Exhibit 10.12 Amended and Restated Deferred Compensation Plan
Merit Medical Systems, Inc.
DEFERRED COMPENSATION PLAN
Amended and Restated
Effective January 1, 2004
Article I
Establishment and Purpose............................................Page 3
Article II
Definitions..........................................................Page 3
Article III
Eligibility and Participation........................................Page 9
Article IV
Deferral Elections, Company Contributions, Account Valuation.........Page 9
Article V
Distributions and Withdrawals.......................................Page 15
Article VI
Administration......................................................Page 17
Article VII
Amendment and Termination...........................................Page 19
Article VIII
Informal Funding....................................................Page 20
Article IX
Claims..............................................................Page 20
Article X
General Conditions.....................................................Page 22
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ARTICLE I
COMBINATION OF PLANS AND PURPOSE
Merit Medical Systems, Inc. (the "Company") hereby combines, amends and restates
the Merit Medical Systems, Inc. Highly Compensated Deferred Compensation Plan
and the Merit Medical Systems, Inc. Select Highly Compensated Deferred
Compensation Plan (collectively the "Predecessor Plans") into a single plan, the
Merit Medical Systems, Inc. Deferred Compensation Plan (the "Plan"), and,
further, hereby amends and restates the aforementioned Predecessor Plans as
follows, effective January 1, 2004(the "Effective Date"). The purpose of the
Plan remains the same as it was in the previous plans: to provide each
participant with an opportunity to defer receipt of a portion of his or her
salary, bonus, and other specified cash compensation that is designated as
deferrable by the Plan Administrator. The purpose of the amendment and
restatement is to add certain flexibility and additional features to the Plan.
The amended and restated Plan is not intended to meet the qualification
requirements of Section 401(a) of the Internal Revenue Code, but is intended to
be an unfunded arrangement providing deferred compensation to eligible employees
who are part of a select group of management or highly compensated employees of
the Company and other Participating Employers within the meaning of Sections
201, 301 and 401 of ERISA. The amended and rested Plan is intended to be exempt
from the requirements of Parts 2, 3 and 4 of Title I of ERISA as a "top hat"
plan, and to be eligible for the alternative method of compliance for reporting
and disclosure available for unfunded "top hat" plans.
ARTICLE II
Definitions
2.1 Account Balance. Account Balance means, with respect to the Deferred
Compensation Account or a Sub-Account, the total value of all the
Investment Options in which the Participant deferrals, and Company
Contributions, have been Deemed Invested as of a specific date, taking
into account the value of all distributions from that Account or
Sub-Account to the specific date.
2.2 Allocation Election. Allocation Election means a choice by a
Participant of one or more Investment Options, and the allocation among
them, in which future Participant deferrals and/or existing Account
Balances are Deemed Invested for purposes of determining earnings in a
particular Sub-Account.
2.3 Allocation Election Form. Allocation Election Form means the form (or
Website screen) approved by the Plan Administrator on which the
Participant makes an Allocation Election, Rebalances the Deemed
Investment of a Sub-Account, or elects a Transfer.
2.4 Annual Valuation Date. Annual Valuation Date shall mean the anniversary
of the Termination Valuation Date or In Service Distribution Valuation
Date utilized to determine the amount of an annual installment payment.
2.5 Beneficiary. Beneficiary means a natural person, estate, or trust
designated by a Participant on the form designated by the Plan
Administrator to receive benefits to which a Beneficiary is entitled
under and in accordance with provisions of the Plan. The Participant's
estate shall be the Beneficiary if:
a. the Participant has not designated a natural person or trust as
Beneficiary, or
b. the designated Beneficiary has predeceased the Participant.
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2.6 Change in Control. Change in Control means the occurrence of: (a) any
merger or consolidation in which the Company is not the surviving
corporation and which results in the holders of the outstanding voting
securities of the Company (determined immediately prior to such merger
or consolidation) owning less than a majority of the outstanding voting
securities of the surviving corporation (determined immediately
following such merger or consolidation), (b) any sale or transfer by
the Company of all or substantially all of its assets, other than to
another entity in which the holders of the outstanding voting
securities of the Company (determined immediately prior to such
transfer or sale) continue to own a majority of the outstanding voting
securities immediately after the transfer or sale, or (c) any tender
offer or exchange offer for or the acquisition, directly or indirectly,
by any person or group of all or a majority of the then-outstanding
voting securities of the Company.
2.7 Chief Executive Officer. Chief Executive Officer means Chief Executive
Officer of the Company.
2.8 Code. Code means the Internal Revenue Code of 1986, as amended from
time to time.
2.9 Company. Company means Merit Medical Systems, Inc.
2.10 Company Contributions. Company Contributions shall mean all Company
Discretionary Contributions, if any, made with respect to a
Participant.
2.11 Company Discretionary Contributions. Company Discretionary
Contributions shall mean credits to a Participant's
Retirement/Termination Sub-Account by the Company or a Participating
Employer at a time and in an amount determined in the sole discretion
of the Company.
2.12 Compensation. Compensation shall mean, for purposes of this Plan, the
following items paid or payable by the Company or a Participating
Employer to a Participant: base salary (including any deferred salary
under a Code Section 401(k) or 125 plan), annual bonus, quarterly
bonus, commissions, and such other cash compensation (if any) as the
Plan Administrator designates as Compensation eligible for deferral
under this Plan.
2.13 Compensation Deferral Agreement. Compensation Deferral Agreement shall
mean the deferral election form, or such other form(s) furnished by the
Plan Administrator (or screens on the Participant Website approved by
the Plan Administrator), on which a Participant elects: (a) the amount
of deferral and type of Compensation (base salary, bonus, etc.) to be
deferred beginning the first day of the following Plan Year; (b) any In
Service Distribution Dates for that year's, or a portion of that
year's, deferrals (thus effectively designating the In Service
Sub-Accounts to which such deferrals will be allocated); and (c) the
form of payment elections for Termination Benefits and In Service
Distributions. The Allocation Election Form may be part of the
Compensation Deferral Agreement, in the discretion of the Plan
Administrator.
2.14 Death Benefit. Death Benefit shall mean a distribution of the total
amount of the Participant's Deferred Compensation Account Balance,
including any remaining unpaid In Service Sub-Account balances, to the
Participant's Beneficiary(ies) in accordance with Article V of the
Plan.
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2.15 Deemed Investment. A Deemed Investment (or "Deemed Invested") shall
mean the notional conversion of a dollar amount of deferred
Compensation and Company Contributions credited to a Participant's
Deferred Compensation Account into hypothetical shares or units (or a
fraction of such measures of ownership, if applicable) of the
underlying investment (e.g. mutual fund or other investment) which is
referred to by the Investment Option(s) selected by the Participant.
