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EXHIBIT 10.45
INGRAM MICRO
SUPPLEMENTAL INVESTMENT SAVINGS PLAN
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TABLE OF CONTENTS
PAGE
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INTRODUCTION.............................................................................................1
1.01 ESTABLISHMENT AND NAME OF PLAN...............................................................1
1.02 INTENT AND STATUS OF PLAN....................................................................1
1.03 PRIOR PLAN BENEFITS..........................................................................1
DEFINITIONS..............................................................................................2
ELIGIBILITY AND PARTICIPATION............................................................................5
3.01 ELIGIBILITY..................................................................................5
3.02 PARTICIPATION................................................................................5
3.03 TERMINATION OF PARTICIPATION FOR PURPOSES OF MAKING DEFERRALS................................5
DEFERRED COMPENSATION ACCOUNTS...........................................................................6
4.01 DEFERRED COMPENSATION ACCOUNT................................................................6
4.02 ELECTIVE DEFERRAL AMOUNTS....................................................................6
4.03 MATCHING EMPLOYER AMOUNTS....................................................................8
4.04 DEEMED INVESTMENT AMOUNTS CREDITED TO DEFERRED COMPENSATION ACCOUNTS.........................9
4.05 ALLOCATION OF ACCRUED EARNINGS AND LOSSES OF DEEMED INVESTMENTS..............................9
DISTRIBUTION OF DEFERRED COMPENSATION BENEFITS..........................................................10
5.01 IN GENERAL..................................................................................10
5.03 HARDSHIP DISTRIBUTIONS......................................................................10
5.04 VESTING.....................................................................................11
5.05 AMOUNT AND METHOD OF DISTRIBUTION OF BENEFITS...............................................12
5.06 COMMITTEE DECISION..........................................................................13
5.07 PAYMENTS AFTER PARTICIPANT'S DEATH..........................................................14
5.08 DESIGNATION OF BENEFICIARIES................................................................14
5.09 LOANS.......................................................................................14
FINANCING AND UNFUNDED STATUS...........................................................................15
6.01 COSTS BORNE BY THE PARTICIPATING COMPANIES..................................................15
6.02 SOURCE OF BENEFIT PAYMENTS AND MEDIUM OF FINANCING THE PLAN.................................15
6.03 UNFUNDED STATUS.............................................................................15
FORFEITURE..............................................................................................16
7.01 FORFEITURES.................................................................................16
7.02 CERTAIN FORFEITURE CONDITIONS...............................................................16
7.03 TREATMENT OF FORFEITURES....................................................................16
ADMINISTRATION..........................................................................................17
8.01 GENERAL ADMINISTRATION......................................................................17
8.02 COMMITTEE PROCEDURES........................................................................17
8.03 FACILITY OF PAYMENT.........................................................................17
8.04 INDEMNIFICATION OF COMMITTEE MEMBERS........................................................18
AMENDMENT AND TERMINATION OF PLAN.......................................................................19
9.01 AMENDMENT AND TERMINATION...................................................................19
GENERAL PROVISIONS......................................................................................20
10.01 LIMITATION OF RIGHTS........................................................................20
10.02 NO ASSIGNMENT OR ALIENATION OF BENEFITS.....................................................20
10.03 SUCCESSORS..................................................................................20
10.04 GOVERNING LAW...............................................................................21
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ARTICLE 1
INTRODUCTION
1.01 ESTABLISHMENT AND NAME OF PLAN
Effective November 6, 1996, Ingram Micro Inc. established an unfunded,
deferred compensation plan primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees of the Participating Companies, entitled the
"Ingram Micro Inc. Supplemental Executive Deferred compensation Plan".
Except as otherwise specifically stated, the plan is hereby, amended,
restated and re-named the Ingram Micro supplemental Investment Savings
Plan generally effective July 1, 1999.
1.02 INTENT AND STATUS OF PLAN
The Plan is intended to be unfunded plan maintained by the Corporation
with the Participating Companies primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees (and intended to be within the exemptions
therefore in, without limitation, Sections 201(2), 301(a)(3), 401(a)(1)
and 4021(b)(6) o ERISA and section 220.104-23 of the Labor
Regulations). The Plan is intended to be "unfunded"" for purposes of
both ERISA and the Code. The Plan is not intended to be qualified as a
qualified plan under Section 401(a) of the Code; rather, the Plan is
intended to be a "nonqualified" plan.
1.03 PRIOR PLAN BENEFITS
Notwithstanding anything in the Plan to the contrary, this plan is
intended to include the Benefits and liabilities that Ingram Micro Inc.
had under the Ingram Industries, Inc. Supplemental Executive Deferred
Compensation Plan (the "Prior Plan"). As a result, any of the remaining
benefits earned by employees of Ingram Micro Inc. Under the Prior Plan
prior to the Effective Date shall become benefits under this plan and
shall be provided only by this plan.
