plan Administrator, more than one Stock Unit
Account may be established for each Participant to facilitate record-keeping convenience
and accuracy. |
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(i)
The Stock Units credited to a Participants Stock Unit Account shall be
used solely as a device for determining the number of shares of Stock eventually
to be distributed to the Participant in accordance with this Plan. The Stock
Units shall not be treated as property of the Participant or as a trust fund of
any kind. No Participant shall be entitled to any voting or other stockholder
rights with respect to Stock Units credited under this Plan. |
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(ii)
If the outstanding shares of Stock are increased, decreased, or exchanged for a
different number or kind of shares or other securities, or if additional shares
or new or different shares or other securities are distributed with respect to
such shares of Stock or other securities, through merger, consolidation,
spin-off, sale of all or substantially all the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other distribution with respect to such shares of Stock
or other securities, an appropriate and proportionate adjustment shall be made
by the Compensation Committee in the number and kind of Stock Units credited to
a Participants Stock Unit Account. |
|
(c)
Accounts Held in Trust. Amounts credited to Participants Accounts
may be secured by one or more trusts, as provided in Section 7.1, but shall be
subject to the claims of the Companys general creditors. Although the
principal of such trust and any earnings or losses thereon shall be
separate and apart from other funds of the Company and shall be used for the
purposes set forth therein, neither the Participants nor their Beneficiaries
shall have any preferred claim on, or any beneficial ownership in, any assets of
the trust prior to the time such assets are paid to the Participant or
Beneficiaries as benefits and all rights created under this Plan shall be
unsecured contractual rights of Plan Participants and Beneficiaries against the
Company. Any assets held in the trust shall be subject to the claims of the
Companys general creditors under federal and state law in the event of
insolvency. The assets of any trust established pursuant to this Plan shall
never inure to the benefit of the Company and the same shall be held for the
exclusive purpose of providing benefits to Participants and their beneficiaries. |
4.4
Investment Crediting Rates. At the
time of making a deferral election described in Section 4.1, the
Participant shall request on an Election Form the type of investment
crediting rate option with which the Participant would like the
Company, in its sole and absolute discretion, to credit the Participant: one of
several investment crediting rate options payable in cash or an
investment crediting rate option based on the performance of the
price of the Companys Stock and payable in the Companys Stock.
|
(a)
Cash Investment Crediting Rate Options. A
Participant may request on an Election Form the type of investment in which the
Participant would like amounts deferred by the Participant to be deemed invested
for purposes of determining the amount of earnings or losses to be
credited or losses to be debited to his/her cash Account. The Participant shall
specify his/her preference from among the following possible investment
crediting rate options: |
(13)
|
(i)
An annual rate of interest equal to 1% below the prime rate of interest as quoted by
Bloomberg, compounded daily; or |
|
(ii)
One or more benchmark mutual funds. |
|
A
Participant may change, on a daily basis, the investment crediting rate preference under
this Section 4.4(a) by filing an election in such manner as shall be determined by
the PAC. Notwithstanding any request made by a Participant, the Company, in its sole and
absolute discretion, shall determine the investment rate with which to credit amounts
deferred by Participants under this Plan, provided, however, that if the Company chooses
an investment crediting rate other than the investment crediting rate requested by the
Participant, such investment crediting rate cannot be less than (i) above. |
|
(b)
Stock Units. A Participant may request on an Election Form to have
amounts deferred by him/her invested in Stock Units. Deferrals invested in Stock
Units are irrevocable and shall be distributed in an equivalent whole number of
shares of Stock. Any fractional share interests shall be paid in cash with the
last distribution. |
|
(c)
Deemed Election. In his/her request(s) pursuant to this Section 4.4, the
Participant may request that all or any multiple of his/her Account (in whole
percentage increments) be deemed invested in one or more of the investment
crediting rate preferences provided under the Plan as communicated
from time to time by the PAC. Although a Participant may express an investment
crediting rate preference, the Company shall not be bound
by such request. If a Participant fails to set forth his/her investment
crediting rate preference under this Section 4.4, he/she shall
be deemed to have elected an annual rate of interest equal to 1% below the prime
rate of interest as quoted by Bloomberg, compounded daily. The PAC shall select
from time to time, in its sole and absolute discretion, the possible
investment crediting rate options to be offered on a Participants
deferrals and contributions for any Plan Year. |
|
(d)
Transferred Accounts. The Company retains the right in its sole and
absolute discretion to transfer a Participants Supplemental Plan account
balance, as the Company deems appropriate, from the Supplemental Plan to this
Plan. In the event that the Company determines that a transfer of a
Participants Supplemental Plan account balance to this Plan is
appropriate, a Participant shall be permitted to express an investment
crediting rate preference with respect to such transferred amounts.
