EXHIBIT 10.234
Executive Deferred Compensation Plan
of
U.S. Trust Corporation
As Amended and Restated effective as of January 1, 2001
1. Purpose
The Plan hereinafter set forth represents a continuation of the Executive
Deferred Compensation Plan maintained by U.S. Trust Corporation before its
merger with the Charles Schwab Corporation pursuant to the Agreement and Plan of
Merger dated as of January 12, 2000.
The purpose of the Plan is to provide: (a) Eligible Officers with an opportunity
to defer payment of certain portions of their compensation, at their election,
in accordance with the provisions herein set forth; and (b) for the mandatory
deferral of a portion of the incentive compensation payable to certain employees
of the Corporation and its Affiliated Companies.
The Plan is intended to constitute an unfunded plan maintained primarily for the
purpose of providing deferred compensation for "a select group of management or
highly compensated employees" within the meaning of Sections 201(2), 301(a)(3)
and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA").
2. Definitions
As used herein, the following terms shall have the following meanings:
"Account" or "Accounts" shall mean the account or accounts established for
a Participant pursuant to Section 4.
"Affiliated Companies" shall mean United States Trust Company of New York
and each other direct or indirect subsidiary of U.S. Trust Corporation.
"Award" shall mean any award made to a Participant under the Executive
Incentive Plan of U.S. Trust Corporation (EIP) or the Annual Incentive
Plan of U.S. Trust Corporation.
"Beneficiary" shall mean the person or persons designated by a Participant
in accordance with Section 8 to receive any amount payable under the Plan
by reason of his or her death.
"Board of Directors" shall mean the Board of Directors of U.S. Trust
Corporation.
"Change in Control" shall mean that any of the following events has
occurred after the Merger Closing Date.
(i) A Change in Control required to be reported pursuant to Item
6(e) of Schedule 14A of Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(ii) A change in the composition of the Board of Directors of the
Company, as a result of which fewer than two-thirds of the
incumbent directors are directors who either (i) had been
directors of the Company 24 months prior to such change or
(ii) were elected, or nominated for election, to the Board of
Directors of the Company with the affirmative votes of at
least a majority of the directors who had been directors of
the Company 24 months prior to such change and who were still
in office at the time of the election or nomination;
(iii) Any "person" (as such term is used in sections 13(d) and 14(d)
of the Exchange Act) becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 20
percent or more of the combined voting power of the Company's
then outstanding securities ordinarily (and apart from rights
accruing under special circumstances) having the right to vote
at elections of directors (the "Base Capital Stock");
provided, however, that any change in the relative beneficial
ownership of securities of any person resulting solely from a
reduction in the aggregate number of outstanding shares of
Base Capital Stock, and any decrease thereafter in such
person's ownership of securities, shall be disregarded until
such person increases in any manner, directly or indirectly,
such person's beneficial ownership of any securities of the
Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Committee" shall mean the Committee, as constituted from time to time,
appointed by the senior management of the Company to administer the Plan.
"Company" shall mean The Charles Schwab Corporation, a Delaware
Corporation.
"Corporation" shall mean U.S. Trust Corporation, a wholly owned subsidiary
of the Company.
"Eligible Compensation" shall mean, with respect to any Eligible Officer
for any Plan Year beginning on or after January 1, 2001, (i) the portion
of any Award that becomes payable in cash to the Eligible Officer during
such year as reduced by any amount that is contributed to the 401(k) Plan
on the Eligible Officer's behalf with respect to such Award pursuant to
the Eligible Officer's election under the applicable provisions of the
401(k) Plan; (ii) the portion of any Mandatory Deferred Contribution that
becomes vested and payable in cash to a Participant during such year; and
(iii) the portion of any commissions (including any "trail" commissions
and any commission "overrides") that is payable in cash to the Eligible
Officer during such year (but, in the case of any amount payable during
such year with respect to commissions that were earned prior to the start
of such year, only to the extent of such of those commissions as were
earned after the date on which the Eligible Officer filed his or her
deferral election for such year under Section 3), exclusive of the amount
of any such commissions that are included in the Eligible Officer's base
compensation for any Plan Year pursuant to the Eligible Officer's
election, and the portion of any bonus or incentive payments that is
payable in cash to the Eligible Officer pursuant to any employment
agreement between the Eligible Officer and the Corporation or any of its
Affiliated Companies, to the extent earned during such year, regardless of
the year in which such bonus or incentive payments are payable.
