EXHIBIT 10.31
THE PMI GROUP, INC.
DIRECTORS' DEFERRED COMPENSATION PLAN
(Amended and Restated as of July 23, 1998)
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS
1.1 "Affiliate".......................................... 1
1.2 "Beneficiary"........................................ 1
1.3 "Board of Directors"................................. 1
1.4 "Change of Control".................................. 1
1.5 "Code"............................................... 3
1.6 "Committee".......................................... 3
1.7 "Company"............................................ 4
1.8 "Compensation"....................................... 4
1.9 "Compensation Deferrals"............................. 4
1.10 "Disability"......................................... 4
1.11 "Financial Hardship"................................. 4
1.12 "Participant"........................................ 4
1.13 "Participant's Account" or "Account"................. 4
1.14 "Plan"............................................... 4
1.15 "Plan Year".......................................... 4
1.16 "Nonemployee Director"............................... 4
SECTION 2 PARTICIPATION
2.1 Participation........................................ 5
2.1.1 Current Nonemployee Directors............. 5
2.1.2 Initial Elections by New Nonemployee
Directors................................. 5
2.1.3 Elections for Subsequent Plan Years....... 5
2.1.4 No Election Changes During Plan Year...... 5
2.1.5 Specific Timing and Method of Election.... 5
2.2 Suspension of Compensation Deferrals................. 5
2.2.1 Automatic Suspension...................... 5
2.2.2 Permissible Suspension.................... 6
2.3 Termination of Participation......................... 6
SECTION 3 COMPENSATION DEFERRAL ELECTIONS
3.1 Compensation Deferrals............................... 6
3.2 Crediting of Compensation Deferrals.................. 6
3.3 Deemed Investment Return on Accounts................. 6
3.4 Form of Payment...................................... 7
3.5 Term of Deferral..................................... 7
3.6 Changes in Elections as to Term and Form for Payment. 7
SECTION 4 ACCOUNTING
4.1 Participants' Accounts............................... 7
4.2 Participants Remain Unsecured Creditors.............. 8
i
4.3 Accounting Methods................................... 8
4.4 Reports.............................................. 8
SECTION 5 DISTRIBUTIONS
5.1 Normal Time for Distribution......................... 8
5.2 Change of Control.................................... 8
5.3 Special Rule for Death or Disability................. 8
5.4 Special Rule re Deductibility........................ 9
5.5 Latest Permissible Distribution Date................. 9
5.6 Beneficiary Designations............................. 9
5.6.1 Spousal Consent............................. 9
5.6.2 Changes and Failed Designations............. 10
5.7 Financial Hardship................................... 10
5.8 Payments to Incompetents............................. 10
5.9 Undistributable Accounts............................. 10
5.10 Committee Discretion................................. 10
SECTION 6 PARTICIPANT'S INTEREST IN ACCOUNT
6.1 Compensation Deferral Contributions.................. 11
SECTION 7 ADMINISTRATION OF THE PLAN
7.1 Committee............................................ 11
7.2 Actions by Committee................................. 11
7.3 Powers of Committee.................................. 11
7.4 Decisions of Committee............................... 12
7.5 Administrative Expenses.............................. 12
7.6 Eligibility to Participate........................... 12
7.7 Indemnification...................................... 13
SECTION 8 FUNDING
8.1 Unfunded Plan........................................ 13
SECTION 9 MODIFICATION OR TERMINATION OF PLAN
9.1 Company's Obligation is Limited...................... 13
9.2 Right to Amend or Terminate.......................... 13
9.3 Effect of Termination................................ 13
SECTION 10 GENERAL PROVISIONS
10.1 Inalienability........................................ 13
10.2 Rights and Duties..................................... 14
10.3 No Enlargement of Rights.............................. 14
10.4 Compliance with Rule 16b-3............................ 14
10.5 Compensation Deferrals Not Counted Under Other
Employee Benefit Plans................................ 14
10.6 Applicable Law........................................ 14
ii
10.7 Severability.......................................... 14
10.8 Captions.............................................. 15
iii
THE PMI GROUP, INC.
DIRECTORS' COMPENSATION PLAN
(Amended and Restated as of July 23, 1998)
THE PMI GROUP, INC., a Delaware corporation, having established The PMI
Group, Inc. Directors' Deferred Compensation Plan, hereby amends and restates
the Plan effective as of July 23, 1998, for the benefit of members of the Board
of Directors who are employees of neither the Company nor its Affiliates, in
order to provide such directors with certain deferred compensation benefits.
The Plan is an unfunded deferred compensation plan which is exempt from the
provisions of the Employee Retirement Income Security Act of 1974, as amended.
