EXHIBIT 10.142
THE CHARLES SCHWAB CORPORATION
DEFERRED COMPENSATION PLAN
(RESTATED TO INCLUDE AMENDMENTS
THROUGH OCTOBER 18, 1994)
CHARLES SCHWAB CORPORATION
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
Section Page
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Article I. Purpose
1.1 Establishment of the Plan 2
1.2 Purpose of the Plan 2
Article II. Definitions
2.1 Definitions 3
2.2 Gender and Number 4
Article III. Administration
3.1 Committee and Administrator 5
Article IV. Participants
4.1 Participants 6
Article V. Deferrals
5.1 Salary Deferrals 7
5.2 Deferrals of Bonuses and Other Cash Incentive Compensation 7
5.3 Deferral Procedures 8
5.4 Election of Time and Manner of Payment 8
5.5 Accounts and Earnings 10
5.6 Maintenance of Accounts 11
5.7 Change in Control 11
5.8 Payment of Deferred Amounts 14
5.9 Acceleration of Payment 14
Section PAGE
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Article VI. General Provisions
6.1 Unfunded Obligation 15
6.2 Informal Funding Vehicles 15
6.3 Beneficiary 16
6.4 Incapacity of Participant or Beneficiary 17
6.5 Nonassignment 17
6.6 No Right to Continued Employment 17
6.7 Tax Withholding 17
6.8 Claims Procedure and Arbitration 17
6.9 Termination and Amendment 19
6.10 Applicable Law 19
THE CHARLES SCHWAB CORPORATION
DEFERRED COMPENSATION PLAN
ARTICLE I. PURPOSE
1.1 Establishment of the Plan. Effective as of July 1, 1994,
The Charles Schwab Corporation (hereinafter, the "Company") hereby establishes
The Charles Schwab Corporation Deferred Compensation Plan (the "Plan"), as set
forth in this document.
1.2 Purpose of the Plan. The Plan permits participating
employees to defer the payment of certain cash compensation that they may earn.
The opportunity to elect such deferrals is provided in order to help the
Company attract and retain key employees. This Plan is unfunded and is
maintained primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees. It is accordingly
intended to be exempt from the participation, vesting, funding, and fiduciary
requirements set forth in Title I of the Employee Retirement Income Security
Act of 1974.
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ARTICLE II. DEFINITIONS
2.1 Definitions. The following definitions are in addition to
any other definitions set forth elsewhere in the Plan. Whenever used in the
Plan, the capitalized terms in this section shall have the meanings set forth
below unless otherwise required by the context in which they are used:
(a) "Administrator" the administrator described in section 3.1
that is selected by the Committee to assist in the
administration of the Plan.
(b) "Beneficiary" means a person entitled to receive any benefit
payments that remain to be paid after a Participant's death,
as determined under section 6.3.
(c) "Board" means the Board of Directors of the Company.
(d) "Company" means The Charles Schwab Corporation, a Delaware
corporation.
(e) "Category 1 Participant" and "Category 2 Participant" each
refer to a specific Participant group and have the meaning
set forth in section 4.1.
(f) "Committee" means the Compensation Committee of the Board.
(g) "Deferral Account" means the account representing deferrals
of cash compensation, plus investment adjustments, as
described in sections 5.5 and 5.6.
(h) "Participant" means any employee who meets the eligibility
requirements of the Plan, as set forth in Article 4, and
includes, where appropriate to the context, any former
employee who is entitled to benefits under this Plan.
(i) "Plan" means The Charles Schwab Corporation Deferred
Compensation Plan, as in effect from time to time.
(j) "Plan Year" means the calendar year.
(k) "Retirement" shall mean any termination of employment
with the Company and its Subsidiaries for any reason
other than death after the Participant has attained
age 50, but only if the Participant has completed a
continuous period of service of at least seven (7) years
ending on the date of the termination of employment;
provided that with respect to any
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payments made on account of a deferral election made prior
to November 1, 1994, Retirement shall also mean any
termination of employment with the Company and its
Subsidiaries for any reason other than death after the
Participant has attained age 55.
