Exhibit 10.4
THE BEAR STEARNS COMPANIES INC.
2007 PERFORMANCE COMPENSATION PLAN
Section 1. Purpose.
The purposes of The Bear Stearns Companies Inc. 2007 Performance
Compensation Plan, (the "Plan") are (i) to compensate certain Senior Managing
Directors of The Bear Stearns Companies Inc. (the "Company") and its affiliates
on an individual basis for significant contributions to the Company and (ii) to
stimulate the efforts of such persons by giving them a direct interest in the
performance of the Company. It is intended that certain Bonuses (as defined in
Section 5) payable under the Plan be considered performance-based compensation
within the meaning of Section 162(m)(4)(C) of the Internal Revenue Code of 1986,
as amended (the "Code"), and the regulations, rulings and other administrative
guidance promulgated thereunder, and the Plan shall be administered and
interpreted accordingly.
Section 2. Effective Date.
The Plan was adopted by the Board of Directors of the Company (the
"Board") as of March 23, 2007, subject to the approval of the stockholders at
the Company's 2007 Annual Meeting of Stockholders and, if so approved, will be
effective for fiscal years of the Company commencing after November 30, 2006.
Section 3. Coverage.
For purposes of the Plan, the term "Participant" shall include for each
fiscal year of the Company each Senior Managing Director so designated by the
Compensation Committee within 90 days following the first day of such fiscal
year.
Section 4. Base Salary.
4.1. Each Participant shall receive a salary of $250,000 per annum ("Base
Salary"). The Base Salary of the Participants may be increased from time to time
by the Compensation Committee of the Board (the "Compensation Committee") by
amendment of the Plan pursuant to Section 9.
4.2. Notwithstanding the provisions of Section 4.1 above, in the event a
Participant is not a Senior Managing Director for an entire fiscal year, his
Base Salary for such fiscal year shall be computed by multiplying such Base
Salary as computed under Section 4.1 by a fraction, the numerator of which is
the number of days in such fiscal year during which such Participant was a
Senior Managing Director and the denominator of which is the number of days in
the fiscal year. Any Base Salary shall be in addition to any base salary payable
with respect to periods during the fiscal year in which a Participant was not a
Senior Managing Director.
Section 5. Computation of Annual Bonus Amounts.
5.1. For each fiscal year of the Company, each Participant shall be
entitled to receive an award of a bonus (the "Bonus"), payable from one or more
annual bonus funds (the "Annual Bonus Pools") in an amount not to exceed the
amount provided for in Section 5.3. A Bonus under the Plan shall be the sole
bonus payable with respect to a fiscal year to each Participant ("Full Year
Participant") who was a Senior Managing Director on the date that proportionate
shares of the Annual Bonus Pools for such fiscal year were determined by the
Compensation
Committee and who remains a Senior Managing Director at all times thereafter
during such fiscal year. For each fiscal year, each Participant who was not a
Full Year Participant shall be entitled to such a Bonus, if any, for the portion
of such fiscal year not covered by the Plan, determined in accordance with the
procedures applicable to employees who are not Senior Managing Directors, in
addition to the Bonus, if any, payable pursuant to the Plan.
5.2. For each fiscal year, the formula for calculating the Annual Bonus
Pools shall be determined by the Compensation Committee in writing, by
resolution of the Compensation Committee or other appropriate action, not later
than 90 days after the commencement of such fiscal year and in a manner that is
not inconsistent with Treasury Regulation Section 1.162-27(e)(2). Such formula
shall be based upon one or more of the following criteria, individually or in
combination, adjusted in such manner as the Compensation Committee shall
determine: (a) pre-tax or after-tax return on equity; (b) earnings per share;
(c) pre-tax or after-tax net income; (d) business unit or departmental pre-tax
or after-tax income; (e) firm revenue growth; (f) departmental revenue growth;
(g) book value per share; (h) market price per share; (i) relative performance
to peer group companies; (j) expense management; and (k) total return to
stockholders.