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ARTICLE 2
DEFINITIONS
Each following word, term and phrase shall have the following
respective meanings whenever such word, term or phrase is capitalized
and used in any Article of this Plan unless the context clearly
indicates otherwise:
2.02 "ASSOCIATE" has the same meaning as such term is defined in the Savings
Plan.
2.03 "BOARD" means the board of Directors of the Corporation.
2.04 "COMMITTEE" means the Committee appointed by the Board to administer
the Plan pursuant to Article 8 hereof. If no such Committee has been
appointed, then the term Committee shall mean the Corporation.
2.05 "CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
2.06 "COMPENSATION" means the same as "Compensation" as defined under the
amended, restated and renamed Ingram Micro 401(k) Investment Savings
Plan, effective January 1, 1999, (as defined in Section 2.13 of the
Savings Plan), but without the Code section 401(a)(17) dollar limit.
2.07 "COMPENSATION DEFERRAL AGREEMENT" means the written agreement to defer
Compensation contemplated y articles 3 and 4 hereof executed by the
Participant and the Participating Company.
2.08 "COMPENSATION DEFERRAL DATE" means the Effective Date in the initial
plan year, and January 1, in each calendar year thereafter.
Notwithstanding the foregoing, the Committee may declare a special
Compensation Deferral date each year, so that a participant may elect
prior to such special Compensation Deferral Date to make a supplemental
deferral as described in Section 4.02(a)(iv) hereof.
2.09 "COMPENSATION DEFERRAL PERIOD" means the period beginning on the
Effective date and ending on December 31 (the calendar year).
Notwithstanding the foregoing, there shall be a special Compensation
Deferral Period for purposes of supplemental deferrals, as described in
Section 4.02(a)(iv), which shall begin on the special Compensation
Deferral Date declared by the Committee and shall end on the following
December 31.
2.10 "CORPORATION" means Ingram Micro Inc., a Delaware Corporation and any
business organization or corporation into which Ingram Micro Inc. may
be merged or consolidated or by which it may be succeeded.
2.11 "DEFERRED COMPENSATION ACCOUNT" means the separate book reserve account
established y the Participating Companies pursuant to Article 4 of this
Plan for each Participant to which shall be credited (added) the
Participant's share of any
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elective Deferral amounts and Matching Employer Amounts; and from which
any distributions, any hardship withdrawal distributions, and any
Forfeitures shall be subtracted; and which shall be adjusted for
allocation of accrued earnings and losses thereon as descried in
Sections 4.04 or 4.05 hereof and for allocation of any Forfeitures
(which arises pursuant to Section 5.04)) pursuant to Section 7.03
hereof. All amounts which are credited to such Deferred Compensation
Account are credited solely for computation purposes and are at all
times general assets of the Participating Companies and subject to the
claims of the general creditors of the Participating companies. A
Participant's Deferred Compensation Account shall be utilized solely as
a device for the determination and measurement of the amounts (subject
to vesting provisions in this Plan) to e paid as deferred compensation
benefits to the Participant or his beneficiary pursuant to the Plan.
Any Associate or Participant shall not have at any time any interest in
or to such Deferred Compensation Account or in any deemed investment
thereof. A Participant's Deferred Compensation Account shall not
constitute or be treated as a trust or trust fund of any kind. For
purposes of administrative convenience and for purposes of certain
provisions of this Plan, each Participant's deferred Compensation
Account shall be divided into the following subaccounts or parts:
"PART I" attributable to Elective Deferral Amounts pursuant to
Section 4.02 hereof; and
"PART II" attributable to Matching Employer Amounts pursuant
to Section 4.03 hereof.
Notwithstanding anything in the Plan to the contrary, the Deferred
Compensation Account shall include the amounts allocated under the
Prior Plan pursuant to Section 1.03 hereof.
2.12 "DISABILITY" shall mean the inability to engage in any substantially
gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or to be of
continued and indefinite duration, as determined by the Committee on
the basis of medical evidence by a licensed physician designated by the
Committee.
2.13 "DISTRIBUTION DATE" means either the (a) March 31 in the Plan Year
following the Plan Year in which the participant terminates employment
with the Participating Companies and subsidiaries or (b) such earlier
date as the Committee may, in its sole discretion determine, which
immediately follows the termination of employment of the Participant,
as provided in Section 5.02 of the Plan.
2.14 "EFFECTIVE DATE" of the amended, restated and renamed Plan means July
1, 1999, except as otherwise specifically stated.
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2.15 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
2.16 "FORFEITURE" means the portion of a Participant's Deferred Compensation
Account (or parts thereof) which is forfeited before full vesting
occurs pursuant to Section 5.04(c) or which is forfeited under section
7.02 hereof.