(l) "Subsidiary" means a corporation or other business entity in
which the Company owns, directly or indirectly, securities
with more than 80 percent of the total voting power.
(m) "Valuation Date" means each December 31 and any other date
designated from time to time by the Committee for the
purpose of determining the value of a Participant's Deferral
Account balance pursuant to section 5.5.
2.2 Gender and Number. Except when otherwise indicated by the
context, any masculine or feminine terminology shall also include the neuter
and other gender, and the use of any term in the singular or plural shall also
include the opposite number.
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ARTICLE III. ADMINISTRATION
3.1 Committee and Administrator. The Committee shall
administer the Plan and may select one or more persons to serve as the
Administrator. The Administrator shall perform such administrative functions
as the Committee may delegate to it from time to time. Any person selected to
serve as the Administrator may, but need not, be a Committee member or an
officer or employee of the Company. However, if a person serving as
Administrator or a member of the Committee is a Participant, such person may
not vote on a matter affecting his interest as a Participant.
The Committee shall have discretionary authority to construe and
interpret the Plan provisions and resolve any ambiguities thereunder; to
prescribe, amend, and rescind administrative rules relating to the Plan; to
select the employees who may participate and to terminate the future
participation of any such employees; to determine eligibility for benefits
under the Plan; and to take all other actions that are necessary or appropriate
for the administration of the Plan. Such interpretations, rules, and actions
of the Committee shall be final and binding upon all concerned and, in the
event of judicial review, shall be entitled to the maximum deference allowable
by law. Where the Committee has delegated its responsibility for matters of
interpretation and Plan administration to the Administrator, the actions of the
Administrator shall constitute actions of the Committee.
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ARTICLE IV. PARTICIPANTS
4.1 Participants. Officers and other key employees of the
Company and each of its Subsidiaries shall be eligible to participate in this
Plan upon selection by the Committee. To be nominated for participation, an
employee must be highly compensated or have significant responsibility for the
management, direction and/or success of the Company as a whole or a particular
business unit thereof. Directors of the Company who are full-time employees of
the Company shall be eligible to participate in the Plan. Participating
employees of the Company in the position of executive vice president or above
shall be "Category 1 Participants." All other participating employees shall be
"Category 2 Participants."
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ARTICLE V. DEFERRALS
5.1 Salary Deferrals. Each Category 2 Participant selected
under section 4.1 may elect to defer up to 50 percent of his regular base
salary (subject to the provisions of this Article V). Any such election must
be made by entering a deferred compensation agreement with the employer, as
evidenced by a form approved by and filed with the Administrator on or before
the deadline specified by the Committee (which shall be no earlier than one
month prior to the beginning of the election period for which the deferred
salary is to be earned). For this purpose, the election period shall be the
calendar year; provided, however, that during periods in which the Plan is not
in effect for a full calendar year or an employee is not a Participant for a
full calendar year, the election period shall be the portion of the calendar
year during which the Plan is in effect and the employee is an eligible
Participant. Notwithstanding the foregoing, a person who is not a Participant
at the beginning of a calendar year shall not be allowed to elect a deferral of
compensation that takes effect during that year without the consent of the
Committee. Salary deferrals that have been elected shall occur throughout the
election period in equal increments for each payroll period.
5.2 Deferrals of Bonuses and Other Cash Incentive Compensation.
Each Category 1 Participant and each Category 2 Participant may elect to defer
all or any portion (subject to the provisions of this Article V) of any amount
that he subsequently earns under an annual cash bonus program and/or a
long-term cash incentive compensation program of the Company or a participating
Subsidiary. Any such election must be made by entering a deferred compensation
agreement with the employer, as evidenced by a form approved by the Committee
that is filed with the Administrator on or before the deadline specified by the
Committee. For annual cash bonuses, this deadline shall be no earlier than one
month prior to the beginning of year (or portion thereof) for which the bonus
will be earned. For other cash incentive compensation, this deadline shall be
a date no later than six months before the end of the year or other period for
which the incentive compensation will be earned. Rules similar to those in
section 5.1 shall apply in cases
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where the Plan is not in existence or an employee is not a Participant for the
full period in which an annual cash bonus or long-term incentive compensation
award is earned.
