Exhibit 10.9
SOUTHERN PERU COPPER CORPORATION
COMPENSATION DEFERRAL PLAN
(As Amended and Restated as of November 4, 1999)
SECTION 1 - EFFECTIVE DATE.
The effective date of the Plan as originally adopted is January 1, 1998. The
effective date of the Plan as hereby amended and restated is November 4, 1999.
SECTION 2 - DEFINITIONS.
1) BOARD. The Board of Directors of Southern Peru Copper Corporation.
2) CODE. The Internal Revenue Code of 1986, as amended.
3) COMMITTEE. The Compensation Committee of the Board or any individual or
individuals to whom authority has been delegated hereunder by the
Compensation Committee.
4) COMPANY. Southern Peru Copper Corporation and any subsidiary of Southern
Peru Copper Corporation that has adopted the Plan.
5) DEFERRAL AMOUNTS. A Participant's Salary Deferral Amounts, Incentive
Compensation Deferral Amounts, Employer Provided Benefit, and Special
Incentive Compensation Awards.
6) DIRECTOR. Any individual serving as a member of the Board.
7) INCENTIVE COMPENSATION PLAN. The Southern Peru Copper Corp. Incentive Plan
for Select Management Payroll Employees, and the Logistic Services
Incorporated Incentive Plan.
8) PARTICIPANT. An Eligible Employee, as defined in Section 3, who has a valid
election in effect under the Plan.
9) PARTICIPANT ACCOUNT. A bookkeeping account established in the financial
records of the Company to record the Deferral Amounts and deemed investment
earnings or losses arising therefrom based on Participant elections pursuant
to Section 5.
10) RETIREMENT. Retirement under the Retirement Benefit Plan for Salaried
Employees of Southern Peru Copper Corporation.
11) SAVINGS PLAN. Savings Plan of Southern Peru Copper Corporation and
Participating Subsidiaries.
SECTION 3 - ELIGIBILITY.
a) SALARY DEFERRAL
For purposes of salary deferral, any employee eligible to
participate in the Savings Plan who:
1) had compensation from the Company of at least $80,000 (or such other greater
limit as may be established under Code Section 414(q)(1)(B)(1)) (the "HCE
Limit") for the calendar year preceding the year for which the election is
effective, or
2) has an annualized base salary equal to or greater than the HCE Limit for the
year for which the election is effective shall be considered an "Eligible
Employee".
b) INCENTIVE COMPENSATION DEFERRAL
For purposes of deferrals of incentive compensation received under the
Incentive Compensation Plan ("Incentive Compensation Awards"), any exempt
salaried employee of the Company who meets the compensation requirements of
Section 3(a)(1) or 3 (a) (2) above, shall be considered an "Eligible
Employee".
SECTION 4 - PARTICIPATION.
a) ELECTION TO DEFER
1) SALARY DEFERRAL. To become a Participant in the salary deferral component of
the Plan for a particular calendar year, an Eligible Employee must elect,
prior to the beginning of such calendar year, to defer receipt of a
percentage of his base annual salary to be earned during the succeeding
calendar year. Such an election shall be in writing on forms prescribed by
the Committee, and shall include the percentage of base annual salary to be
deferred. A Participant's election to defer with respect to a calendar year
under this subsection (a)(1) shall continue in effect for all subsequent
calendar years until changed in accordance with subsection (d). An employee
of the Company who becomes an Eligible Employee during a calendar year may
elect to become a Participant in the Salary Deferral component of the Plan
for such calendar year by electing to defer a percentage of his base annual
salary (in accordance with Section 4(b)) within 30 days of becoming an
Eligible Employee. The election will be effective on a prospective basis
beginning with the payroll period that occurs as soon as administratively
practicable following receipt of the election by the Committee.
2) INCENTIVE COMPENSATION DEFERRAL. To become a participant in the Incentive
Compensation Deferral component of the Plan for a particular calendar year,
an Eligible Employee must elect, prior to the beginning of such calendar
year, to defer receipt of an amount not to exceed 100 percent of his
Incentive Compensation Award, payable during the calendar year to which the
election relates. Such an election shall be in writing on forms prescribed
by the Committee. A Participant's election to defer with respect to a
calendar year under this subsection (a)(2) shall continue in effect for all
subsequent calendar years until changed in accordance with subsection (d).