2.17 "PARTICIPANT" mans an eligible Associate participating in the Plan
pursuant to the provisions of Article 3 hereof.
2.18 "PARTICIPATING COMPANY" means any "Employer" as defined in the Savings
Plan.
2.19 "PLAN" means this Ingram Micro Supplemental Investment Savings Plan as
established and set forth herein (together with any and all supplements
hereto), and as amended from time to time.
2.20 "PLAN YEAR" means the twelve (12) consecutive month period beginning on
each January 1 and ending on each following December 31 thereafter (the
calendar year).
2.21 "SAVINGS PLAN" means the Ingram Micro Thrift Plan (which was
established effective October 1, 1996, as amended from time to time,
and as in effect on the relevant date to be interpreted hereunder and
the amended, restated and re-named the Ingram Micro 401(k) Investment
Savings Plan effective January 1, 1999. References in this Plan to the
Savings Plan (including references to provisions, articles, and
sections of the Savings Plan) include references to the Savings Plan as
it may be amended from time to time (and references to provisions,
articles, and sections of the Savings Plan include references to
corresponding or succeeding provisions in the Savings Plan as it may be
amended from time to time).
2.22 "SUBSIDIARY": shall mean any corporation that is a member of a
controlled group of corporations of which a Participating Company is a
member, or any unincorporated trade or business that is under common
control of or with any Participating Subsidiary as determined under
Code section 414(b). For purposes of this definition, a "controlled
group of corporations" shall mean a controlled group of corporations as
defined in Code Section 1563(a)(4) and (e)(3)(C).
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ARTICLE 3
ELIGIBILITY AND PARTICIPATION
3.01 ELIGIBILITY.
Eligibility to participate in the Plan shall be limited to Associates
of the Participating companies who are in a select group of management
or highly compensated Associates and who are designated, from time to
time, by the committee as eligible to participate in the Plan.
3.02 PARTICIPATION.
An Associate eligible to participate in the Plan as provided in Section
3.01 hereof may elect to become a participant in the Plan by electing
to defer Compensation with respect to any Compensation Deferral Period
under Article 4 hereof by completing and delivering to the Committee a
duly executed Compensation Deferral Agreement as provided in Section
4.02.
3.03 TERMINATION OF PARTICIPATION FOR PURPOSES OF MAKING DEFERRALS.
Participation in the Plan for purposes of being able to make Elective
deferral amounts pursuant to section 4.02 hereof under this Plan shall
terminate when a Participant's employment with the Participating
companies as an Associate terminates (even though he may be employed by
a Subsidiary which is not a Participating Company), when such
Participant is no longer designated by the committee as an Associate
eligible to participate in the Plan, or at such time as the Participant
delivers to the Committee a written notice suspending future deferrals.
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ARTICLE 4
DEFERRED COMPENSATION ACCOUNTS
4.01 DEFERRED COMPENSATION ACCOUNT.
On behalf of Participating Companies the Committee shall establish and
maintain for each Participant or former Participant under the Plan (or
the Prior Plan as described in Section 1.03) a book reserve account
(the Deferred Compensation Account as defined in Section 2.10 hereof)
for the purpose of determining deferred compensation payable to the
Participant. Separate subaccounts shall be maintained as provided in
Section 2.1 consisting of Part I (attributable to Elective Deferral
Amounts pursuant to Section 4.02 hereof) and Part II (attributable to
Matching Employer Amounts pursuant to Section 4.03 hereof). Such
Deferred compensation Accounts (and subaccounts or parts thereof) shall
be governed by the provisions of this Article 4.
4.02 ELECTIVE DEFERRAL AMOUNTS.
Elective Deferral of Compensation by Participants under the Plan is
governed by the provisions of this Section. Amounts deferred by a
Participant pursuant to this Section shall constitute "Elective
Deferral Amounts" for purposes of this plan.
(a) Compensation Elective Deferrals. The following provisions apply to
elective deferral of Compensation by Participants under the Plan.
(i) Compensation Deferral Elections by Participants. With respect
to a Compensation deferral Period, a Participant may make an
election prior to the Compensation Deferral Date on which
such Compensation deferral Period begins to defer a specified
percentage of the Compensation which would otherwise be
payable by the Participating company to the Participant
during the Compensation Deferral Period beginning on such
Compensation Deferral Date. Any such election shall be made
on a Compensation Deferral Agreement which is duly executed
by the Participant and which is delivered by such Participant
to the Committee before such Compensation Deferral Date and
may not be revoked, changed or modified for and during the
applicable Compensation Deferral Period, except as otherwise
provided in Section 4.02. In addition, a Participant electing
to make Compensation Election Deferrals to this Plan under a
Compensation Deferral Agreement is also electing to defer any
amounts that would have been deferred under the Savings Plan
but were stopped due to the limits imposed under the terms of
the plan.