SECTION 1
DEFINITIONS
The following words and phrases shall have the following MEANINGS unless a
different meaning is plainly required by the context:
1.1 "AFFILIATE" shall mean (a) the Company, and (b) each corporation,
trade or business which is, together with the Company, a member of a controlled
group of corporations or an affiliated service group or under common control
(within the meaning of section 414(b), (c) or (m) of the Code), but only for the
period during which such other entity is so affiliated with the Company.
1.2 "BENEFICIARY" shall mean the person or persons entitled to receive
the balance credited to a Participant's Account under the Plan upon the death of
a Participant, as provided in Section 5.4.
1.3 "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company, as constituted from time to time.
1.4 "CHANGE OF CONTROL" means the occurrence of any of the following:
(a) The acquisition 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")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (i) the then outstanding shares
of common stock of the Company (the "Outstanding Company Common
Stock") or (ii) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (a), the
following shall not constitute a Change of Control: (i) any
acquisition directly from the Company, (ii) any acquisition by the
Company, (iii) any acquisition by any employee benefit plan (or
related trust) sponsored
1
or maintained by the Company or any corporation controlled by the
Company, (iv) any beneficial ownership maintained by (but not
additional acquisitions by), The Allstate Corporation and its
subsidiaries, and their respective successors ("Allstate"), pending
such time that Allstate distributes or transfers its current ownership
interest in the Outstanding Company Common Stock and Outstanding
Company Voting Securities as contemplated by the Prospectus dated
April 10, 1995, relating to the initial public offering of the common
stock of the Company, or (v) any acquisition pursuant to a transaction
which complies with clauses (i), (ii) and (iii) of subsection (c) of
this Section 1.4. Notwithstanding the foregoing, in its sole
discretion, the Board may increase the 20% threshold set forth above
in this subsection (a) prior to any acquisition of 20% or more
beneficial ownership of the Outstanding Company Common Stock or the
Outstanding Company Voting Securities; provided, that (i) such
increased threshold shall apply only to the acquisition and
maintenance of beneficial ownership by any Person eligible to report
such beneficial ownership at the time of such acquisition on Schedule
13G under the Exchange Act, and (ii) in the event that any Person
initially eligible to so report on Schedule 13G thereafter ceases to
be eligible to so report on Schedule 13G, the occurrence of the event
causing such Person no longer to be eligible to so report shall be
deemed an acquisition by such Person of all of the Outstanding Company
Common Stock and Outstanding Company Voting Securities beneficially
owned by such Person immediately prior to such occurrence; or
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming
a director subsequent to the date hereof whose election, or nomination
for election by the Company'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 occurs as a result of an
actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board;
or
(c) Consummation by the Company of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company or the acquisition of assets of another
entity (a "Business Combination"), in each case, unless, following
such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners, respectively,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 60% of, respectively, the then
outstanding shares of common stock and the combined voting power of
the then outstanding voting
2
securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (ii) no Person (excluding any employee
benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly
or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such
ownership existed prior to the Business Combination and (iii) at least
a majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, a Change of Control shall not be deemed to occur
solely because any Person acquires beneficial ownership of 20% or more of the
Outstanding Company Voting Securities or Outstanding Company Common Stock as a
result of the acquisition of such securities or stock by the Company, which
acquisition reduces the number of the Outstanding Company Voting Securities or
Outstanding Company Common Stock; provided, that if after such acquisition by
the Company such Person (while such Person remains the beneficial owner of 20%
or more of the Outstanding Company Voting Securities or Outstanding Company
Common Stock) becomes the beneficial owner of additional shares of such
Outstanding Company Voting Securities or Outstanding Company Common Stock (as
the case may be), a Change of Control shall then occur. Capitalized terms used
in this Section 1.4, not otherwise defined, shall have the meaning set forth in
the form of change of control employment agreement approved at the February 12,
1998 meeting of the Board of Directors.
1.5 "CODE" shall mean the Internal Revenue Code of 1986, as amended.
Reference to a specific section of the Code shall include such section, any
valid regulation promulgated thereunder, and any comparable provision of any
future legislation amending, supplementing or superseding such section.
1.6 "COMMITTEE" shall mean the committee appointed by (and serving at the
pleasure of) the Board of Directors to administer the Plan. As of the effective
date of the Plan, the members of the Committee shall be the Compensation and
Nominating Committee of the Board of Directors.
3
1.7 "COMPANY" shall mean The PMI Group, Inc., a Delaware corporation.