5.3 Deferral Procedures. Participants eligible to elect salary
deferrals under section 5.1 shall have an opportunity to do so each year.
Participants eligible to elect deferrals under section 5.2 shall have a
separate opportunity to do so for each cash bonus under an annual bonus program
and for each other cash bonus or incentive payment under a long-term incentive
plan that they may earn. Unless the Committee specifies other rules for the
deferrals that may be elected, the minimum deferral shall be 20 percent of the
compensation to which a deferral election applies; and, subject to the maximum
percentage allowed under section 5.1 or 5.2, as applicable, deferrals in excess
of the minimum allowable percentage may be made only in increments of 10
percent.
If a deferral is elected, the election shall be irrevocable with
respect to the particular compensation that is subject to the election.
Deferral elections shall be made on a form prescribed by the Committee or the
Administrator. As provided in section 6.7, any deferral is subject to
appropriate tax withholding measures and may be reduced to satisfy tax
withholding requirements.
5.4 Election of Time and Manner of Payment. At the time a
Participant makes a deferral election under section 5.1 or 5.2, the Participant
shall also designate the manner of payment and the date on which payments from
his or her Deferral Account shall begin, from among the following options:
(i) a lump sum payable by the end of February of any year that
the Participant specifies;
(ii) a lump sum payable by the end of February in the year
immediately following the Participant's Retirement;
(iii) a series of annual installments, commencing in any year
selected by the Participant and payable each year on or before the end of
February, over a period of four years; or
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(iv) a series of annual installments, commencing in the year
following the Participant's Retirement and payable each year on or before the
end of February, over a period of five, ten, or fifteen years, as designated by
the Participant.
However, if a Participant terminates employment for any reason other
than Retirement, the payment of the Participant's entire Deferral Account,
including any unpaid installments pursuant to clause (iii) above, shall be made
in a single lump sum by the end of February in the year next following the year
in which the Participant terminates employment, notwithstanding the terms of
the Participant's election.
Any election of a specified payment date pursuant to clauses (i) or
(iii) shall be subject to any restrictions that the Committee may, in its sole
discretion, choose to establish in order to limit the number of different
payment dates that a Participant may have in effect at one time.
If payment is due in the form of a lump sum, the payment shall equal
the balance of the Deferral Account being paid, determined as of the Valuation
Date coincident with or immediately preceding the payment date. If payment is
due in the form of installments, the amount of each installment payment shall
be equal to the quotient determined by dividing (A) the value of the portion of
the Deferral Account to which the installment payment election applies
(determined as of the Valuation Date coincident with or immediately preceding
the date the payment is to be made), by (B) the number of years over which the
installment payments are to be made, less the number of years in which prior
payments attributable to such installment payment election have been made.
Notwithstanding the foregoing, however, if earnings or any other
amounts credited to a Participant's Deferral Account are not considered
performance-based compensation, within the meaning of Section 162(m) of the
Internal Revenue Code, and do not otherwise meet Internal Revenue Code
conditions allowing the Company and its Subsidiaries to receive a federal
income tax deduction for such amounts upon paying them at the time provided
under the Participant's election, the payment of such amounts, to the extent in
excess of the amount that would be
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currently tax deductible, shall automatically be deferred until the earliest
year that the payment can be deducted.