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(ii) Compensation Deferral Elections by Certain New Participants.
In the case of an Associate who first becomes eligible to
participate in the Plan during Compensation Deferral Period,
such an Associate may make an election no later than thirty
(30) days following the date such employee first becomes
eligible to participate in the Plan to defer a specified
percentage of the Compensation which would otherwise be
earned by such employee and be payable by the participating
Employer after the later of (i) the date the Associate first
becomes eligible to participate in the Plan or (ii) the date
such Compensation Deferral Agreement is received by the
committee and during the remainder of the Compensation
Deferral Period. Any such election shall be made on a
Compensation Deferral Agreement which is duly executed by the
associate and which is delivered by such Associate to the
Committee no later than thirty (30) days following the date
the Associate first becomes eligible to participate in the
Plan, and may not be revoked, changed or modified for and
during the applicable Compensation Deferral Period, and the
provisions of Subsection 4.02(a)(iii) shall apply to any such
election. If such Associate does not make any such election,
such Associate may make an election under section 4.02(a)
with respect to the next Compensation Deferral Period (or
later Compensation Deferral Periods) pursuant to the
applicable provisions.
(iii) Continuation and Irrevocability of Election. Any election by
a Participant pursuant to Subsection 4.02(a)(ii)(and any
subsequent election) will continue (and may not be modified,
altered, or changed in any way) until the earliest of:
(A) the Compensation Deferral Period commencing after the
date the Participant delivers to the Committee a written
notice to suspend future deferrals of Compensation under
the Plan,
(B) the Compensation Deferral Period commencing after the
date on which the Participant delivers a new Compensation
Deferral Agreement modifying his previous election to the
Committee,
(C) the Participant is no longer designated as eligible to
participate in the Plan,
(D) the Participant terminates employment with the
Participating companies, or
(E) the Plan is amended or terminated such that the Plan no
longer permits deferrals of Compensation. A Participant
must make a new election each year prior to the next
Compensation Deferral Period to continue participating in
the Plan. The failure to make an election prior to any
Compensation Deferral Period shall be deemed an election
not to participate for that period.
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(i) Limitations on Percentage Amounts. A Participant who elects
to make the maximum elective deferral to the Savings Plan for
a calendar year may elect to make a "basic deferral" of up to
fifteen percent (15%) of the Participant's annual
compensation otherwise payable to him, minus the maximum
amount that could have been contributed by the Participant in
the Savings Plan. In addition, such a participant may also
make a "supplemental deferral election" of the Participant's
compensation otherwise payable to him in an amount not to
exceed the amount of compensation that such participant
contributed to the Savings Plan in the preceding calendar
year which is refunded to such participant in the current
calendar year as a result of the special nondiscrimination
testing applicable to the Savings Plan. This election shall
be made at the same time prior to the Compensation deferral
Period as the "basic deferral" elections.
(b) Withholding and Crediting of Elective Deferral Amounts. The
Participating Company shall withhold the specified percentage
amounts deferred by the Participant hereunder from the Compensation
which is otherwise payable to the Participant. The committee shall
credit amounts equal to such withheld amounts to Part I of the
Participant's Deferred Compensation Account.
4.03 MATCHING EMPLOYER AMOUNTS.
With respect to each Compensation Deferral Period, an amount equal to
the matching percentage of the Participants elective deferral Amounts
(not in excess of 5% of his annual compensation) shall be credited to
Part II of the Participant's Deferred Compensation Account. Provided
however that the amount matched shall not exceed an amount equal to 5%
of the Participant's annual compensation reduced, not below zero (0),
by the maximum amount that could have been contributed by the
Participant in the Savings Plan. If at any time it is determined by the
Committee that the Savings Plan does not pass the applicable
nondiscrimination tests, any such excess employer matching
contributions shall be deposited into this Plan, rather than the
Savings Plan, subject to the limits set forth in this Section 4.03. For
purposes of calculating the employer matching contribution, the
Participant's annual compensation shall be the definition as set forth
in Section 2.05, excluding the annual bonus. The matching percentage
shall be determined under the following table based on the
Participant's "Years of Matching Service" under the Savings Plan as of
the first day of the Plan Year which includes the related Compensation
Deferral Period.
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Savings Plan Matching Percentage
Years of Applied to
Vesting Service Elective Deferral Amounts
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Less than 5 50%
At least 5 but less than 10 75%
10 or more 100%
Such matching amount shall be credited to Part II of the Participant's
Deferred Compensation Account at such time as the Committee in its sole
discretion may determine, but within a reasonable time after the end of
the Plan Year to which such amount relates. Any such amounts shall
constitute "Matching Employer Amounts" for purposes of this plan.