In the event a Participants Supplemental Plan account balance is
transferred from the Supplemental Plan to this Plan, such transferred amount
shall be treated in all other respects as if such amount were initially deferred
pursuant to the terms of this Plan. |
(14)
|
(e)
Company Contributions. Contributions to the Plan made by
the Company and allocated to a Participants Account pursuant
to Section 4.2 shall be invested in accordance with the investment
crediting rate requested by such Participant on his/her Election Form for
the relevant Plan Year. |
ARTICLE V
DISTRIBUTION OF BENEFITS
5.1
General Rules. A Participant may elect to receive payment on Basic Deferrals and Bonus
Deferrals, and earnings or losses thereon, at any of the following times:
|
(a)
As soon as practicable after termination of a Participants employment, retirement,
Disability or death; |
|
(b)
In the first January following, or in the second January following, but not
later than the second January following, the Participants termination of
employment, retirement, Disability or death; or |
|
(c)
At a specified future date while still in the employ of the Company. |
Supplemental
Deferral Balances and earnings or losses thereon, are distributable
only upon a Participants termination of employment, retirement, Disability
or death.
All
distributions from the Plan shall be taxable as ordinary income when received and subject
to appropriate withholding of income taxes.
5.2
Distributions Resulting from Termination. In the
case of a Participant who terminates employment with the Company for any reason
and has an Account balance of $100,000 or less, such Participant shall be paid
the balance in his/her Account in a lump sum in accordance with Section 5.1.
A
Participant who has an Account balance in excess of $100,000 may elect either a
lump sum distribution or monthly installments over a period of not less than one
nor more than 15 years. Such Participants Election Form that has been in
effect for at least 12 months and made during an Open Enrollment Period shall
govern the form of distribution. In the event a Participant elects monthly
installments, such installment payments will begin in accordance with Section
5.1(a) or 5.1(b). All amounts held for a Participants or
Beneficiarys benefit shall be revalued annually if paid in installments.
5.3
Scheduled In-Service Withdrawals. In the case of a
Participant who, while still in the employ of the Company, has elected a
Scheduled Withdrawal Date for distribution of his/her Basic Deferrals and Bonus
Deferrals, and earnings or losses thereon, such Participant shall
receive a lump sum payment that must occur at least two calendar years after the
end of the Plan Year in which the Basic and Bonus Deferrals occurred. A
Participant may extend the Scheduled Withdrawal Date with respect to Basic
Deferrals and
(15)
Bonus Deferrals for any Plan Year, provided (i) such extension
occurs at least one year before the Scheduled Withdrawal Date, (ii) such extension
is for a period of not less than two years from the Scheduled Withdrawal Date, (iii) the
Participant may not extend the Scheduled Withdrawal Date more than two times and (iv) any
such extension shall be effective only if consented to by the PAC. All such lump sum
distributions will be paid in the January of the year specified on the election form.
If
a Participant retires, terminates employment, incurs a Disability or dies prior
to any Scheduled Withdrawal Date, the Scheduled In-Service Withdrawal will
be disregarded and waived and the Participants Account
balance will be distributed after the Participants retirement,
death, Disability or termination of employment in the same form of distribution
elected with respect to retirement, death, Disability or termination.