"Eligible Officer" shall mean any officer of the Corporation or any of its
Affiliated Companies at or above the rank of Vice President:
(a) whose wages (excluding the amount of any Stock Option Cashout
Payment) subject to FICA-HI exceeded $170,000 for the Plan Year
immediately preceding the Plan Year in which such officer makes a
deferral election under Section 3; or
(b) whose base salary as of October 1 of the Plan Year in which such
officer makes a deferral election under Section 3 when aggregated
with AIP/EIP target bonus amount for such year, regardless of the
year in which such bonus amount is payable, exceeds $300,000; or
(c) who has been credited with a Mandatory Deferred Contribution.
For any Plan Year beginning on or after January 1, 2001, the $170,000
referred to in the preceding sentence shall be adjusted to the extent
necessary for such amount to equal the of the limitation on annual
compensation in effect for such year under section 401(a)(17) of the Code.
"401(k) Plan" shall mean the U.S. Trust Corporation 401(k) Plan.
"401(k) Plan Year" shall mean the "Plan Year" as defined in the 401(k)
Plan.
"Mandatory Deferred Contribution" shall mean the amount credited by the
Corporation or an Affiliated Company to a Participant's Account.
"Merger Closing Date" shall mean May 31, 2000.
"Participant" shall mean any (i) Eligible Officer who has made an election
under Section 3 hereof (or under Section 3 of the Prior Plan) to defer any
portion of his or her Eligible Compensation for any Plan Year, (ii) person
who has made an election under the Prior Plan to defer any portion of his
or her 1995 Cashout Payments (as defined in Section 4 of the Prior Plan),
(iii) person whose Account or Accounts have been credited with a
Supplemental ESOP Contribution amount for any 401(k) Plan Year pursuant to
Section 5 of the Prior Plan, or (iv) any person whose Mandatory Deferred
Contribution Account has been credited with a Mandatory Deferred
Contribution pursuant to Section 5 hereof.
"Plan" shall mean the Executive Deferred Compensation Plan of U.S. Trust
Corporation, as set forth herein and as amended from time to time.
"Plan Year" shall mean each calendar year.
"Prior Plan" shall mean the Executive Deferred Compensation Plan of U.S.
Trust Corporation, as in effect prior to the Merger Closing Date.
"Retirement" shall mean a Participant's termination of employment with the
Corporation and its Affiliated Companies for any reason other than death
if, as of the date of the Participant's termination of employment, (i) the
Participant has attained age 65, or (ii) the Participant has attained age
sixty (60) and is credited with at least ten (10) "Years of Service" (as
defined in the Retirement Plan), or (iii) the sum of Participant's age and
the number of his or her "Years of Service", as defined in the 401(k)
Plan, is at least equal to 80. In addition, in the case of any Participant
who becomes entitled to receive benefit payments under the long-term
disability plan maintained by the Corporation or any of its Affiliated
Companies and who continues to receive payments under such plan throughout
the entire period ending on the date on which Participant first meets the
age, or the age of service, requirements set forth in clause (i), (ii) or
(iii) above, such Participant shall be treated, for purposes of the Plan,
as having terminated employment with the Corporation and its Affiliated
Companies as a result of Retirement, on the first day of the month
following the date on which the Participant first meets such requirements.
In applying clause (ii) and (iii) above for this purpose, the
Participant's "Years of Service" shall include the number of calendar
years (or part thereof) during which the Participant has received benefits
payments under such long-term disability plan.
"Statutory Limitations" shall mean, with respect to any 401(k) Plan Year,
the limitations imposed under sections 401(a)(17) and 415 of the Code with
respect to the amount of compensation that may be taken into account in
calculating contributions on behalf of any Member, and the amount of
contributions that may be allocated to a Member's account, under the
401(k) Plan for such year.