5.5 Accounts and Earnings. The Company shall establish a
Deferral Account for each Participant who has elected a deferral under section
5.1 or 5.2 above, and its accounting records for the Plan with respect to each
such Participant shall include a separate Deferral Account or subaccount for
each deferral election of the Participant that could cause a payment made at a
different time or in a different form from other payments of deferrals elected
by the same Participant. Each Deferral Account balance shall reflect the
Company's obligation to pay a deferred amount to a Participant or Beneficiary
as provided in this Article V. Under procedures approved by the Committee and
communicated to Participants, a Participant's Deferral Account balance shall be
increased periodically (not less frequently than annually) to reflect an
assumed earnings increment, based on an interest rate or other benchmark
selected by the Committee and in effect at the time. Until the time for
determining the amount to be paid to the Participant or Beneficiary, such
assumed earnings shall accrue from each Valuation Date on the Deferral Account
balance as of that date and shall be credited to the account as of the next
Valuation Date.
The rate of earnings may, but need not, be determined with reference
to the actual rate of earnings on assets held under any existing grantor trust
or other informal funding vehicle that is in effect pursuant to section 6.2.
Any method of crediting earnings that is followed from time to time may, with
reasonable advance notice to affected Participants, be revoked or revised
prospectively as of the beginning of any new Plan Year. Earnings that have
been credited for any Plan Year, like deferred amounts that have been
previously credited to a Participant, shall not be reduced or eliminated
retroactively unless they were credited in error. The crediting of assumed
earnings shall not mean that any deferred compensation promise to a Participant
is secured by particular investment assets or that the Participant is actually
earning interest or any other form of investment income under the Plan.
Consistent with the foregoing authority to exercise flexibility in
establishing a method for crediting assumed earnings on account balances, the
Committee may, but need not, consult with
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Participants about their investment preferences and may, but need not,
institute a program of assumed earnings that tracks the investment performance
in a Participant's qualified defined contribution plan account or in an
assumed participant-directed investment arrangement.
5.6 Maintenance of Accounts. The Accounts of each Participant
shall be entered on the books of the Company and shall represent a liability,
payable when due under this Plan, out of the general assets of the Company.
Prior to benefits becoming due hereunder, the Company shall expense the
liability for such accounts in accordance with policies determined appropriate
by the Company's auditors. Except to the extent provided pursuant to the
second paragraph of this section 5.6, the Accounts created for a Participant by
the Company shall not be funded by a trust or an insurance contract; nor shall
any assets of the Company be segregated or identified to such account; nor
shall any property or assets of the Company be pledged, encumbered, or
otherwise subjected to a lien or security interest for payment of benefits
hereunder.
Notwithstanding that the amounts to be paid hereunder to Participants
constitute an unfunded obligation of the Company, the Company may direct that
an amount equal to any portion of the Accounts shall be invested by the Company
as the Company, in its sole discretion, shall determine. The Committee may in
its sole discretion determine that all or any portion of an amount equal to the
Accounts shall be paid into one or more grantor trusts that may be established
by the Company for the purpose of providing a potential source of funds to pay
Plan benefits. The Company may designate an investment advisor to direct the
investment of funds that may be used to pay benefits, including the investment
of the assets of any grantor trusts hereunder.
5.7 Change in Control. In the event of a Change in Control (as
defined below), the following rules shall apply:
(a) All Participants shall continue to have a fully vested,
nonforfeitable interest in their Deferral Accounts.
(b) Deferrals of amounts for the year that includes the Change
in Control shall cease beginning with the first payroll
period that follows the Change in Control.
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(c) A special allocation of earnings on all Deferral Accounts
shall be made under section 5.5 as of the date of the Change
in Control on a basis no less favorable to Participants than
the method being followed prior to the Change in Control.
(d) All payments of deferred amounts following a Change in
Control, whether or not they have previously begun, shall be
made in a cash lump sum no later than 30 days following the
Change in Control and, except as provided in section 5.4
with respect to installment payments in progress, shall be
in an amount equal to the full Deferral Account balance, as
adjusted pursuant to paragraph (c) above, as of the date of
the Change in Control.
(e) Nothing in this Plan shall prevent a Participant
from enforcing any rules in a contract or another plan of the Company
or any Subsidiary concerning the method of determining the amount of a
bonus, incentive compensation, or other form of compensation to which
a Participant may become entitled following a change in control, or
the time at which that compensation is to be paid in the event of a
change in control.