5.4
Non-Scheduled Withdrawals. A Participant shall be permitted to elect a Non-Scheduled
Withdrawal, subject to the following restrictions:
|
(a)
The election to take a Non-Scheduled Withdrawal shall be made by filing a form
provided by and filed with the PAC prior to the end of any calendar month. |
|
(b)
The amount of the Non-Scheduled Withdrawal shall in all cases not exceed 90% of
the gross amount of a Participants Account balance. |
|
(c)
The amount described in subsection (b) above shall be paid in a lump sum as soon
as practicable after the end of the month in which the Non-Scheduled Withdrawal
election is made. |
|
(d)
If a Participant receives a Non-Scheduled Withdrawal from his/her Account, the
Participant shall permanently forfeit an amount equal to 10% of the gross amount
of the Non-Scheduled Withdrawal and the Company shall have no obligation to the
Participant or his/her Beneficiary with respect to such forfeited amount. |
|
(e)
If a Participant receives a Non-Scheduled Withdrawal of any part of his/her
Account, the Participant will be ineligible to participate in the Plan for the
balance of the Plan Year and the next following Plan Year. |
5.5
Financial Necessity Distributions.
|
(a)
Unforeseeable Emergency. Upon application by the Participant, the Plan
Administrator, in its sole and absolute discretion, may direct payment of all or
a portion of the Basic Deferrals, Bonus Deferrals and/or Discretionary Deferrals
credited to the Account of a Participant prior to his/her separation from
employment or termination as a Director in the event of an Unforeseeable
Emergency. Any such application shall set forth the circumstances constituting
such Unforeseeable Emergency. |
|
In
addition to the deferrals specified in this Section 5.5(a), upon application by
the Participant, the Plan Administrator, in its sole and absolute discretion,
may direct payment of all or a portion of the Supplemental Deferrals credited to
the Account of |
(16)
|
the
Participant prior to his/her separation from employment or termination as a Director in
the event of an Unforeseeable Emergency. Such application and payment shall be subject to
the same conditions and limitations as a request for any other payment of deferrals under
this Section 5.5. |
|
(b)
Foreseeable Emergency. Upon application by the Participant, the Plan
Administrator, in its sole and absolute discretion, may direct payment of all or
a portion of the Basic Deferrals, Bonus Deferrals and/or Discretionary Deferrals
credited to the Account of a Participant prior to his/her separation from
employment or termination as a Director in the event of an Foreseeable
Emergency. Any such application shall set forth the circumstances constituting
such Foreseeable Emergency. |
|
(c)
General Rules Regarding Financial Necessity Distributions. The
Plan Administrator may not direct payment of any Basic Deferrals, Bonus
Deferrals, Supplemental Deferrals, and/or Discretionary Deferrals credited to
the Account of a Participant to the extent that such an Emergency is or may be
relieved (i) by reimbursement or compensation by insurance or otherwise or
(ii) by cessation of Basic Deferrals, Bonus Deferrals and/or Discretionary
Deferrals under this Plan. In the event that the Plan Administrator, in its sole
and absolute discretion, shall determine that such Emergency may be alleviated
by such cessation of deferrals under the Plan, the Plan Administrator shall deny
such financial necessity distribution and require the cancellation of the
Participants Basic Deferral, Bonus Deferral and/or Discretionary Deferral
elections for the Plan Year in which an Emergency shall occur. Conversely, if
the Plan Administrator, in its sole and absolute discretion, shall determine
that such Emergency may not be alleviated by such cessation of Basic Deferrals,
Bonus Deferrals and/or Discretionary Deferrals, it may approve such financial
necessity distribution. Any distribution from the Plan due to Emergency shall be
permitted only to the extent necessary to satisfy such Emergency, in the sole
and absolute discretion of the Plan Administrator, both with respect to the
determination as to whether an Emergency exists and also with respect to
determination of the amount distributable. The Plan Administrator may permit a
financial necessity distribution under this Section 5.5, but as a result
the Participant will be ineligible to participate in the Plan for the balance of
the Plan Year and the next following Plan Year. |
5.6
Elective Distributions. A Participant may elect to receive
a distribution of amounts credited to his/her Account upon a determination by
the Internal Revenue Service or a state taxing authority of competent
jurisdiction that amounts credited to such Account are subject to inclusion in
the gross income of such Participant or Beneficiary for federal or state income
tax purposes. Neither the PAC nor the Plan Administrator shall have any
obligation to determine whether any such determination is or has been made with
respect to any Participant and shall assume that no such determination has been
made until advised by the Participant, in writing, that such determination has
been made and that either such determination is final and binding, or that
obtaining judicial review of such determination is not reasonably likely to
result in a reversal of such determination or is economically prohibitive.