The conversion shall occur as if shares (or units) of the designated
investment were being purchased (or sold, for a distribution) at the
purchase price as of the close of business of the day on which the
Deemed Investment occurs. At no time shall a Participant have any real
or beneficial ownership in the actual investment to which the
Investment Option refers, irrespective of whether such a Deemed
Investment is mirrored by an actual identical investment by the Company
or a trustee acting on behalf of the Company.
2.16 Deferred Compensation Account ("Account"). A Participant's Deferred
Compensation Account shall mean the aggregate of all Sub-Accounts
maintained for Participant deferrals and Company Contributions,
together with a record of Deemed Investments in accordance with
Participants' Allocation Elections, minus any withdrawals or
distributions from said Account. The Account, and all component
Sub-Accounts, shall be a bookkeeping account utilized solely as a
device for the measurement of amounts to be paid to the Participant
under the Plan. The Account, and all Sub-Accounts, shall not constitute
or be treated as an escrow, trust fund, or any other type of funded
account for Code or ERISA purposes and, moreover, amounts credited
thereto shall not be considered "plan assets" for ERISA purposes.
2.17 Deferred Compensation Committee or "Committee". Deferred Compensation
Committee, or "Committee" means a committee of at least three (3)
officers of the Company appointed by the Chief Executive Officer, who
shall serve until the earlier of termination of service or appointment
of a replacement by the Chief Executive Officer.
2.18 Disability. Disability means "permanent disability" of a Participant
within the meaning of the provisions of the Qualified Plan in effect on
the Effective Date.
2.19 Eligibility Period. Eligibility Period means the 12-month period that
begins October 1 and ends September 30 prior to the commencement of the
Plan Year for which eligibility is being determined.
2.20 Eligible Employee. Eligible Employee means an Employee who is part of a
select group of management or highly compensated employees of the
Company or another Participating Employer within the meaning of
Sections 201, 301 and 401 of ERISA, who satisfies the eligibility
criteria in Section 3.1, and who is designated in writing by the
Committee as eligible to participate in the Plan.
2.21 Employee. Employee means a full-time salaried employee of the Company
or a Participating Employer.
2.22 Employer. Employer means the Company and Participating Employers. As to
any Participant, the Employer is the entity or entities that employ or
employed the Participant.
2.23 ERISA. ERISA means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
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2.24 In Service Distribution. In Service Distribution shall mean a payment
to the Participant following a date elected by the Participant (the In
Service Distribution Date) of the amount represented by the account
balance in the In Service Sub-Account pertaining to that In Service
Distribution. In Service Distributions shall be made in accordance with
Participants' In Service Distribution form of payment election.
2.25 In Service Sub-Account. In Service Sub-Account shall mean a separate
Sub-Account of the Deferred Compensation Account, created whenever a
Participant elects a new In Service Distribution Date (not already
established with a Sub-Account) with respect to a portion, or all, of
his or her deferral contributions, to which such portion of the
deferral contributions specified by the Participant is credited and
Deemed Invested in accordance with the Participant's Allocation
Election.
2.26 In Service Distribution Date. In Service Distribution Date shall mean
the date selected by the Participant, following which the In Service
Distribution Sub-Account Balance shall be distributed in accordance
with the Plan
2.27 In Service Distribution Valuation Date. In Service Distribution
Valuation Date shall mean the last day of the calendar month in which
the In Service Distribution Date falls.
2.28 Investment Option. Investment Option shall mean a security or other
investment such as a mutual fund, life insurance sub-account, or other
investment approved by the Committee for use as part of an Investment
Option menu, which a Participant may elect as a measuring device to
determine Deemed Investment earnings (positive or negative) to be
credited (if positive) or charged against (if negative) the
Participant's Account or Sub-Account. The Participant has no real or
beneficial ownership in the security or other investment represented by
the Investment Option.
2.29 Participant. Participant means an Eligible Employee who: (a) is
selected to participate in this Plan in accordance with Section 3.1 and
has elected to defer Compensation in accordance with the Plan in any
Plan Year; (b) has received a Company Discretionary Contribution; or
(c) has an Account Balance in his or her Deferred Compensation Account,
including any Sub-Account, greater than zero prior to his or her death.
A Participant's continued participation in the Plan shall be governed
by Section 3.2 of the Plan.
2.30 Participating Employer. Participating Employer means a subsidiary or
affiliate of the Company that (a) is a member of the same commonly
controlled group of corporations or trades or businesses (within the
meaning of Code Section 414(b) and (c)) as is the Company (b)
participates as a co-sponsoring employer in a Company Qualified Plan,
and (c) has adopted the Plan with the consent of the Committee. As of
the Effective Date, Merit Services, Inc. and Merit Sensor Systems, Inc.
are Participating Employers. The Committee may remove any subsidiary or
affiliate of the Company as a Participating Employer at any time
effective upon written notice to that subsidiary or affiliate.
2.31 Plan. Plan means the Merit Medical Systems, Inc. Deferred Compensation
Plan as documented herein and as may be amended from time to time
hereafter.
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2.32 Plan Administrator. Plan Administrator shall mean a person or persons
appointed by the Deferred Compensation Committee who is (are)
responsible for the day-to-day decision making, record keeping, and
administration of the Plan; provided, that the Plan Administrator may
delegate duties of the Plan Administrator to employees or others to
assist in the administration of the Plan.
2.33 Plan Year. Plan Year means January 1 through December 31 each year.
2.34 Qualified Plan. Qualified Plan means the Merit Medical Systems, Inc.
401(k) Profit Sharing Plan or any successor retirement plan(s)
maintained by the Company that is intended to qualify under Section 401
of the Code.
2.35 Rabbi Trust. Rabbi Trust means a trust established under Section 8.2(b)
below, if any.
2.36 Rebalance. Rebalance means an Allocation Election which pertains to a
Participant's then existing Sub-Account and which reallocates the
Sub-Account Balance among Investment Options available in the Plan.
2.37 Retirement/Termination Benefit. Retirement/Termination Benefit shall
mean a distribution of the Participant's Deferred Compensation Account
Balance, including all unpaid In Service Sub-Account balances, to the
Participant (or Beneficiary) as specified in Section 5.2 of the Plan.
2.38 Retirement/Termination Sub-Account. Retirement/Termination Sub-Account
shall mean that portion of the Deferred Compensation Account not
allocated to In Service Sub-Accounts.
2.39 Sub-Account. Sub-Account shall mean a portion of the Deferred
Compensation Account maintained separately by the Plan Administrator in
order to properly administer the Plan.