For purposes of this Plan, a "Change in Control" means
any of the following:
(1) Any "person" who, alone or together with all
"affiliates" and "associates" of such person, is or
becomes (1) an "acquiring person" or (2) the
"beneficial owner" of 35% of the outstanding voting
securities of the Company (the terms "person",
"affiliates", "associates" and "beneficial owner"
are used as such terms are used in the Securities
Exchange Act of 1934 and the General Rules and
Regulations thereunder); provided, however, that a
"Change in Control" shall not be deemed to have
occurred if such "person" is Charles R. Schwab, the
Company, any subsidiary or any employee benefit plan
or employee stock plan of the Company or of any
Subsidiary, or any trust or other entity organized,
established or holding shares of such voting
securities by, for or pursuant to, the terms of any
such plan; or
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(2) Individuals who at the beginning of any period of
two consecutive calendar years constitute the Board
cease for any reason, during such period, to
constitute at least a majority thereof, unless the
election, or the nomination for election by the
Company's Shareholders, of each new Board Member was
approved by a vote of at least three-quarters (3/4)
of the Board members then still in office who were
Board members at the beginning of such period; or
(3) Approval by the shareholders of the Company of:
(A) the dissolution or liquidation of the
Company;
(B) the sale or transfer of substantially all
of the Company's business and/or assets to
a person or entity which is not a
"subsidiary" (any corporation or other
entity a majority or more of whose
outstanding voting stock or voting power is
beneficially owned directly or indirectly
by the Company); or
(C) an agreement to merge or consolidate, or
otherwise reorganize, with one or more
entities which are not subsidiaries (as
defined in (B) above), as a result of which
less than 50% of the outstanding voting
securities of the surviving or resulting
entity are, or are to be, owned by former
shareholders of the Company; or
(4) The Board agrees by a majority vote that an event
has or is about to occur that, in fairness to the
Participants, is tantamount to a Change in Control.
A Change of Control shall occur on the first day on
which any of the preceding conditions has been satisfied.
However, notwithstanding the foregoing, this section 5.7
shall not apply to any Participant who alone or together
with one or more other persons acting as a partnership,
limited partnership, syndicate, or other group for the
purpose of acquiring, holding or
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disposing of securities of the Company, triggers a "Change
in Control" within the meaning of paragraphs (1) and (2)
above.
5.8 Payment of Deferred Amounts. A Participant shall have a
fully vested, nonforfeitable interest in his or her Deferral Account balance at
all times. However, vesting does not confer a right to payment other than in
the manner elected by the Participant pursuant to section 5.4 (subject to any
modification that may occur pursuant to section 5.5, 5.7 or 5.9). Upon the
expiration of a deferral period selected by the Participant in one or more
deferral elections, the Company shall pay to such Participant (or to the
Participant's Beneficiary, in the case of the Participant's death) an amount
equal to the balance of the Participant's Account attributable to such expiring
deferral elections, plus assumed earnings (determined by the Company pursuant
to section 5.5) thereon.
5.9 Acceleration of Payment. The Committee, in its discretion,
upon receipt of a written request from a Participant, may accelerate the
payment of all or any portion of the unpaid balance of a Participant's Deferral
Account in the event of the Participant's Retirement, death, permanent
disability, resignation or termination of employment, or upon its determination
that the Participant (or his Beneficiary in the case of his death) has incurred
a severe, unforeseeable financial hardship creating an immediate and heavy need
for cash that cannot reasonably be satisfied from sources other than an
accelerated payment from this Plan. The Committee in making its determination
may consider such factors and require such information as it deems appropriate.
