EXHIBIT 10.8
MB FINANCIAL, INC.
MANUFACTURERS BANK
DEFERRED COMPENSATION PLAN
MB FINANCIAL, INC.
MANUFACTURERS BANK
DEFERRED COMPENSATION PLAN
AS MODIFIED, AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2000
PURPOSE
The purpose of this Plan is to provide specified benefits to a select group
of management and highly compensated employees, and to directors, who contribute
materially to the continued growth, development and future business success of
MB Financial, Inc., Manufacturers Bank, and any other subsidiaries, if any, that
sponsor this Plan. This Plan shall be unfunded for tax purposes and for purposes
of Title I of ERISA.
The Plan shall constitute a modification, continuation, amendment and
restatement of Manufacturers Bank Supplemental Retirement Plan and the Avondale
Savings Bank Unfunded Deferred Compensation Plan for Directors and Executive
Officers. However, the rights of any person who terminated employment or who
retired on or before the Effective Date shall be determined solely under the
terms of the Plan in which that person was a participant on the date of his
termination of the participant's employment or retirement, unless such person
again becomes a Participant hereunder after the Effective Date.
ARTICLE I
DEFINITIONS
For purposes of this Plan, unless otherwise clearly apparent from the
context, the following phrases or terms shall have the following indicated
meanings:
"ACCOUNT BALANCE" shall mean, with respect to a Participant, a credit on
the records of the Employer equal to the Deferral Account balance. The
Account Balance, and each other specified account balance, shall be a
bookkeeping entry only and shall be utilized solely as a device for the
measurement and determination of the amounts to be paid to a Participant,
or his or her designated Beneficiary, pursuant to this Plan. A
Participant's Account Balance as of the Effective Date shall be equal to
his interest in the Manufacturers Plan and the Avondale Plan, as
applicable, on the Effective Date.
"ANNUAL BONUS" shall mean any compensation, in addition to Base Annual
Salary relating to services performed during any calendar year, whether or
not paid in such calendar year or included on the Federal Income Tax Form
W-2 for such calendar year, payable to a Participant as an Employee under
any Employer's annual bonus and cash incentive plans, excluding stock
options.
"ANNUAL DEFERRAL AMOUNT" shall mean that portion of a Participant's Base
Annual Salary, Annual Bonus and Director's Compensation that a Participant
elects to have, and is deferred, in accordance with Article 3, for any one
Plan Year. In the event of a Participant's
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Retirement, Disability (if deferrals cease in accordance with Section 8.1),
death or a Termination of Employment prior to the end of a Plan Year, such
year's Annual Deferral Amount shall be the actual amount withheld prior to
such event.
"AVONDALE PLAN" shall mean the Avondale Savings Bank Unfunded Deferred
Compensation Plan for Directors and Executive Officers, as in effect
immediately prior to the Effective Date.
"BASE ANNUAL SALARY" shall mean the annual cash compensation relating to
services performed by an Employee during any calendar year, whether or not
paid in such calendar year or included on the Federal Income Tax Form W-2
for such calendar year, excluding bonuses, commissions, overtime, fringe
benefits, stock options, relocation expenses, incentive payments,
non-monetary awards, and other fees, automobile and other allowances paid
to a Participant for employment services rendered (whether or not such
allowances are included in the Employee's gross income). Base Annual Salary
shall be calculated before reduction for compensation voluntarily deferred
or contributed by the Participant pursuant to all qualified or
non-qualified plans of any Employer and shall be calculated to include
amounts not otherwise included in the Participant's gross income under Code
Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans established by
any Employer; provided, however, that all such amounts will be included in
compensation only to the extent that, had there been no such plan, the
amount would have been payable in cash to the Employee.
"BENEFICIARY" shall mean one or more persons, estates or other entities,
designated in accordance with Article 9, that are entitled to receive
benefits under this Plan upon the death of a Participant.
"BENEFICIARY DESIGNATION FORM" shall mean the form established from time to
time by the Committee that a Participant completes, signs and returns to
the Committee to designate one or more Beneficiaries.
"BOARD" shall mean the board of directors of the Company.
"CHANGE IN CONTROL" shall mean the first to occur of any of the following
events:
(a) Any "person" (as that term is used in Section 13 and 14(d)(2) of the
Securities Exchange Act of 1934 (the "Exchange Act")) becomes the
beneficial owner (as that term is used in Section 13(d) of the
Exchange Act), directly or indirectly, of 50% or more of the Company's
capital stock entitled to vote in the election of directors;
(b) During any period of not more than two consecutive years, not
including any period prior to the adoption of this Plan, individuals
who at the beginning of such period constitute the board of directors
of the Company, and any new director (other than a director designated
by a person who has entered into an agreement with the Company to
effect a transaction described in clause (a), (c), (d) or (e) herein)
whose election by the board of directors or nomination for election by
the Company's stockholders was approved by a vote of at least
three-fourths (3/4ths) of the directors
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then in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved, cease for any reason to constitute at least a majority
thereof;
(c) The shareholders of the Company approve any consolidation or merger of
the Company, other than a consolidation or merger of the Company in
which the holders of the common stock of the Company immediately prior
to the consolidation or merger hold more than 50% of the common stock
of the surviving corporation immediately after the consolidation or
merger;
(d) The Shareholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company; or
(e) The Shareholders of the Company approve the sale or transfer of all or
substantially all of the assets of the Company to parties that are not
within a "controlled group of corporation"( as defined in Code Section
1563) in which the Company is a member.
"CLAIMANT" shall have the meaning set forth in Section 14.1.
"CODE" shall mean the Internal Revenue Code 1986, as it may be amended from
time to time.
"COMMITTEE" shall mean the committee described in Article 12.
"COMPANY" shall mean MB Financial, Inc., a Delaware corporation, and any
successor to all or substantially all of the Company's assets or business.
"DEDUCTION LIMITATION" shall mean the following described limitation on a
benefit that may otherwise be distributable pursuant to the provisions of
this Plan. Except as otherwise provided, this limitation shall be applied
to all distributions that are "subject to the Deduction Limitation" under
this Plan. If an Employer determines in good faith prior to a Change in
Control that there is a reasonable likelihood that any compensation paid to
a Participant for a taxable year of the Employer would not be deductible by
the Employer solely by reason of the limitation under Code Section 162(m),
then to the extent deemed necessary by the Employer to ensure that the
entire amount of any distribution to the Participant pursuant to this Plan
prior the Change in Control is deductible, the Employer may defer all or
any portion of a distribution under this Plan. Any amounts deferred
pursuant to this limitation shall continue to be credited/debited with
additional amounts in accordance with Section 3.7 below, even if such
amount is being paid out in installments. The amounts so deferred and
amounts credited thereon shall be distributed to the Participant or his or
her Beneficiary (in the event of the Participant's death) at the earliest
possible date, as determined by the Employer in good faith, on which the
deductibility of compensation paid or payable to the Participant for the
taxable year of the Employer during which the distribution is made will not
be limited by Section 162(m), or if earlier, the effective date of a Change
in Control. Notwithstanding anything to the contrary in this Plan the
Deduction Limitation shall not apply to any distributions made after a
Change in Control.
