ARTICLE I
PURPOSE AND EFFECTIVE DATE
The purpose of the Modis Professional Services, Inc. Executive Deferred
Compensation Plan ('Plan') is to aid Modis Professional Services, Inc. and its
subsidiaries in retaining and attracting executive employees by providing them
with tax deferred savings opportunities. The Plan provides a select group of
management and highly compensated employees within the meaning of Sections
201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act
of 1974, as amended (ERISA) of Modis Professional Services, Inc. with the
opportunity to elect to defer receipt of specified portions of compensation, and
to have these deferred amounts treated as if invested in specified hypothetical
investment benchmarks. The Plan shall be effective for deferral elections made
hereunder on or after November 1, 2001.
ARTICLE II
DEFINITIONS
For the purposes of this Plan, the following words and phrases shall have the
meanings indicated, unless the context clearly indicates otherwise:
Section 2.01
Administrative Committee. "Administrative Committee" means the committee
appointed by the Committee pursuant to Article III.
Section 2.02
Base Salary. "Base Salary" means the base rate of cash compensation paid by
the Company to or for the benefit of a Participant for services rendered or
labor performed while a Participant, including base pay a Participant could
have received in cash in lieu of (A) deferrals pursuant to Section 4.02 and
(B) contributions made on his behalf to any qualified plan maintained by
the Company or to any cafeteria plan under Section 125 of the Internal
Revenue Code maintained by the Company.
Section 2.03
Base Salary Deferral. "Base Salary Deferral" means the amount of a
Participant's Base Salary which the Participant elects to have withheld on
a pre-tax basis from his Base Salary and credited to his Deferral Account
pursuant to Section 4.02.
Section 2.04
Beneficiary. "Beneficiary" means the person, persons or entity designated
by the Participant to receive any benefits payable under the Plan pursuant
to Article IX.
Section 2.05
Board. "Board" means the Board of Directors of Modis Professional Services,
Inc.
Section 2.06
Bonus Compensation. "Bonus Compensation" means the amount awarded to a
Participant under any incentive plan designated by the Administrative
Committee as eligible for Bonus Deferral.
Section 2.07
Bonus Deferral. "Bonus Deferral" means the amount of a Participant's Bonus
Compensation which the Participant elects to have withheld on a pre-tax
basis from his Bonus Compensation and credited to his account pursuant to
Section 4.02.
Section 2.08
Change of Control. For purposes of this Plan, a "Change of Control" shall
be deemed to have occurred if: (i) there is an acquisition, in any one
transaction or a series of transactions, other than from Modis Professional
Services, Inc., by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), of beneficial ownership (within the meaning
of Rule 13(d)(3) promulgated under the Exchange Act) of 35% or more of
either the then outstanding shares of Common Stock or the combined voting
power of the then outstanding voting securities of Modis Professional
Services, Inc. entitled to vote generally in the election of directors, but
excluding, for this purpose, any such acquisition by Modis Professional
Services, Inc. or any of its subsidiaries, or any employee benefit plan (or
related trust) of Modis Professional Services, Inc. or its subsidiaries, or
any corporation with respect to which, following such acquisition, more
than 50% of the then outstanding shares of common stock of such corporation
and the combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by the individuals and
entities who were the beneficial owners, respectively, of the common stock
and voting securities of Modis Professional Services, Inc. immediately
prior to such acquisition in substantially the same proportion as their
ownership, immediately prior to such acquisition, of the then outstanding
shares of Common Stock or the combined voting power of the then outstanding
voting securities of Modis Professional Services, Inc. entitled to vote
generally in the election of directors, as the case may be; or
(ii) individuals who, as of November 1, 2001, constitute the Board (as of
such date, the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board, provided that any individual becoming a
director subsequent to November 1, 2001, whose election, or nomination for
election by Modis Professional Services, Inc.'s shareholders, was approved
by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member
of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election of the
directors of Modis Professional Services, Inc. (as such terms are used in
Rule 14(a)(11) or Regulation 14A promulgated under the Exchange Act); or
(iii) there occurs either (A) the consummation of a reorganization, merger
or consolidation, in each case, with respect to which the individuals and
entities who were the respective beneficial owners of the common stock and
voting securities of Modis Professional Services, Inc. immediately prior to
such reorganization, merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from such reorganization, merger
or consolidation, or (B) an approval by the shareholders of Modis
Professional Services, Inc. of a complete liquidation of dissolution of
Modis Professional Services, Inc. or of the sale or other disposition of
all of the assets of Modis Professional Services, Inc.
Section 2.09
Code. "Code" shall mean the Internal Revenue Code of 1986, as amended.
References to any provision of the Code or regulation (including a proposed
regulation) thereunder shall include any successor provisions or
regulations.
Section 2.10
Commission Deferral. "Commission Deferral" means the amount of a
Participant's commission earnings which the participant elects to have
withheld on a pre-tax basis from his commission earnings and credited to
his Deferral Account pursuant to Section 4.02.