1.8 "COMPENSATION" shall mean the annual cash retainer, retainer for
serving as a committee chairperson (if any), and meeting fees (if any) of a
Participant. A Participant's Compensation shall not include any other type of
remuneration.
1.9 "COMPENSATION DEFERRALS" shall mean the amounts credited to
Participants' Accounts under the Plan pursuant to their deferral elections made
in accordance with Section 2.1.
1.10 "DISABILITY" or "DISABLED" shall mean the mental or physical inability
of a Participant to perform the regularly assigned duties of a member of the
Board of Directors, provided that such inability (a) has continued or is
expected to continue for a period of at least six months and (b) is evidenced by
the certificate of a physician satisfactory to the Committee stating that such
inability exists and is likely to be permanent.
1.11 "FINANCIAL HARDSHIP" shall mean a severe financial emergency which is
caused by a sudden and unexpected accident, illness or other event beyond the
control of the Participant which, absent a suspension of deferrals under Section
2.2 or accelerated distribution under Section 5.5, would result in severe
financial burden to the Participant or a member of his or her immediate family.
A Financial Hardship does not exist to the extent that the hardship may be
relieved by (a) reimbursement or compensation by insurance, (b) by liquidation
of the Participant's other assets (to the extent such liquidation would not
itself cause severe financial hardship), or (c) any loan available to the
Participant (to the extent the payments on such loan would not themselves cause
severe financial hardship.
1.12 "PARTICIPANT" shall mean a Nonemployee Director who (a) has become a
Participant in the Plan pursuant to Section 2.1 and (b) has not ceased to be a
Participant pursuant to Section 2.3.
1.13 "PARTICIPANT'S ACCOUNT" or "ACCOUNT" shall mean, as to any
Participant, the separate account maintained on the books of the Company in
order to reflect his or her interest under the Plan.
1.14 "PLAN" shall mean The PMI Group, Inc. Directors' Deferred Compensation
Plan, as set forth in this instrument and as hereafter amended from time to
time.
1.15 "PLAN YEAR" shall mean the calendar year.
1.16 "NONEMPLOYEE DIRECTOR" means a member of the Board of Directors who is
an employee of neither the Company nor of any Affiliate.
4
SECTION 2
PARTICIPATION
2.1 PARTICIPATION. Each Nonemployee Director's decision to become a
Participant shall be entirely voluntary.
2.1.1 CURRENT NONEMPLOYEE DIRECTORS. Each Nonemployee Director who
both (a) is such on July 1, 1997, and (b) previously elected to make
Compensation Deferrals under the Plan for the 1997 Plan Year, shall have his or
her Compensation Deferral election continue in effect for the remainder of the
1997 Plan Year only (and subject to the other provisions of the Plan).
2.1.2 INITIAL ELECTIONS BY NEW NONEMPLOYEE DIRECTORS. Each
individual who first becomes a Nonemployee Director after July 1, 1997 may elect
to become a Participant in the Plan by electing, within thirty days of the date
of his or her hire or promotion (as the case may be), to make Compensation
Deferrals under the Plan. An election under this Section 2.1.2 to make
Compensation Deferrals shall be effective only for the remainder of the Plan
Year with respect to which the election is made.
2.1.3 ELECTIONS FOR SUBSEQUENT PLAN YEARS. A Nonemployee Director
may elect to become a Participant (or to continue or reinstate his or her active
participation) in the Plan for any subsequent Plan Year by electing, no later
than December 31 of the preceding Plan Year, to make Compensation Deferrals
under the Plan. An election under this Section 2.1.3 to make Compensation
Deferrals shall be effective only for the Plan Year with respect to which the
election is made.
2.1.4 NO ELECTION CHANGES DURING PLAN YEAR. After the beginning of a
Plan Year, a Participant shall not be permitted to change or revoke his or her
deferral election for such Plan Year, except to the limited extent provided in
Section 2.2.
2.1.5 SPECIFIC TIMING AND METHOD OF ELECTION. Notwithstanding any
contrary provision of this Section 2.1, the Committee, in its sole discretion,
shall determine the manner and deadlines for Participants to make Compensation
Deferral elections. The deadlines prescribed by the Committee may be earlier
than the deadlines specified in this Section 2.1, but shall not be later than
such specified deadlines.
2.2 SUSPENSION OF COMPENSATION DEFERRALS.
2.2.1 AUTOMATIC SUSPENSION. In the event that a Participant receives
a financial hardship withdrawal from The PMI Group, Inc. Savings and Profit-
Sharing Plan or any other plan (maintained by the Company or an Affiliate) which
contains a qualified cash or deferred arrangement under section 401(k) of the
Internal Revenue Code of 1986, as amended (collectively, the "401(k) Plans"),
the Participant's Compensation Deferrals under the Plan (if any) shall be
suspended for a period of twelve (12) months from the date that the Participant
received such hardship withdrawal. Notwithstanding the preceding, the
Participant's
5
Compensation Deferrals shall be not be so suspended if the Committee determines
that such suspension is not required in order to preserve the tax-qualification
of the 401(k) Plans.