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"DEFERRAL ACCOUNT" shall mean (i) a sum of all of a Participant's Annual
Deferral Amounts, (ii) the sum of Excess Matching Contributions contributed
on behalf of the Participant, (iii) amounts credited in accordance with all
the applicable crediting provisions of this Plan that relate to the
Participant's Deferral Account, less (iv) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate to
his or her Deferral Account.
"DIRECTOR" shall mean a member of the board of directors of the Company.
"DIRECTOR'S COMPENSATION" shall mean fees and other compensation payable
for services as a Director.
"DISABILITY" shall mean a period of disability during which a Participant
qualifies for permanent disability benefits under the Participant's
Employer's long-term disability plan, or, if a Participant does not
participate in such a plan, a period of disability during which the
Participant would have qualified for permanent disability benefits under
such a plan had the Participant been a participant in such a plan, as
determined in the sole discretion of the Committee. If the Participant's
Employer does not sponsor such a plan, or discontinues to sponsor such a
plan, Disability shall be determined by the Committee in its sole
discretion.
"DISABILITY BENEFIT" shall mean the benefit set forth in Article 8.
"EFFECTIVE DATE" shall mean January 1, 2000.
"ELECTION FORM" shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the Committee
to make an election under the Plan.
"EMPLOYEE" shall mean a person who is classified as an employee of any
Employer.
"EMPLOYER(S)" shall mean MB Financial, Inc., Manufacturers Bank, and any
other subsidiaries, if any, that have been selected by the Board to
participate in the Plan and have adopted the Plan as a sponsor.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
"EXCESS MATCHING CONTRIBUTIONS" shall equal to the difference between (a)
and (b) where:
(a) is the amount of Matching Contribution that would have been allocated
for the Plan Year on behalf of the Participant under a Qualified Plan,
except for the limitation imposed on such Matching Contributions for
the Plan Year by Code Section 415; and
(b) is the amount of Matching Contributions actually allocated on behalf
of the Participant for the Plan Year.
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"MANUFACTURER'S PLAN shall mean the Manufacturers Bank Supplemental
Retirement Plan, as in effect immediately prior to the Effective Date.
"MATCHING CONTRIBUTION" shall mean a matching contribution (within the
meaning of Code Section 401(m)(4)(A)) that is allocable on behalf of a
Participant under a qualified plan described in Code Section 401(a), that
is maintained by an Employer and in which the Participant participates.
"MONTHLY INSTALLMENT METHOD" shall be a monthly installment payment over
the number of months selected by the Participant in accordance with this
Plan, calculated as follows: The Account Balance of the Participant shall
be calculated as of the close of business three business days prior to the
last business day of the month. The monthly installment shall be calculated
by multiplying this balance by a fraction, the numerator of which is one,
and the denominator of which is the remaining number of monthly payments
due the Participant. By way of example, if a 120-month Monthly Installment
Method is elected, the payment shall be 1/120 of the Account Balance,
calculated as described in this definition. The following month, the
payment shall be 1/119 of the Account Balance, calculated as described in
this definition. Each monthly installment shall be paid on or as soon as
practicable after the last business day of the applicable month.
"PARTICIPANT" shall mean any Employee or Director (i) who is selected to
participate in the Plan, (ii) who elects to participate in the Plan, (iii)
who signs a Plan Agreement and an Election Form, (iv) whose signed Plan
Agreement, Election Form and Beneficiary Designation Form are accepted by
the Committee, (v) who commences participation in the Plan, and (vi) whose
Plan Agreement has not terminated. A spouse or former spouse of a
Participant shall not be treated as a Participant in the Plan or have an
Account Balance under the Plan, even if he or she has an interest in the
Participant's benefits under the Plan as a result of applicable law or
property settlements resulting from legal separation or divorce.
"PLAN" shall mean this Deferred Compensation Plan, which shall be evidenced
by this instrument and by each Plan Agreement, as they may be amended from
time to time.
"PLAN AGREEMENT" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between an Employer and a
Participant. Each Plan Agreement executed by a Participant and the
Participant's Employer shall provide for the entire benefit to which such
Participant is entitled under the Plan; should there be more than one Plan
Agreement, the Plan Agreement bearing the latest date of acceptance by the
Employer shall supersede all previous Plan Agreements in their entirety and
shall govern such entitlement. The terms of any Plan Agreement may be
different for any Participant, and any Plan Agreement may provide
additional benefits not set forth in the Plan or limit the benefits
otherwise provided under the Plan; provided, however, that any such
additional benefits or benefit limitations must be agreed to by both the
Employer and the Participant. Any Plan Agreement or the equivalent under
the Avondale Plan or the Manufacturer's Plan shall remain in effect and
valid under the Plan until modified or rescinded in accordance with the
terms hereof.
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"PLAN YEAR" shall mean a period beginning on January 1 of each calendar
year and continuing through December 31 of such calendar year.
"PRE-RETIREMENT SURVIVOR BENEFIT" shall mean the benefit set forth in
Article 6.
"QUALIFIED PLAN" means a plan that meets the qualification requirements of
Code Section 401(a) that is maintained by an Employer.
"RETIREMENT", "RETIRE(S)" OR "RETIRED" shall mean severance from employment
from all Employers for any reason other than a leave of absence, death or
Disability on or after the earlier of the attainment of (a) age sixty-five
(65) or (b) age fifty-five (55) with ten (10) Years of Service.
"RETIREMENT BENEFIT" shall mean the benefit set forth in Article 5.
"SHORT-TERM PAYOUT" shall mean the payout set forth in Section 4.1.
"TERMINATION BENEFIT" shall mean the benefit set forth in Article 7.
"TERMINATION OF EMPLOYMENT" shall mean the severing of employment with all
Employers voluntarily or involuntarily, for any reason other than
Retirement, Disability, death or an authorized leave of absence.
"TRUST" shall mean one or more trusts established pursuant to that certain
Master Trust Agreement, between the Company and the trustee named therein,
as amended from time to time.
"UNFORESEEABLE FINANCIAL EMERGENCY" shall mean an unanticipated emergency
that is caused by an event beyond the control of the Participant that would
result in severe financial hardship to the Participant resulting from (i) a
sudden and unexpected illness or accident of the Participant or a dependent
of the Participant, (ii) a loss of the Participant's property due to
casualty, or (iii) such other extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant, all as
determined in the sole discretion of the Committee. A distribution will be
deemed to be on account of an Unforeseeable Financial Emergency if the
distribution is on account of:
a) Unreimbursed medical expenses (as defined in Code Section 213(d))
and amounts necessary to obtain medical care for the Participant,
the Participant's spouse or any dependent;
b) the purchase of the Participant's principal residence (but not
ongoing mortgage payments);
c) tuition and related educational fees for the immediately
forthcoming twelve (12) month period of post-secondary education
for the Participant, his spouse or dependents;
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d) the need to prevent eviction from or foreclosure on a
Participant's principal residence.