Section 2.11
Committee. "Committee" means the compensation committee of the Board.
Section 2.12
Common Stock. "Common Stock" means the common stock of Modis Professional
Services, Inc.
Section 2.13
Company. "Company" means Modis Professional Services, Inc. and any
subsidiary or affiliated organizations authorized by the Board or the
Committee to participate in the Plan.
Section 2.14
Consideration Shares. "Consideration Shares" means shares of Common Stock
owned by a Participant for six months or longer.
Section 2.15
Deferral Account. "Deferral Account" means the account maintained on the
books of the Administrative Committee for each Participant pursuant to
Article VII, including Gain Share Accounts.
Section 2.16
Deferral Period. "Deferral Period" is defined in Section 4.02.
Section 2.17
Deferred Amount. "Deferred Amount" is defined in Section 4.02.
Section 2.18
Designee. "Designee" shall mean the Company's senior human resources
officers or other individuals to whom the Committee has delegated the
authority to take action under the Plan. Wherever Administrative Committee
or the Committee is referenced in the Plan, it shall be deemed to also
refer to Designee.
Section 2.19
Disability. "Disability" means eligibility for disability benefits, as
determined by the Administrative Committee, under the terms of any
Disability Plan maintained by the Company.
Section 2.20
Eligible Compensation. "Eligible Compensation" means Base Salary, Bonus
Compensation and/or Commissions.
Section 2.21
ERISA. "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended. Section 2.22 Fair Market Value. "Fair Market Value" of a share
of Common Stock means the closing price of the Modis Professional Services,
Inc.'s Common Stock on the New York Stock Exchange on the most recent day
on which the Common Stock was so traded that precedes the date as of which
the Fair Market Value is to be determined. The definition of Fair Market
Value in this Section shall be exclusively used to determine the values of
a Participant's interest in the Modis Professional Services, Inc. Stock
Fund (defined in Section 7.02(b)) for all relevant purposes under the Plan.
Section 2.23
Form of Payment. "Form of Payment" means payment in one lump sum or in
substantially equal annual installments of 5, 10, or 15 years.
Section 2.24
Gain Share Account. "Gain Share Account" means the account maintained on
the books by the Administrative Committee for the Participant of the number
of Phantom Share Units related to Gain Shares, adjusted for hypothetical
gains, earnings dividends, losses, distributions, withdrawals and other
similar activities.
3Section 2.25
Gain Shares. "Gain Shares" means the shares of Common Stock so determined
under Section 5.05 as resulting from the exercise of any Option pursuant to
Article V.
Section 2.26
Hardship Withdrawal. "Hardship Withdrawal" means the early payment of all
or part of the balance in a Deferral Account(s) in the event of an
Unforeseeable Emergency.
Section 2.27
Hypothetical Investment Benchmark. "Hypothetical Investment Benchmark"
shall mean the phantom investment benchmarks which are used to measure the
return credited to a Participant's Deferral Account.
Section 2.28
Matching Contribution. "Matching Contribution" means the amount of annual
matching contribution that the Company may make to the Plan.
Section 2.29
Option. "Option" means a nonqualified stock option to purchase shares of
Common Stock.
Section 2.30
Participant. "Participant" means any individual who is eligible or makes an
election to participate in this Plan and who elects to participate by
filing a Participation Agreement as provided in Article IV.
Section 2.31
Participation Agreement. "Participation Agreement" means an agreement filed
by a Participant in accordance with Article IV.
Section 2.32
Phantom Share Units. "Phantom Share Units" means units of deemed investment
in shares of Modis Professional Services, Inc. Common Stock so determined
under Sections 5.06 & 7.02 (b).
Section 2.33
Plan Year. "Plan Year" means a twelve-month period beginning January 1 and
ending December 31, except for the first Plan Year which shall mean the
one-month period beginning December 1, 2001, and ending December 31, 2001.
Section 2.34
Prior Plan Transfer Account. "Prior PlanTransfer Account" means the account
balance transferred from any prior deferred compensation plan maintained by
the Company and credited to a Participant's Deferral Account pursuant to
Section 6.03.
Section 2.35
Retirement. "Retirement" means the later of (i) termination of employment
with the Company at the Participant's election or (ii) cessation of service
on the Company's Board of Directors at the Participant's election, after
the Participant's 65th birthday, or after attaining age 55 with at least
ten years of service (in accordance with the method of determining years of
service adopted by the Company).
Section 2.36
Stock Option Gain Deferral Agreement. "Stock Option Gain Deferral
Agreement" means an agreement filed by a participant in accordance with
Article V to defer receipt of Gain Shares from the exercise of an Option.
Section 2.37
Termination of Employment. "Termination of Employment" means the cessation
of a Participant's services as a full-time employee of the Company for any
reason other than Retirement, as determined by the Administrative
Committee.