4.04 DEEMED INVESTMENT AMOUNTS CREDITED TO DEFERRED COMPENSATION ACCOUNTS.
Solely as a device to measure amounts of deferred compensation payable
hereunder, the Committee shall establish uniform and nondiscriminatory
rules consistent with this Section for the treatment of amounts
credited to a Participant's Deferred compensation Account as if such
amounts were invested in the investment funds offered under the Savings
Plan. No investment of such amounts is required. Such rules shall be
similar to those under the Savings Plan, but shall be established in
the sole discretion of the committee. Such rules shall permit
Participants to designate deemed investment of amounts credited to a
Participant's deferred compensation Account among such funds and to
make transfers among such funds in a manner similar to those under the
Savings Plan.
4.05 ALLOCATION OF ACCRUED EARNINGS AND LOSSES OF DEEMED INVESTMENTS.
Solely as a device to measure amounts of deferred compensation payable
to Participants, former Participants, or beneficiaries hereunder, the
Committee shall establish uniform and nondiscriminatory rules
consistent with this Section to determine accrued income, gains and
losses from the investments of Deferred Compensation Accounts deemed to
be made pursuant to Section 4.04 hereof to be allocated among credit
balances of Deferred compensation Accounts. Any accrued earnings and
losses shall be allocated and credited to a Participant's Deferred
Compensation Account on a daily basis.
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ARTICLE 5
DISTRIBUTION OF DEFERRED COMPENSATION BENEFITS
5.01 IN GENERAL.
The benefits to be paid as deferred compensation are governed by the
provisions of this Article 5. A Participant whose employment with the
Participating Companies or Subsidiaries terminates for any reason shall
be entitled to distribution of benefits pursuant to this Article,
subject to the provisions of Article 7.
5.02 TIME OF DISTRIBUTION.
The Corporation on behalf of the Participating Company or Companies
shall commence distribution of benefits beginning with the Distribution
Date immediately following the Participant's termination of employment
with the Participating Companies and Subsidiaries for any reason
(including retirement at or after age 65, death or Disability).
Provided, however benefits shall be valued and made pursuant to the
provisions of Section 5.05 hereof.
5.03 HARDSHIP DISTRIBUTIONS.
Notwithstanding the foregoing, the Committee may, in its sole
discretion, commence distribution of benefits from Part I and Part II
of a Participant's Deferred Compensation Account as defined in Section
2.10, at any date earlier than that provided in Section 5.02 based on a
determination of an unforeseeable financial emergency. A hardship
distribution under this Section is only permitted after a Participant
has obtained any hardship distribution available under the Savings
Plan. A Participant may withdraw in cash the portion of the balance of
his deferral account needed to satisfy the unforeseeable financial
emergency, to the extent that the unforeseeable financial emergency may
not be relieved:
(a) Through reimbursement or compensation by insurance or otherwise; or
(b) By liquidation of the Participant's assets, to the extent the
liquidation of such assets would not itself cause severe financial
hardship.
An "unforeseeable financial emergency" is a severe financial hardship
to the Participant resulting from:
(i) A sudden and unexpected illness or accident of the
participant or of a dependent of the Participant;
(ii) Loss of the Participant's property due to casualty; or
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(iii) Such other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the
control of the Participant as determined by the Committee.
A withdrawal on account of an unforeseeable financial emergency shall be paid as
soon as possible following the date on which the Committee approves the
withdrawal.
5.04 VESTING
In connection with distribution of benefits to a former Participant due
to termination of employment with the participating Companies or
Subsidiaries for any reason pursuant to this Article 5 but subject in
all events to the provisions of Article 7 hereof, the Vested Percentage
of the Participant's Deferred compensation Account (and Parts therein)
shall be determined as of the date the event giving rise to
distribution under Section 5.02 hereof as follows:
(a) Death or Disability. If the distribution is due to the death or
Disability of the Participant, then the Vested Percentage of the
Participant in parts I and II of his Deferred compensation account
shall be 100%.
(b) Retirement At or After Age 65. If the distribution is due to the
termination of the Participant by all of the Participating
Companies and Subsidiaries by reason of his retirement at or after
attaining age 64, then the Vested percentage of the participant in
Parts I and II of his Deferred Compensation Account shall be 100%.