ARTICLE 2
SELECTION, ENROLLMENT, ELIGIBILITY
2.1 SELECTION BY COMMITTEE. Participation in the Plan shall be limited to a
select group of management and highly compensated Employees of the
Employers, and Directors of the Company, as determined by the Committee in
its sole discretion from time to time. From that group, the Committee shall
select, in its sole discretion, Employees and Directors to participate in
the Plan.
2.2 ENROLLMENT REQUIREMENTS. As a condition to participation, each selected
Employee or Director shall complete, execute and return to the Committee a
Plan Agreement, an Election Form and a Beneficiary Designation Form, all
within 30 days after he or she is selected to participate in the Plan. In
addition, the Committee shall establish from time to time such other
enrollment requirements as it determines in its sole discretion are
necessary or appropriate.
2.3 ELIGIBILITY; COMMENCEMENT OF PARTICIPATION. Provided an Employee or
Director selected to participate in the Plan has met all enrollment
requirements set forth in this Plan and required by the Committee,
including returning all required documents to the Committee within the
specified time period, that Employee or Director shall commence
participation in the Plan on the first day of the month following the month
in which the Employee completes all enrollment requirements. If an Employee
or Director fails to meet all such requirements within the period required,
in accordance with Section 2.2, that Employee or Director shall not be
eligible to participate in the Plan until the first day of the Plan Year
following the delivery to and acceptance by the Committee of the required
documents.
2.4 TERMINATION OF PARTICIPATION AND/OR DEFERRALS. If the Committee determines
in good faith than a Participant no longer qualifies as a member of a
select group of management or highly compensated employees, as membership
in such group is determined in accordance with Sections 201(2), 301(a)(3)
and 401(a)(1) of ERISA, or is no longer a Director, the Committee shall
have the right, in its sole discretion, to (i) terminate any deferral
election the Participant has made for the remainder of the Plan Year in
which the Participant's membership status changes, (ii) prevent the
Participant from making future deferral elections, (iii) cease making
Excess Matching Contributions on his behalf (other than those previously
declared), and/or (iv) immediately distribute the Participant's then
Account Balance as a Termination Benefit and terminate the Participant's
participation in the Plan.
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ARTICLE 3
DEFERRAL COMMITMENTS/MATCHING CONTRIBUTIONS/CREDITING/TAXES
3.1 COMPENSATION DEFERRALS.
For each Plan Year, a Participant may elect to defer, as his or her Annual
Deferral Amount, Base Annual Salary, Annual Bonus, and/or Director's
Compensation, as the case may be, such amount as is set forth in the
Participant's Plan Agreement with respect to the Plan Year. The election
shall be irrevocable with respect to compensation covered by the election
until the end of the Plan Year. If no election is made, the amount deferred
shall be zero. Notwithstanding the foregoing, if a Participant first
becomes a Participant after the first day of a Plan Year, the maximum
Annual Deferral Amount shall be limited to the amount of compensation not
yet earned by the Participant as of the date the Participant submits a Plan
Agreement and Election Form to the Committee for acceptance.
3.2 DISCRETIONARY MATCHING CONTRIBUTIONS.
With respect to each Plan Year, each Employer, in its sole distribution,
may agree to contribute on behalf of Participant who is an Employee of that
Employer an amount equal to the Participant's Excess Matching Contribution
with respect to the Plan Year. The Excess Matching Contribution shall be
credited to each eligible Participant's Deferral Account as of the last day
of the Plan Year to which the Excess Matching Contribution relates.
3.3 ELECTION TO DEFER; EFFECT OF ELECTION FORM; SUSPENSION.
(a) FIRST PLAN YEAR. In connection with a Participant's commencement of
participation in the Plan, the Participant shall make an irrevocable
election regarding his Annual Deferral Amount for the Plan Year in
which the Participant commences participation in the Plan, along with
such other elections as the Committee deems necessary or desirable
under the Plan. For these elections to be valid, the Election Form
must be completed and signed by the Participant, timely delivered to
the Committee (in accordance with Section 2.2 above) and accepted by
the Committee.
(b) SUBSEQUENT PLAN YEARS. For each succeeding Plan Year, the Participant
shall make an irrevocable election regarding his Annual Deferral
Amount for that Plan Year, and such other elections as the Committee
deems necessary or desirable under the Plan. Such election shall be
made before the end of the Plan Year preceding the Plan Year for which
the election is made, by means of a new Election Form. If no such
Election Form is timely delivered for a Plan Year, the Annual Deferral
Amount shall be zero for that Plan Year. In the case of a deferral of
a Participant's Annual Bonus, the election form shall be delivered to
the Committee prior to the date such Annual Bonus is announced by the
Employer.
(c) SUSPENSION OF ELECTION. A Participant may suspend an election to defer
compensation for the remainder of the Plan Year by filing with the
Committee a
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written notice of the suspension, which election will become effective
as of the next payroll period.
3.4 WITHHOLDING OF ANNUAL DEFERRAL AMOUNTS. For each Plan Year, the Base Annual
Salary portion of the Annual Deferral Amount shall be withheld from each
regularly scheduled Base Annual Salary payroll in equal amounts, as
adjusted from time to time for increases and decreases in Base Annual
Salary. The Annual Bonus portion of the Annual Deferral Amount shall be
withheld at the time the Annual Bonus is paid to the Participant, whether
or not this occurs during the Plan Year itself. The Director's Compensation
portion of the Annual Deferral Amount shall be withheld at the time the
Director's Compensation is paid to the Participant, whether or not this
occurs during the Plan Year.
3.5 INVESTMENT OF TRUST ASSETS. The Trustee of the Trust shall be authorized,
upon written instructions received from the Committee or investment manager
appointed by the Committee, to invest and reinvest the assets of the Trust
in accordance with the applicable Trust Agreement, including the
disposition of stock and reinvestment of the proceeds in one or more
investment vehicles designated by the Committee.
3.6 VESTING. A Participant shall at all times be 100% vested in his or her
Deferral Account.
3.7 CREDITING/DEBITING OF ACCOUNT BALANCES. In accordance with, and subject to,
the rules and procedures that are established from time to time by the
Committee, in its sole discretion, amounts shall be credited or debited to
a Participant's Account Balance in accordance with the following rules:
(a) ELECTION OF MEASUREMENT FUNDS. A Participant, in connection with his
or her initial compensation deferral election in accordance with
Section 3.3(a) above, shall elect, on the Election Form, one or more
Measurement Fund(s) (as described in Section 3.7(c) below) to be used
to determine the additional amounts to be credited to his or her
Account Balance for the first calendar quarter or portion thereof in
which the Participant commences participation in the Plan and
continuing thereafter for each subsequent calendar quarter in which
the Participant participates in the Plan, unless changed in accordance
with the next sentence. Commencing with the first calendar quarter
that follows the Participant's commencement of participation in the
Plan and continuing thereafter for each subsequent calendar quarter in
which the Participant participates in the Plan, no later than the next
to last business day of the calendar quarter, the Participant may (but
is not required to) elect, by submitting an Election Form to the
Committee that is accepted by the Committee, to add or delete one or
more Measurement Fund(s) to be used to determine the additional
amounts to be credited to his or her Account Balance, or to change the
portion of his or her Account Balance allocated to each previously or
newly elected Measurement Fund. If an election is made in accordance
with the previous sentence, it shall apply to the next calendar
quarter and continue thereafter for each subsequent calendar quarter
in which the Participant participates in the Plan, unless changed in
accordance with the previous sentence.