2.2.2 PERMISSIBLE SUSPENSION. In the event that a Participant incurs
a Financial Hardship, the Committee, in its sole discretion, may suspend the
Participant's Compensation Deferrals for the remainder of the Plan Year.
However, an election to make Compensation Deferrals under Section 2.1 shall be
irrevocable as to amounts deferred as of the effective date of any suspension in
accordance with this Section 2.2.2.
2.3 TERMINATION OF PARTICIPATION. A Nonemployee Director who has become a
Participant shall remain a Participant until his or her entire vested Account
balance is distributed. However, a Nonemployee Director who has become a
Participant may or may not be an active Participant making Compensation
Deferrals for a particular Plan Year, depending upon whether he or she has
elected to make Compensation Deferrals for such Plan Year.
SECTION 3
COMPENSATION DEFERRAL ELECTIONS
3.1 COMPENSATION DEFERRALS. At the times and in the manner prescribed in
Section 2.1, each Nonemployee Director may elect to defer portions of his or her
Compensation and to have the amounts of such deferrals credited to his or her
Account. For each Plan Year, a Nonemployee Director may elect to defer an
amount equal to any percentage or any specific dollar amount of his or her
Compensation, provided that the percentage or dollar amount elected by the
Participant shall result in an expected deferral of not less than $5,000 of his
or her Compensation. Notwithstanding any contrary provision of the Plan, the
Committee may reduce a Participant's Compensation Deferrals to the extent
necessary to satisfy any deductions required by law.
3.2 CREDITING OF COMPENSATION DEFERRALS. The amounts deferred pursuant to
Section 3.1 shall reduce the Participant's Compensation for the Plan Year and
shall be credited to the Participant's Account as of the date on which the
amounts (but for the deferral) otherwise would have been paid to the
Participant. For each Plan Year, the exact dollar amount to be deferred from
each Compensation payment shall be determined by the Committee under such
formulae as it shall adopt from time to time.
3.3 DEEMED INVESTMENT RETURN ON ACCOUNTS. Although no assets will be
segregated or otherwise set aside with respect to a Participant's Account, the
amount that is ultimately payable to the Participant with respect to his or her
Account shall be determined as if such Account had been invested in common stock
of the Company (including reinvestment of any deemed dividends). The Committee,
in its sole discretion, shall adopt (and may modify from time to time) such
rules and procedures as it deems necessary or appropriate to implement the
deemed investment of the Participants' Accounts. However, such procedures may
differ among Participants or classes of Participants, as determined by the
Committee in its discretion.
6
3.4 FORM OF PAYMENT. Each Participant shall indicate on his or her
deferral election (made pursuant to Section 3.1) the form of payment for the
Compensation Deferrals made pursuant to such election. A Participant may elect
(a) a lump sum payment, or (b) a fixed number of annual installment payments
(not to exceed ten). A Participant's election as to the form of payment shall
apply to all amounts credited to the Participant's Account for the Plan Year
with respect to which the election is made, and except to the limited extent
provided in Section 3.6, shall be irrevocable.
3.5 TERM OF DEFERRAL. Each Participant shall indicate on his or her
deferral election made pursuant to Section 3.1 the time for payment for
Compensation Deferrals (and deemed investment returns, gains and losses thereon)
made pursuant to such election. A Participant may elect a term of deferral
equal to any whole number (not less than one) of calendar years specified in his
or her deferral election. In addition, pursuant to such procedures as the
Committee (in its discretion) may adopt from time to time, a Participant may
elect a term of deferral which ends upon the later (or earlier) of the
expiration of a specified period or the occurrence of a specific event (for
example, the later of ten years or termination of service on the Board of
Directors). A Participant's election as to the term of deferral shall apply to
all amounts credited to the Participant's Account for the Plan Year with respect
to which the election is made, and except to the limited extent provided in
Section 3.6, shall be irrevocable.