2.40 Termination of Employment. Termination of Employment shall mean the
termination of a Participant's employment with his or her Employer,
voluntarily or involuntarily for any reason;provided, however, that a
transfer of employment between the Company and another Participating
Employer or between two Participating Employers shall not be deemed to
be a Termination of Employment. In the event that a subsidiary or
affiliate of the Company that is a Participating Employer subsequently
ceases for any reason to be a Participating Employer, then effective as
of the date of such cessation all Participants then employed by that
entity shall be deemed to have terminated employment.
2.41 Termination Valuation Date. Termination Valuation Date shall mean the
last day of the calendar month in which Termination of Employment
occurs.
2.42 Transfer. Transfer means a partial Allocation Election with respect to
a Participant's then existing Sub-Account where a Participant transfers
a portion of the Sub-Account balance from one Investment Option to
another.
2.43 Years of Service. Years of Service mean years of service as determined
for vesting purposes under the provisions of the Qualified Plan as in
effect on the Effective Date (i.e., 1,000 or more hours of service in a
calendar year), including any Years of Service with a predecessor
employer to the extent credited under the Qualified Plan.
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ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 Eligibility and Participation. Except as provided in Section 3.2 below,
each Employee who satisfies both of the criteria set forth in
subsections 3.1(a) and (b) below during an Eligibility Period shall be
an Eligible Employee with respect to the first Plan Year commencing
after that Eligibility Period. No other Employee may become a
Participant or otherwise defer Compensation under the Plan.
(a) To be eligible an Employee must have the following position and
title:
(1) Chief Executive Officer; or
(2) Chief Financial Officer; or
(3) Champion Circle Sales Representative; or
(4) Chief Information Officer; or
(5) Controller--Staff; or
(6) Chief Operating Officer; or
(7) General Counsel; or
(8) Director; or
(9) Executive Vice President; or
(10) Founder; or
(11) General Manager--Staff; or
(12) National Accounts/Packer Sales Manager; or
(13) National Sales Manager; or
(14) President; or
(15) Regional Sales Manager; or
(16) Site Controller; or
(17) Site General Manager; or
(18) Site President; or
(19) Vice President; or
(20) Such other positions as permit the Employee to influence
executive management with respect to company policy, particularly
regarding the amount and form of their remuneration for services,
as determined by the Committee in its discretion; and
(b) To be eligible, an Employee must receive Compensation for the
Eligibility Period (i) in excess of that required for "highly
compensated employee" status under Code Section 414 with respect
to tax-qualified retirement plans, determined as if the
Eligibility Period were the applicable qualified Plan Year and as
if highly compensated employee status were based on compensation
for that Plan Year; (ii) sufficient to place such Employee in the
highest six percent (6%) of the Employers' payroll for that
Eligibility Period; and (iii) greater than 250 percent of the
average (mean) Compensation of all Employees during the
Eligibility Period.
3.2 Duration. Once an Eligible Employee becomes a Participant, such
Employee shall continue to be a Participant so long as he or she is
entitled to receive benefits hereunder, notwithstanding any subsequent
Termination of Employment or other cessation of Eligible Employee
status. The foregoing sentence notwithstanding, an Eligible Employee
who fails to qualify during any Eligibility Period after having once
qualified, will continue to be a Participant in the Plan with respect
to his or her Account Balances, but will not be permitted to defer
Compensation during the first Plan Year commencing after the end of the
Eligibility Period during which he or she failed to qualify. Failure to
qualify for three (3) consecutive Eligibility Periods, once having
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qualified as an Eligible Employee, will be considered grounds for
termination from the Plan, in the sole discretion of the Committee. In
such instance, a terminated Participant will receive a single lump sum
payment of the vested portion of his or her Deferred Compensation
Account (including all In Service Sub-Accounts), and will not be
considered an Eligible Employee until the close of the first
Eligibility Period after he or she again satisfies the eligibility
criteria.
3.3 Revocation of Future Participation. Notwithstanding the provisions of
Section 3.2, the Committee may revoke a Participant's eligibility to
make future deferrals under this Plan at any time for any other reason,
in its sole discretion. Such revocation will not affect in any manner a
Participant's Deferred Compensation Account or other terms of this
Plan.
3.4 Notification. Each newly Eligible Employee shall be notified by the
Plan Administrator, in writing, of his or her eligibility to
participate in this Plan.
ARTICLE IV
DEFERRAL ELECTIONS, COMPANY CONTRIBUTIONS, AND PARTICIPANT ACCOUNT VALUATION
4.1 Deferral Elections, generally
(a) A Participant shall make a "Deferral Election" under the Plan by
completing and submitting to the Plan Administrator a written
Compensation Deferral Agreement provided by the Plan Administrator
(or completing and electronically submitting the deferral election
screen on the Participant website, when made available by the Plan
Administrator). Deferral Elections shall be made during an annual
enrollment period established by the Plan Administrator which
shall end no later than December 1 preceding the Plan Year to
which the Deferral Election relates, unless the enrollment period
is extended by the Plan Administrator because of extraordinary
circumstances. In no event may an enrollment period be extended
beyond the last day of the month prior to the beginning of the
Plan Year to which the Deferral Elections refer. Other cash
Compensation Deferral Elections (if any are permitted by the
Committee) shall be made prior to the time such amounts have been
earned, during special enrollment periods announced by the Plan
Administrator. The foregoing portions of Article III
notwithstanding, an Employee who becomes an Eligible Employee
during any Plan Year will not be eligible to participate in the
Plan until the following the Plan Year. No Deferral Election, or
modification or revocation of a prior Deferral Election shall be
effective unless the Participant properly completes, executes and
timely submits to the Plan Administrator or its designated agent a
Compensation Deferral Agreement (or other form or available
website screen approved by the Plan Administrator) containing that
election. Any provision herein to the contrary notwithstanding, if
a Participant receives a "hardship" distribution from the
Qualified Plan, the Participant's elective deferrals hereunder
shall be suspended for the period required under the Qualified
Plan and the applicable Treasury Regulations relating to hardship
distributions from qualified plans.
(b) Deferral Elections shall pertain to a single Plan Year.
Participants must make a new Deferral Election each year in order
to defer Compensation during the following Plan Year. If no
Deferral Election is received from a Participant during an
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enrollment period, or if the Deferral Election received by the
Plan Administrator is invalid and the discrepancy is not rectified
prior to the end of the enrollment period, then no deferrals of
Compensation will be permitted for such Participant during the
Plan Year following the enrollment period.
(c) A Deferral Election shall designate in his or her Compensation
Deferral Agreement (or on the appropriate Website screen, when
available) the types and amounts of Compensation to be deferred in
each Plan Year to which the Deferral Election relates. Such
designation may be expressed in whole percentages of the type of
Compensation in question or in flat dollar amounts. A Participant
may defer up to 100% of his or her Compensation to be paid during
the Plan Year to which the election refers. The foregoing sentence
notwithstanding, the Plan Administrator may establish a maximum
deferral dollar amount for each Plan Year; such maximum, if any,
will be set forth on the Compensation Deferral Agreement. A
Participant may elect different percentages or amounts to be
deferred from salary, commissions, annual bonus and quarterly
bonus.