(17)
5.7
Death of a Participant. If a Participant dies while
employed by the Company, the Participants Account balance will be paid to
the Participants Beneficiary in the manner elected by the Participant.
In
the event a terminated Participant dies while receiving installment payments, the
remaining installments shall be paid to the Participants Beneficiary as such
payments become due.
In
the event a terminated Participant dies before receiving his/her lump sum payment or
before he/she begins receiving installment payments, the lump sum payment or installment
payments shall be paid to the Participants Beneficiary as such payments become due.
5.8
Disability of a Participant. In the event of the Disability
of the Participant, the Participant shall be entitled to a distribution of the
Participants Account balance in the manner elected in advance by the
Participant and, if applicable, in accordance with Section 6.2.
5.9
Change of Control. A Participant may, during an Open
Enrollment Period, file an Election Form in which the Participant elects to
receive a lump sum distribution of his/her Account balance in the event that a
Change of Control, as defined in Section 2.1(j), occurs. The Participants
election with respect to a distribution of his/her Account in the event of a
Change of Control must have been in effect for 12 months prior to the time of
the Change of Control. If elected, payment will be made as soon as practicable,
but in any event not more than six months, after the occurrence of a
Change of Control.
Notwithstanding
any provision in this Plan to the contrary, to the extent that any
portion of the lump sum distribution is characterized as a parachute payment
within the meaning of Proposed Regulations Section 1.280G-1 Q/A-24, or any
similar Regulations, then in no event shall the present value of such parachute
payment, when added to the present value of all other parachute payments
received as a result of a Change of Control, exceed 299% of the
Participants base amount as that term is defined in Section
280G of the Code.
If
a Participant has elected to receive a lump sum distribution of his/her Account
balance in the event of a Change of Control, a portion of which distribution is
characterized as a parachute payment, and such portion, when added to the
present value of all other parachute payments to be received as a result of a
Change of Control, exceeds an amount equal to 299% of the Participants
base amount, then the Participant may elect (a) to revoke the election made
pursuant to this Section 5.9, or (b) to receive in a lump sum distribution that
portion of his/her Account balance which does not result in a parachute payment
with the remainder being distributed in accordance with the Participants
election under Section 5.1.
5.10
Withholding. Any taxes or other legally required
withholdings from Compensation and Bonus deferrals and/or payments to
Participants or Beneficiaries hereunder shall be deducted and withheld by the
Company, benefit provider or funding agent as required pursuant to applicable
law. A Participant or Beneficiary shall be provided with a tax withholding
election form for purposes of federal and state tax withholding, if applicable.
(18)
5.11
Suspension of Benefits. If a Participant terminates service
and begins receiving installment distributions and such Participant is
reemployed by the Company, then such Participants installment
distributions shall be suspended during the period of his/her reemployment. Upon
the Participants subsequent termination of service, such installment
distributions shall recommence in the same form as they were being paid before
the reemployment, unless during the period of the Participants
reemployment he/she is eligible to participate in the Plan and elects a
different form of payment on his/her Election Form in accordance with this
Article V.
ARTICLE VI
PAYMENT LIMITATIONS
6.1
Spousal Claims.