"Stock Option Cashout Payment" shall mean the payment made upon the
consummation of the merger of U.S. Trust Corporation with the Charles
Schwab Corporation to an Eligible Officer with respect to shares subject
to any unexercised stock options granted to the Eligible Officer under the
1995 Stock Option Plan of U.S. Trust Corporation.
"Vesting Date" shall mean with respect to any amount credited to a
Participant's Mandatory Deferred Contribution Account, the date as of
which such amount becomes vested under the terms of the Executive
Incentive Plan of U.S. Trust Corporation, the applicable commission
arrangement or the applicable employment contract as the case may be.
3. Deferral of Eligible Compensation
With respect to each Plan Year beginning on or after January 1, 2001, an
Eligible Officer may elect to have payment of any part or all of his or her
Eligible Compensation for such year deferred, and to have payment of such
portion made under the terms of this Plan. Any such election shall be made in
accordance with the following rules:
(a) A deferral election shall be made in writing in the manner
prescribed by the Committee for such purpose.
(b) In the deferral election, the Eligible Officer (i) shall specify, by
amount or percentage (which must be an even multiple of 5%), the
portion of his or her Eligible Compensation the Eligible Officer
wishes to defer (the amounts so deferred are hereinafter referred to
as the Eligible Officer's "Deferred Amount").
(c) An Eligible Officer's election to defer payment of any amount
credited to his or her Mandatory Contribution Account must be made
at least one year prior to the Vesting Date of such amount. An
Eligible Officer's election to defer any other Eligible Compensation
for any Plan Year beginning on or after January 1, 2001, shall be
filed with the Committee no later than December 15 of the preceding
Plan Year, or by such other date as the Committee may determine in
its discretion.
(d) Any deferral election made by an Eligible Officer with respect to
his or her Eligible Compensation for a Plan Year shall be
irrevocable.
(e) Notwithstanding any other provision herein to the contrary, a
deferral election otherwise permitted to be made hereunder shall be
subject to the following requirements:
(i) No amount may be deferred pursuant to an Eligible Officer's
election unless such amount equals or exceeds $1,000;
(ii) No portion of an Eligible Officer's Eligible Compensation may
be deferred hereunder to the extent that any tax is required
to be withheld from such portion pursuant to applicable
federal, state or local law;
(iii) No portion of an Eligible Officer's Eligible Compensation may
be deferred hereunder to the extent that such portion has been
earned prior to the date on which the Eligible Officer's
election to defer such portion has been filed with the
Committee; and
(iv) No amount may be deferred pursuant to an Eligible Officer's
election hereunder for a period of 12 months (or such other
period required by IRS regulations) following the Eligible
Officer's receipt of a hardship withdrawal under the 401(k)
Plan.
4. Accounts
There shall be maintained on the books and records of the Corporation, for
bookkeeping purposes only, separate Accounts for each Participant, to reflect
the Participant's interest under the Plan, including all amounts credited to
each Participant under the Prior Plan. Such Accounts shall be established and
maintained in accordance with the following provisions:
(a) A Mandatory Deferred Contribution Account shall be established and
maintained for each Participant who is credited with a Mandatory
Deferred Contribution to the Plan on or after January 1, 2001.
(b) A Vested Mandatory Deferred Contribution Account shall be
established and maintained for each Participant who elects under
Section 3 to have payment deferred with respect to any portion of
his or her Mandatory Deferred Contribution Account.
(c) A Participant's Accounts shall be credited with the Deferral Amount
that the Participant has specified in his or her election under
Section 3(b). Such amount shall be credited to the Participant's
Account as of the first business day of the calendar month following
the month in which the amount in question would have been paid to
the Participant had the Participant not elected under Section 3 to
have payment of such amount deferred under this Plan. A
Participant's Account shall be adjusted to reflect all Earnings (as
defined in paragraph (a) of Section 6) or interest to be credited to
such Accounts pursuant to Section 6, all transfers to or from such
Accounts pursuant to Section 6(d)(ii) or (e), and all payments made
with respect to the Participant's Account balances pursuant to
Section 7.
(d) Other than amounts credited to a Participant's Mandatory Deferred
Contribution Account under Section 4(c), which shall vest in
accordance with the applicable Vesting Date and Awards deferred
under this Plan a Participant's interest in each of his or her
Accounts shall be fully vested and nonforfeitable at all times.