Section 2.38
Unforeseeable Emergency. "Unforeseeable Emergency" means severe financial
hardship to the Participant resulting from a sudden and unexpected illness
or accident of the Participant or a dependent of the Participant, loss of
the Participant's property due to casualty, or other similar extraordinary
and unforeseeable circumstances arising as a result of events beyond the
control of the Participant.
Section 2.39
Valuation Date. "Valuation Date" means the last day of each calendar month
or such other date as the Administrative Committee in its sole discretion
may determine.
ARTICLE III
ADMINISTRATION
Section 3.01
Committee and Administrative Committee Duties. This Plan shall be
administered by the Committee. A majority of the members of the Committee
shall constitute a quorum for the transaction of business. All resolutions
or other action taken by the Committee shall be by a vote of a majority of
its members present at any meeting or, without a meeting, by an instrument
in writing signed by all its members. Members of the Committee may
participate in a meeting of such committee by means of a conference
telephone or similar communications equipment that enables all persons
participating in the meeting to hear each other, and such participation in
a meeting shall constitute presence in person at the meeting and waiver of
notice of such meeting.
The Committee shall be responsible for the administration of this Plan and
shall have all powers necessary to administer this Plan, including
discretionary authority to determine eligibility for benefits and to decide
claims under the terms of this Plan, except to the extent that any such
powers are vested in any other person administering this Plan by the
Committee. The Committee may from time to time establish rules for the
administration of this Plan, and it shall have the exclusive right to
interpret this Plan and to decide any matters arising in connection with
the administration and operation of this Plan. All rules, interpretations
and decisions of the Committee shall be conclusive and binding on the
Company, Participants and Beneficiaries.
The Committee has delegated to the Administrative Committee responsibility
for performing certain administrative and ministerial functions under this
Plan. The Administrative Committee shall be responsible for the day-to-day
operation of the Plan and shall have such authority as is required to
perform its responsibilities except to the extent such authority or
responsibility is reserved to the Committee under this Plan or otherwise.
The Committee shall have discretion to delegate to the Administrative
Committee such additional duties as it may determine. The Administrative
Committee may designate one of its members as a chairperson and may retain
and supervise outside providers, third party administrators, record keepers
and professionals (including in-house professionals) to perform any or all
of the duties delegated to it hereunder.
Neither the Committee nor a member of the Board nor any member of the
Administrative Committee shall be liable for any act or action hereunder,
whether of omission or commission, by any other member or employee or by
any agent to whom duties in connection with the administration of this Plan
have been delegated or for anything done or omitted to be done in
connection with this Plan. The Committee and the Administrative Committee
shall keep records of all of their respective proceedings and the
Administrative Committee shall keep records of all payments made to
Participants or Beneficiaries and payments made for expenses or otherwise.
The Company shall, to the fullest extent permitted by law, indemnify each
director, officer or employee of the Company (including the heirs,
executors, administrators and other personal representatives of such
person), each member of the Committee and Administrative Committee against
expenses (including attorneys' fees), judgments, fines, amounts paid in
settlement, actually and reasonably incurred by such person in connection
with any threatened, pending or actual suit, action or proceeding (whether
civil, criminal, administrative or investigative in nature or otherwise) in
which such person may be involved by reason of the fact that he or she is
or was serving this Plan in any capacity at the request of the Company, the
Committee or Administrative Committee.
Any expense incurred by the Company, the Committee or the Administrative
Committee relative to the administration of this Plan shall be paid by the
Company and/or may be deducted from the Deferral Accounts of the
Participants as determined by the Committee.
Section 3.02
Claim Procedure. If a Participant or Beneficiary makes a written request
alleging a right to receive payments under this Plan or alleging a right to
receive an adjustment in benefits being paid under this Plan, such actions
shall be treated as a claim for benefits. All claims for benefits under
this Plan shall be sent to the Administrative Committee. If the
Administrative Committee determines that any individual who has claimed a
right to receive benefits, or different benefits, under this Plan is not
entitled to receive all or any part of the benefits claimed, the
Administrative Committee shall inform the claimant in writing of such
determination and the reasons therefor in terms calculated to be understood
by the claimant. The notice shall be sent within 90 days of the claim
unless the Administrative Committee determines that additional time, not
exceeding 90 days, is needed and so notifies the Participant. The notice
shall make specific reference to the pertinent Plan provisions on which the
denial is based, and shall describe any additional material or information
that is necessary. Such notice shall, in addition, inform the claimant of
the procedure that the claimant should follow to take advantage of the
review procedures set forth below in the event the claimant desires to
contest the denial of the claim. The claimant may within 90 days thereafter
submit in writing to the Administrative Committee a notice that the
claimant contests the denial of his or her claim and desires a further
review by the Committee. The Committee shall within 60 days thereafter
review the claim and authorize the claimant to review pertinent documents
and submit issues and comments relating to the claim to the Committee. The
Committee will render a final decision on behalf of the Company with
specific reasons therefor in writing and will transmit it to the claimant
within 60 days of the written request for review, unless the Chairperson of
the Committee determines that additional time, not exceeding 60 days, is
needed, and so notifies the Participant. If the Administrative Committee
fails to respond to a claim filed in accordance with the foregoing within
60 days or any such extended period, the Company shall be deemed to have
denied the claim.