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(b) PROPORTIONATE ALLOCATION. In making any election described in Section
3.7(a) above, the Participant shall specify on the Election Form, in
increments of ten percentage points (10%), the percentage of his or
her Account Balance to be allocated to a Measurement Fund (as if the
Participant were making an investment in that Measurement Fund with
that portion of his or her Account Balance).
(c) MEASUREMENT FUNDS. Except as otherwise provided herein, the
Participant may elect one or more measurement funds, based on certain
mutual funds selected by the Board from time to time, or Company
common stock on a limited basis as hereinafter described (the
"Measurement Funds"), for the purpose of crediting or debiting amounts
to his or her Account Balance. Notwithstanding the foregoing, Company
common stock may be used as a Measurement Fund only with respect to
(1) the deferral of compensation from the Company and not with respect
to compensation deferred from any other Employer, and (2) Excess
Matching Contributions attributable to compensation from the Company.
The manner in which Participants elect their Measurement Funds shall
be determined in accordance with rules promulgated by the Committee.
Notwithstanding the foregoing, a Participant who is a non-Employee
Director must elect Company common stock as Measurement Fund for at
least 50% (but up to 100%) of his Account Balance until such time as
the Participant is no longer a Director, or the Plan is amended to
delete Company common stock as a Measurement Fund (the "Required
Election"). Company common stock may not be used as a Measurement Fund
with respect to the deferral of compensation from subsidiaries of the
Company. Accordingly the use of Company common stock as a Measurement
Fund may only be elected by or imposed upon Participants who receive
compensation from the Company and only with respect to the deferral of
Company compensation. The use of Company common stock as a Measurement
Fund by eligible Participants shall only apply through the calendar
year in which a Change in Control occurs. To the extent that the
Measurement Fund of an eligible Participant consists of Company common
stock, any cash dividends paid on Company common stock shall be added
to such Participant's Account Balance and deemed reinvested in Company
common stock.
As necessary, the Committee may, in its sole discretion, discontinue,
substitute or add a Measurement Fund. Each such action will take
effect as of the first day of the calendar quarter that follows by
fifteen (15) days the day on which the Committee gives Participants
advance written notice of such change.
Upon a Change in Control, the Participants may direct the investment
of their Account Balance among any investment permitted by the
Trustee, in such percentages as the Participant may determine.
(d) CREDITING OR DEBITING METHOD. The performance of each selected
Measurement Fund (either positive or negative) will be determined by
the Committee, in its sole
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discretion, based on the performance of the Measurement Funds
themselves. A Participant's Account Balance shall be credited or
debited on a daily basis based on the performance of each Measurement
Fund selected by the Participant, as determined by the Committee in
its sole discretion, as though (i) a Participant's Account Balance
were invested in the Measurement Fund(s) selected by the Participant,
in the percentages applicable to such calendar quarter, as of the
close of business on the first business day of such calendar quarter,
at the closing price on such date; (ii) the portion of the Annual
Deferral Amount that was actually deferred during any calendar quarter
were invested in the Measurement Fund(s) selected by the Participant,
in the percentages applicable to such calendar quarter, no later than
the close of business on the third business day after the day on which
such amounts are actually deferred from the Participant's Base Annual
Salary through reductions in his or her payroll, at the closing price
on such date; (iii) the Participant's Excess Matching Contribution was
actually contributed as of the last day of the Plan Year and invested
in the Measurement Fund(s) selected by the Participant as of that
date, at the closing price on such date, and (iv) any distribution
made to a Participant that decreases such Participant's Account
Balance shall cease being invested in the Measurement Fund(s), in the
percentages applicable to such calendar quarter, no earlier than three
business days prior to the distribution, at the closing price on such
date.
(e) NO ACTUAL INVESTMENT. Notwithstanding any other provision of this Plan
that may be interpreted to the contrary, the Measurement Funds are to
be used for measurement purposes only, and a Participant's election of
any such Measurement Fund, the allocation of his or her Account
Balance thereto, the calculation of additional amounts and the
crediting or debiting of such amounts to a Participant's Account
Balance shall not be considered or construed in any manner as an
actual investment of his or her Account Balance in any such
Measurement Fund. In the event that the Company or the Trustee (as
that term is defined in the Trust), in its own discretion, decides to
invest funds in any or all of the Measurement Funds, no Participant
shall have any rights in or to such investments themselves. Without
limiting the foregoing, a Participant's Account Balance shall at all
times be a bookkeeping entry only and shall not represent any
investment made on his or her behalf by the Company or the Trust; the
Participant shall at all times remain an unsecured creditor of the
Company.
3.8 FICA AND OTHER TAXES. For each Plan Year in which an Annual Deferral Amount
is being withheld from a Participant, the Participant's Employer(s) shall
withhold from that portion of the Participant's Base Annual Salary, Annual
Bonus and Director's Compensation that is not being deferred in a manner
determined by the Employer(s), the Participant's share of FICA and other
employment taxes on such Annual Deferral Amount. The Committee may reduce
the Annual Deferral Amount in order to comply with this Section 3.8 if it
determines that such action is necessary or appropriate.
3.9 DISTRIBUTIONS. The Participant's Employer(s), or the trustee of the Trust,
shall withhold from any payments made to a Participant under this Plan all
federal, state and local income,
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employment and other taxes required to be withheld by the Employer(s), or
the trustee of the Trust, in connection with such payments, in amounts and
in a manner to be determined in the sole discretion of the Employer(s) and
the trustee of the Trust.
ARTICLE 4
SHORT-TERM PAYOUT; UNFORESEEABLE FINANCIAL EMERGENCIES; WITHDRAWAL ELECTION
4.1 SHORT-TERM PAYOUT. In connection with each election to defer an Annual
Deferral Amount, a Participant may irrevocably elect to receive a future
"Short-Term Payout" from the Plan with respect to his Account Balance.
Subject to the Deduction Limitation, the Short-Term Payout shall be a lump
sum payment in an amount that is equal to the Participant's Account
Balance, determined at the time that the Short-Term Payout becomes payable
(rather than the date of a Termination of Employment). Subject to the
Deduction Limitation and the other terms and conditions of this Plan, each
Short-Term Payout elected shall be paid out during a period beginning 1 day
and ending 60 days after the last day of any Plan Year designated by the
Participant that is at least five Plan Years after the Plan Year in which
the Annual Deferral Amount is actually deferred. By way of example, if a
five year Short-Term Payout is elected for Annual Deferral Amounts that are
deferred in the Plan Year commencing January 1, 2000, the five year
Short-Term Payout would become payable during a 60 day period commencing
January 1, 2006.
4.2 OTHER BENEFITS TAKE PRECEDENCE OVER SHORT-TERM. Should an event occur that
triggers a benefit under Article 5, 6, 7 or 8, any Annual Deferral Amount,
plus amounts credited or debited thereon, that is subject to a Short-Term
Payout election under Section 4.1 shall not be paid in accordance with
Section 4.1 but shall be paid in accordance with the other applicable
Article.