5. Mandatory Deferred Contributions
(a) There shall be credited to the Mandatory Deferred Contribution
Account an amount equal to the amount of the Mandatory Deferred
Contribution awarded to the Participant.
(b) As of the Vesting Date of any Mandatory Deferred Contributions with
respect to which a deferral election has been made under Section 3,
the Participant's Vested Mandatory Deferred Contribution Account
shall be credited with an amount equal to the amount of the
Mandatory Deferred Contribution that the Participant has elected to
defer.
6. Crediting of Earnings
Until payment with respect to a Participant's Accounts has been made in full,
the Participant's Accounts shall be credited with Earnings or interest in
accordance with the following provisions:
(a) As of the last day of each calendar month, each part of the balance
of a Participant's Account for which a separate Earnings Credit
Option (as hereinafter defined) is in effect pursuant to the
Participant's election hereunder shall be credited with an amount
determined by multiplying such part of the balance of the
Participant's Account by a percentage corresponding to the
Applicable Rate of Return (as hereinafter defined) for such month
under such Earnings Credit Option. The amount so credited (which may
be positive or negative depending on whether the Applicable Rate of
Return for the month is positive or negative) is referred to herein
as "Earnings".
(b) For purposes of this Section 6, the term "Earnings Credit Option"
shall mean, as of any date of reference, any one of the following:
the S&P 500 Index, the Lehman Bros. Government/Corporate Bond Index,
and the IBC's Money Fund Report First Tier Average. Notwithstanding
the foregoing, the Committee may at any time, in its sole
discretion, determine (i) that any option referred to in the
preceding paragraph shall cease to constitute an Earnings Crediting
Option for purposes of the Plan, or (ii) that any other index or
hypothetical investment fund or referenced rate of return shall
constitute an Earnings Crediting Option for purposes of this Plan.
Participants shall be notified in writing, at least 45 days in
advance, of any change in the Plan's Earnings Crediting Options.
(c) The "Applicable Rate of Return" for any month shall mean (i) in the
case of the S&P 500 Index, the percentage, as determined by the
Committee, by which (A) the value of such Index as of the last
business day of such month, as adjusted to reflect all income earned
for such month on the securities included in such Index, exceeds, or
is less than, (B) the value of such Index as of the last business
day of the immediately preceding month, determined without taking
such adjustment into account; (ii) in the case of the Lehman Bros.
Government/Corporate Bond Index, the percentage, as determined by
the Committee, by which the value of such Index as of the last
business day of such month, exceeds, or is less than, the value of
such Index as of the last business day of the immediately preceding
month; (iii) in the case of the IBC's Money Fund Report First Tier
Average, the rate of return corresponding to the 7-day compounded
yield for such Average, for the period ending on, or most recently
prior to, the last day of such month; and (iv) in the case of any
other Earnings Crediting Option, the rate of return applicable for
such month, as determined by the Committee in its sole discretion.
(d) A Participant may make elections with respect to the Earnings
Crediting Options that are to apply on and after January 1, 2001
with respect to his or her Account in accordance with the following
rules:
(i) A Participant may elect to have any part or all of the balance
of any such Account credited with Earnings under any Earnings
Crediting Option available under the Plan at the time of his
or her election.
(ii) In the case of a Participant for whom an Account was
maintained on December 31, 2000, pursuant to the Prior Plan,
the Earnings Crediting Option in effect, such date shall
continue to apply until changed by the Paricipant pursuant to
Section 6(d)(iii). Each Eligible Officer who becomes a
Participant on or at any time after January 1, 2001 shall make
an initial election as to the Earnings Crediting Options that
are to apply with respect to his or her Account in the manner
prescribed by the Committee. In such election, the Participant
shall specify, by percentages (which must be an even multiple
of 5%), the respective parts of the balance of such Account
that are to be credited with Earnings under each of the
Earnings Crediting Options designated by the Participant. If a
Participant has failed to make a timely election as to the
Earnings Crediting Options that are to apply to any Account
prior to the date as of which an amount is first credited to
such Account, the Participant shall be deemed to have selected
the IBC's Money Fund Report First Tier Average as the Earnings
Crediting Option to apply to the entire balance of such
Account.