(d) Deferral Elections shall be made during the enrollment period
immediately preceding the Plan Year during which the Compensation
will be paid.
(e) The foregoing portions of this Article IV notwithstanding, in the
event a Participant's Deferral Election results in insufficient
non-deferred Compensation from which to withhold taxes, Qualified
Plan contributions, Code Section 125 salary reduction
contributions or other amounts that the Employer is obligated to
withhold in accordance with applicable law, the Deferral Election
shall be reduced as necessary to allow the Company to satisfy tax
withholding requirements.
(f) Deferrals pertaining to base salary and/or commissions shall be
deducted on a pro rata basis from a Participant's base salary
and/or commissions for each pay period during the Plan Year, and
the amount deferred shall be credited to the Participant's
Retirement/Termination Sub-Account or In Service Sub-Account(s),
and a Deemed Investment shall be made in the investment(s)
represented by the Investment Option(s) elected by the Participant
as of the close of business on the date it would otherwise have
been paid as Compensation to the Participant. Deferrals pertaining
to bonus awards shall be deducted from the Participant's bonus on
the date of payment of the bonus, and the amount deferred shall be
credited to the Participant's Termination Sub-Account or In
Service Sub-Account(s), and a Deemed Investment shall be made in
the investment(s) represented by the Investment Option(s) elected
by the Participant as of the close of business on the date it
would otherwise have been paid as Compensation to the Participant.
(g) The Compensation Deferral Agreement shall indicate the
Participant's election of a payment schedule for his or her
Retirement/Termination Benefit. A Participant shall elect to have
such Retirement/Termination Benefit distributed: (i) a portion, or
all, in a single lump sum payable as soon as administratively
practicable following the Termination Valuation Date; and/or (ii)
the balance (assuming it is at least $25,000) in up to fifteen
(15) annual or up to 60 quarterly installment payments payable at
the time described in Section 5.3. An election of a payment
schedule for a Participant's Retirement/Termination Benefit shall
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pertain to the entire Retirement/Termination Sub-Account Balance
(including unpaid In Service Sub-Account Balances). A Participant
shall be permitted to change his or her payment schedule election
at any time by filing a new Compensation Deferral Agreement (or by
following such procedures as are set by the Plan Administrator
regarding using the Participant website, when available), provided
such election is made at least thirteen (13) months prior to the
Participant's date of Termination of Employment. Any payment
schedule election made within thirteen months of Termination of
Employment shall be null and void, and the most recent payment
schedule election which is dated at least thirteen months prior to
Termination of Employment will be in effect.
4.2 In Service Distribution Date Election.
(a) The Compensation Deferral Agreement shall also indicate the
Participant's election of In Service Distribution Date(s) (if
any). An In Service Distribution election shall pertain to such
portion of deferred Compensation for the Plan Year as elected by
the Participant and shall cause an In Service Sub-Account to be
established (unless such Sub-Account already exists), to which
such portion of deferred Compensation shall be credited. In the
event an In Service Sub-Account has already been established for
the In Service Distribution Date referred to in the deferral
election, such portion of deferred Compensation shall be credited
to the existing In Service Sub-Account.
(b) A Participant may elect to establish up to five (5) In Service
Sub-Accounts.
(c) A Participant may change or cancel an In Service Distribution Date
twice only, as follows:
(i) An In Service Distribution Date change (including a
cancellation) may be made by completing, executing and
submitting to the Plan Administrator a new Compensation
Deferral Agreement or such other form as may be provided
for In Service Distribution Date changes by the Plan
Administrator (or completing and electronically submitting
the appropriate screen on the Participant website, when
available) at any time, so long as the date that such form
is submitted to the Plan Administrator is at least
thirteen (13) months prior to the In Service Distribution
Date being changed and (except in the case of a
cancellation) results in a postponement of the In Service
Distribution Date by at least one year ; and
(ii) The In Service Distribution Date may be extended to a
subsequent year (and must be extended by at least one
year), but it may not be made to occur sooner than the
original date.
(iii) Notwithstanding the foregoing, an In Service Distribution
Date may be cancelled, even after one or two prior
changes. A cancellation of an In Service Distribution Date
shall cause the In Service Sub-Account associated with it
to be merged into the Retirement/Termination Sub-Account.
(iv) Making an In Service Distribution Date change or
cancellation in accordance with the Plan is specific to
the In Service Distribution to which it refers, and shall
not affect other In Service Distributions or the ability
of the Participant to make new In Service Distribution
elections with respect to new deferral contributions. 10
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(d) Any portion of a deferral not credited to an In Service
Distribution Sub-Account will be credited to the
Retirement/Termination Sub-Account.
(e) The Compensation Deferral Agreement shall also indicate the
Participant's election of payment schedule for each In Service
Distribution Date. Permitted payment schedules for In Service
Distributions are a single lump sum or (assuming the In Service
Distribution Sub-Account Balance is at least $5,000) up to five
(5) annual or twenty (20) quarterly installment payments. A
Participant shall be permitted to change his or her payment
schedule election for an In Service Distribution at any time by
completing, executing and filing with the Plan Administrator a new
Compensation Deferral Agreement (or by following such procedures
as are set by the Plan Administrator regarding using the
Participant website, when available), provided such election is
made at least thirteen (13) months prior to the In Service
Distribution Date.
4.3 Company Contributions and Vesting
(a) Company Discretionary Contributions. The Company may make Company
Discretionary Contributions to one, some, all or no Participant(s)
by crediting to said Participants' Retirement/Termination
Sub-Accounts effective at such times as the and in such amounts as
the Company determines in its sole and absolute discretion. The
Company shall be under no obligation to make Company Discretionary
Contributions unless the Company expressly obligates itself to do
so under a written agreement. Company Discretionary Contributions
and Deemed Investment earnings thereon shall be subject to a
vesting schedule set forth in (d) hereinbelow. The Company shall
have no obligation to treat Participants in an equivalent or
similar manner with respect to Company Discretionary
Contributions, or to be consistent from year to year with respect
to Company Discretionary Contributions.
(b) Deemed Investments shall be made in the same manner as for
deferrals (Section 4.1 of the Plan) on the date the Company
Matching Contribution is credited to the Participant's Termination
Benefit Sub-Account.
(c) The Company shall establish a vesting schedule for each Company
Discretionary Contribution, which shall be reduced to writing and
provided to Participants who receive the Company Discretionary
Contribution either at the time the Company Discretionary
Contribution is made or, in the case of Company Discretionary
Contributions that "match" Participant deferral amounts (in any
percentage), prior to the enrollment period during which
Participants will make Deferral Elections that will be subject to
the "match". If the Company fails to provide a written vesting
schedule in accordance herewith, then the Company Discretionary
Contribution will be 100% vested when made.