ARTICLE IV
PARTICIPATION
Section 4.01
Participation. Participation in the Plan shall be limited to a select group
of management and highly compensated employees who (i) meet such
eligibility criteria as the Committee shall establish from time to time,
and (ii) elect to participate in this Plan by filing a Participation
Agreement or Stock Option Gain Deferral Agreement with the Administrative
Committee, or (iii) an individual whose account has been transferred
pursuant to Section 6.03. A Participation Agreement must be filed prior to
the December 31st immediately preceding the Plan Year for which it is
effective. The Administrative Committee shall have the discretion to
establish special deadlines regarding the filing of Participation
Agreements and Stock Option Gain Deferral Agreements for Participants.
Section 4.02
Contents of Participation Agreement. Subject to Article VIII, each
Participation Agreement shall set forth: (i) the amount of Eligible
Compensation for the Plan Year or performance period to which the
Participation Agreement relates that is to be deferred under the Plan (the
"Deferred Amount"), expressed as a percentage of the Base Salary, Bonus
Compensation and Commissions for such Plan Year or 6performance period;
provided, that the minimum Deferred Amount for any Plan Year or performance
period shall not be less than $2,000; (ii) the period after which payment
of the Deferred Amount is to be made or begin to be made (the "Deferral
Period"), which shall be the earlier of (A) a number of full years, not
less than three, and (B) the period ending upon the Retirement or prior
termination of employment of the Participant, and (iii) the form in which
payments are to be made, which may be a lump sum or in substantially equal
annual installments of 5, 10, or 15 years.
Section 4.03
Modification or Revocation of Election by Participant. A Participant may
not change the amount of his Deferrals during a Plan Year. However, a
Participant may discontinue a Base Salary Deferral election at any time by
filing, on such forms and subject to such limitations and restrictions as
the Administrative Committee may prescribe in its discretion, a revised
Participation Agreement with the Administrative Committee. If approved by
the Administrative Committee, revocation shall take effect as soon as
practicably possible. If a Participant discontinues a Base Salary Deferral
election during a Plan Year, he will not be permitted to elect to make Base
Salary Deferrals again until the next Plan Year. In addition, the Deferral
Period may be extended if an amended Participation Agreement is filed with
the Administrative Committee at least one full calendar year before the
Deferral Period (as in effect before such amendment) ends; provided, that
only one such amendment may be filed with respect to each Participation
Agreement. Under no circumstances may a Participant's Participation
Agreement be made, modified or revoked retroactively, nor may a deferral
period be shortened or reduced.
ARTICLE V
STOCK OPTION GAIN DEFERRALS
Section 5.01
Subject to provisions of this Article V, Participants may elect to defer
receipt and distribution of the gain related to the exercise of Options and
resulting Gain Shares until the end of an elected Deferral Period by filing
a Stock Option Gain Deferral Agreement with the Administrative Committee.
The stock option gain deferral features of the Plan are effective for
deferral elections made on or after November 1, 2001.
Section 5.02
Timing of Filing Stock Option Gain Deferral Agreement. A Stock Option Gain
Deferral Agreement must be filed at least six months prior to the date of
exercise and prior to the calendar year in which occurs the date of
exercise.
Section 5.03
Contents of Stock Option Gain Deferral Agreement. Each Stock Option Gain
Deferral Agreement shall set forth: (i) the number of Options subject to
deferral, (ii) the date of grant of the Options; (iii) the Deferral Period,
which is not to be less than three years; (iv) any other item determined to
be appropriate by the Administrative Committee. A Participant may elect to
defer gain on 25%, 50%, 75% or 100% of the Options exercised on any one
date of exercise.
Section 5.04
Manner of Exercising Option Shares. A Participant who desires to exercise
an Option and to defer current receipt and distribution of the related Gain
Shares must follow the procedures and requirements that are applicable to
the Option under the Modis Professional Services, Inc. Option Stock Plan,
including the procedures and requirements relating to the exercise of an
Option; provided, however, that in the case of a deferral of Gain Shares
under this Plan, the Participant shall only be permitted to tender
Consideration Shares to pay the entire exercise price for any such Option
exercised. Notwithstanding the foregoing, the Administrative Committee may
in its discretion accept the Participant's attestation that he or she owns
the number of Consideration Shares necessary to effectuate the stock swap
contemplated hereunder.