5.3. The maximum amount that can be paid to any Participant can not exceed
2.5% of Consolidated Pre-tax Income for the related fiscal year. For Plan
purposes, Consolidated Pre-tax Income for a fiscal year is defined as
Consolidated Pre-tax Income as reported in the Company's Annual Report for a
fiscal year plus any amounts charged to expense as a result of the Plan with
respect to such fiscal year.
5.4 Notwithstanding anything herein to the contrary, the Compensation
Committee shall have the right to reduce the Bonus of any Participant in its
sole discretion at any time and for any reason prior to the certification of the
Bonus otherwise payable to such Participant pursuant to Section 5.5 hereof
provided, however, that any such reduction does not result in an increase in the
Bonus payable to any other Participant.
5.5. As a condition to the right of a Participant to receive any Bonus
under the Plan, the Compensation Committee shall first be required to certify in
writing in a manner consistent with Treasury Regulation Section 1.162-27(e)(5),
by resolution of the Compensation Committee or other appropriate action, that
the Bonus has been accurately determined in accordance with the provisions of
the Plan, including that the performance goals and any other material terms
under the formula for each Bonus Pool were in fact satisfied.
Section 6. Allocations.
6.1. Prior to the commencement of each fiscal year, or not later than 90
days after the commencement of each fiscal year and in a manner that is not
inconsistent with Treasury Regulation Section 1.162-27(e)(2), the Compensation
Committee shall determine in writing, by resolution of the Compensation
Committee or other appropriate action, each Participant's proportionate share of
any Annual Bonus Pool, as determined pursuant to Section 5.2, for such fiscal
year provided, however, that in no event may the sum of the shares allocated to
the Participants under any such Annual Bonus Pool exceed 100% of the Annual
Bonus Pool.
6.2. Subject to Sections 5.3 and 5.4, any Participant who ceases to be a
Senior Managing Director for any reason prior to the end of such fiscal year
shall be entitled to a Bonus computed as follows: A Bonus first shall be
computed as if such Participant had been a Senior Managing
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Director for the full fiscal year, and such Bonus then shall be multiplied by a
fraction the numerator of which shall be the number of days in the fiscal year
through the date the Participant ceased to be a Senior Managing Director and the
denominator of which shall be the number of days in the fiscal year; provided,
however, that if the application of the preceding clause would cause the total
Bonuses payable under the Plan with respect to an Annual Bonus Pool to exceed
such Annual Bonus Pool, the Bonuses payable to each Participant with respect to
such Annual Bonus Pool shall be reduced pro rata, so that the total of all
Bonuses shall equal such Annual Bonus Pool. Subject to Section 5.4, if a
Participant ceases to be a Senior Managing Director after the end of the fiscal
year in respect of which such Bonus is payable, the amounts thereof nonetheless
shall be payable to him or his estate, as the case may be.
6.3. Subject to Section 6.4, Bonuses for a fiscal year shall be payable as
soon as practicable following the certification thereof by the Compensation
Committee for such fiscal year, but in no event later than 75 days after the end
of such fiscal year. Bonuses may be paid in cash and/or equity-based awards
under the Company's Capital Accumulation Plan for Senior Managing Directors, the
Company's Stock Award Plan or any other Company equity-based plan in effect from
time to time. Any such equity-based award shall be subject to such terms and
conditions as the Compensation Committee may determine in accordance with the
plan under which award is granted. Solely with respect to Participants who are
not executive officers of the Company, the Compensation Committee may, in its
discretion, authorize, prior to the final determination of Bonuses for
Participants for such fiscal year, payments on account of Bonuses payable
hereunder to one or more Participants entitled to such Bonuses at any time
during such fiscal year or after the end of such fiscal year to a Participant
who ceases to be a Senior Managing Director for any reason prior to the end of
such fiscal year. Within the limitations set forth in the preceding sentence,
the Compensation Committee may authorize one or more such "on account" payments,
but the aggregate amount of any such on account payments shall not exceed the
aggregate amount permitted to be paid pursuant to the Plan with respect to the
same fiscal year. In connection with any such "on account" payments, the
Compensation Committee shall require an undertaking or other assurance by or on
behalf of the Participant receiving such payment to repay the Company the
amount, if any, by which such "on account" payment exceeds the actual amount
determined to be due to such person under the Plan in respect of such fiscal
year. Any "on account" payments received prior to the end of a fiscal year shall
be discounted to reasonably reflect the time value of money from the date of
payment to the date 60 days after the end of the fiscal year.