(c) Other Termination. If the distribution is due to the termination of
employment of the Participant by all of the participating Companies
and subsidiaries for any reason other than his death, Disability or
retirement at or after age 65, then the Vested Percentage of Part I
of the Participants Deferred Compensation Account shall be 100% and
the Vested Percentage of Part II of the Participant's Deferred
compensation Account shall be the same as his vested percentage
under the Savings Plan in company contributions. The portion of
Part II of a Participants Deferred Compensation Account in which he
is not vested as of the date of the termination of employment
giving rise to distribution under Section 5.02 hereof shall be
treated as a Forfeiture and the nonvested portion of a
Participant's balance deemed invested as described in the Savings
Plan, if any, shall be forfeited as of the Distribution Date. Such
Forfeitures shall be treated as provided in Article 7 hereof.
These vesting provisions are provided merely for purposes of
determining amounts of deferred compensation benefits payable
hereunder.
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5.05 AMOUNT AND METHOD OF DISTRIBUTION OF BENEFITS.
A Participant whose employment with the Participating companies or
subsidiaries terminates shall be entitled to the Participant's
respective Vested Percentage (determined under Section 5.04 hereof)
portions of the balances credited to Part I and Part II, respectively,
of his Deferred Compensation Account as of the Distribution Date as
determined by the Committee subject to the distribution method
determined by the Committee. Distribution of such deferred compensation
benefits to a former Participant under this Plan shall be made by the
Corporation on behalf of the Participating Companies as directed by the
Committee in its sole discretion as follows:
(a) Termination of Employment.
(i) In the event a Participant's employment terminates for any
reason, including (without limitation) death, retirement or
disability, then the vested percentage of the Participant's
Deferred Compensation Account shall be paid to the
Participant (and after the Participant's death to his
beneficiary). Payment shall be made in the form of quarterly
installments over a 10-year period commencing in the quarter
following the quarter in which the Participant terminates
employment. A Participant may elect to have distribution made
in one of the optional forms of payment as set forth below:
(A) Quarterly installment payments over a
(1) 15-year period; or
(2) 5-year period
(B) Single lump sum payment within 60 days following
termination of employment or on January 31st of the
following calendar year, as elected by the Participant.
(i) A Participant may make such distribution election by
completing a form approved by and filed with the Committee
within (30) days of the date the eligible Associate first
becomes a Participant. A Participant may change his form of
distribution under this section provided that he files the
change with the Committee at least one (1) year prior to his
Distribution Date. Once distribution begins, a Participant
may elect another form of distribution, however, such change
shall be subject to a 10% penalty which amount shall be
deducted and forfeited by the Participant.
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(ii) Notwithstanding the foregoing, if the Participant's vested
Deferred Compensation Account balance is Twenty-Five Thousand
Dollars ($25,000) or less, the balance in his account shall
be automatically distributed in the form of a cash lump sum
on the Participant's Distribution Date; or such earlier date
as the Committee may, at its sole discretion, determine which
immediately follows the date of termination.
(iii) If the Participant's vested Deferred Compensation Account
balance is paid in installments, the Participant's account
shall continue to be credited with earnings and losses
pursuant to Section 4.05 and the installment amount shall be
adjusted as well to reflect gains and losses until all
amounts credited to his account under the Plan have been
distributed.
(iv) Amounts payable pursuant to this Section shall be subject to
the limitation on payout under Section 5.05(d) herein.
(b) Death While Receiving Benefits. If a Participant is in pay status
at the time of death, his or her beneficiary shall be paid any
remaining amount due the Participant in the same form as elected by
the Participant pursuant to Section (a)(i).
(c) The Committee may, in its sole discretion, direct that the
Participating Company accelerate distributions under any option in
effect or pay any amounts in larger or more frequent installments,
as determined by it to be in the best interests of the former
Participant after consultation with the former Participant.
(d) Notwithstanding the foregoing, any hardship distributions which are
made as provided in Section 5.03 above from Part I or Part II of a
Participant's Deferred Compensation Account, as defined in Section
2.10, shall be made in such amounts and for such periods of time as
may be considered necessary by the Committee to meet the conditions
of such financial hardship. However, in no event will amounts in
excess of the remaining value of Part I or Part II of Participant's
Deferred Compensation Account, as defined in Section 2.10 become
payable to the Participant.
5.06 COMMITTEE DECISION.
Any decision to be made by the Committee under this Article 5 with
respect to the distribution of benefits with respect to a Participant
or former Participant under this Plan shall be made by the committee,
but such Participant shall exclude himself therefrom for purposes of
those decisions if such participant is a member of the Committee.
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5.07 PAYMENTS AFTER PARTICIPANT'S DEATH.
If the Participant's employment with the Participating Companies or
Subsidiaries is terminated because of his death, then the deferred
compensation benefits otherwise payable with respect to the Participant
under the Plan shall be paid in a lump sum or installments in a manner
similar to that provided in Section 8.2 of the Savings Plan as
determined by the Committee in its sole discretion. However, the
written election described in Section 8.2 of the Savings Plan for
installment payments shall not be available to a Participant under this
Plan, but the Committee may direct such installment payments in its
sole discretion.