4.3 WITHDRAWAL PAYOUT/SUSPENSIONS FOR UNFORESEEABLE FINANCIAL EMERGENCIES. If
the Participant experiences an Unforeseeable Financial Emergency, the
Participant may petition the Committee to (i) suspend any deferrals
required to be made by a Participant and/or (ii) receive a partial or full
payout from the Plan. The payout shall not exceed the lesser of the
Participant's Account Balance, calculated as if such Participant were
receiving a Termination Benefit, or the amount reasonably needed to satisfy
the Unforeseeable Financial Emergency. If, subject to the sole discretion
of the Committee, the petition for a suspension and/or payout is approved,
suspension shall take effect upon the date of approval and any payout shall
be made within 60 days of the date of approval. Following approval of a
payout under this Section 4.3, a Participant shall not be permitted to
resume participation in the Plan for the later of 6 months following such
withdrawal or the first day of the following Plan Year. If the Participant
petitions the Committee only to suspend deferrals and the Committee
approves such suspension, the Participant shall not be permitted to resume
participation in the Plan until the first day of the following Plan Year.
The payment of any amount under this Section 4.3 shall be subject to the
Deduction Limitation.
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4.4 WITHDRAWAL ELECTION. A Participant (or, after a Participant's death, his or
her Beneficiary) may elect, at any time, to withdraw all of his or her
Account Balance, calculated as if there had occurred a Termination of
Employment as of the day of the election, less a withdrawal penalty equal
to 10% of such amount (the net amount shall be referred to as the
"Withdrawal Amount"). This election can be made at any time, before or
after Retirement, Disability, death or Termination of Employment and
whether or not the Participant (or Beneficiary) is in the process of being
paid pursuant to an installment payment schedule. If made before
Retirement, Disability or death, a Participant's Withdrawal Amount shall be
his or her Account Balance calculated as if there had occurred a
Termination of Employment as of the day of the election. No partial
withdrawals of the Withdrawal Amount shall be allowed. The Participant (or
his or her Beneficiary) shall make this election by giving the Committee
advance written notice of the election in a form determined from time to
time by the Committee. The Participant (or his or her Beneficiary) shall be
paid the Withdrawal Amount within 60 days of his or her election. Once the
Withdrawal Amount is paid, the Participant's participation in the Plan
shall terminate and the Participant shall not be eligible to participate in
the Plan in the future. The payment of this Withdrawal Amount shall be
subject to the Deduction Limitation.
ARTICLE 5
RETIREMENT BENEFIT
5.1 RETIREMENT BENEFIT. Subject to the Deduction Limitation, a Participant who
Retires shall receive as a Retirement Benefit his or her Account Balance.
5.2 PAYMENT OF RETIREMENT BENEFIT. The Committee, in its sole and unrestricted
discretion, shall determine whether the Participant will receive
distribution of all amounts payable to him under this paragraph, in a lump
sum or in installments over a designated period of years not to exceed ten
(10). The lump sum payment shall be made, or installment payments shall
commence, no later than 60 days after the date the Participant Retires.
Also, the Committee, in its sole and unrestricted discretion, but taking
into account any request made by the Participant, shall determine whether
the lump sum payment shall be in cash or in kind. Payment shall be made no
later than 60 days after the date the Participant Retires. Any payment made
shall be subject to the Deduction Limitation.
5.3 DEATH PRIOR TO ENTIRE PAYMENT OF RETIREMENT BENEFIT. If a Participant dies
after Retirement but before the Retirement Benefit is paid in full, the
Participant's unpaid Retirement Benefit payments shall continue and shall
be paid to the Participant's Beneficiary (i) over the remaining number of
months and in the same amounts as that benefit would have been paid to the
Participant had the Participant survived, or (ii) in a lump sum, if
requested by the Beneficiary and allowed in the sole discretion of the
Committee, that is equal to the Participant's unpaid remaining Account
Balance. Payment shall be payable either in cash or in-kind, as determined
in the sole discretion of the Committee, taking into account any request
made by the Beneficiary.
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ARTICLE 6
PRE-RETIREMENT SURVIVOR BENEFIT
6.1 PRE-RETIREMENT SURVIVOR BENEFIT. Subject to the Deduction Limitation, the
Participant's Beneficiary shall receive a Pre-Retirement Survivor Benefit
equal to the Participant's Account Balance if the Participant dies before
he or she Retires, experiences a Termination of Employment or suffers a
Disability.
6.2 PAYMENT OF PRE-RETIREMENT SURVIVOR BENEFIT. The Committee, in its sole and
unrestricted discretion, shall determine whether the Participant will
receive distribution of all amounts payable to him under this paragraph, in
a cash lump sum or in installments over a designated period of years not to
exceed ten (10). The lump sum payment shall be made, or installment
payments shall commence, no later than 60 days after the date the Committee
is provided with proof that is satisfactory to the Committee of the
Participant's death. Also, the Committee, in its sole and unrestricted
discretion, but taking into account any request made by the Beneficiary,
shall determine whether the lump sum payment shall be in cash or in kind.
Any payment made shall be subject to the Deduction Limitation.
ARTICLE 7
TERMINATION BENEFIT
7.1 TERMINATION BENEFIT. Subject to the Deduction Limitation, the Participant
shall receive a Termination Benefit, which shall be equal to the
Participant's Account Balance if a Participant experiences a Termination of
Employment prior to his or her Retirement, death or Disability.
7.2 PAYMENT OF TERMINATION BENEFIT. The Committee, in its sole and unrestricted
discretion, shall determine whether the Participant will receive
distribution of all amounts payable to him under this paragraph, in a lump
sum or in installments over a designated period of years not to exceed ten
(10). The lump sum payment shall be made, or installment payments shall
commence, no later than 60 days after the date the Participant Retires.
Also, the Committee, in its sole and unrestricted discretion, but taking
into account any request made by the Participant, shall determine whether
the lump sum payment shall be in cash or in kind. Payment shall be made no
later than 60 days after the date of the Participant's Termination of
Employment. Any payment made shall be subject to the Deduction Limitation.
Should the Participant die before payment of his entire Termination
Benefit, Section 5.3 shall apply.
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ARTICLE 8
DISABILITY WAIVER AND BENEFIT
8.1 DISABILITY WAIVER.
(a) WAIVER OF DEFERRAL. A Participant who suffers from a Disability shall
be excused from fulfilling that portion of the Annual Deferral Amount
commitment that would otherwise have been withheld from a
Participant's Base Annual Salary, Annual Bonus, or Director's
Compensation for the Plan Year during which the Participant first
suffers a Disability. During the period of Disability, the Participant
shall not be allowed to make any additional deferral elections, but
will continue to be considered a Participant for all other purposes of
this Plan.
(b) RETURN TO WORK. If a Participant returns to employment with an
Employer after a Disability ceases, the Participant may elect to defer
an Annual Deferral Amount for the Plan Year following his or her
return to employment or service and for every Plan Year thereafter
while a Participant in the Plan; provided such deferral elections are
otherwise allowed and an Election Form is delivered to and accepted by
the Committee for each such election in accordance with Section 3.3
above.