4.4 Allocation Elections and Valuation of Accounts
(a) A Participant shall elect Investment Options from a menu provided
by the Plan Administrator. The initial election shall be made on
the Allocation Election form approved by the Plan Administrator
(or Allocation Election Screen on the Participant website approved
by the Plan Administrator) and shall specify the allocations among
the Investment Options elected. A Participant may make different
Allocation Elections for each Sub-Account. As of any date, a
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Participant's Sub-Accounts shall be valued as the sum of the value
of all Deemed Investments on that date (or if that date is not a
business day as of which publicly traded Investment Options can be
readily valued, the most recent day preceding that date as of
which the publicly traded Investment Options can be readily
valued) after subtracting any prior withdrawals or distributions
from said Sub-Account. Investment Options shall be utilized to
determine the earnings attributable to the sub-account. Elections
of Investment Options do not represent actual ownership of, or any
ownership rights in or to, the securities or other investments to
which the Investment Options refer, nor is the Company in any way
bound or directed to make actual investments corresponding to
Deemed Investments.
(b) The Committee, in its sole discretion, shall be permitted to add
or remove Investment Options provided that any such additions or
removals of Investment Options shall not be effective with respect
to any period prior to the effective date of such change. Any
unallocated portion of a Sub-Account or any unallocated portion of
new deferrals shall be Deemed Invested in an Investment Option
referring to a money market based fund or sub-account.
(c) A Participant may make a new Allocation Election with respect to
future deferrals, and may Rebalance or Transfer funds in any of
his or her Sub- Accounts, by completing, executing and submitting
to the Plan Administrator an amended Allocation Election Form (or
by accessing the website when available), provided that such new
allocations, Rebalances or Transfers shall be in increments of one
percent (1%), and Rebalances and Transfers apply to the entire
Sub-Account Balance. New Allocation Elections, Rebalances, and
Transfers may be made on any business day, and will become
effective on the same business day or, in the case of Allocation
Elections received after a cut-off time established by the Plan
Administrator, the following business day.
(d) Notwithstanding anything in this Section to the contrary, the
Company shall have the sole and exclusive authority to invest any
or all amounts deferred in any manner, regardless of any
Allocation Elections by any Participant. A Participant's
Allocation Election shall be used solely for purposes of
determining the value of such Participant's Sub-Accounts and the
amount of the corresponding liability of the Company in accordance
with this Plan.
4.5 Prohibition Against Modifications to Deferral Elections. A Participant
may not modify a Compensation Deferral Agreement or deferral election
during a Plan Year. The foregoing notwithstanding, The Committee, in
its sole discretion, may permit a Participant, who petitions the
Committee in writing, to revoke a Compensation Deferral Agreement for
the balance of the Plan Year. If a revocation is permitted, such
Participant may not defer Compensation into the Plan for the balance of
the Plan Year in which the revocation occurred.
ARTICLE V
DISTRIBUTIONS AND WITHDRAWALS
The Employer shall pay directly, or may cause a Rabbi Trust established under
Section 8.2(b) below to pay, to each Participant that is or was at any time
after the Effective Date employed by such Employer (or, if any such Participant
is deceased, to that Participant's Beneficiaries), deferred compensation equal
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to the vested portion of the Participant's Deferred Compensation Account in
accordance with the terms of this Plan and the Participant's applicable
Compensation Deferral Agreements. All payments shall be reduced by applicable
withholding taxes as determined by the Plan Administrator in its sole
discretion. In the case of a Participant who has been employed by more than one
Employer, either concurrently or sequentially, the Plan Administrator may adopt
reasonable rules for apportioning primary responsibility for such payments among
those Employers. The Company shall pay any amounts due under the Plan which
another Participating Employer is required, but fails, to pay. In such case, the
Company shall have a right to contribution and reimbursement from that
Participating Employer for the amount so paid.
5.1 In Service Distributions.
(a) In the event an In Service Distribution Sub-Account Balance shall
be less than $5,000 on the initial In Service Distribution
Valuation Date applicable to that Sub-Account, the Employer shall
pay, or cause a Rabbi Trust pay, to the Participant the amount of
such In Service Distribution Sub-Account Balance in a single lump
sum as soon as administratively practicable following the In
Service Distribution Valuation Date. Otherwise, the Employer shall
pay or cause a Rabbi Trust to pay each In Service Distribution in
accordance with the Participant's payment schedule election made
with respect thereto (either a lump sum, in annual or quarterly
installments, or in a combination of a partial lump sum and annual
or quarterly installments, as the Participant has properly
elected), beginning as soon as administratively practicable
following the applicable In Service Distribution Valuation Date.
In the event a Participant has properly elected installment
payments for an In Service Distribution, the installment payments
shall be determined as set forth in Section 5.3 of the Plan. In
the absence of an effective election of installment payments, the
Employer shall pay, or cause a Rabbi Trust to pay, In Service
Distribution Sub-Account Balances in a lump sum.
(b) Notwithstanding a Participant's election to receive an In Service
Distribution, all In Service Distribution Sub-Account Balances
shall be distributable as part of a Retirement/Termination or
Death Benefit if the triggering date for such
Retirement/Termination or Death Benefit occurs prior to the
completion of payment(s) elected in connection with any In Service
Distribution Date.
5.2 Retirement/Termination Benefit Distribution. The Retirement/Termination
Benefit shall be paid in accordance with the Participant's payment
schedule election made with respect thereto (either in a single lump
sum, in annual or quarterly installments or in a partial lump sum with
subsequent annual or quarterly installments, as the Participant has
properly elected), beginning within ninety (90) days of the Termination
Valuation Date. In the event a Participant has elected installment
payments for a Retirement Distribution, the installment payments shall
be determined as set forth in Section 5.3 of the Plan. In the absence
of an effective election of installment payments, payment shall be made
in a lump sum.
5.3 Installment Payments. If the Participant has properly elected
installment payments for his or her Retirement/Termination Benefit
distribution or an In Service Distribution, cash payments will be made
beginning as soon as administratively practicable following the
applicable Valuation Date (Termination or In Service) or, in the event
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of a partial lump sum election, following the first anniversary of the
partial lump sum payment made following Termination of Employment .
Such payments shall continue on or about the anniversary of the
previous installment payment until the number of installment payments
elected has been paid. The installment payment amount shall be
determined annually (regardless of whether quarterly installments have
been elected) as the result of a calculation, performed on the Annual
Valuation Date, where (i) is divided by (ii):
(i) equals the value of the applicable Sub-Account on the
Annual Valuation Date;
and
(ii) equals the remaining number of years of installment
payments; and
Any quarterly installment payments will be determined by dividing the
annual installment payment amount by four (4).
