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Exhibit 4.5
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PLANTRONICS, INC.
BASIC DEFERRED COMPENSATION PLAN
Purpose of Plan
The purpose of this Plantronics, Inc. Basic Deferred Compensation Plan
is to establish a supplementary employee retirement plan for the benefit of a
select group of management or highly compensated employees of Plantronics, Inc.
and its affiliates (hereinafter, the "Company").
ARTICLE
DEFINITIONS
Definitions. As used herein, the following definitions shall
apply:
"Account" means a Participant's deferred compensation
account established pursuant to Section 3.3.
"Administrator" means the Board or its Committee, as
shall be administering the Plan from time to time pursuant to Section 4 of the
Plan.
"Board" means the Board of Directors of the Company.
"Committee" means a Committee in accordance with
Section 4 of the Plan.
"Company" means Plantronics, Inc. and its parent and
subsidiary corporations, whether now or hereafter existing.
"Deferred Compensation Agreement" means an agreement,
between a Participant and the Company, respecting the Participant's election to
defer compensation pursuant to the Plan.
"Disability" means a Participant's total and
permanent disability, as defined in Section 22(e)(3) of the Internal Revenue
Code of 1986, as amended.
"Effective Date" means September 1, 1994.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
"Payment Date" means, with respect to each
Participant, the earlier of (i) the date established by the Participant in his
or her Deferred Compensation Agreement for distribution of all or a portion of
his or her Account as may be specified therein, (ii) the Participant's
Termination Date, or (iii) the Early Distribution Date pursuant to Section
6.1(b), if applicable.
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"Participant" means an executive employee of the
Company who, subject to the discretion of the Administrator, elects to make an
election under Section 3.1 hereof.
"Plan" means this Plantronics, Inc. Basic Deferred
Compensation Plan.
"Termination Date" means, with respect to a
Participant, the date of the Participant's termination of employment with the
Company for any reason, including death or Disability.
Applicable Law.
To the extent not preempted by the laws of the United States, the laws
of the State of California shall be the controlling law in all matters relating
to the Plan.
Application of ERISA.
This Plan is maintained by the Company primarily for the purpose of
providing deferred compensation for a select group of highly compensated
employees, and is not subject to the minimum vesting, funding and participation
requirements of ERISA.
ARTICLE
ESTABLISHMENT OF PLAN
Establishment of Plan. The Company hereby establishes a
deferred compensation plan to be known as the "Basic Deferred Compensation
Plan" (the "Plan"), as set forth in this document. The purposes of the Plan
are as set forth above.
Applicability of Plan. The benefits provided by this Plan
shall be available to the executives of the Company who, from time to time, are
selected by the Administrator to participate in the Plan.
Contractual Right to Benefits. The Plan establishes in each
Participant a contractual right to the benefits to which he or she is entitled
hereunder, enforceable by the Participant against the Company. However, no
Participant shall have an interest in any amounts withheld or credited under
the Plan until such amounts are distributed in accordance with the Plan. All
amounts withheld or otherwise held for the account of a Participant shall
remain the sole property of the Company, subject to the claims of its general
creditors and available for its use for whatever purposes are desired. With
respect to amounts withheld or otherwise held for the account of a Participant,
the Participant is merely a general creditor of the Company; the obligation of
the Company hereunder is purely contractual and shall not be funded or secured
in any way.
ARTICLE
CONTRIBUTIONS; ACCOUNTS
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Participant Elections.
Deferral Election. Subject to the terms and
conditions of the Plan and to such other conditions as the Administrator shall
determine, the Administrator may extend to eligible employees of the Company
the opportunity to participate in the Plan. Any such employee who wishes to
participate in the Plan must make a written election to participate,
authorizing the Company to withhold an amount (or percentage) of the
Participant's future compensation (the "Deferral Election") subject to the
terms and conditions of this Plan. In connection therewith, the Participant
shall execute a Deferred Compensation Agreement on a form substantially similar
to Exhibit A hereto, authorizing the Company to withhold an amount (or
percentage) of the Participant's compensation which would otherwise be paid to
the Participant with respect to services rendered as part of his or her
compensation. This withholding election shall remain in effect from year to
year with respect to future compensation earned by the Participant and shall be
applied automatically to future compensation which would otherwise be payable
to the Participant for each subsequent calendar year of service in the absence
of such Deferral Election until the Participant's Payment Date. A Participant
may discontinue the Deferral Election at any time and may modify the deferral
amount (or percentage) at least twice per calendar year at such time or times
as the Administrator shall determine; however, unless otherwise determined by
the Administrator, no other modifications to the Deferral Election may be made
after the commencement of the calendar year with respect to which the Deferral
Election relates.