If a former Participant dies after the date payment of benefits has
commenced under this Plan, then the beneficiary or beneficiaries
designated by that Participant shall be entitled to payment of any
remaining installments of deferred compensation benefits over the
remaining period; provided, however,
that the Committee may direct the acceleration of payment of benefits
hereunder in its sole discretion after consultation with the
beneficiary or beneficiaries.
5.08 DESIGNATION OF BENEFICIARIES.
The Participant may designate in writing (on a form provided by the
Committee and delivered to the Committee before his death) primary and
contingent beneficiaries to receive any deferred compensation benefit
payments which may be payable hereunder following the Participant's
death and the proportions in which such beneficiaries are to receive
such payments. The Participant may change such designation from time to
time and the last written designation delivered to the Committee prior
to the Participant's death will control. If the Participant fails to
specifically designate such a beneficiary, or if not designated
beneficiary survives the Participant, or if all designated
beneficiaries who survive the Participant die before all payments are
made, then the remaining payments shall be made to the Participant's
surviving spouse if such spouse is then living; if such spouse is not
living, then to such person or persons as would be entitled to take the
estate of the Participant under the intestacy laws of the state of
which such a Participant was a resident at the time of his death; and
if there are no such persons, then to the executors or administrators
of the estate of the Participant. The Committee may determine the
identity of such persons and shall incur no responsibility by reason of
the payment of such interest in accordance with any such determination
made in good faith.
5.09 LOANS.
Loans to Participants are not permitted from this Plan.
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ARTICLE 6
FINANCING AND UNFUNDED STATUS
6.01 COSTS BORNE BY THE PARTICIPATING COMPANIES.
The costs of the Plan shall be borne by the Participating Companies.
6.02 SOURCE OF BENEFIT PAYMENTS AND MEDIUM OF FINANCING THE PLAN.
All payments under this Plan shall be paid in cash by the Corporation
from the general funds of the Participating Companies and no special or
separate fund shall be established and no other segregation of assets
shall be made to assure the payment of benefits hereunder. Nothing
contained in this Plan, and no action taken pursuant to its provisions,
shall create or be construed to create a trust of any kind, or a
fiduciary relationship, between any Participating Company and any
Participant, any beneficiary or beneficiaries of a Participant, or any
other person. To the extent that any person acquires a right to receive
payments from any Participating Company, such right shall be no greater
than the right of an unsecured creditor of such Participating Company.
6.03 UNFUNDED STATUS.
This Plan is intended to be unfunded for purposes of both ERISA and the
Code.
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ARTICLE 7
FORFEITURE
7.01 FORFEITURES.
Forfeitures may arise pursuant to Section 5.04(C) or Section 7.02
hereof.
7.02 CERTAIN FORFEITURE CONDITIONS.
Notwithstanding anything contained to the contrary (including any
provisions of Article 5 hereof concerning "vesting"), no payment of any
then unpaid installments of deferred compensation in Part II of a
Participant's deferred Compensation Account shall be made and al rights
under this Plan of the Participant, his designated beneficiary or
beneficiaries, executors, administrators, legal representatives, or any
other person, to receive payments thereof from Part II of a
Participant's Deferred Compensation Account shall be forfeited and the
entire balance of Part II of a Participant's Deferred Compensation
Account forfeited and treated as a forfeiture if the Participant shall
engage in any activity or conduct which in the opinion of the Committee
is substantially detrimental to the best interests of the Participating
Companies.
7.03 TREATMENT OF FORFEITURES.
Forfeitures which arise pursuant to Section 5.04(c) shall be subtracted
(deleted) from the credit balance of Part II of a Participant's
Deferred Compensation Account. Such Forfeitures from Part II of a
Participant's Deferred Compensation Account deemed to be invested as
described in the Savings Plan shall be used either to offset future
Matching Employer amounts as described in Section 4.03 or to offset the
reasonable expenses of the Plan.
Amounts forfeited due to the operation of Section 7.02 shall be
subtracted (deleted) from the credit balance of Part II of a
participant's Deferred Compensation Account. Such amounts forfeited
pursuant to Section 7.02 shall not be treated as Forfeitures pursuant
to Section 5.04(C) but instead shall be treated as deleted from Part II
of a Participant's Deferred Compensation Account and no longer an
obligation of any Participating Company in any way.