|
(a)
In the event that an Alternate Payee is entitled to all or a portion of a
Participants Account(s) pursuant to the terms of a DRO, such Alternate
Payee shall have the following distribution rights with respect to such
Participants Account(s): |
|
(i)
payment of benefit in a lump sum as soon as practicable following the acceptance of the
DRO by the Plan Administrator; |
|
(ii)
payment of benefit in a lump sum in the first January following, or in the
second January following, but not later than the second January following, the
acceptance of the DRO by the Plan Administrator; |
|
(iii)
payment of benefit in equal monthly installments over a period of not less than
one nor more than 15 years from the date the DRO is accepted by the Plan
Administrator, but only if the Alternate Payee has an Account balance in excess
of $100,000; |
|
(iv)
payment of benefit in equal monthly installments over a period of not less than
one nor more than 15 years beginning the first January following, or the second
January following, the date the DRO is accepted by the Plan Administrator, but
only if the Alternate Payee has an Account balance in excess of $100,000. |
|
An
Alternate Payee who desires to elect either of the distributions described in
subsections (ii) or (iii) above, must complete and deliver to the Plan
Administrator all required forms and make such election within 30 days from the
date she/he is notified that she/he is eligible to participate in the Plan. Any
Alternate Payee who does not complete and deliver to the Plan Administrator all
required forms and/or does not elect either of the distributions described in
subsections (ii) or (iii) above shall receive his/her distributions in a lump
sum according to subsection (i) above. |
(19)
|
(b)
Any taxes or other legally required withholdings from payments to such Alternate
Payee shall be deducted and withheld by the Company, benefit provider or funding
agent. The Alternate Payee shall be provided with a tax withholding election
form for purposes of federal and state tax withholding, if applicable. |
|
(c)
The Plan Administrator shall have sole and absolute discretion to determine
whether a judgment, decree or order is a DRO, to determine whether a DRO shall
be accepted for purposes of this Section 6.1 and to make interpretations under
this Section 6.1, including determining who is to receive benefits, all
calculations of benefits, and the amount of taxes to be withheld. The decisions
of the Plan Administrator shall be binding on all parties with an interest. |
|
(d)
Any benefits payable to an Alternate Payee pursuant to the terms of a DRO shall
be subject to all provisions and restrictions of the Plan and any dispute
regarding such benefits shall be resolved pursuant to the Plan claims procedure
in Article VIII. |
6.2
Legal Disability. If a person entitled to any payment under
this Plan shall, in the sole judgment of the Plan Administrator, be under a
legal disability, or otherwise shall be unable to apply such payment to his/her
own interest and advantage, the Plan Administrator, in the exercise of its
discretion, may direct the Company or payor of the benefit to make any such
payment in any one or more of the following ways:
|
(a)
Directly to such person; |
|
(b)
To his/her legal guardian or conservator; or |
|
(c)
To his/her spouse or to any person charged with the duty of his/her support, to
be expended for his/her benefit and/or that of his/her dependents. |
The
decision of the Plan Administrator shall in each case be final and binding upon
all persons in interest, unless the Plan Administrator shall reverse its
decision due to changed circumstances.
6.3
Assignment.
Except as provided in Section 6.1, no Participant or Beneficiary shall have
any right to assign, pledge, transfer, convey, hypothecate, anticipate or in any
way create a lien on any amounts payable hereunder. No amounts payable hereunder
shall be subject to assignment or transfer or otherwise be alienable, either by
voluntary or involuntary act, or by operation of law, or subject to attachment,
execution, garnishment, sequestration or other seizure under any legal,
equitable or other process, or be liable in any way for the debts or defaults of
Participants and their Beneficiaries.
(20)
ARTICLE VII
FUNDING
7.1
Funding. Benefits under this Plan shall be funded solely by
the Company and its Affiliates. Benefits under this Plan shall constitute an
unfunded general obligation of the Company, but the Company may create reserves,
funds and/or provide for amounts to be held in trust to fund such benefits on
the Companys or its Affiliates behalf. Payment of benefits may be
made by the Company, any trust established by the Company or through a service
or benefit provider to the Company or such trust.
7.2
Creditor Status. Participants and their Beneficiaries shall
be general unsecured creditors of the Company or the Participants
employing Affiliate(s) with respect to the payment of any benefit under this
Plan, unless such benefits are provided under a contract of insurance or an
annuity contract that has been delivered to Participants, in which case
Participants and their Beneficiaries shall look to the insurance carrier or
annuity provider for payment, and not to the Company or Affiliate. The
Companys or Affiliates obligation for such benefit shall be
discharged by the purchase and delivery of such annuity or insurance contract.
ARTICLE VIII
ADMINISTRATION
8.1
The PAC. The overall administration of the Plan will
be the responsibility of the PAC.