Allocation. All amounts withheld pursuant to a
Participant's Deferral Election elections hereunder shall be credited to the
Participant's Account maintained in accordance with Section 3.3 hereof, on the
dates such amounts would have been payable in the absence of such elections.
Company Contributions. Notwithstanding any other provisions
of this Plan, the Company shall have the right to contribute, at the discretion
of the Board of Directors of the Company, additional amounts to the Plan for
the benefit of any Participant. For all purposes under this Plan, any such
contribution shall be treated in the same manner as compensation withheld by
the Company pursuant to a Participant's Deferral Election. Any amounts
contributed by the Company pursuant to this paragraph shall be credited to the
Participants' Accounts maintained in accordance with Section 3.3 hereof.
Deferred Compensation Accounts. The Company will create an
Account on its books for each Participant. The Account shall reflect, with
respect to each Participant, the compensation withheld or contributed by the
Company on behalf of such Participant, subject to adjustment to reflect
investment income and losses.
Authorized Investments. All amounts credited to Participants'
Accounts shall be invested by the Company pursuant to Participant investment
direction among the investments listed in Schedule A, to the extent such
investments are permitted by the Company's charter and applicable laws;
provided, however, that the Company may, in its discretion, invest all or part
of the amounts credited to the Accounts in other similar or different types of
investments or may elect not to make any investments at all. Should the
Company elect, in the exercise of its sole discretion, not to make the Schedule
A or any similar or different investments, then the Accounts of Participants
shall nevertheless be
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adjusted from time to time in accordance with the provisions of this Plan to
the same extent as if the Schedule A investments had actually been made.
Identification of Account Investment. Investments made by the
Company in accordance with Section 3.4 are or will be described by the Company
in Schedule A, as applicable, to the Plan (which are hereinafter referred to as
the "Lists" and are hereby made a part of the Plan), and investments held by
the Company will be deemed made by the Company only if, and so long as, they
are and continue to be described on the Lists. The Company may, in its sole
discretion, establish limitations and procedures relating to Plan investments
and Participant investment directions, and may add to and remove investments
from the Lists at any time, except that the Company may add only those
investments which it specifically purchases for the purpose of investing for
the benefit of amounts credited to Participants' Accounts.
Investment Income and Losses. At such date or dates as the
Administrator shall, in its discretion, determine, but in any event no less
frequently than annually, Participants' Accounts will be increased by the net
amount, if any, of all income and gains realized by the Company from
investments on the Lists, and Participants' Accounts will also be decreased by
the net amount, if any, of all losses realized from such investments prior to
any such date and by the amount of all administrative expenses incurred prior
to such date in the management and investment of the amounts so reflected in
each Account.
Status of Investments. All investments made by the Company or
its agent under this Section will be deemed made solely for the purpose of
aiding the Company in measuring its obligations under the Plan. The Company
will be named sole owner of all such investments and of all rights and
privileges conveyed by the instruments evidencing such investments. The terms
of the Plan place no obligation upon the Company or its agent to invest (or to
continue to invest) in one or more specific assets, to liquidate any particular
investment, or to apply in any specific manner the proceeds from the sale,
liquidation, or maturity of any particular investment. The terms of the Plan
shall not be deemed to create a trust of any kind or any fiduciary relationship
or escrow account. Finally, nothing stated herein is to cause such investments
to be treated as anything but the general assets of the Company, nor is
anything stated herein to be construed so as to grant or convey to any
Participant or his or her beneficiaries any ownership interest, whether vested,
secured or preferred, in any of the particular investments made by the Company
hereunder.
Statements to Participants. Each Participant shall, at least
quarterly, receive from the Company a written statement of the total amounts
credited to his or her Account as well as the identity, earnings and the sale
or liquidation value of each investment made pursuant to this Plan.
ARTICLE
PLAN ADMINISTRATION
Administration of the Plan. The Plan shall be administered by
(i) the Board, or (ii) a Committee designated by the Board to administer the
Plan.
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Procedure. Once appointed, the Committee shall
continue to serve until otherwise directed by the Board. From time to time the
Board may increase the size of the Committee and appoint additional members
thereof, remove members (with or without cause) and appoint new members in
substitution therefor, fill vacancies, however caused, and remove all members
of the Committee and thereafter directly administer the Plan.
Powers of the Administrator. Subject to the
provisions of the Plan, the Administrator shall have the authority, in its
discretion: (i) to withhold a Participant's compensation pursuant to the
Participant's Deferral Election and in accordance with the terms of the
Participant's Deferred Compensation Agreement; (ii) to determine a
Participant's Termination Date; (iii) to determine a Participant's Payment
Date; (iv) to establish reasonable limitations and restrictions relating to
Participant Deferral Elections, investment directions and the like, which the
Committee, in its discretion, deems necessary or appropriate for the proper
administration of the Plan; (v) to approve forms of agreement for use under the
Plan; (vi) to authorize any person to execute on behalf of the Company any
instrument required to effectuate a Participant's election; and (vi) to make
all other determinations deemed necessary or advisable for the administration
of the Plan.