(iii) The Earnings Crediting Options selected (or deemed to have
been selected) by a Participant with respect to an Account
shall remain in effect for that Account (and shall apply to
all additional amounts allocated to such Account pursuant to
any elections made by the Participant hereunder with respect
to any subsequent Plan Years) until the Participant changes
his or her election as to the Earnings Crediting Options for
that Account in accordance with clause (iv) below.
(iv) A Participant may change the Earnings Crediting Options that
are to apply with respect to the balance of an Account, or
with respect to any Deferred Amounts to be credited to such
Account for any Plan Year pursuant to the Participant's
election, by making a new election hereunder with respect to
the balance of that Account, or with respect to such Deferred
Amounts in the manner prescribed by the Committee. The
Participant shall specify, in the same manner as described in
clause (ii) above, the respective parts of the balance of such
Account, or portions of such Deferred Amounts, that are to be
credited with Earnings under each of the Earnings Crediting
Options designated by the Participant. Any new election made
by a Participant hereunder with respect to the balance of any
Account shall become effective as of the first day of the
calendar month following the date on which such election is
made, provided that it is at least 2 business days prior to
such first day. Any new election made by a Participant
hereunder with respect to Deferred Amounts to be credited to
such Account for any Plan Year shall be effective as of the
date such amounts are credited to such Account under Section
4. The Earnings Crediting Options selected by the Participant
in such new election shall remain in effect with respect to
the Participant's Account until the Participant again changes
his or her election with respect to that Account in accordance
with this clause (iv).
(e) If payment with respect to any Account maintained for a Participant
is to be made in form of annual installments pursuant to Section 7
with respect to such Account, such Account shall continue to be
credited with Earnings or interest in accordance with the provisions
of this Section 6 until all payments required to have been made with
respect to such Account have been made. For this purpose, any such
payments shall be deemed to have been made pro rata from the
respective portions of the balance of such Account that are subject
to separate Earnings Crediting Options.
7. Payment of Account Balances
Payment with respect to a Participant's Account balances shall be made in
accordance with the following provisions:
(a) Except for the nonvested portion of a Participant's Mandatory
Deferred Contribution Account, a Participant's Account balances
shall become payable upon the earliest to occur of the following
events (hereinafter referred to as "Payment Events"): (i) the
Participant's death, (ii) the Participant's Retirement, (iii) the
Participant's termination of employment with the Corporation and its
Affiliated Companies or the Company for any reason other than death
or Retirement, and (iv) the occurrence of a Change in Control
(b) Amounts credited to a Participant's Mandatory Deferred Contribution
Account shall become payable in the form of a single lump sum cash
payment as soon as practicable following the Vesting Date applicable
to such amounts unless a Participant elects at least one year prior
to such Vesting Date to defer payment with respect to such amounts
pursuant to Section 3.
(c) Unless at the time a Participant's Account becomes payable there is
in effect for the Participant an election under (d) below, payment
with respect to such Account shall be made in the form of a single
lump cash payment. Such payment shall be made to the Participant or,
if the Participant's Account becomes payable by reason of his or her
death, to the Participant's Beneficiary. Payment shall be made on
the last business day of March of the Plan Year following the year
in which the Participant's termination of employment occurs. The
amount so payable shall be equal to the balance of the Participant's
Account determined as of the last day of February.
(d) A Participant may elect to have payment with respect to the balance
of his or her Account, or with respect to any percentage of such
balance (which must be an even multiple of 10%) as the Participant
specifies in such election, made to the Participant, or in the event
of the Participant's death, to his or her Beneficiary, in the form
of a series of 5, 10, or 15 annual installments, payable in the
manner described in Section 7(d), if the Participant's Account
becomes payable as a result of the Participant's Retirement, or as a
result of the Participant's death while he or she is still employed
with the Corporation or any of its Affiliated Companies but after
the Participant has met the age, or the age and service,
requirements for eligibility for Retirement stated in the definition
of such term contained in Section 2. An election under this Section
7(c) shall be made in writing, on a form that is provided by the
Committee for such purpose and that is filed by the Participant with
the Committee at least one year prior to the date on which the
Participant's termination of employment occurs. Any election so made
may be revoked, and a new election may be made hereunder after such
revocation. Any such revocation or new election shall be made in the
same manner, and by the same date, as described in the second
preceding sentence. No election or revocation of an election made
hereunder shall be given effect unless it is made within the time
prescribed herein.