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ARTICLE VI. GENERAL PROVISIONS
6.1 Unfunded Obligation. The deferred amounts to be paid to
Participants pursuant to this Plan constitute unfunded obligations of the
Company. Except to the extent specifically provided hereunder, the Company is
not required to segregate any monies from its general funds, to create any
trusts, or to make any special deposits with respect to this obligation. Title
to and beneficial ownership of any investments, including any grantor trust
investments which the Company has determined and directed the Administrator to
make to fulfill obligations under this Plan shall at all times remain in the
Company. Any investments and the creation or maintenance of any trust or
Accounts shall not create or constitute a trust or a fiduciary relationship
between the Administrator or the Company and a Participant, or otherwise create
any vested or beneficial interest in any Participant or his or her Beneficiary
or his or her creditors in any assets of the Company whatsoever. The
Participants shall have no claim for any changes in the value of any assets
which may be invested or reinvested by the Company in an effort to match its
liabilities under this Plan.
6.2 Informal Funding Vehicles. Notwithstanding section 6.1, the
Company may, but need not, arrange for the establishment and use of a grantor
trust or other informal funding vehicle to facilitate the payment of benefits
and to discharge the liability of the Company and participating Affiliates
under this Plan to the extent of payments actually made from such trust or
other informal funding vehicle.
Any investments and any creation or maintenance of memorandum accounts
or a trust or other informal funding vehicle shall not create or constitute a
trust or a fiduciary relationship between the Committee or the Company or an
affiliate and a Participant, or otherwise confer on any Participant or
Beneficiary or his or her creditors a vested or beneficial interest in any
assets of the Company or any Affiliate whatsoever. Participants and
Beneficiaries shall have no claim against the Company or any Affiliate for any
changes in the value of any assets which may be invested or reinvested by the
Company or any Affiliate with respect to this Plan.
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6.3 Beneficiary. The term "Beneficiary" shall mean the person
or persons to whom payments are to be paid pursuant to the terms of the Plan in
the event of the Participant's death. A Participant may designate a
Beneficiary on a form provided by the Administrator, executed by the
Participant, and delivered to the Administrator. The Administrator may require
the consent of the Participant's spouse to a designation if the designation
specifies a Beneficiary other than the spouse. Subject to the foregoing, a
Participant may change a Beneficiary designation at any time. Subject to the
property rights of any prior spouse, if no Beneficiary is designated, if the
designation is ineffective, or if the Beneficiary dies before the balance of
the Account is paid, the balance shall be paid to the Participant's surviving
spouse, or if there is no surviving spouse, to the Participant's estate.
6.4 Incapacity of Participant or Beneficiary. Every person
receiving or claiming benefits under the Plan shall be conclusively presumed to
be mentally competent and of age until the date on which the Administrator
receives a written notice, in a form and manner acceptable to the
Administrator, that such person is incompetent or a minor, for whom a guardian
or other person legally vested with the care of his person or estate has been
appointed; provided, however, that if the Administrator finds that any person
to whom a benefit is payable under the Plan is unable to care for his or her
affairs because of incompetency, or because he or she is a minor, any payment
due (unless a prior claim therefor shall have been made by a duly appointed
legal representative) may be paid to the spouse, a child, a parent, a brother
or sister, or to any person or institution considered by the Administrator to
have incurred expense for such person otherwise entitled to payment. To the
extent permitted by law, any such payment so made shall be a complete discharge
of liability therefor under the Plan.
If a guardian of the estate of any person receiving or claiming
benefits under the Plan is appointed by a court of competent jurisdiction,
benefit payments may be made to such guardian provided that proper proof of
appointment and continuing qualification is furnished in a form and manner
acceptable to the Administrator. In the event a person claiming or receiving
benefits under the Plan is a minor, payment may be made to the custodian of an
account for such person
16
under the Uniform Gifts to Minors Act. To the extent permitted by law, any
such payment so made shall be a complete discharge of any liability therefor
under the Plan.
6.5 Nonassignment. The right of a Participant or Beneficiary to
the payment of any amounts under the Plan may not be assigned, transferred,
pledged or encumbered nor shall such right or other interests be subject to
attachment, garnishment, execution, or other legal process.