8.2
Powers of PAC. In order to effectuate the purposes of
the Plan, the PAC will have the following powers:
|
(a)
To appoint the Plan Administrator; |
|
(b)
To review and render decisions respecting a denial of a claim for benefits under the Plan; |
|
(c)
To construe the Plan and to make equitable adjustments for any mistakes or errors made in
the administration of the Plan; and |
|
(d)
To determine and resolve, in its sole and absolute discretion, all questions
relating to the administration of the Plan and the trust established to
secure the assets of the Plan (i) when differences of opinion
arise between the Employer, the Plan Administrator, the Trustee, a Participant,
or any of them and (ii) whenever it is deemed advisable to determine such
questions in order to promote the uniform and nondiscriminatory administration
of the Plan for the greatest benefit of all parties concerned. |
(21)
The foregoing list of express powers is not intended to be
either complete or conclusive, and the PAC will, in addition, have such powers
as it may reasonably determine to be necessary or appropriate in the performance
of its powers and duties under the Plan.
8.3
Appointment of Plan Administrator. The PAC will appoint the
Plan Administrator, who will have the responsibility and duty to administer the
Plan on a daily basis. The PAC may remove the Plan Administrator with or without
cause at any time. The Plan Administrator may resign upon written notice to the
PAC.
8.4
Duties of Plan Administrator. The Plan Administrator will have the following duties:
|
(a)
To direct the administration of the Plan in accordance with the provisions herein set
forth; |
|
(b)
To adopt rules of procedure and regulations necessary for the administration of the Plan,
provided such rules are not inconsistent with the terms of the Plan; |
|
(c)
To determine all questions with regard to rights of Employees, Participants, and
Beneficiaries under the Plan including, but not limited to, questions involving
eligibility of an Employee to participate in the Plan and the value of a
Participants Accounts; |
|
(d)
To enforce the terms of the Plan and any rules and regulations adopted by the PAC; |
|
(e)
To review and render decisions respecting a claim for a benefit under the Plan; |
|
(f)
To furnish the Company with information that the Company may require for tax or other
purposes; |
|
(g)
To engage the service of counsel (who may, if appropriate, be counsel for the Company),
actuaries, and agents whom it may deem advisable to assist it with the performance of its
duties; |
|
(h)
To prescribe procedures to be followed by distributees in obtaining benefits; |
|
(i)
To receive from the Company and from Participants such information as is necessary for
the proper administration of the Plan; |
|
(j)
To establish and maintain, or cause to be maintained, the individual Accounts described
in Section 4.3; |
(22)
|
(k)
To create and maintain such records and forms as are required for the efficient
administration of the Plan; |
|
(l)
To make all determinations and computations concerning the benefits, credits and debits
to which any Participant, or other Beneficiary, is entitled under the Plan; |
|
(m)
To give the Trustee of the trust established to serve as a source of funds under
the Plan specific directions in writing with respect to: |
|
(i)
the making of distribution payments, giving the names of the payees, the amounts to be
paid and the time or times when payments will be made; and |
|
(ii)
the making of any other payments which the Trustee is not by the terms of the trust
agreement authorized to make without a direction in writing by the Plan Administrator; |
|
(n)
To comply with all applicable lawful reporting and disclosure requirements of the Act; |
|
(o)
To comply (or transfer responsibility for compliance to the Trustee) with all applicable
federal income tax withholding requirements for benefit distributions; and |
|
(p)
To construe the Plan, in its sole and absolute discretion, and make equitable
adjustments for any mistakes and errors made in the administration of the Plan. |
The foregoing list of express duties is not intended to be
either complete or conclusive, and the Plan Administrator will, in addition,
exercise such other powers and perform such other duties as it may deem
necessary, desirable, advisable or proper for the supervision and administration
of the Plan.
8.5
Indemnification of PAC and Plan Administrator. To the
extent not covered by insurance, or if there is a failure to provide full
insurance coverage for any reason, and to the extent permissible under corporate
by-laws and other applicable laws and regulations, the Company agrees to hold
harmless and indemnify the PAC and Plan Administrator against any and all claims
and causes of action by or on behalf of any and all parties whomsoever, and all
losses therefrom, including, without limitation, costs of defense and reasonable
attorneys fees, based upon or arising out of any act or omission relating
to or in connection with the Plan other than losses resulting from the
PACs, or any such persons, fraud or willful misconduct.