(e) If a Participant's Account becomes payable in the form of a series
of 5, 10 or 15 annual installments pursuant to the Participant's
election under Section 7(d), such payments shall be made in
accordance with the following provisions:
(i) the first such installment payment shall be made on the last
business day of March of the Plan Year following the year in
which the Participant's termination of employment occurs, and
the remaining installment payments shall be made on the last
business day of March of each succeeding Plan Year.
(ii) the amount of each such installment payment shall be
determined by dividing (A) the balance of the Participant's
Account determined as of the last day of the Plan Year
preceding the year in which such payment is to be made, by (B)
the number of installment payments remaining to be made. The
last such installment payment shall include earnings credited
to the Account for the month preceding the month in which such
payment is made.
(ii) if the Participant should die before receiving all installment
payments required to be made with respect to his or her
Account, any installment payments remaining to be made at the
date of the Participant's death shall be made to the
Participant's Beneficiary in the same form, at the same times,
and in the same amounts, as such payments would have been made
to the Participant (A) if he or she had not died, and (B), in
the case of installment payments required to be made to a
Beneficiary due to the death of a Participant occurring before
the Participant had received any such payments, if the
Participant's employment had terminated as a result of
Retirement on the date of his or death.
(f) Notwithstanding any previous provision in this Section 7 to the
contrary, payments with respect to a Participant's Account shall be
subject to the following special rules: upon occurrence of a Change
in Control the balance of each Participant's Account shall become
immediately due and payable. Payment with respect to such balance
shall be made to the Participant or, if the Participant has died, to
his or her Beneficiary, in the form of a single lump sum cash
payment. Payment shall be made as soon as practicable after the
occurrence of such Change in Control. The amount so payable shall be
equal to the balance of the Participant's Account determined as of
the last day of the month preceding the month in which payment is
made.
(g) Notwithstanding any other provision in this Section 7 to the
contrary, payment with respect to any part or all of the
Participant's Account balances may be made to the Participant of, if
applicable, the Participant's Beneficiary, on any date earlier than
the date on which such payment is to be made pursuant to such other
provisions of this Section 7 if (i) the Participant, or his or her
Beneficiary, requests such early payment and (ii) the Committee, in
its sole discretion, determines that such early payment is necessary
to help the Participant, or his or her Beneficiary, meet an
"unforeseeable emergency" within the meaning of Section
1.457-2(h)(4) of the federal income tax regulations. The amount that
may be so paid may not exceed the amount necessary to meet such
emergency.
There shall be deducted from the amount of any payment otherwise required
to be made under the Plan all Federal, state and local taxes required by
law to be withheld with respect to such payment.
8. Designation and Change of Beneficiary
Each Participant shall file with the Committee a written designation of one or
more persons as the Beneficiary who shall be entitled to receive any amount
payable under the Plan by reason of his or her death. A Participant may, from
time to time, revoke or change his or her Beneficiary designation without the
consent of any previously designated Beneficiary by filing a new designation
with the Committee. The last such designation received by the Committee shall be
controlling; provided, however, that no designation, or change or revocation
thereof, shall be effective unless received by the Committee prior to the
Participant's death and in no event shall it be effective as of a date prior to
such receipt. If at the date of a Participant's death, there is no designation
of a Beneficiary in effect for the Participant pursuant to the provisions of
this Section 8, or if no Beneficiary designated by the Participant in accordance
with the provisions hereof survives to receive any amount payable under the Plan
by reason of the Participant's death, the Participant's estate shall be treated
as the Participant's Beneficiary for purposes of the Plan.
9. Payments to Persons Other Than Participants
If the Committee shall find that any Participant or Beneficiary to whom any
amount is payable under the Plan is unable to care for his or her affairs
because of illness, accident or legal incapacity, then, if the Committee so
directs, such amount may be paid to such Participant's or Beneficiary's spouse,
child or other relative, an institution maintaining or having custody of such
person, or any person deemed by the Committee to be a proper recipient on behalf
of such Participant, unless a prior claim therefore has been made by a duly
appointed legal representative of the Participant or Beneficiary.