Effect of Decisions by the Administrator. In its
administration of the Plan, the Administrator shall have broad discretionary
authority to construe and interpret the Plan. All decisions, determinations
and interpretations of the Administrator shall be final and binding on all
Participants.
ARTICLE
VALUATION AND PAYMENT OF BENEFITS
Value of Account. Unless otherwise determined by the
Administrator, all investments described on the List will, for the purposes of
the Plan, be carried at cost until they are sold, liquidated or distributed, at
which time Participants' Accounts will be adjusted to reflect any net income,
gains or losses realized from any such sale or liquidation. Then, on the
Payment Date, the Company will make the following adjustments:
Participants' Accounts will be adjusted in accordance
with Section 3.6 of the Plan to reflect those transactions involving
investments on the List which occurred on or before such valuation
date and for which no adjustment has yet been made under said Section.
Participants' Accounts will be similarly adjusted to
reflect all net income, gains and losses not yet realized from the
investments on the List, but which would be realized if such
investments were sold or liquidated on such valuation date. The sale
or liquidation value of any such investment on such date (where the
investment is not actually sold or liquidated) will be assumed to be
the average of the high and low prices quoted for that investment on
such valuation date); provided, however, that if this information is
not readily available, the value will be assumed to be the redemption
or liquidation value which would be paid by the obligor, as stated in
the instrument evidencing the investment, if such investment were
actually surrendered for cash to the obligor on such date.
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ARTICLE
DISTRIBUTION OF BENEFITS
Payment of Deferred Compensation.
General Rule. Each Participant's Account shall be
subject to distribution in accordance with this Section 6.1 within ninety (90)
days of the Participant's Payment Date. Such amount shall be paid in a lump
sum or, if elected by the Participant in the Participant's Deferred
Compensation Agreement, in equal, semi-annual installments over the period
specified in such Election.
Early Distribution Date. Notwithstanding anything in
the Plan to the contrary, a Participant may, to the extent permitted by the
Administrator, specify a distribution date (an "Early Distribution Date") in
his or her Deferred Compensation Agreement, pursuant to which the amount
credited to the Participant's Account becomes distributable upon a decline in
the Company's financial strength as specified by the Participant in his or her
Deferred Compensation Agreement; provided, however, that no such distribution
shall be made if the Administrator reasonably determines that any such
distribution will likely (i) cause the Company to default or violate any of its
debt covenants under any of its credit or financing agreements, or (ii) force
the Company to file for bankruptcy prematurely. A distribution made pursuant
to this Section 6.1(b) shall occur as soon as reasonable practicable after such
event, but in no event more than thirty (30) calendar days after the Early
Distribution Date. Amounts that are distributable upon an Early Distribution
Date shall be paid in a lump sum, including amounts otherwise distributable in
installments.
Hardship Withdrawal. Notwithstanding any other
provisions of the Plan to the contrary, upon a finding by the Administrator in
its sole discretion that an unanticipated emergency that is caused by an event
beyond the control of the Participant (other than a member of the
Administrator) or beneficiary has occurred and that such emergency would result
in severe financial hardship to such Participant or beneficiary if early
distribution were not permitted, the Administrator may make a current
distribution of all or a portion of the amounts deferred and credited to the
Participant's Account. The amount which may be distributed pursuant to this
Section 6(c) shall not exceed the amount necessary to meet such financial
hardship as determined by the Administrator in its sole discretion. The
Administrator shall have the right to require such Participant or beneficiary
to submit such documentation as it deems appropriate for the purpose of
determining the existence, cause and extent of such financial hardship.
Beneficiaries. All amounts credited to a Participant's
Account hereunder shall be paid in the event of his or her death to the
beneficiaries designated by such Participant, which designation may be revoked
or amended by the Participant prior to death and without the consent of the
prior beneficiary. Such payment or distribution shall commence within ninety
(90) days following the date of such Participant's death. Notwithstanding any
other provision in this Plan to the contrary, in the event that no such
beneficiary designation has been given hereunder prior to the time of death or
such beneficiary has predeceased the Participant, the Participant's elections,
if any, shall be disregarded and the amount credited hereunder shall be paid or
distributed in a lump sum to the Participant's estate within ninety
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(90) days following such Participant's death.