Section 5.05
Determination of Gain Shares. Upon exercise of an Option, the Gain Shares
from which the Participant has elected to defer hereunder shall be
determined as follows: (i) the aggregate exercise price for all exercised
Option shares subject to the Participant's Stock Option Gain Deferral
Agreement shall be determined; (ii) the number of Consideration Shares
needed to pay the exercise price for such Option shares shall be
determined; (iii) the difference between the number of exercised Option
shares subject to the Participant's Stock Option Gain Deferral Agreement
and the number of Consideration Shares shall be the number of Gain Shares
resulting from such exercise less any applicable withholdings that are
satisfied in the form of Common Stock. Any fractional Gain Share that
results from the computations hereunder shall be rounded up to the nearest
whole number.
Section 5.06
Conversion of Gain Shares to Phantom Share Units. As of the date of
exercise, Gain Shares shall be converted to Phantom Share Units by dividing
the amount of the aggregate Fair Market Value of the Gain Shares as of the
date of exercise by the Fair Market Value of one share of Common Stock as
of the date of exercise. The resulting number of Phantom Share Units shall
be credited to the Participant's Gain Share Account. A Participant shall
always be 100% vested in his or her Gain Share Account. Any fractional
Phantom Share Unit that results from the computations hereunder shall be
rounded up to the nearest whole number.
Section 5.07
Changes to the Stock Option Gain Deferral Agreement. A Stock Option Gain
Deferral Agreement may not be amended or revoked after the day on which it
is filed with the Administrative Committee, except that the Deferral Period
may be extended if an amended Stock Option Gain Deferral Agreement is filed
with the Administrative Committee at least one full calendar year before
the Deferral Period (as in effect before such amendment) ends, provided
that only one such amendment may be filed with respect to each Stock Option
Gain Agreement. Under no circumstances may a Participant's Stock Option
Gain Deferral Agreement be made, modified or revoked retroactively, nor may
a deferral period be shortened or reduced.
Section 5.08
Failure to Properly Exercise. If a Participant makes a valid election under
this Article V to defer Gain Shares and if the Option expires without a
proper exercise of the Option by the Participant or if the Participant
fails to properly tender or attest to the Consideration Shares upon
exercise of the option, the Participant shall forfeit any opportunity to
defer gain with respect to such Option.
Section 5.09
Deliver of Gain Shares. The Gain Shares may be physically delivered to the
rabbi trustee or delivered to such other entity as may be designated by the
Committee for safe keeping of such shares.
ARTICLE VI
DEFERRED COMPENSATION
Section 6.01
Elective Deferred Compensation. The Deferred Amount of a Participant with
respect to each Plan Year of participation in the Plan shall be credited by
the Administrative Committee to the Participant's Deferral Account as and
when such Deferred Amount would otherwise have been paid to the
Participant. To the extent that the Company is required to withhold any
taxes or other amounts from the Deferred Amount pursuant to any state,
Federal, local or foreign law, such amounts shall be taken out of other
compensation eligible to be paid to the Participant that is not deferred
under this Plan.
Section 6.02
Vesting of Deferral Account. Except as provided in Section 8.02, a
Participant shall be 100% vested in his/her Deferral Account at all times.
Section 6.03
Prior Plan Allocation. As of the Effective Date, amounts allocated to the
account of each participant under any prior deferred compensation plan
maintained by the Company shall be transferred and allocated to the
Participant's Account established under this Plan; per elections made by
the Participant on the Prior Plan Transfer Agreement.
ARTICLE VII
MAINTENANCE AND INVESTMENT OF ACCOUNTS
Section 7.01
Maintenance of Accounts. Separate Deferral Accounts shall be maintained for
each Participant. More than one Deferral Account may be maintained for a
Participant as necessary to reflect (a) various Hypothetical Investment
Benchmarks and/or (b) separate Participation Agreements specifying
different Deferral Periods and/or Forms of Payment. A Participant's
Deferral Account(s) shall be utilized solely as a device for the
measurement and determination of the amounts to be paid to the Participant
pursuant to this Plan, and shall not constitute or be treated as a trust
fund of any kind. The Administrative Committee shall determine the balance
of each Deferral Account, as of each Valuation Date, by adjusting the
balance of such Deferral Account as of the immediately preceding Valuation
Date to reflect changes in the value of the deemed investments thereof,
credits and debits pursuant to Section 6.01 and Section 7.02 and
distributions pursuant to Article VIII with respect to such Deferral
Account since the preceding Valuation Date.
Section 7.02
Hypothetical Investment Benchmarks. (a) Each Participant shall be entitled
to direct the manner in which his/her Deferral Accounts will be deemed to
be invested, selecting among the Hypothetical Investment Benchmarks
specified in Appendix A hereto, as amended by the Committee from time to
time, and in accordance with such rules, regulations and procedures as the
Committee may establish from time to time. Notwithstanding anything to the
contrary herein, earnings and losses based on a Participant's investment
elections shall begin to accrue as of the date such Participant's Deferral
Amounts are credited to his/her Deferral Accounts.