6.6 No Right to Continued Employment. Nothing in the Plan shall
be construed to confer upon any Participant any right to continued employment
with the Company, nor shall the Plan interfere in any way with the right of the
Company to terminate the employment of such Participant at any time without
assigning any reason therefor.
6.7 Tax Withholding. Appropriate taxes shall be withheld from
cash payments made to Participants pursuant to the Plan. To the extent tax
withholding is payable in connection with the Participant's deferral of income
rather than in connection with the payment of deferred amounts, such
withholding may be made from other wages and salary currently payable to the
Participant, or, as determined by the Administrator, the amount of the deferral
elected by the Participant may be reduced in order to satisfy required tax
withholding for employment taxes and any other taxes.
6.8 Claims Procedure and Arbitration. The Company shall
establish a reasonable claims procedure consistent with the requirements of the
Employee Retirement Income Security Act of 1974, as amended. Following a
Change in Control of the Company (as determined under section 5.8) the claims
procedure shall include the following arbitration procedure.
Since time will be of the essence in determining whether any payments
are due to the Participant under this Plan following a Change in Control, a
Participant may submit any claim for payment to arbitration as follows: On or
after the second day following the termination of the Participant's employment
or other event triggering a right to payment), the claim may be filed with an
arbitrator of the Participant's choice by submitting the claim in writing and
providing a copy to the Company. The arbitrator must be:
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(a) a member of the National Academy of Arbitrators or one who
currently appears on arbitration panels issued by the
Federal Mediation and Conciliation Service or the American
Arbitration Association; or
(b) a retired judge of the State in which the claimant is a
resident who served at the appellate level or higher. The
arbitration hearing shall be held within 72 hours (or as
soon thereafter as possible) after filing of the claim
unless the Participant and the Company agree to a later
date. No continuance of said hearing shall be allowed
without the mutual consent of the Participant and the
Company. Absence from or nonparticipation at the hearing by
either party shall not prevent the issuance of an award.
Hearing procedures which will expedite the hearing may be
ordered at the arbitrator's discretion, and the arbitrator
may close the hearing in his or her sole discretion upon
deciding he or she has heard sufficient evidence to satisfy
issuance of an award. In reaching a decision, the arbitrator
shall have no authority to ignore, change, modify, add to or
delete from any provision of this Plan, but instead is
limited to interpreting this Plan. The arbitrator's award
shall be rendered as expeditiously as possible, and unless
the arbitrator rules within seven days after the close of
the hearing, he will be deemed to have ruled in favor of the
Participant. If the arbitrator finds that any payment is
due to the Participant from the Company, the arbitrator
shall order the Company to pay that amount to the
Participant within 48 hours after the decision is rendered.
The award of the arbitrator shall be final and binding upon
the Participant and the Company. Judgment upon the award
rendered by the arbitrator may be entered in any court in
any State of the United States. In the case of any
arbitration regarding this Agreement, the Participant shall
be awarded the Participant's costs, including attorney's
fees. Such fee award may not be offset against the deferred
compensation due hereunder. The Company shall pay
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the arbitrator's fee and all necessary expenses of the
hearing, including stenographic reporter if employed.
6.9 Termination and Amendment. The Committee may from time to
time amend, suspend or terminate the Plan, in whole or in part, and if the Plan
is suspended or terminated, the Committee may reinstate any or all of its
provisions. Except as otherwise required by law, the Committee may delegate to
the Administrator all or any of its foregoing powers to amend, suspend, or
terminate the Plan. Any such amendment, suspension, or termination may affect
future deferrals without the consent of any Participant or Beneficiary.
However, with respect to deferrals that have already occurred, no amendment,
suspension or termination may impair the right of a Participant or a designated
Beneficiary to receive payment of the related deferred compensation in
accordance with the terms of the Plan prior to the effective date of such
amendment, suspension or termination, unless the affected Participant or
Beneficiary gives his express written consent to the change.
6.10 Applicable Law. The Plan shall be construed and governed in
accordance with applicable federal law and, to the extent not preempted by such
federal law, the laws of the State of California.
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