b) DEFERRAL AMOUNT
1) SALARY DEFERRAL. A Participant who meets the requirements of Section 4(a)(1)
for a calendar year may elect to have the following amounts (the "Salary
Deferral Amount") credited to his account for such calendar year or portion
thereof during which an election is effective (the "Deferral Period"):
a) the product of (i) the Participant's elected salary deferral
contribution percentage under this Plan (not to exceed the maximum
contribution percentage permitted under the Savings Plan) and (ii) the
lesser of the Participant's base annual salary for such year or the
Compensation Limit (as defined below); reduced by the maximum contribution
permitted for highly compensated employees under the Savings Plan due to
the limitations imposed by Code Section 401(k)(3) or by the plan
administrator for the Savings Plan for such calendar year; and
b) the Participant's elected salary deferral contribution percentage
under the Savings Plan as in effect on January 1 of such year, multiplied
by the Participant's base annual salary in excess of the Code
Section 401(a)(17) limit, as adjusted from time to time ($160,000 in 1999)
(the "Compensation Limit"); provided, however, that the total amount of
Salary Deferrals under this subsection cannot exceed the maximum
contribution percentage as may then be permitted under the Savings Plan).
2) INCENTIVE COMPENSATION DEFERRAL. The amount of a Participant's incentive
compensation deferral for a Deferral Period shall be any whole dollar amount
or whole percent of his Incentive Compensation Award payable during the
calendar year as elected by the Participant (the "Incentive Compensation
Deferral Amount"). In the event the award payable is less than the dollar
amount specified in the Participant's election, the full amount of the award
shall be deferred (subject to Section 15).
3) EMPLOYER PROVIDED BENEFIT. With respect to each Deferral Period, the Company
shall make a deemed matching contribution equal to 50% of each Participant's
Salary Deferral Amount (each such deemed matching contribution, an "Employer
Provided Benefit); provided, however, that no Participant's Employer
Provided Benefit with respect to a particular year may exceed the amount by
which 3% of such Participant's base salary for such year exceeds the
matching contribution made by the Company on the Participant's behalf under
the Savings Plan for such year.
4) SPECIAL INCENTIVE AWARDS. Notwithstanding anything to the contrary herein,
the Committee, in its discretion, may provide for any amounts awarded to a
Participant by the Board or the Committee as a special incentive award under
the Incentive Compensation Plan to be deferred pursuant to the terms of this
Plan and credited to a Participant's Account, subject to the terms and
limitations of the award ("Special Incentive Awards").
c) IRREVOCABILITY OF ELECTION
Subject to the provisions of subsection (d) of this Section 4, a deferral
election hereunder shall be irrevocable.
d) CHANGE OF ELECTION
A Participant may change prior elections with respect to Salary Deferral or
Incentive Compensation Deferral once in each calendar year. Changes shall be
in writing, on forms prescribed by the Committee. Such change of election
shall first be effective for the calendar year beginning after the date the
change is received by the Committee.
SECTION 5 - DEEMED INVESTMENT PROVISIONS.
a) At the time of the election to participate in the Plan, the Participant must
elect in writing to have his Deferral Amounts deemed invested, in increments
of no less than 5%, in one or more of the investment funds as are provided
under the Savings Plan, except; however, that the SPCC Common Stock Fund
shall not be available as a deemed investment. Said election must total one
hundred percent (100%) of his Deferral Amounts.
b) The Participant Accounts shall be credited with deemed earnings, gains,
losses, expenses and changes in the fair market value of such Participant
Accounts as if the Company had followed such investment designations.
c) Each Participant may elect in writing that his future Deferral Amounts be
deemed invested in a proportion different from that previously elected, but
the new election shall be prospective only and shall be made in accordance
with paragraph (b) of this Section 5. Any changes in such deemed investments
must be in accordance with rules, if any, as are established by the
Committee.
d) The election of a deemed investment option is the sole responsibility of
each Participant. Neither the Company, nor the Committee, nor any trustee of
any trust that may be established in connection with the Plan are authorized
or permitted to advise (or shall have any liability with respect to) a
Participant as to the election of any option or the manner in which his
Deferral Amounts shall be deemed to be invested.
e) Consistent with this Section 5, each Participant may elect in writing, that
a whole percentage (no less than 5%) or specific dollar amount of his
deemed investment in any fund may be transferred to any other fund
available under the Plan. Such election will be prospective only and will
be permitted in accordance with rules, if any, as are established by the
Committee.
SECTION 6 - PAYMENT OF BENEFITS.
Each Participant shall receive the value of his Participant Account in cash
promptly following the Participant's Retirement or other termination from the
Company. In the event of the death of a Participant before receiving the value
of his Participant Account, such distribution shall be paid to his beneficiary
or beneficiaries designated pursuant to Section 7 as soon as practicable under
the Plan.