8.2 CONTINUED ELIGIBILITY; DISABILITY BENEFIT. A Participant suffering a
Disability shall, for benefit purposes under this Plan, continue to be
considered to be employed and shall be eligible for the benefits provided
in Articles 4, 5, 6 or 7 in accordance with the provisions of those
Articles. Notwithstanding the above, the Committee shall have the right to,
in its sole and absolute discretion and for purposes of this Plan only, and
must in the case of a Participant who is otherwise eligible to Retire, deem
the Participant to have experienced a Termination of Employment, or in the
case of a Participant who is eligible to Retire, to have Retired, at any
time (or in the case of a Participant who is eligible to Retire, as soon as
practicable) after such Participant is determined to be suffering a
Disability, in which case the Participant shall receive a Disability
Benefit equal to his or her Account Balance at the time of the Committee's
determination; provided, however, that should the Participant otherwise
have been eligible to Retire, he or she shall be paid in accordance with
Article 5. The Disability Benefit shall be paid in a lump sum within 60
days of the Committee's exercise of such right. Any payment made shall be
subject to the Deduction Limitation.
ARTICLE 9
BENEFICIARY DESIGNATION
9.1 BENEFICIARY. Each Participant shall have the right, at any time, to
designate his or her Beneficiary(ies) (both primary as well as contingent)
to receive any benefits payable under the Plan to a beneficiary upon the
death of a Participant. The Beneficiary designated under this Plan may be
the same as or different from the Beneficiary designated under any other
plan of an Employer in which the Participant participates.
9.2 BENEFICIARY DESIGNATION: CHANGE; SPOUSAL CONSENT. A Participant shall
designate his or her Beneficiary by completing and signing the Beneficiary
Designation Form and returning
15
it to the Committee or its designated agent. A Participant shall have the
right to change a Beneficiary by completing, signing and otherwise
complying with the terms of the Beneficiary Designation Form and the
Committee's rules and procedures, as in effect from time to time. If the
Participant names someone other than his or her spouse as a Beneficiary, a
spousal consent, in the form designated by the Committee, must be signed by
that Participant's spouse and returned to the Committee. Upon the
acceptance by the Committee of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be canceled. The Committee
shall be entitled to rely on the last Beneficiary Designation Form filed by
the Participant and accepted by the Committee prior to his or her death.
9.3 ACKNOWLEDGMENT. No designation or change in designation of a Beneficiary
shall be effective until received and acknowledged in writing by the
Committee or its designated agent.
9.4 NO BENEFICIARY DESIGNATION. If a Participant fails to designate a
Beneficiary as provided in Sections 9.1, 9.2 and 9.3 above or, if all
designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the Participant's
designated Beneficiary shall be deemed to be his or her surviving spouse.
If the Participant has no surviving spouse, the benefits remaining under
the Plan to be paid to a Beneficiary shall be payable to the executor or
personal representative of the Participant's estate.
9.5 DOUBT AS TO BENEFICIARY. If the Committee has any doubt as to the proper
Beneficiary to receive payments pursuant to this Plan, the Committee shall
have the right, exercisable in its discretion, to cause the Participant's
Employer to withhold such payments until this matter is resolved to the
Committee's satisfaction.
9.6 DISCHARGE OF OBLIGATIONS. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge all Employers and the
Committee from all further obligations under this Plan with respect to the
Participant, and that Participant's Plan Agreement shall terminate upon
such full payment of benefits.
ARTICLE 10
LEAVE OF ABSENCE
10.1 PAID LEAVE OF ABSENCE. If a Participant is authorized by the Participant's
Employer for any reason to take a paid leave of absence from the employment
of the Employer, the Participant shall continue to be considered employed
by the Employer and the Annual Deferral Amount shall continue to be
withheld during such paid leave of absence in accordance with Section 3.3.
10.2 UNPAID LEAVE OF ABSENCE. If a Participant is authorized by the Participants
Employer for any reason to take an unpaid leave of absence from the
employment of the Employer, the Participant shall continue to be considered
employed by the Employer and the Participant shall be excused from making
deferrals until the earlier of the date the leave of absence
16
expires or the Participant returns to a paid employment status. Upon such
expiration or return, deferrals shall resume for the remaining portion of
the Plan Year in which the expiration or return occurs, based on the
deferral election, if any, made for that Plan Year. If no election was made
for that Plan Year, no deferral shall be withheld.
ARTICLE 11
TERMINATION, AMENDMENT OR MODIFICATION
11.1 TERMINATION. Although each Employer anticipates that it will continue the
Plan for an indefinite period of time, there is no guarantee that any
Employer will continue the Plan or will not terminate the Plan at any time
in the future. Accordingly, each Employer reserves the right to discontinue
its sponsorship of the Plan and/or to terminate the Plan at any time with
respect to any or all of its participating Employees by action of its board
of directors. Upon the termination of the Plan with respect to any
Employer, the Plan Agreements of the affected Participants who are employed
by that Employer shall terminate and their Account Balances, determined as
if they had experienced a Termination of Employment on the date of Plan
termination or, if Plan termination occurs after the date upon which a
Participant was eligible to Retire, then with respect to that Participant
as if he or she had Retired on the date of Plan termination, shall be paid
to the Participants as follows: Prior to a Change in Control, if the Plan
is terminated with respect to all of its Participants, an Employer shall
have the right, in its sole discretion, and notwithstanding any elections
made by the Participant, to pay such benefits in a lump sum or pursuant to
a Monthly Installment Method of up to 10 years, with amounts credited and
debited during the installment period as provided herein. If the Plan is
terminated with respect to less than all of its Participants, an Employer
shall be required to pay such benefits in a lump sum. After a Change in
Control, the Employer shall be required to pay such benefits in a lump sum.
The termination of the Plan shall not adversely affect any Participant or
Beneficiary who has become entitled to the payment of any benefits under
the Plan as of the date of termination; provided, however, that the
Employer shall have the right to accelerate installment payments without a
premium or prepayment penalty by paying the Account Balance in a lump sum
or pursuant to a Monthly Installment Method using fewer months.
11.2 AMENDMENT. Any Employer may, at any time, amend or modify the Plan in whole
or in part with respect to that Employer by the action of its board of
directors; provided, however, that no amendment or modification shall be
effective to decrease or restrict the value of a Participant's Account
Balance in existence at the time the amendment or modification is made,
calculated as if the Participant had experienced a Termination of
Employment as of the effective date of the amendment or modification or, if
the amendment or modification occurs after the date upon which the
Participant was eligible to Retire, the Participant had Retired as of the
effective date of the amendment or modification. The amendment or
modification of the Plan shall not affect any Participant or Beneficiary
who has become entitled to the payment of benefits under the Plan as of the
date of the amendment or modification; provided, however, that the Employer
shall have the right to accelerate installment payments by paying the
Account Balance in a lump sum or pursuant to a Monthly Installment Method
using fewer months (provided that the present value of all payments that
will have been received by a Participant at any given point of time under
the different payment schedule shall equal or exceed the present value of
all payments that would have been received at that point in time under the
original payment schedule).