8.6
Claims for Benefits.
|
(a)
Initial Claim. In the event that an Employee, Eligible
Employee, Participant or his/her Beneficiary claims to be eligible for
benefits, or claims any rights under this Plan, he/she must complete and submit
such claim forms and supporting |
(23)
|
documentation
as shall be required by the Plan Administrator, in its sole and absolute discretion.
Likewise, any Participant or Beneficiary who feels unfairly treated as a result of the
administration of the Plan, must file a written claim, setting forth the basis of the
claim, with the Plan Administrator. In connection with the determination of a claim, or
in connection with review of a denied claim, the claimant may examine this Plan, and any
other pertinent documents generally available to Participants that are specifically
related to the claim. |
|
A
written notice of the disposition of any such claim shall be furnished to the
claimant within 90 days after the claim is filed with the Plan Administrator.
Such notice shall refer, if appropriate, to pertinent provisions of this Plan,
shall set forth in writing the reasons for denial of the claim if a claim is
denied (including references to any pertinent provisions of this Plan) and,
where appropriate, shall explain how the claimant may perfect the claim. If the
claim is denied, in whole or in part, the claimant shall also be notified in
writing that a review procedure is available. All benefits
provided in this Plan as a result of the disposition of a claim will be paid as
soon as practicable following receipt of proof of entitlement, if
requested. |
|
(b)
Request for Review. Within 90 days after receiving the written notice of
the Plan Administrators disposition of the claim, the claimant may file
with the PAC a written request for review of his/her claim. In connection with
the request for review, the claimant shall be entitled to be represented by
counsel. If the claimant does not file a written request for review within 90
days after receiving written notice of the Plan Administrators disposition
of the claim, the claimant shall be deemed to have accepted the Plan
Administrators written disposition, unless the claimant shall have been
physically or mentally incapacitated so as to be unable to request review within
the 90 day period. |
|
(c)
Decision on Review. A decision on review of the claim shall be made
by the PAC at its next meeting following receipt of the written
request for review. If no meeting of the PAC is scheduled within 45
days of receipt of the written request for review, then the PAC shall hold a
special meeting to review such written request for review
within such 45-day period. If special circumstances require an extension
of the 45-day period, the PAC shall so notify the claimant and a
decision shall be rendered within 90 days of the receipt of the
request for review. In any event, if a claim is not determined by the PAC
within 90 days of receipt of written submission for review, it shall be
deemed to be denied. |
|
The
PAC shall have the right to request of, and receive from,
a claimant such additional information, documents or other evidence as the PAC
may reasonably require. The decision of the PAC shall be in writing and shall
reference the provisions of the Plan on which the decision is based. To the
extent permitted by law, a decision on review by the PAC shall be binding and
conclusive upon all persons whomsoever. |
(24)
8.7
Arbitration. In the event the claims review procedure
described in Section 8.6 of the Plan does not result in an outcome thought
by the claimant to be in accordance with the Plan document, he/she may appeal to
a third party neutral arbitrator. The claimant must appeal to an arbitrator
within 60 days after receiving the PACs denial or deemed denial of his/her
request for review and before bringing suit in court.
The
arbitrator shall be mutually selected by the Participant and the PAC from a list
of arbitrators provided by the American Arbitration Association
(AAA). If the parties are unable to agree on the selection of an
arbitrator within 10 days of receiving the list from the AAA, the AAA shall
appoint an arbitrator. The arbitrators review shall be limited to
interpretation of the Plan document in the context of the particular facts
involved. The claimant, the PAC and the Company agree to accept the award of the
arbitrator as binding, and all exercises of power by the arbitrator hereunder
shall be final, conclusive and binding on all interested parties, unless found
by a court of competent jurisdiction, in a final judgment that is no longer
subject to review or appeal, to be arbitrary and capricious. The costs of
arbitration shall be shared by the Company and the claimant; the costs of legal
representation for the claimant or witness costs for the claimant shall be borne
by the claimant.