3.6 CHANGES IN ELECTIONS AS TO TERM AND FORM FOR PAYMENT. A Participant
may change his or her election under Section 3.4 and/or Section 3.5 for amounts
credited to the Participant's Account for any Plan Year, provided that any such
election will be effective only if (a) such election is made at least two Plan
Years prior to the Plan Year in which payment of such amounts is scheduled to
commence (without giving effect to such election), (b) the newly elected
scheduled payment commencement date is not earlier than the second Plan Year
after the Plan Year in which such election is made, and (c) payment of such
amounts has not actually commenced. For example, if a Participant initially
elected to receive his or 1999 Plan Year deferrals in a lump sum to be paid
during the 2003 Plan Year, the Participant instead may elect to receive payment
in the form of ten annual installments commencing during the 2004 Plan Year,
provided that such election is made on or before December 31, 2001. (i.e., not
----
less than two Plan Years prior to the Plan Year in which payment of such amounts
previously was scheduled to commence, and with a newly elected scheduled payment
commencement date which is not earlier than the second Plan Year after the Plan
Year in which such election is made).
SECTION 4
ACCOUNTING
4.1 PARTICIPANTS' ACCOUNTS. For each Plan Year, at the direction of the
Committee, there shall be established and maintained on the books of the
Company, a separate Account or Accounts for each Participant to which shall be
credited all Compensation Deferrals made by the Participant during such Plan
Year, and deemed investment returns, gains and losses on such Compensation
Deferrals.
7
4.2 PARTICIPANTS REMAIN UNSECURED CREDITORS. All amounts credited to a
Participant's Account under the Plan shall continue for all purposes to be a
part of the general assets of the Company. Each Participant's interest in the
Plan shall make him or her only a general, unsecured creditor of the Company.
4.3 ACCOUNTING METHODS. The accounting methods or formulae to be used
under the Plan for the purpose of maintaining the Participants' Accounts,
including the calculation and crediting (or debiting) of deemed returns, gains
and losses, shall be determined by the Committee, in its sole discretion. The
accounting methods or formulae selected by the Committee may be revised from
time to time.
4.4 REPORTS. Each Participant shall be furnished with periodic statements
of his or her Account, reflecting the status of his or her interest in the Plan,
at least annually.
SECTION 5
DISTRIBUTIONS
5.1 NORMAL TIME FOR DISTRIBUTION. Subject to Sections 5.2 through 5.5 and
Section 5.10, distribution of the balance credited to a Participant's Account
shall commence as soon as administratively practicable after the end of the
term(s) of deferral elected by the Participant under Section 3.5, in accordance
with the following rules. If, pursuant to Section 3.4, the Participant elected
to receive annual installment payments, his or her first installment shall be
equal to the balance then credited to his or her Account, divided by the number
of installments to be made. Each subsequent annual installment shall be paid to
the Participant as near as administratively practicable to each anniversary of
the first installment payment. The amount of each subsequent installment shall
be equal to the balance then credited to the Participant's Account, divided by
the number of installments remaining to be made. While a Participant's Account
is in installment payout status, the unpaid balance credited to the
Participant's Account shall continue to be credited (or debited) with deemed
investment returns, gains and losses under Section 3.3.
5.2 CHANGE OF CONTROL. If there is a Change of Control, the balance then
credited to a Participant's Account shall be distributed to him or her in a lump
sum as soon as administratively practicable after the date of the Change of
Control. Deemed investment returns, gains and losses shall be credited (or
debited) prior to any such accelerated distribution in accordance with Section
3.3. The amount of any such accelerated lump sum distribution shall also
include any amount that the Participant deferred but which has not yet been
credited to his or her Account.
5.3 SPECIAL RULE FOR DEATH OR DISABILITY. If a Participant dies or
becomes Disabled, the balance then credited to his or her Account shall be
distributed to the Participant (or his or her Beneficiary) at the time and in
the form elected by the Participant pursuant to Sections 3.4 and 3.5; provided,
however, that the Committee, in its sole discretion, may elect to distribute
such amount in a lump sum as soon as administratively practicable after the date
of death or
8
Disability. In accordance with Section 3.3, deemed investment returns, gains and
losses shall be credited (or debited) prior to any such accelerated
distribution.
5.4 SPECIAL RULE RE DEDUCTIBILITY. Notwithstanding any contrary provision
of Section 5.1, any payment scheduled for a particular Plan Year shall not be
made in such Plan Year to the extent necessary to avoid application of the
deductibility limitation of section 162(m) of the Code. (For this purpose,
deductibility shall be determined by adding such payment to all other
compensation paid by the Company and its Affiliates to the Participant during
the Plan Year.) If, pursuant to the foregoing sentences, any amounts are not
paid when originally scheduled, such amounts shall be paid in the first
subsequent taxable year in which such payments would not be subject to the
deductibility limitation of section 162(m) of the Code. During any such delay
in payment, unpaid amounts shall continue to be credited (or debited) with
deemed investment returns, gains and losses under Section 3.3. Notwithstanding
the foregoing, distribution of a Participant's Account shall be made without
regard to the deductibility limitation of section 162(m) of the Code if the time
for distribution is accelerated pursuant to Section 5.2 or Section 5.3.