17
11.3 PLAN AGREEMENT. Despite the provisions of Sections 11.1 and 11.2 above, if
a Participant's Plan Agreement contains benefits or limitations that are
not in this Plan document, the Employer may only amend or terminate such
provisions with the consent of the Participant.
11.4 EFFECT OF PAYMENT. The full payment of the applicable benefit under
Articles 4, 5, 6, 7 or 8 of the Plan shall completely discharge all
obligations to a Participant and his or her designated Beneficiaries under
this Plan and the Participant's Plan Agreement shall terminate.
ARTICLE 12
ADMINISTRATION
12.1 COMMITTEE DUTIES. This Plan shall be administered by a Committee which
shall consist of the Board, or such committee as the Board shall appoint.
Members of the Committee may be Participants under this Plan. The Committee
shall also have the discretion and authority to (i) make, amend, interpret,
and enforce all appropriate rules and regulations for the administration of
this Plan and (ii) decide or resolve any and all questions including
interpretations of this Plan, as may arise in connection with the Plan. Any
individual on the Committee who is a Participant shall not vote or act on
any matter relating solely to himself or herself. When making a
determination or calculation, the Committee shall be entitled to rely on
information furnished by a Participant or the Company.
12.2 AGENTS. In the administration of this Plan, the Committee may, from time to
time, employ agents and delegate to them such administrative duties as it
sees fit (including acting through a duly appointed representative) and may
from time to time consult with counsel who may be counsel to any Employer.
12.3 BINDING EFFECT OF DECISIONS. The decision or action of the Committee with
respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules
and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.
12.4 INDEMNITY OF COMMITTEE. All Employers shall indemnify and hold harmless the
members of the Committee, and any Employee to whom the duties of the
Committee may be delegated, against any and all claims, losses, damages,
expenses or liabilities arising from any action or failure to act with
respect to this Plan, except in the case of misconduct by the Committee or
any of its members or any such Employee.
12.5 EMPLOYER INFORMATION. To enable the Committee to perform its functions,
each Employer shall supply full and timely information to the Committee on
all relating to the compensation of its Participants, the date and
circumstances of the Retirement Disability, death or Termination of
Employment of its Participants, and such other pertinent information as the
Committee may reasonably require.
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ARTICLE 13
OTHER BENEFITS AND AGREEMENTS
The benefits provided for a Participant or a Participant's Beneficiary under the
Plan are in addition to any other benefits available to such Participant under
any other plan or program for employees of the Participant's Employer. The Plan
shall supplement and shall not supersede, modify or amend any other such plan or
program except as may otherwise be expressly provided.
ARTICLE 14
CLAIMS PROCEDURES
14.1 PRESENTATION OF CLAIM. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as a
"Claimant") may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such Claimant
from the Plan. If such a claim relates to the contents of a notice received
by the Claimant, the claim must be made within 60 days after such notice
was received by the Claimant. All other claims must be made within 180 days
of the date on which the event that caused the claim to anise occurred. The
claim must state with particularity the determination desired by the
Claimant.
14.2 NOTIFICATION OF DECISION. The Committee shall consider a Claimants claim
within a reasonable time, and shall notify the Claimant in writing:
(a) that the Claimant's requested determination has been made, and that
the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole or in
part, to the Claimant's requested determination, and such notice must
set forth in a manner calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim, or any part
of it;
(ii) specific reference(s) to pertinent provisions of the Plan upon
which such denial was based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect the claim, and an
explanation of why such material or information is necessary; and
(iv) an explanation of the claim review procedure set forth in Section
14.3 below.
14.3 REVIEW OF A DENIED CLAIM. With 60 days after receiving a notice from the
Committee that a claim has been denied, in whole or in part, a Claimant (or
the Claimant's duly authorized representative) may file with the Committee
a written request for a review of the denial of the
19
claim. Thereafter, but not later than 30 days after the review procedure
began, the Claimant (or the Claimant's duly authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole discretion,
may grant.
14.4 DECISION ON REVIEW. The Committee shall render its decision on review
promptly, and not later dm 60 days after the filing of a written request
for review of the denial, unless a hearing is held or other special
circumstances require additional time, in which case the Committee's
decision must be rendered within 120 days after such date. Such decision
must be written in a manner calculated to be understood by the Claimant,
and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon which the
decision was based; and
(c) such other matters as the Committee deems relevant.
14.5 LEGAL ACTION. A Claimant's compliance with the foregoing provisions of this
Article 14 is a mandatory prerequisite to a Claimant's right to commence
any legal action with respect to any claim for benefits under this Plan.
ARTICLE 15
TRUST
15.1 ESTABLISHMENT OF THE TRUST. The Company shall establish the Trust and each
Employer shall, at each pay period, transfer over to the Trust such cash as
the Participant elected to defer under the Plan, or such other amount as it
determines to be appropriate.
15.2 INTERRELATIONSHIP OF THE PLAN AND THE TRUST. The provisions of the Plan and
the Plan Agreement shall govern the rights of a Participant to receive
distributions pursuant to the Plan. The provisions of the Trust shall
govern the rights of the Employers, Participants and the creditors of the
Employers to the assets transferred to the Trust. Each Employer shall at
all times remain liable to carry out its obligations under the Plan.
15.3 DISTRIBUTIONS FROM THE TRUST. Each Employer's obligations under the Plan
may be satisfied with Trust assets distributed pursuant to the terms of the
Trust and any such distribution shall reduce the Employer's obligations
under this Plan.
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ARTICLE 16
MISCELLANEOUS
16.1 STATUS OF PLAN. The Plan is intended to be a plan that is not qualified
within the meaning of Code Section 401(a) and that "is unfunded and is
maintained by an employer primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated
employees" within the meaning of ERISA Sections 201(2), 301(a)(3) and
401(a)(1). The Plan shall be administered and interpreted to the extent
possible in a manner consistent with that intent.
16.2 UNSECURED GENERAL CREDITOR. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interests
or claims in any property or assets of an Employer. For purposes of the
payment of benefits under this Plan, any and all of an Employer's assets
shall be, and remain the general, unpledged and unrestricted assets of the
Employer. An Employer's obligation under the Plan shall be merely of an
unfunded and unsecured promise to pay money in the future.
16.3 EMPLOYER'S LIABILITY. An Employer's liability for the payment of benefits
shall be defined only by the Plan and the Plan Agreement as entered into
between the Employer and a Participant. An Employer shall have no
obligation to a Participant under the Plan except as expressly provided in
the Plan and his or her Plan Agreement.
16.4 NONASSIGNABILITY. Neither a Participant nor any other person shall have any
right to commute, sell, assign, transfer, pledge, anticipate, mortgage or
otherwise encumber, transfer, hypothecate, alienate or convey in advance of
actual receipt, the amounts, if any, payable hereunder, or any part
thereof, which are, and all rights to which are expressly declared to be,
unassignable and non-transferable. No part of the amounts payable shall,
prior to actual payment be subject to seizure, attachment, garnishment or
sequestration for the payment of any debts, judgments, alimony or separate
maintenance allowed by a Participant or any other person, be transferable
by operation of law in the event of a Participant's or any other person's
bankruptcy or insolvency or be transferable to a spouse as a result of a
property settlement or otherwise.