5.4 Small Account Balance Lump Sum Payment.
In the event that a Participant's Retirement/Termination Sub-Account
Balance is less than $25,000 or a Participant's In Service Distribution
Sub-Account Balance is less than $5,000 on the initial Termination or
In Service Distribution Valuation Date, the In Service Distribution or
Retirement Benefit, as applicable, shall be paid in a lump sum and any
form of payment election to the contrary shall be null and void.
5.5 Disability Benefit. In the event of a Participant's Disability, the
Participant shall receive a payment equal to the Participant's entire
remaining Deferred Compensation Account Balance, which amount shall be
paid in accordance with the Participant's payment schedule election as
though it were a Retirement/Termination Benefit.
5.6 Death Benefit.
(a) In the event of a Participant's death either before Termination of
Employment or before complete distribution of any In Service
Distribution or Retirement/Termination Benefit, such Participant's
Beneficiary shall be paid a Death Benefit in the amount of the
deceased Participant's remaining Deferred Compensation Account
Balance in a single lump sum as soon as practicable following the
end of the month in which the Participant's death occurred. The
Valuation Date for purposes of determining the Death Benefit shall
be the last day of the month in which the Participant's death
occurs.
(b) Each Participant may designate one or more primary and secondary
(contingent) Beneficiaries and may revoke his or her prior
Beneficiary designations at any time provided that all such
Beneficiary designations and revocations of prior designations
shall be effective only if made in writing, executed by the
Participant, and submitted to the Plan Administrator, prior to the
time of the Participant's death. In the event of conflicting
Beneficiary designations, the most recent, effective designation
shall control. If a Participant fails or declines for any reason
to effectively designate a Beneficiary, or if no designated
Beneficiary survives the Participant, the Company shall pay (or
cause the Rabbi Trust to pay) the deceased Participant's remaining
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Deferred Compensation Account Balance, calculated as provided
above, to the Participant's estate (which shall be deemed the
Beneficiary in such case). If a Participant designates an
individual who is his or her spouse at the time of designation as
Beneficiary, that designation shall be deemed to have been revoked
automatically as of the date the named individual ceases to be the
Participant's lawful spouse as a result of divorce or annulment of
their marriage.
5.7. Unforeseeable Emergency.
(a) A Participant may request, in writing to the Plan Administrator, a
withdrawal from his or her Deferred Compensation Account if the
Participant experiences an "unforeseeable emergency". An
unforeseeable emergency is a severe financial hardship to the
Participant resulting from a sudden and unexpected illness or
accident of the Participant or of the spouse or a dependent (as
defined in Section 152(a) of the Code) 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, as defined in
Treas. Reg. ss. 1.457-6(c). The Plan Administrator, in its sole
discretion, shall determine whether a Participant has experienced
an unforeseeable emergency. Withdrawals of amounts because of an
unforeseeable emergency are limited to the extent reasonably
needed to satisfy the emergency need, which cannot be met with
other resources of the Participant. The amount of such
unforeseeable emergency withdrawal shall be subtracted first from
the vested portion of the Participant's Retirement/Termination
Sub-Account until depleted and then from the In Service
Distribution Sub-Accounts (if any) beginning with the most
distant. Values for purposes of administering this Section shall
be determined on the date the Plan Administrator approves the
amount of the unforeseeable emergency withdrawal, or such other
date determined by the Plan Administrator.
(b) A Participant must submit a written request for a hardship payment
to the Committee on such form and in the manner as is prescribed
by the Committee. The hardship request must: (a) describe and
certify the hardship condition and the severe financial need; (b)
explain why the Participant's other resources are inadequate to
allow him otherwise to satisfy the hardship; and (c) state the
minimum amount the Participant needs to receive to meet the severe
financial need. The Committee will have the sole discretion to
determine whether a hardship exists and the appropriate action, if
any.
5.8 Voluntary Withdrawal. In lieu of or in addition to a distribution under
Section 5.7 above, a Participant who is an active Employee may request,
in writing to the Plan Administrator, to withdraw up to 100% of the
vested portion of his or her Deferred Compensation Account Balance
(minus any amount deferred during the same Plan Year as the withdrawal
is taken) at any time and for any reason, subject to a penalty of 10%
of the amount requested. The remaining ten percent (10%) of the amount
that the Participant requests shall be permanently forfeited from the
Participant's Deferred Compensation Account and applicable
Sub-Account(s) at the time the withdrawal payment is made and shall no
longer be part of his or her Deferred Compensation Account or otherwise
be available for payment to the Participant under the Plan. There is a
minimum withdrawal amount of $2,500 (applied before the 10% penalty).
Deferral elections shall be deemed revoked for the balance of the Plan
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Year in which such withdrawal election is made and not permitted for
the following Plan Year. The amount of such voluntary withdrawal shall
be subtracted first from the vested portion of the Participant's
Retirement/Termination Sub-Account until depleted and then from the In
Service Sub-Accounts (if any) beginning with the Sub-Account that has a
distribution date the furthest away in time. Values for purposes of
administering this Section shall be determined on the date the Plan
Administrator approves the amount of the withdrawal, or such other date
determined by the Plan Administrator.
5.9 Change in Control. Any provision herein to the contrary
notwithstanding, in the event a Participant shall incur a Retirement
within two (2) years following a Change in Control, such Participant
shall receive his or her remaining Deferred Compensation Account
balance (including all Sub-Accounts) in a lump sum paid as soon as
administratively practicable following the Valuation Date, which shall
be the end of the month in which the Termination of Employment occurs.
All payment schedule elections to the contrary shall be ignored.
5.10 Court Order. In the event a Court of competent jurisdiction orders a
division of "plan assets" or a distribution of a Participant's Account
or portion thereof pursuant to a QDRO or other valid Judgment or Court
Order, the Plan Administrator shall treat such request as though it
were a request for a Hardship withdrawal which satisfied the
requirements of an unforeseen severe financial hardship and make a
distribution to the Participant or to the party named as recipient in
the QDRO, Judgment, or Court Order in the amount necessary to satisfy
the QDRO, Judgment or Court Order.
5.11 Pro-rata Subtraction from Investment Options. In the event a
distribution under this Article V (e.g. an installment payment,
hardship or voluntary withdrawal, etc.) is less than the entire
Sub-Account Balance and the Sub-Account is allocated over more than one
Investment Option, the distribution shall be subtracted from each
Investment Option in a pro-rata manner determined in the sole
discretion of the Plan Administrator.