5.5 LATEST PERMISSIBLE DISTRIBUTION DATE. Notwithstanding any contrary
provision of this Section 5, any amount which is credited to a Participant's
Account on January 15 of the second calendar year following the year in which
the Participant terminates service on the Board of Directors shall be
distributed to the Participant (or his or her Beneficiary) in a single lump sum
as soon as administratively practicable after such January 15. Any such amount
shall continue to be credited (or debited) with deemed investment returns, gains
and losses until the date of payment. For example, if a Participant terminates
service on the Board of Directors during July 2000, and an amount remains
credited to his or her Account on January 15, 2002 (after application of the
other provisions of Section 5), then such amount (as increased or decreased by
deemed investment returns, gains and losses) shall be distributed to the
Participant (or his or her Beneficiary) in a lump sum as soon as
administratively practicable after January 15, 2002.
5.6 BENEFICIARY DESIGNATIONS. Each Participant may, pursuant to such
procedures as the Committee may specify, designate one or more Beneficiaries.
5.6.1 SPOUSAL CONSENT. If a Participant designates a person other
than or in addition to his or her spouse as a primary Beneficiary, the
designation shall be ineffective unless the Participant's spouse consents to the
designation. Any spousal consent required under this Section 5.6 shall be
ineffective unless it (a) is set forth in writing in a form specified in the
discretion of the Committee, (b) acknowledges the effect of the Participant's
designation of another person as his or her Beneficiary under the Plan, and (c)
is signed by the spouse and witnessed by an authorized agent of the Committee or
a notary public. Notwithstanding this consent requirement, if the Participant
establishes to the satisfaction of the Committee that written spousal consent
may not be obtained because the spouse cannot be located, his or her designation
shall be effective without a spousal consent. Any spousal consent required
under this Section 5.6 shall be valid only with respect to the spouse who signs
the consent. A Participant may revoke his or her Beneficiary designation at any
time, provided that such revocation is in writing.
9
5.6.2 CHANGES AND FAILED DESIGNATIONS. A Participant may designate
different Beneficiaries (or may revoke a prior Beneficiary designation) at any
time by delivering a new designation (or revocation of a prior designation) in
accordance with Section 5.6.1. Any designation or revocation shall be effective
only if it is received by the Committee. However, when so received, the
designation or revocation shall be effective as of the date the notice is
executed (whether or not the Participant still is living), but without prejudice
to the Committee on account of any payment made before the change is recorded.
The last effective designation received by the Committee shall supersede all
prior designations. If a Participant dies without having effectively designated
a Beneficiary, or if no Beneficiary survives the Participant, the Participant's
Account shall be payable to his or her surviving spouse, or, if the Participant
is not survived by his or her spouse, the Account shall be paid to his or her
estate.
5.7 FINANCIAL HARDSHIP. In the event that a Participant incurs a
Financial Hardship, the Committee, in its sole discretion and notwithstanding
any contrary provision of the Plan, may determine that all or part of the
Participant's Account shall be paid to him or her immediately; provided,
however, that the amount paid to the Participant pursuant to this Section 5.7
shall be limited to the amount reasonably necessary to alleviate the
Participant's Financial Hardship. Also, payment under this Section 5.7 may not
be made to the extent that the hardship may be relieved by suspension of the
Participant's Compensation Deferrals in accordance with Section 2.2.
5.8 PAYMENTS TO INCOMPETENTS. If any individual to whom a benefit is
payable under the Plan is a minor or legally incompetent, the Committee shall
determine whether payment shall be made directly to the individual, any person
acting as his or her custodian or legal guardian under the California Uniform
Transfers to Minors Act, his or her legal representative or a near relative, or
directly for his or her support, maintenance or education.
5.9 UNDISTRIBUTABLE ACCOUNTS. Each Participant and (in the event of
death) his or her Beneficiary shall keep the Committee advised of his or her
current address. If the Committee is unable to locate the Participant or
Beneficiary to whom a Participant's Account is payable under this Section 5, the
Participant's Account shall continue to be credited (or debited) with deemed
investment returns, gains and losses in accordance with Section 3.3. Accounts
that, in accordance with the preceding sentence, have been undistributable for a
period of thirty-five months shall be forfeited as of the end of the thirty-
fifth month. If a Participant whose Account was forfeited under this Section
5.9 (or his or her Beneficiary) files a claim for distribution of the Account
after the date on which it was forfeited, and if the Committee determines that
such claim is valid, then the forfeited balance shall be paid by the Company in
a lump sum cash payment as soon as practicable thereafter (without interest or
any deemed investment returns, gains or losses after the date of forfeiture).