16.5 NOT A CONTRACT OF EMPLOYMENT. The terms and conditions of this Plan shall
not be deemed to constitute a contract of employment between any Employer
and the Participant. Such employment is hereby acknowledged to be an "at
will" employment relationship that can be terminated at any time for any
reason, or no reason, with or without cause, and with or without notice,
unless expressly provided in a written employment agreement. Nothing in
this Plan shall be deemed to give a Participant the right to be retained in
the service of any Employer or to interfere with the right of any Employer
to discipline or discharge the Participant at any time.
16.6 FURNISHING INFORMATION. A Participant or his or her Beneficiary will
cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be requested
in order to facilitate the administration of the Plan and the
21
payments of benefits hereunder, including but not limited to, taking such
physical examinations as the Committee may deem necessary.
16.7 TERMS. Whenever any words are used herein in the masculine, they shall be
construed as though they were in the feminine in all cases where they would
so apply; and whenever any words are used herein in the singular or in the
plural, they shall be co as though they were used in the plural or the
singular, as the case may be, in all cases where they would so apply.
16.8 CAPTIONS. The captions of the articles, sections and paragraphs of this
Plan are for convenience only and shall not control or affect the meaning
or construction of any of its provisions.
16.9 GOVERNING LAW. Subject to ERISA, the provisions of this Plan shall be
construed and interpreted according to the internal laws of the State of
Illinois without regard to its conflicts of laws and principles.
16.10 NOTICE. Any notice or filing required or permitted to be given to the
Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address
below.
Chief Financial Officer
MB Financial, Inc.
1200 North Ashland Avenue
Chicago, Illinois 60622-2298
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification. Any notice or filing required or
permitted to be given to a Participant under s Plan shall be sufficient if
in writing and hand-delivered, or sent by mail, to the last known address
of the Participant.
16.11 SUCCESSORS. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns and
the Participant and the Participant's designated Beneficiaries.
16.12 SPOUSE'S INTEREST. The interest in the benefits hereunder of a spouse of a
Participant who has predeceased the Participant shall automatically pass to
the Participant and shall not be transferable by such spouse in any manner,
including, but not limited to, such spouse's will, nor shall such interest
pass under the laws of interstate succession.
16.13 VALIDITY. In case any provision of this Plan shall be illegal or invalid
for any reason, said illegality or invalidity shall not affect the
remaining parts hereof, but this Plan shall be constructed and enforced as
if such illegal or invalid provision had never been inserted herein.
16.14 INCOMPETENT. If the Committee determines in its discretion a benefit under
this Plan is to be paid to a minor, a person declared incompetent or to a
person incapable of handling the disposition of that person's property, the
Committee may direct payment of such benefit to the
22
guardian, legal representative or person having the care and custody of
such minor, incompetent or incapable person. The Committee may require
proof of minority, incompetence, incapacity or guardianship, as it may deem
appropriate prior to distribution of the benefit. Any payment of a benefit
shall be a payment for the account of the Participant and the Participant's
Beneficiary, as the case may be, and shall be a complete discharge of any
liability under the Plan for such payment amount
16.15 COURT ORDER. The Committee is authorized to make any payments directed by
court order in any action in which the Plan or the Committee has been named
as a party. In addition, if a court determines that a spouse or former
spouse of a Participant has an interest in the Participant's benefits under
the Plan in connection with a property settlement or otherwise, the
Committee, in its sole discretion shall have the right, notwithstanding any
election made by a Participant, to immediately distribute the spouse's or
former spouse's interest in the Participant's benefits under the Plan to
that spouse or former spouse.
16.16 DISTRIBUTION IN THE EVENT OF TAXATION.
(a) IN GENERAL. If, for any reason, all or any portion of a Participant's
benefits under this Plan becomes taxable to the Participant prior to
receipt, a Participant may petition the Committee before a Change in
Control, or the trustee of the Trust after a Change in Control, for a
distribution of that portion of his or her benefit that has become
taxable. Upon the grant of such a petition, which grant shall not be
unreasonably withheld (and, after a Change in Control, shall be
granted), a Participant's Employer shall distribute to the Participant
immediately available funds in an amount equal to the taxable portion
of his or her benefit (which amount shall not exceed a Participant's
unpaid Account Balance under the Plan). If the petition is granted,
the tax liability distribution shall be made within 90 days of the
date when the Participant's petition is granted. Such a distribution
shall affect and reduce the benefits to be paid under this Plan.
(b) TRUST. If the Trust terminates in accordance with Section 3.6(e) of
the Trust, and benefits are distributed from the Trust to a
Participant in accordance with that Section, the Participant's
benefits under this Plan shall be reduced to the extent of such
distributions.
16.17 INSURANCE. The Employers, on their own behalf or on behalf of the trustee
of the Trust, and, in their sole discretion, may apply for and procure
insurance on the life of the Participant, in such amounts and in such forms
as they may choose. The Employers or the trustee of the Trust, as the case
may be, shall be the sole owner and beneficiary of any such insurance. The
Participant shall have no interest whatsoever in any such policy or
policies, and at the request of the Employers shall submit to medical
examinations and supply such information and execute such documents as may
be required by the insurance company or companies to whom the Employers
have applied for insurance.
16.18 LEGAL FEES TO ENFORCE RIGHTS AFTER CHANGE IN CONTROL. The Company and each
Employer is aware that upon the occurrence of a Change in Control, the
Board or the board of directors
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of a Participant's Employer (which might then be composed of new members)
or shareholder of the Company or the Participant's Employer, or of any
successor corporation, might then cause or attempt to cause the Company,
the Participant's Employer or such successor to refuse to comply with its
obligations under the Plan and might cause or attempt to cause the Company
or the Participant's Employer to institute, or may institute, litigation
seeking to deny Participants the benefits intended under the Plan. In these
circumstances, the purpose of the Plan could be frustrated. Accordingly,
if, following a Change in Control, it should appear to any Participant that
the Company, the Participant's Employer or any successor corporation has
failed to comply with any of its obligations under the Plan or any
agreement thereunder, or, if the Company, such Employer or any other person
takes any action to declare the Plan void or unenforceable or institutes
any litigation or other legal action designed to deny, diminish or to
recover from any participant the benefits intended to be provided, then the
Company and the Participant's Employer irrevocably authorize such
Participant to retain counsel of his or her choice at the expense of the
Company and the Participant's Employer (who shall be jointly and severally
liable) to represent such Participant in connection with the initiation or
defense of any litigation or other legal action, whether by or against the
Company, the Participant's Employer or any director, officer, shareholder
or other person affiliated with the Company, the Participant's Employer or
any successor thereto in any jurisdiction.
IN WITNESS WHEREOF, the Company has signed this Plan document as of
_____________________________, 2000, but effective for all purposes as of
January 1, 2000.
MB FINANCIAL, INC.,
a Delaware Corporation
By: _________________________________
Title: ______________________________
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