ARTICLE
EMPLOYMENT AND OTHER RIGHTS
Other Benefits. The provisions of this Plan shall in no way
reduce any amounts otherwise payable, or in any way diminish the Participant's
rights as an employee of the Company, whether existing now or hereafter, under
any benefit, incentive, retirement, stock option, stock bonus, stock purchase
plan, or any employment agreement or other plan or arrangement.
Employment and Other Rights. This Plan shall not create any
rights in any Participant to continue in employment with the Company for any
length of time, nor does it create any rights in any Participant or his or her
beneficiaries or any obligation on the part of the Company, other than those
expressly set forth herein. This Plan is solely between the Company and the
Participants. Each Participant and his or her beneficiaries will have recourse
only against the Company for enforcement.
Successor to Company. The Company shall require any successor
or assignee, whether direct or indirect, by purchase, merger, consolidation or
otherwise, to all or substantially all the business or assets of the Company,
expressly and unconditionally to assume and agree to perform the Company's
obligations under this Plan, in the same manner and to the same extent that the
Company would be required to perform if no such succession or assignment had
taken place. In such event, the term "Company," as used in this Plan, shall
mean the Company as hereinbefore defined and any successor or assignee to the
business or assets which by reason hereof becomes bound by the terms and
provisions of this Plan.
ARTICLE
AMENDMENT AND TERMINATION
Amendment and Termination. The Plan may be terminated or
amended in any respect by resolution adopted by a majority of the Board of the
Company; provided, however, that no such action shall in any way prejudice
Participants' rights under the Plan with respect to their Accounts. Upon Plan
termination, all amounts credited to Participants' Accounts shall be
distributed within sixty (60) days of such termination.
Form of Amendment. The form of any proper amendment or
termination of the Plan shall be a written instrument signed by a duly
authorized officer or officers of the Company, certifying that the amendment or
termination has been approved by the Board. A proper amendment of the Plan
automatically shall effect a corresponding amendment to all Participants'
rights hereunder.
ARTICLE
MISCELLANEOUS
Plan Expenses. All expenses of the Plan shall be borne by the Company.
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Other Company Plans. No amount of a Participant's
compensation shall, during the period in which such compensation is deferred
hereunder, be included as compensation for purposes of participation in or
accrual of benefits under the Company's Annual Profit- Sharing/Individual
Savings Plan or such other Company benefit plans or programs as the
Administrator may, in its discretion, identify. Each Participant acknowledges
that his or her deferral of compensation under the Plan may have the effect of
reducing his or her profit sharing allocation under any such plan.
Applicable Law. To the extent not preempted by ERISA, this
Plan and any agreements created hereunder shall be construed and regulated by
the laws of the state of California.
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SCHEDULE A
Date:
Authorized Investments: Any publicly traded investment or security for which
the market value can be readily established.
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[Deferral Election]
[1995]
EXHIBIT A
PLANTRONICS, INC.
BASIC DEFERRED COMPENSATION PLAN
Participant Election
Plantronics, Inc.
337 Encinal St.
Santa Cruz, CA 95060
In accordance with the Plantronics, Inc. Basic Deferred Compensation
Plan (the "Plan"), a copy of which has previously been furnished to me, I
hereby make the following election with respect to compensation earned by me
after the effective date of the Plan:
Amount (or percentage) to be deferred, subject to a minimum annual
deferral of $2,500 and a maximum annual deferral of 25% of eligible
compensation:
Base Salary:
Bonus:
Date upon which payment of deferred amounts will commence, subject to
earlier distribution as provided in Section 6.1 of the Plan (e.g.,
termination of employment, death):
Manner in which payment of deferred amounts shall be made:
lump sum
installments (in equal, semi-annual installments over
a period not to exceed 15 years)
I understand that the foregoing election shall remain in effect for
the remainder of 1994 and for each succeeding calendar year until this election
is earlier terminated in accordance with the terms of the Plan. I understand
that the election made as indicated herein is irrevocable.
Date Signature
Address Print Name
Telephone
Received and Accepted by Plantronics, Inc.
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By: Date
Title:
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EXHIBIT B
PLANTRONICS, INC.
BASIC DEFERRED COMPENSATION PLAN
Beneficiary Designation Form
Plantronics, Inc.
337 Encinal St.
Santa Cruz, CA 95060
Gentlemen:
In the event of my death prior to the commencement of payments under
the Plantronics, Inc. Deferred Basic Compensation Plan, the following
beneficiary (or beneficiaries) shall receive the payments, if any, to which I
may be entitled under the Plan.
Beneficiary or Beneficiaries:
I understand that my designation of my beneficiary (or beneficiaries)
may not be amended except by written notice filed with_____________________
____ at the Company.
Date Signature
Print Name