5.10 COMMITTEE DISCRETION. Within the specific time periods described in
this Section 5, the Committee shall have sole discretion to determine the
specific timing of the payment of any Account balance under the Plan. In
addition and notwithstanding any contrary provision of the Plan, the Committee,
in its sole discretion, may cause the balance credited to a Participant's
10
Account to be paid to him or her in a lump sum at any time following the
Participant's cessation of service on the Board of Directors.
SECTION 6
PARTICIPANT'S INTEREST IN ACCOUNT
6.1 COMPENSATION DEFERRAL CONTRIBUTIONS. Subject to Sections 8.1
(relating to creditor status) and 9.2 (relating to amendment and/or termination
of the Plan), a Participant's interest in the balance credited to his or her
Account at all times shall be 100% vested and nonforfeitable.
SECTION 7
ADMINISTRATION OF THE PLAN
7.1 COMMITTEE. The Plan shall be administered by the Committee. The
Committee shall have the authority to control and manage the operation and
administration of the Plan. Any member of the Committee may resign at any time
by notice in writing mailed or delivered to the Secretary of the Company.
7.2 ACTIONS BY COMMITTEE. Each decision of a majority of the members of
the Committee then in office shall constitute the final and binding act of the
Committee. The Committee may act with or without a meeting being called or held
and shall keep minutes of all meetings held and a record of all actions taken by
written consent.
7.3 POWERS OF COMMITTEE. The Committee shall have all powers and
discretion necessary or appropriate to supervise the administration of the Plan
and to control its operation in accordance with its terms, including, but not by
way of limitation, the following powers:
(a) to interpret and determine the meaning and validity of the
provisions of the Plan and to determine any question arising under, or
in connection with, the administration, operation or validity of the
Plan or any amendment thereto;
(b) to determine any and all considerations affecting the eligibility
of any Nonemployee Director to become a Participant or remain a
Participant in the Plan;
(c) to cause one or more separate Accounts to be maintained for each
Participant;
(d) to cause Compensation Deferrals and deemed investment returns,
gains and losses to be credited to Participants' Accounts;
(e) to establish and revise a method or procedure for the deemed
investment of Participants' Accounts, as provided in Section 3.3;
11
(f) to establish and revise an accounting method or formula for the
Plan, as provided in Section 4.3;
(g) to determine the manner and form in which any distribution is to
be made under the Plan;
(h) to determine the manner and form for making elections under the
Plan;
(i) to determine the status and rights of Participants and their
spouses, Beneficiaries or estates;
(j) to employ such counsel, agents and advisers, and to obtain such
legal, clerical and other services, as it may deem necessary or
appropriate in carrying out the provisions of the Plan;
(k) to establish, from time to time, rules for the performance of its
powers and duties and for the administration of the Plan;
(l) to arrange for annual distribution to each Participant of a
statement of benefits accrued under the Plan;
(m) to publish a claims and appeal procedure pursuant to which
individuals or estates may claim Plan benefits and appeal denials of
such claims;
(n) to delegate to any one or more of its members or to any other
person, severally or jointly, the authority to perform for and on
behalf of the Committee one or more of the functions of the Committee
under the Plan; and
(o) to decide all issues and questions regarding Account balances, and
the time, form, manner and amount of distributions to Participants.
7.4 DECISIONS OF COMMITTEE. All actions, interpretations, and decisions
of the Committee shall be conclusive and binding on all persons, and shall be
given the maximum possible deference allowed by law.
7.5 ADMINISTRATIVE EXPENSES. All expenses incurred in the administration
of the Plan by the Committee, or otherwise, including legal fees and expenses,
shall be paid and borne by the Company.
7.6 ELIGIBILITY TO PARTICIPATE. No member of the Committee who is also a
Nonemployee Director shall be excluded from participating in the Plan if
otherwise eligible, but he or she shall not be entitled, as a member of the
Committee, to act or pass upon any matters pertaining specifically to his or her
own Account under the Plan.
12
7.7 INDEMNIFICATION. The Company shall, and hereby does, indemnify and
hold harmless the members of the Committee, from and against any and all losses,
claims, damages or liabilities (including attorneys' fees and amounts paid, with
the approval of the Board of Directors, in settlement of any claim) arising out
of or resulting from the implementation of a duty, act or decision with respect
to the Plan, so long as such duty, act or decision does not involve gross
negligence or willful misconduct on the part of any such individual.