5.12 Code Section 162(m) Postponement. Any provision in this Plan (other
than Section 5.9 and 5.10 above) to the contrary notwithstanding, if a
Participant is a "covered employee" within the meaning of Code Section
162(m)(3) for the Company tax year in which all or any portion of his
or her Deferred Compensation Account is to be paid, the Company may
postpone the payment to the first tax year in which such Participant is
no longer a "covered employee" to the extent the Company reasonably
determines that such postponement is necessary to avoid the
disallowance of compensation deductions under Code Section 162(m) with
respect to such Participant.
5.13 Payments to Other Persons. The Company shall only be required to pay or
cause to be paid amounts due under the Plan to the Participant,
Beneficiary or other legal representative of the foregoing (custodian,
personal representative, guardian, trustee, etc.). Any payment by the
Company of amounts to a parent or duly appointed guardian of a
Beneficiary who is a minor child, or to a duly appointed guardian or
personal representative of a Participant or Beneficiary who has been
adjudicated to be legally incompetent, shall fully discharge the
Employers' obligations with respect to the amount so paid. In the event
of any dispute as to the proper payee of amounts hereunder, any
Employer may file a judicial action with any court having jurisdiction
over the parties and matter to determine the proper payee and may
implead or otherwise pay the Deferred Benefits to the court in which
such action is pending in full satisfaction of its obligations and
liabilities hereunder. Upon such payment, the Company will have no
further liability for the Deferred Compensation Account or other
amounts in question.
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ARTICLE VI
ADMINISTRATION
6.1 Plan Administration. This Plan shall be administered by the Plan
Administrator, which shall have discretionary authority to make, amend,
interpret and enforce all appropriate rules and regulations for the
administration of this Plan and to utilize its discretion to decide or
resolve any and all questions, including but not limited to eligibility
for benefits and interpretations of this Plan and its terms, as may
arise in connection with the Plan. Claims for benefits shall be filed
with the Plan Administrator and resolved in accordance with the claims
procedures in Article IX.
6.2 Withholding. The Employers shall have the right to withhold from any
payment made under the Plan (or any amount deferred into the Plan) any
taxes required by law to be withheld in respect of such payment (or
deferral).
6.3 Indemnification. The Company shall indemnify and hold harmless each
employee, officer, director, agent or organization, to whom or to which
is delegated duties, responsibilities, and authority with respect to
administration of the Plan, against all claims, liabilities, fines and
penalties, and all expenses reasonably incurred by or imposed upon him
or it (including but not limited to reasonable attorney fees) which
arise as a result of his or its actions or failure to act in connection
with the operation and administration of the Plan to the extent
lawfully allowable and to the extent that such claim, liability, fine,
penalty, or expense is not paid for by liability insurance purchased or
paid for by the Company. Notwithstanding the foregoing, the Company
shall not indemnify any person or organization if his or its actions or
failure to act are due to gross negligence or willful misconduct or for
any such amount incurred through any settlement or compromise of any
action unless the Company consents in writing to such settlement or
compromise.
6.4 Expenses. The expenses of administering the Plan shall be paid by the
Company, which shall have a right to contribution and reimbursement
from Participating Employers for the expenses so paid on behalf of
Participants employed (or formerly employed) by that Participating
Employer.
6.5 Delegation of Authority. In the administration of this Plan, the Plan
Administrator and Committee may, from time to time, employ agents and
delegate to them such administrative duties as it sees fit, and may
from time to time consult with legal counsel who may be legal counsel
to the Company.
6.6 Binding Decisions or Actions. The decision or action of the Plan
Administrator in respect of any question arising out of or in
connection with the administration, interpretation and application of
the Plan and the rules and regulations thereunder shall be final and
conclusive and binding upon all persons having any interest in the
Plan.
ARTICLE VII
AMENDMENT AND TERMINATION
7.1 Amendment and Termination. The Plan is intended to be permanent, but
the Company, acting through the Committee, may at any time modify,
amend, or terminate the Plan provided that such modification, amendment
or termination shall not cancel, reduce, or otherwise adversely affect
17
the amount of any Participant's accrued Account Balance (or, except as
otherwise provided in Section 7.1 or 7.2 below, any form of payment
elected) calculated immediately prior to the time of the action
effecting such modification, amendment, or termination, without the
consent of the Participant. Notwithstanding the foregoing, the
Committee shall be permitted upon Plan termination to instruct the Plan
Administrator to pay each Participant (without such Participant's
consent) a lump sum in the amount of such Participant's Account Balance
as of the date of such Plan termination.
7.2 Adverse Income Tax Determination. Notwithstanding anything to the
contrary in the Plan, if any Participant receives a deficiency notice
from the United States Internal Revenue Service asserting income taxes
due on deferred amounts due to a finding of constructive receipt of
amounts payable under the Plan, or if legislation is passed which
causes current income taxation of deferred amounts, Company
contributions, and/or the investment earnings attributed thereto due to
any Participant withdrawal right or other Plan provision, the
Committee, in its sole discretion, may terminate the Plan or such
Participant's participation in the Plan, and/or may declare null and
void any Plan provision with respect to affected Participants and/or
may make distributions from the Plan to affected Participants of such
portions of such Participant's Account Balance as the Committee deems
appropriate in order to ameliorate the adverse income tax effect caused
by the IRS finding or new legislation. In addition, it is intended that
this Plan comply with all provisions of the Internal Revenue Code and
regulations and rulings in effect from time to time regarding the
permissible deferral of compensation and taxes thereon, and it is
understood that this Plan does so comply. If the laws of the United
States or of any relevant state are amended or construed in such a way
as to make this Plan (or its intended deferral of compensation and
taxes) in whole or in part void, then the Deferred Compensation
Committee, in its sole discretion, may choose to terminate the Plan or
it may (to the extent it deems practicable) give effect to the Plan in
such a manner as it deems will best carry out the purposes and
intentions of this Plan.
ARTICLE VIII
INFORMAL FUNDING
8.1 General Assets. All benefits in respect of a Participant under this
Plan shall be paid directly from the general funds of the applicable
Employers, or a Rabbi Trust created by the Company and funded by the
Employers for the purpose of informally funding the Plan, and other
than such Rabbi Trust, if created, no special or separate fund shall be
established and no other segregation of assets shall be made to assure
payment. No Participant, spouse or Beneficiary shall have any right,
title or interest whatever in or to any investments which an Employer
may make to aid the Employer in meeting its obligations hereunder.
Nothing contained in this Plan, and no action taken pursuant to its
provisions, shall create or be construed to create a trust of any kind,
or a fiduciary relationship, between an Employer or any if its
subsidiaries or affiliated companies and any Employee, spouse, or
Beneficiary. To the extent that any person acquires a right to receive
payments from an Employer hereunder, such rights are no greater than
the right of an unsecured general creditor of the Employer.