(b) (i) The Hypothetical Investment Benchmarks available for Deferral
Accounts from time to time may include a "Modis Professional Services, Inc.
Stock Fund." The Modis Professional Services, Inc. Stock Fund shall consist
of deemed investments in shares of Modis Professional Services, Inc. Common
Stock. Deferred Amounts that are deemed to be invested in the Modis
Professional Services, Inc. Stock Fund shall be converted into Phantom
Share Units based upon the Fair Market Value of the Common Stock as of the
date(s) the Deferred Amounts are to be credited to a Deferral Account. The
portion of any Deferral Account that is invested in the Modis Professional
Services, Inc. Stock Fund shall be credited, as of each Valuation Date,
with additional Phantom Share Units of Common Stock with respect to cash
dividends paid on the Common Stock with record dates during the period
beginning on the day after the most recent preceding Valuation Date and
ending on such Valuation Date.
(ii) When a reallocation or a distribution of all or a portion of a
Deferral Account that is invested in the Modis Professional Services, Inc.
Stock Fund is to be made, the balance in such a Deferral Account shall be
determined by dividing the Fair Market Value of one share of Common Stock
on the most recent Valuation Date preceding the date of such reallocation
or distribution into the number of Phantom Share Units to be reallocated or
distributed. Upon a lump sum distribution, the amounts in the Modis
Professional Services, Inc. Stock Fund shall be distributed in the form of
cash having a value equal to the Fair Market Value of a comparable number
of actual shares of Common Stock, or a combination thereof, as determined
by the Committee.
(iii) In the event of a stock dividend, split-up or combination of the
Common Stock, merger, consolidation, reorganization, recapitalization, or
other change in the corporate structure or capitalization affecting the
Common Stock, such that an adjustment is determined by the Committee to be
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under this Plan, then the
Committee may make appropriate adjustments to the number of deemed shares
credited to any Deferral Account. The determination of the Committee as to
such adjustments, if any, to be made shall be conclusive.
(iv) Notwithstanding any other provision of this Plan, the Modis
Professional Services, Inc. Executive Deferred Compensation Committee shall
adopt such procedures as it may determine are necessary to ensure that with
respect to any Participant who is actually or potentially subject to
Section 16(b) of the Securities Exchange Act of 1934, as amended, the
crediting of deemed shares to his or her Deferral Account is not deemed to
be a non-exempt purchase for purposes of such Section 16(b), including
without limitation requiring that no shares of Common Stock or cash
relating to such deemed shares may be distributed for six months after
being credited to such Deferral Account.
Section 7.03
Statement of Accounts. The Administrative Committee shall submit to each
Participant quarterly statements of his/her Deferral Account(s) and Gain
Share Account(s), in such form as the Administrative Committee deems
desirable, setting forth the balance to the credit of such Participant in
his/her Deferral Account(s) and Gain Share Account(s) as of the end of the
most recently completed quarter.
ARTICLE VIII
BENEFITS
Section 8.01
Time and Form of Payment. At the end of the Deferral Period for each
Deferral Account, the Company shall pay to the Participant the balance of
such Deferral Account at the time or times elected by the Participant in
the applicable Participation Agreement; provided that if the Participant
has elected to receive payments from a Deferral Account in a lump sum, the
Company shall pay the balance in such Deferral Account (determined as of
the most recent Valuation Date preceding the end of the Deferral Period) in
a lump sum in cash (plus any shares of Common Stock that the Administrative
Committee elects to deliver from any investment in the Modis Professional
Services, Inc. Stock Fund) as soon as practicable after the end of the
Deferral Period. If the Participant has elected to receive payments from a
Deferral Account in installments, the Company shall make annual cash
payments from such Deferral Account, each of which shall consist of an
amount equal to (i) the balance of such Deferral Account as of the most
recent Valuation Date preceding the payment date times (ii) a fraction, the
numerator of which is one and the denominator of which is the number of
remaining installments (including the installment being paid). The first
such installment shall be paid as soon as practicable after the end of the
Deferral Period and each subsequent installment shall be paid on or about
the anniversary of such first payment. Each such installment shall be
deemed to be made on a pro rata basis from each of the different deemed
investments of the Deferral Account (if there is more than one such deemed
investment). At the end of the Deferral Period for each Gain Share Account,
the Company shall deliver to the Participant the balance of such Gain Share
Account at the time or times elected by the Participant in the applicable
Stock Option Gain Deferral Agreement in the form of actual shares of Common
Stock.
Section 8.02
Matching Contribution. Each Participant who elects to make deferrals of
Eligible Compensation to the Plan may receive a Matching Contribution equal
to a formula that the Committee shall determine from time to time. Matching
Contributions will be credited to the Participant's Deferral Account at
such time as the Committee may determine and shall be invested per a
Participant's deferral elections for related Deferred Compensation, or in
hypothetical common shares of Modis Professional Services, Inc., or both as
determined by the Committee. The Matching Contribution shall be distributed
to the participant according to the election made by the participant
governing his/her deferrals and will vest according to the provisions
governing matching contributions in the Company's 401(k) plan.