SECTION 8
FUNDING
8.1 UNFUNDED PLAN. All amounts credited to a Participant's Account under
the Plan shall continue for all purposes to be a part of the general assets of
the Company. The interest of the Participant in his or her Account, including
his or her right to distribution thereof, shall be an unsecured claim against
the general assets of the Company. Nothing contained in the Plan shall give any
Participant or beneficiary any interest in or claim against any specific assets
of the Company.
SECTION 9
MODIFICATION OR TERMINATION OF PLAN
9.1 COMPANY'S OBLIGATION IS LIMITED. The Company intends to continue the
Plan indefinitely, and to maintain each Participant's Account until it is
scheduled to be paid to him or her in accordance with the provisions of the
Plan. However, the Plan is voluntary on the part of the Company, and the
Company does not guarantee to continue the Plan. The Company at any time may,
by amendment of the Plan, suspend Compensation Deferrals or may discontinue
Compensation Deferrals, with or without cause. Complete discontinuance of all
Compensation Deferrals shall be deemed a termination of the Plan.
9.2 RIGHT TO AMEND OR TERMINATE. The Board of Directors, in its sole
discretion, may amend or terminate the Plan, or any part thereof, at any time
and for any reason, provided that no amendment or termination of the Plan shall,
without the consent of the Participant, reduce the balance then credited to the
Participant's Account.
9.3 EFFECT OF TERMINATION. If the Plan is terminated pursuant to this
Section 9, the balances credited to the Accounts of the affected Participants
shall be distributed to them at the time and in the manner set forth in Section
5; provided, however, that the Committee, in its sole discretion, may authorize
accelerated distribution of Participants' Accounts as of any earlier date.
SECTION 10
GENERAL PROVISIONS
10.1 INALIENABILITY. In no event may any Participant, Beneficiary, spouse
or estate sell, transfer, anticipate, assign, hypothecate, or otherwise dispose
of any right or interest under the Plan; and such rights and interests shall not
at any time be subject to the claims of creditors
13
nor be liable to attachment, execution or other legal process. Accordingly, for
example, a Participant's interest in the Plan is not transferable pursuant to a
domestic relations order.
10.2 RIGHTS AND DUTIES. Neither the Company nor the Committee shall be
subject to any liability or duty under the Plan except as expressly provided in
the Plan, or for any action taken, omitted or suffered in good faith.
10.3 NO ENLARGEMENT OF RIGHTS. Neither the establishment or maintenance of
the Plan, the making of any Compensation Deferrals nor any action of the Company
or the Committee, shall be held or construed to confer upon any individual any
right to be continue as a member of the Board of Directors.
10.4 COMPLIANCE WITH RULE 16B-3. All transactions under the Plan are
intended to be exempt from liability under section 16(b) of the Securities
Exchange Act of 1934, as amended ("section 16(b)"). To the extent deemed
necessary or advisable by the Committee, any election, payment, distribution or
other transaction by or on behalf of any Nonemployee Director may be canceled or
delayed in order to ensure that such payment will not result in any liability
under section 16(b) to such individual.
10.5 COMPENSATION DEFERRALS NOT COUNTED UNDER OTHER EMPLOYEE BENEFIT PLANS.
Compensation Deferrals under the Plan will not be considered for purposes of
contributions or benefits under any other employee benefit plan sponsored by the
Company or any Affiliate, except to the extent specifically provided in any such
plan.
10.6 APPLICABLE LAW. The provisions of the Plan shall be construed,
administered and enforced in accordance with the laws of the State of California
(other than its conflict of laws provisions).
10.7 SEVERABILITY. If any provision of the Plan is held invalid or
unenforceable, its invalidity or unenforceability shall not affect any other
provisions of the Plan, and in lieu of each provision which is held invalid or
unenforceable, there shall be added as part of the Plan a provision that shall
be as similar in terms to such invalid or unenforceable provision as may be
possible and be valid, legal, and enforceable.
14
10.8 CAPTIONS. The captions contained in and the table of contents
prefixed to the Plan are inserted only as a matter of convenience and for
reference and in no way define, limit, enlarge or describe the scope or intent
of the Plan nor in any way shall affect the construction of any provision of the
Plan.
EXECUTION
IN WITNESS WHEREOF, The PMI Group, Inc., by its duly authorized officer,
has executed the Plan on the date indicated below.
THE PMI GROUP, INC.
/s/ CHARLES BROOM
- ---------------------------------------
By: Charles Broom
Title: Assist. VP, Human Resources
Date: July 28, 1998
--------
15