The
arbitrator shall have no power to add to, subtract from, or modify any of the
terms of the Plan, or to change or add to any benefits provided by the Plan, or
to waive or fail to apply any requirements of eligibility for a benefit under
the Plan. Nonetheless, the arbitrator shall have absolute discretion in the
exercise of its powers in this Plan. Arbitration decisions will not establish
binding precedent with respect to the administration or operation of the Plan.
8.8
Receipt and Release of Necessary Information. In
implementing the terms of this Plan, the PAC and Plan Administrator, as
applicable, may, without the consent of or notice to any person, release to or
obtain from any other insuring entity or other organization or person any
information, with respect to any person, which the PAC or Plan Administrator
deems to be necessary for such purposes. Any Participant or Beneficiary claiming
benefits under this Plan shall furnish to the PAC or Plan Administrator, as
applicable, such information as may be necessary to determine eligibility for
and amount of benefit, as a condition of claiming and receiving such benefit.
8.9
Overpayment and Underpayment of Benefits. The Plan
Administrator may adopt, in its sole and absolute discretion, whatever rules,
procedures and accounting practices are appropriate in providing for the
collection of any overpayment of benefits. If a Participant or Beneficiary
receives an underpayment of benefits, the Plan Administrator shall direct that
payment be made as soon as practicable to make up for the underpayment. If an
overpayment is made to a Participant or Beneficiary, for whatever reason, the
Plan Administrator may, in its sole and absolute discretion, withhold payment of
any further benefits under the Plan until the overpayment has been collected or
may require repayment of benefits paid under this Plan without regard to further
benefits to which the Participant or Beneficiary may be entitled.
(25)
ARTICLE IX
OTHER BENEFIT PLANS OF THE COMPANY
9.1
Other Plans. Nothing contained in this Plan shall prevent a
Participant prior to his/her death, or a Participants spouse or other
Beneficiary after such Participants death, from receiving, in addition to
any payments provided for under this Plan, any payments provided for under any
other plan or benefit program of the Company or an Affiliate, or which would
otherwise be payable or distributable to him/her, his/her surviving spouse or
Beneficiary under any plan or policy of the Company or otherwise. Nothing in
this Plan shall be construed as preventing the Company or any of its Affiliates
from establishing any other or different plans providing for current or deferred
compensation for employees and/or Directors. Unless otherwise specifically
provided in any plan of the Company intended to qualify under
Section 401 of the Code, Compensation Deferrals made under this Plan shall
constitute earnings or compensation for purposes of determining contributions or
benefits under such qualified plan.
ARTICLE X
AMENDMENT AND TERMINATION OF THE PLAN
10.1
Amendment. The Compensation Committee may amend this Plan
by duly authorized written amendment; provided that no amendment or modification
shall deprive a Participant, or person claiming benefits under this Plan through
a Participant, of any benefit accrued under this Plan up to the date of
amendment or modification, except as may be required by applicable law.
10.2
Termination. The Compensation Committee may terminate or
suspend this Plan in whole or in Part at any time, provided that no such
termination or suspension shall deprive a Participant, or person claiming
benefits under this Plan through a Participant, of any benefit accrued under
this Plan up to the date of suspension or termination, except as required by
applicable law. Upon the complete termination of the Plan, the Compensation
Committee, in its sole and absolute discretion, may direct the Plan
Administrator to distribute each Participants account to him/her or
his/her Beneficiary, as applicable, in a lump sum and regardless of whether
benefit payments have previously commenced to be made to such Participant.
10.3.
Continuation. The Company intends to continue this Plan indefinitely, but nevertheless
assumes no contractual obligation beyond the promise to pay the benefits described in
this Plan.
(26)
ARTICLE XI
MISCELLANEOUS
11.1
No Reduction of Employer Rights. Nothing contained in this
Plan shall be construed as a contract of employment between the Company or an
Affiliate and an Employee, or as a right of any Employee to continue in the
employment of the Company or an Affiliate, or as a limitation of the right of
the Company or an Affiliate to discharge any of its Employees, with or without
cause or as a right of any Director to be renominated to serve as a Director.
11.2
Provisions Binding. All of the provisions of this Plan shall be binding upon all persons
who shall be entitled to any benefit hereunder, their heirs and personal representatives.
(27)