Section 8.03
Retirement. Subject to Section 8.01 and Section 8.06 hereof, if a
Participant has elected to have the balance of his/her Deferral Account or
Gain Share Account distributed upon Retirement, the account balance of the
Participant (determined as of the most recent Valuation Date preceding such
Retirement) shall be distributed upon Retirement in installments or a lump
sum in accordance with the Plan and as elected in the Participant
Agreement.
Section 8.04
In-Service Distributions. Subject to Section 8.01 and Section 8.06 hereof,
if a Participant has elected to defer Eligible Compensation under the Plan
for a stated number of years, the balance of the Participant's Deferred
Account, or Gain Shares Account, as the case may be, (determined as of the
most recent Valuation Date preceding such Deferral Period) shall be
distributed in installments or a lump sum in accordance with the Plan and
as elected in the Participant Agreement, Prior Plan Transfer Agreement or
Stock Option Gain Deferral Agreement, as the case may be.
Section 8.05
Other Than Retirement. Notwithstanding the provisions of Section 8.03 and
Section 8.04 hereof and any Participation Agreement, Prior Plan Transfer
Agreement or Stock Option Gain Deferral Agreement, as the case may be, if a
Participant dies, has a Termination of Employment or Disability prior to
Retirement and prior to receiving full payment of his/her Deferral
Account(s), the Company shall pay the remaining balance (determined as of
the most recent Valuation Date preceding such event) to the Participant or
the Participant's Beneficiary or Beneficiaries (as the case may be) in a
lump sum in cash or in Common Stock with respect to payment of Gain Share
Accounts and amounts invested in the Modis Professional Services, Inc.
Stock Fund (notwithstanding Section 8.01 hereof) as soon as practicable
following the occurrence of such event, unless the Administrative Committee
in its sole discretion determines otherwise. Subject to Section 7.02(a)
hereof, the amount distributable under the preceding sentence of this
Section 8.05 shall be based on the Participant's investment elections.
Section 8.06
Hardship Withdrawals. Notwithstanding the provisions of Section 8.01 and
any Participation Agreement, a Participant shall be entitled to early
payment of all or part of the balance in his/her Deferral Account(s)
(and/or Gain Shares Accounts) in the event of an Unforeseeable Emergency,
in accordance with this Section 8.06. A distribution pursuant to this
Section 8.06 may only be made to the extent reasonably needed to satisfy
the Unforeseeable Emergency need, and may not be made if such need is or
may be relieved (i) through reimbursement or compensation by insurance or
otherwise, (ii) by liquidation of the Participant's assets to the extent
such liquidation would not itself cause severe financial hardship, or (iii)
by cessation of participation in the Plan. An application for an early
payment under this Section 8.06 shall be made to the Administrative
Committee in such form and in accordance with such procedures as the
Administrative Committee shall determine from time to time. The
determination of whether and in what amount and form a distribution will be
permitted pursuant to this Section 8.06 shall be made by the Administrative
Committee.
Section 8.07
Voluntary Early Withdrawal. Notwithstanding the provisions of Section 8.01
and any Participation Agreement, a Participant shall be entitled to elect
to withdraw all of the balance in his/her Deferral Account(s) (and/or Gain
Shares Accounts) in accordance with this Section 8.07 by filing with the
Administrative Committee such forms, in accordance with such procedures, as
the Administrative Committee shall determine from time to time. As soon as
practicable after receipt of such form by the Administrative Committee, the
Company shall pay an amount equal to ninety percent of the vested balance
in such Participant's Deferral Account(s) (determined as of the most recent
Valuation Date preceding the date such election is filed) to the electing
Participant in a lump sum in cash, and the Participant shall forfeit the
remainder of such Deferral Account(s). All Participation Agreements
previously filed by a Participant who elects to make a withdrawal under
this Section 8.07 shall be null and void after such election is filed
(including without limitation Participation Agreements with respect to Plan
Years or performance periods that have not yet been completed), and such a
Participant shall not 11thereafter be entitled to file any Participation
Agreements under the Plan with respect to the first Plan Year that begins
after such election is made.
Section 8.08
Change of Control. In the event of a Change of Control that is recommended
for approval to the shareholders by the Board, no immediate special payment
shall be made to any Participant and the terms and conditions of the Plan
shall remain in full force and effect. Notwithstanding anything contained
in this Plan to the contrary, upon a hostile Change of Control, the Company
shall immediately pay to each Participant in a lump sum in cash or in
Common Stock with respect to payment of Gain Share Accounts and amounts
invested in the Modis Professional Services, Inc. Stock Fund the balance in
his/her Deferral Account(s) (determined as of the most recent Valuation
Date preceding the Change of Control). Hostile Change of Control is defined
as a Change of Control which the Board recommends to the shareholders that
they not approve.