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ARTICLE 8
ADMINISTRATION
8.01 GENERAL ADMINISTRATION.
The Board shall appoint a Committee consisting of not less than three
(3) persons to administer the Plan. Any member of the Committee may at
any time be removed, with or without cause, and his successor appointed
by the Board, and any vacancy caused by death, resignation or other
reason shall be filled by the Board. The Committee shall be the plan
administrator of the Plan and in general shall be responsible for the
management and administration of the Plan. The Committee shall have
full power to administer the Plan in all of its details (including
establishing claims procedures and other rules), subject to applicable
requirements of law. No member of the Committee who is an employee of
the Participating Companies or Subsidiaries shall receive compensation
for his services to the Plan. The Committee shall have such duties and
powers as may be necessary to discharge its duties under this Plan.
The fiscal records of the Plan shall be maintained on the basis of the
Plan Year.
8.02 COMMITTEE PROCEDURES.
The Committee may act at a meeting or in writing without a meeting. The
Committee may adopt such by-laws and regulations as it deems desirable
for the conduct of its affairs. All decisions shall be made by majority
vote. No member of the Committee who is at any time a participant in
this Plan shall vote in a decision of the Committee (whether in a
meeting or by written action) made specifically and uniquely with
respect to such member of the Committee or amount, payment, timing,
form or other aspect of the benefits of such Committee member under
this Plan.
8.03 FACILITY OF PAYMENT.
Whenever, in the Committee's opinion, a person entitled to receive any
payment of a benefit or installment thereof hereunder is under a legal
disability or is incapacitated in any way so as to be unable to manage
his financial affairs, the Committee may direct payments to such person
or to his legal representative or to a relative or friend of such
person for his benefit, or the Committee may direct the payment for the
benefit of such person in such manner as the Committee considers
advisable. Any payment of a benefit or installment thereof in
accordance with the provisions of this Section shall be a complete
discharge to the Committee and the Participating Companies of any
liability for the making of such payment under the provisions of the
Plan.
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8.04 INDEMNIFICATION OF COMMITTEE MEMBERS.
The Participating Companies shall indemnify and hold harmless each
member of the Committee against any and all liability, claims, damages
and expense (including all expenses reasonably incurred in his defense
in the event that the Participating Companies fail to provide such
defense upon his written request) which the Committee member may incur
while acting in good faith in the administration of the Plan.
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ARTICLE 9
AMENDMENT AND TERMINATION OF PLAN
9.01 AMENDMENT AND TERMINATION.
The Board may amend or terminate the Plan (without the consent of any
Participant, former Participant or beneficiary) at any time, provided
that such amendment does not decrease or divest any then Participant or
former Participant of the amounts in Part I of this deferred
Compensation Account as of the date of amendment and does not reduce
the Vested Percentage of any then Participant or former Participant in
any subaccount (Part) of his Deferred Compensation Account as of the
date of amendment.
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ARTICLE 10
GENERAL PROVISIONS
10.01 LIMITATION OF RIGHTS.
Neither the establishment of this Plan nor any amendment thereof, nor
the payment of any benefits, will be construed as giving to any
Associate, Participant, beneficiary, or other person any legal or
equitable right against the Participating Companies, except as provided
herein. Neither the establishment of this Plan nor any amendment
thereof, nor the payment of benefits, nor any action taken with respect
to this Plan shall confer upon any person the right to be continued in
the employment of the Participating Companies or Subsidiaries.
10.02 NO ASSIGNMENT OR ALIENATION OF BENEFITS.
The rights of a Participant, former Participant, beneficiary or any
other person to payment of benefits under this Plan shall not be
assigned, transferred, anticipated, conveyed, pledged or encumbered
except by will or the laws of descent or distribution; nor shall any
such right be in any manner subject to levy, attachment, execution,
garnishment or any other seizure under legal, equitable or other
process for payment of any debts, judgments, alimony, or separate
maintenance, or reached or transferred by operation of law in the event
of bankruptcy, insolvency or otherwise. Provided, however, that a
Participant shall have the right to designate in writing and in
accordance with the provisions of Section 5.08 hereof primary and
contingent beneficiaries to receive benefit payments subsequent to the
death of the Participant.
10.03 SUCCESSORS.
The provisions of this Plan shall be binding upon and inure to the
benefit of the Corporation, its successors, and assigns, and each
participant and his heirs, executors, administrators and legal
representatives. The term successors as used herein shall include any
corporate or other business entity which shall, whether by merger,
consolidation, purchase or otherwise, acquire all or substantially all
of the assets of the Corporation, and successors of any such
corporation or other business entity.
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10.04 GOVERNING LAW.
Except to the extent Federal law is controlling, the provisions of this
Plan shall be interpreted and construed according to the laws of the
State of California to the extent not preempted by applicable law.
IN WITNESS WHEREOF, the Corporation has caused this Plan to be duly
executed for and on behalf of the Corporation by its duly authorized
officers on this the ________ day of __________, 1999.
INGRAM MICRO INC.
By: ______________________________
Title: _____________________________
ATTEST:
_________________________
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