6.4. To the extent permitted under applicable law, the Compensation
Committee may determine that payment of a portion of a Participant's Bonus shall
be deferred or may permit Participants to make appropriate elections (in
compliance with "Q&A" 19(c) of Notice 2005-1, as extended by the Preamble to the
proposed treasury regulations promulgated under Section 409A of the Code and
Notice 2006-79) to defer a portion of the Bonus. The periods of such deferrals
and any interest, not to exceed a reasonable rate, to be paid in respect of
deferred payments will be at the sole discretion of the Compensation Committee.
The Compensation Committee may also define such other conditions of payments of
Bonuses as it may deem desirable in carrying out the purposes of the Plan.
6.5. In any fiscal year, any balance in the Annual Bonus Pools for any
reason, including the limitation contained in Section 5.3, the forfeiture of a
Bonus under Section 6.2, the reduction of a Bonus under Section 5.4, or
otherwise, shall not be distributed to other Participants and shall
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not be carried forward or be available for distribution as Bonuses under the
Plan in a future year or years.
Section 7. Administration and Interpretation.
The Plan shall be administered by the Compensation Committee, which shall
have the sole authority to interpret and to make rules and regulations for the
administration of the Plan. The Compensation Committee may correct any defect or
supply any omission or reconcile any inconsistency in the Plan in the manner and
to the extent the Compensation Committee deems necessary or desirable to carry
it into effect. Any decision of the Compensation Committee in the interpretation
and administration of the Plan, as described herein, shall lie within its sole
and absolute discretion and shall be final, conclusive and binding on all
parties concerned. No member of the Compensation Committee and no officer of the
Company shall be liable for anything done or omitted to be done by him or her,
by any other member of the Compensation Committee or by any officer of the
Company in connection with the performance of duties under the Plan, except for
his or her own willful misconduct or as expressly provided by statute. The
Compensation Committee may request advice or assistance or employ such persons
(including, without limitation, legal counsel and accountants) as it deems
necessary for the proper administration of the Plan.
Section 8. Administrative Expenses.
Any expense incurred in the administration of the Plan shall be borne by
the Company out of its general funds and not charged against the Annual Bonus
Pools, except insofar as such expenses shall be taken into account in
determining the components of the Annual Bonus Pools hereunder.
Section 9. Amendment or Termination.
The Compensation Committee may from time to time amend the Plan in any
respect or terminate the Plan in whole or in part, provided that no such action
shall retroactively impair or otherwise adversely affect the rights of any
Participant to benefits under the Plan which have accrued prior to the date of
such action.
Section 10. No Assignment.
The rights hereunder, including without limitation rights to receive a
Base Salary or Bonus, shall not be sold, assigned, transferred, encumbered or
hypothecated by an employee of the Company (except by testamentary disposition
or intestate succession), and, during the lifetime of any recipient, any payment
of Base Salary or a Bonus shall be payable only to such recipient.
Section 11. The Company.
For purposes of the Plan, the "Company" shall include the successors and
assigns of the Company, and the Plan shall be binding on any corporation or
other person with which the Company is merged or consolidated, or which acquires
substantially all of the assets of the Company, or which otherwise succeeds to
its business.
Section 12. Withholding Tax.
The Company shall be entitled to require Participants to remit an amount
sufficient to satisfy all federal, state and local withholding tax requirements
related to any Bonus Awards
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made pursuant to the Plan. This includes any awards ultimately distributed under
the Capital Accumulation Plan for Senior Managing Directors, the Stock Award
Plan or any other deferral plan.
Section 13. Stockholder Approval.
The Plan is subject to the approval of the stockholders of the Company at
the 2007 Annual Meeting of Stockholders in accordance with Section 162(m)(4)(C)
of the Code and Treasury Regulation Section 1.162-27(e)(4). No Bonus shall be
payable under the Plan absent such stockholder approval.
Section 14. Plan Termination.
The Plan will terminate on March 22, 2012.
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