Section 8.09
Withholding of Taxes. Notwithstanding any other provision of this Plan, any
payments made hereunder shall be subject to tax withholdings under any
applicable law or regulation.
ARTICLE IX
BENEFICIARY DESIGNATION
Section 9.01
Beneficiary Designation. Each Participant shall have the right, at any
time, to designate any person, persons or entity as his Beneficiary or
Beneficiaries. A Beneficiary designation shall be made, and may be amended,
by the Participant by filing a written designation with the Administrative
Committee, on such form and in accordance with such procedures as the
Administrative Committee shall establish from time to time.
Section 9.02
No Beneficiary Designation. If a Participant fails to designate a
Beneficiary as provided above, or if all designated Beneficiaries
predecease the Participant, then the Participant's Beneficiary shall be
deemed to be the Participant's estate.
ARTICLE X
AMENDMENT AND TERMINATION OF PLAN
Section 10.01
Amendment. The Board or the Committee may at any time amend this Plan in
whole or in part, provided, however, that no amendment shall be effective
to decrease the balance in any Deferral Account or Gain Share Account as
accrued at the time of such amendment, nor shall any amendment otherwise
have a retroactive effect.
Section 10.02
Company's Right to Terminate. The Board or the Committee may at any time
terminate the Plan with respect to future Participation Agreements. The
Board or the Committee may also terminate the Plan in its entirety at any
time for any reason, including without limitation if, in its judgment, the
continuance of the Plan, the tax, accounting, or other effects thereof, or
potential payments thereunder would not be in the best interests of the
Company, and upon any such termination, the Company shall immediately pay
to each Participant in a lump sum the accrued balance in his Deferral
Account(s) and Gain Share Account(s) (determined as of the most recent
Valuation Date preceding the termination date).
ARTICLE XI
MISCELLANEOUS
Section 11.01
Unfunded Plan. This Plan is intended to be an unfunded plan maintained
primarily for the purpose of providing deferred compensation for a select
group of management or highly compensated employees, within the meaning of
Sections 201, 301 and 401 of ERISA. All payments pursuant to the Plan shall
be made from the general funds of the Company and no special or separate
fund shall be established or other segregation of assets made to assure
payment. No Participant or other person shall have under any circumstances
any interest in any particular property or assets of the Company as a
result of participating in the Plan. Notwithstanding the foregoing, the
Company may (but shall not be obligated to) create one or more grantor
trusts, the assets of which are subject to the claims of the Company's
creditors, to assist it in accumulating funds to pay its obligations under
the Plan.
Section 11.02
Nonassignability. Except as specifically set forth in the Plan with respect
to the designation of Beneficiaries, neither a Participant nor any other
person shall have any right to commute, sell, assign, transfer, pledge,
anticipate, mortgage or otherwise encumber, transfer, hypothecate 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 or sequestration for the
payment of any debts, judgments, alimony or separate maintenance owed by a
Participant or any other person, nor be transferable by operation of law in
the event of a Participant's or any other person's bankruptcy or
insolvency.
Section 11.03
Validity and Severability. The invalidity or unenforceability of any
provision of this Plan shall not affect the validity or enforceability of
any other provision of this Plan, which shall remain in full force and
effect, and any prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 11.04
Governing Law. The validity, interpretation, construction and performance
of this Plan shall in all respects be governed by the laws of the State of
Florida, without reference to principles of conflict of law, except to the
extent preempted by federal law.
Section 11.05
Employment Status. This Plan does not constitute a contract of employment
or impose on the Participant or the Company any obligation for the
Participant to remain an employee of the Company or change the status of
the Participant's employment or the policies of the Company and its
affiliates regarding termination of employment.
Section 11.06
Underlying Incentive Plans and Programs. Nothing in this Plan shall prevent
the Company from modifying, amending or terminating the compensation or the
incentive plans and programs pursuant to which cash awards are earned and
which are deferred under this Plan.
Section 11.07
Successors. Modis Professional Services, Inc. and any other Company shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of its business,
stock or assets to expressly assume and agree to perform under this Plan in
the same manner and to the same extent that Modis Professional Services,
Inc. or such other Company, as the case may be, would be required to
perform as if no such succession had taken place. As used in this
Agreement, "Modis Professional Services, Inc." and the "Company" shall mean
any successor that expressly assumes and agrees to perform this Plan or
which otherwise becomes bound by all the terms and provisions of this Plan
by operation of law.
APPENDIX A
MONY Money Market
MONY Interim-Term Bond
Fidelity Asset Manager
T. Rowe Price Equity-Inc.
Dreyfus Appreciation
Fidelity Contrafund
Enterprise Growth A
Janus Aspen Aggressive Growth Institutional
Janus Aspen International Growth Institutional
Enterprise Small Co Value A
Dreyfus Small Cap Stock Index
Modis Professional Services, Inc. Stock Fund
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