Any payment made under this Section 9 shall be a complete discharge of the
liability of the Corporation with respect to such payment.
10. Rights of Participants
A Participant's rights and interests under the Plan shall be subject to the
following provisions:
(a) A Participant shall have the status of a general unsecured creditor
of the Corporation with respect to his or her right to receive any
payment under the Plan. The Plan shall constitute a mere promise by
the Corporation to make payments in the future of the benefits
provided for herein. It is intended that the arrangements reflected
in this Plan be treated as unfunded for tax purposes, as well as for
purposes of Title I of ERISA.
(b) The Corporation may, but shall not be required to, purchase a life
insurance policy or policies, to assist it in funding any of its
payment obligations under the Plan. If any policy is so purchased,
it shall, at all times, remain subject to the claims of the
Corporation's creditors. No Participant or Beneficiary shall have
any interest in, or rights with respect to, such policy.
(c) A Participant's rights to payments under the Plan shall not be
subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by
creditors of the Participant or his or her Beneficiary.
(d) Neither the Plan nor any action taken hereunder shall be construed
as giving any Participant any right to be retained in the employment
of the Company, the Corporation or any of its Affiliated Companies.
11. Administration of the Plan
The Plan shall be administered by the Committee. A majority of the members of
the Committee shall constitute a quorum. The Committee may act at a meeting,
including a telephone meeting, by action of a majority of the members present,
or without a meeting by unanimous written consent. In addition to the
responsibilities and powers assigned to the Committee elsewhere in the Plan, The
Committee shall have the discretionary authority and power, in its discretion,
to establish from time to time guidelines or regulations for the administration
of the Plan, interpret the Plan, and make all determinations considered
necessary or advisable for the administration of the Plan. The Committee may
delegate any ministerial or nondiscretionary function pertaining to the
administration of the Plan to any one or more officers of the Corporation. All
decisions, actions or interpretations of the Committee under the Plan shall be
final, conclusive and binding upon all parties.
No member of the Committee shall be personally liable by reason of any contract
or other instrument executed by such member or on his or her behalf in his or
her capacity as a member of the Committee nor for any mistake of judgment made
in good faith, and the Corporation shall indemnify and hold harmless each member
of the Committee and each employee, officer, director or trustee of the
Corporation or any of its Affiliated Companies to whom any duty or power
relating to the administration or interpretation of the Plan may be delegated,
against any cost or expense (including counsel fees) or liability (including any
sum paid in settlement of a claim with the approval of the Board of Directors)
arising out of any act or omission to act in connection with the Plan, unless
arising out of such person's own fraud or bad faith.
12. Amendment or Termination
The Board of Directors may, with prospective or retroactive effect, amend,
suspend or terminate the Plan or any portion thereof at any time; provided,
however, that no amendment of the Plan shall deprive any Participant of any
rights to receive payment of any amounts due him or her under the terms of the
Plan as in effect prior to such amendment without his or her written consent.
Any amendment that the Board of Directors would be permitted to make pursuant to
the preceding paragraph may also be made by the Committee where appropriate to
facilitate the administration of the Plan or to comply with applicable law or
any applicable rules and regulations of governing authorities provided that the
cost of the Plan to the Corporation is not materially increased by such
amendment.
Notwithstanding any other provision in this Plan to the contrary, the Committee
may terminate any Participant's participation in the Plan, and direct that an
immediate payment be made with respect to the balances of the Participant's
Accounts, if the Committee, in its sole discretion, determines that such
termination of participation and payment are necessary in order to preserve the
Plan's status as a plan of deferred compensation for "a select group of
management or highly compensated employees" within the meaning of the applicable
provisions of ERISA.
13. Successor Corporation
The obligations of the Corporation under the Plan shall be binding upon
any successor corporation or organization succeeding to substantially all of the
assets and business of the Corporation.
14. Governing Law
The provisions of the Plan shall be governed by and construed in accordance with
the laws of the State of New York.