SECTION 7 - DESIGNATION OF BENEFICIARY.
A Participant may designate one or more beneficiaries by giving written notice
to the Committee. If no beneficiary is so designated, the Participant's
beneficiary will be the Participant's estate. If more than one beneficiary
statement has been filed the beneficiary or beneficiaries designated in the
statement bearing the most recent date will be deemed the valid beneficiary.
SECTION 8 - PARTICIPANT'S RIGHTS UNSECURED.
The right of any Participant to receive benefits under the provisions of the
Plan shall be contractual in nature only; however, the amounts of such benefits
may be held in a trust, the assets of which shall be subject to the claims of
the Company's general creditors only in the event of bankruptcy or insolvency.
Any amounts paid to a Participant from such trust shall reduce the amount of
benefits owed by the Company.
SECTION 9 - PARTICIPATION IN OTHER PLANS.
Nothing in this Plan will affect any right which a Participant may otherwise
have to participate in any other retirement plan or agreement which the Company
may have now or hereafter.
SECTION 10 - NON-ALIENATION OF BENEFITS.
No right to receive payments hereunder shall be transferable or assignable by a
Participant or beneficiary.
SECTION 11 - ADMINISTRATION OF THE PLAN.
The Plan shall be administered by the Committee. The Committee shall construe
and interpret the Plan and may adopt rules and regulations governing the
administration of the Plan, as well as exercise any duties and powers conferred
on it by the terms of the Plan. The Committee shall act by vote or written
consent of a majority of its members or otherwise as in accordance with its
general procedures as in effect from time to time.
SECTION 12 - AMENDMENT OR TERMINATION OF THE PLAN.
This Plan may at any time or from time to time be amended, modified or
terminated by the Board. No amendment, modification or termination shall,
without the consent of a Participant, adversely affect such Participant's
accruals in his Participant Account.
SECTION 13 - NO ENTITLEMENT TO AWARDS OR RIGHT OF CONTINUED EMPLOYMENT.
Neither the establishment of the Plan nor the payment of any benefits hereunder
nor any action of the Company, a subsidiary of the Company, or the Committee
shall be held or construed to confer upon any person any legal right to be
awarded any amounts under the Incentive Plan or the Incentive Compensation Plan
or to continue in the employ of the Company or a subsidiary of the Company. The
Company and its subsidiaries expressly reserve the right to discharge any
Participant whenever the interest of any such company in its sole discretion may
so require without liability to such company or the Committee except as to any
rights which may be expressly conferred upon such Participant under the Plan.
SECTION 14 - DISCRETION OF COMPANY, COMMITTEE, AND BOARD.
Any decision made or action taken by the Company or by the Committee or by the
Board arising out of or in connection with the construction, administration,
interpretation and effect of the Plan shall lie within the absolute discretion
of the Company, the Committee or the Board, as the case may be, and shall be
final, conclusive and binding upon all persons.
SECTION 15 - TAX WITHHOLDING.
There shall be deducted from all deferrals or payments made under this Plan the
amount of any taxes required to be withheld by any Federal, state, local or
foreign government, including any employment taxes required to be withheld under
Code Section 3121(v). The Participants and their beneficiaries, distributees,
and personal representatives will bear any and all Federal, foreign, state,
local or other income or other taxes imposed on amounts paid under the Plan, and
the Company may take whatever actions are necessary and proper to satisfy all
obligations of such persons for payment of all such taxes.
SECTION 17 - SEVERABILITY.
In the event any provision of this Plan would serve to invalidate the Plan, that
provision shall be deemed to be null and void, and the Plan shall be construed
as if it did not contain the particular provision that would make it invalid.
SECTION 18 - GOVERNING LAW; BINDING EFFECT; MISCELLANEOUS.
The Plan shall be governed and construed and enforceable in accordance with the
laws of the State of New York, except as superseded by applicable Federal law.
Where appearing in the Plan, the masculine gender shall include the feminine
gender.
IN WITNESS WHEREOF, the Company has caused the Southern Peru Copper
Corporation Compensation Deferral Plan to be duly adopted and executed by its
duly authorized officers and its corporate seal affixed hereon as of November 4,
1999.
Southern Peru Copper Corporation
By: /s/ Oscar Gonzalez Rocha
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President
By: /s/ Daniel Tellechea Salido Vice
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President
Attest:
/s/ Susana D. Delanney
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Assistant Secretary
[SEAL]