8.2 Rabbi Trust. The Company may, at its sole discretion, establish a
grantor trust, commonly known as a Rabbi Trust, as a vehicle for
accumulating the assets needed to pay the promised benefit, but the
Company shall be under no obligation to establish any such trust or any
other informal funding vehicle.
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ARTICLE IX
CLAIMS
9.1 Filing a Claim. Any controversy or claim arising out of or relating to
the Plan shall be filed with the Plan Administrator which shall make
all determinations concerning such claim. Any decision by the Plan
Administrator denying such claim shall be in writing and shall be
delivered to the Participant or Beneficiary filing the claim
("Claimant"). Such decision shall set forth the reasons for denial in
plain language. Pertinent provisions of the Plan document shall be
cited and, where appropriate, an explanation as to how the Claimant can
perfect the claim will be provided, including a description of any
additional material or information necessary to complete the claim, and
an explanation of why such material or information is necessary. The
claim denial also shall include an explanation of the claims review
procedures and the time limits applicable to such procedures, including
a statement of the Claimant's right to bring a civil action under
Section 502(a) of ERISA following an adverse decision on review. This
notice of denial of benefits will be provided within 90 days of the
Plan Administrator's receipt of the Claimant's claim for benefits. If
the Plan Administrator fails to notify the Claimant of its decision
regarding the Claimant's claim, the claim shall be considered denied,
and the Claimant shall then be permitted to proceed with an appeal as
provided in this Article. If the Plan Administrator determines that it
needs additional time to review the claim, the Plan Administrator will
provide the Claimant with a notice of the extension before the end of
the initial 90-day period. The extension will not be more than 90 days
from the end of the initial 90-day period and the notice of extension
will explain the special circumstances that require the extension and
the date by which the Plan Administrator expects to make a decision.
9.3 Appeal. A Claimant who has been completely or partially denied a
benefit shall be entitled to appeal this denial of his claim by filing
a written appeal with the Plan Administrator no later than sixty (60)
days after: (a) receipt of the written notification of such claim
denial, or (b) the lapse of ninety (90) days without an announced
decision notice of extension. A Claimant who timely requests a review
of his or her denied claim (or his or her authorized representative)
may review, upon request and free of charge, copies of all documents,
records and other information relevant to the denial and may submit
written comments, documents, records and other information relevant to
the claim to the Plan Administrator. The Plan Administrator may, in its
sole discretion and if it deems appropriate or necessary, decide to
hold a hearing with respect to the claim appeal. Following its review
of any additional information submitted by the Claimant, the Plan
Administrator shall render a decision on its review of the denied claim
in the following manner:
(a) The Plan Administrator shall make its decision regarding the
merits of the denied claim within 60 days following the Plan
Administrator's receipt of the appeal (or within 120 days after
such receipt, in a case where there are special circumstances
requiring extension of time for reviewing the appealed claim). It
shall deliver the decision to the Claimant in writing. If an
extension of time for reviewing the appeal is required because of
special circumstances, written notice of the extension shall be
furnished to the Claimant prior to the commencement of the
extension. The notice will indicate the special circumstances
requiring the extension of time and the date by which the Plan
Administrator expects to render the determination on review.
19
(b) The review will take into account comments, documents, records and
other information submitted by the Claimant relating to the claim
without regard to whether such information was submitted or
considered in the initial benefit determination.
(c) The decision on review shall set forth a specific reason for the
decision, and shall cite specific references to the pertinent Plan
provisions on which the decision is based.
(d) The decision on review will include a statement that the Claimant
is entitled to receive, upon request and free of charge,
reasonable access to and copies of all documents, records, or
other information relevant to the Claimant's claim for benefits.
(e) The decision on review will include a statement describing any
voluntary appeal procedures offered by the plan and a statement of
the Claimant's right to bring an action under Section 502(a) of
ERISA.
9.4 Limitation on Legal Actions. Any suit, claim or other judicial action
by a Claimant seeking benefits under the Plan or otherwise arising with
respect to the Plan: (a) shall be governed by ERISA; (b) may be
commenced and filed, if at all, only within one (1) year after the
final denial of benefits under the Plan's claims procedure as outlined
above (and, if not commenced and filed within that one year period,
shall be time-barred, ineffective and prohibited); and (c) may not be
commenced unless and until the Claimant has exhausted his or her
administrative remedies hereunder. Accordingly, a Claimant may not
bring any legal action relating to a claim for benefits under the Plan
unless and until the Claimant has followed the claims procedures under
the Plan and exhausted his or her administrative remedies under such
claims procedures. ARTICLE X GENERAL CONDITIONS
10.1 Anti-assignment Rule. No interest of any Participant, spouse or
Beneficiary under this Plan and no benefit payable hereunder shall be
assigned as security for a loan, and any such purported assignment
shall be null, void and of no effect, nor shall any such interest or
any such benefit be subject in any manner, either voluntarily or
involuntarily, to anticipation, sale, transfer, assignment or
encumbrance by or through any Participant, spouse or Beneficiary.
10.2 No Legal or Equitable Rights or Interest. No Participant or other
person shall have any legal or equitable rights or interest in this
Plan that are not expressly granted in this Plan. Participation in this
Plan does not give any person any right to be retained in the service
of the Company or any other Participating Employer. The right and power
of the Company or any other Participating Employer to dismiss or
discharge an Employee at will is expressly reserved.
10.3 No Employment Contract. Nothing contained herein shall be construed to
constitute a contract of employment between an Employee and the
Employers.
10.4 Headings. The headings of Sections are included solely for convenience
of reference, and if there is any conflict between such headings and
the text of this Plan, the text shall control.
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10.5 Invalid or Unenforceable Provisions. If any provision of this Plan
shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions hereof and the
Plan Administrator may elect in its sole discretion to construe such
invalid or unenforceable provisions in a manner that conforms to
applicable law or as if such provisions, to the extent invalid or
unenforceable, had not been included.
10.6 Governing Law and Dispute Resolution. To the extent not preempted by
ERISA, the laws of the State of Utah shall govern the construction and
administration of the Plan. By submitting a Compensation Deferral
Agreement and in consideration of their eligibility to participate in
the Plan, each Participant agrees, covenants and acknowledges (as do
the Employers) that: (a) exclusive jurisdiction and venue over any
action or law suit under or with respect to this Plan shall rest in the
United States District Court situated in Salt Lake City, Utah and the
Utah State Courts located in salt Lake City, Utah, (b) consents and
submits to the jurisdiction of such courts over him or her in any
matter or controversy arising under or with respect to the Plan; (c)
agrees not to assert any objection or challenge to the personal and
subject matter jurisdiction of such courts in matters arising under or
with respect to the Plan; and (d) to the extent permitted by applicable
law, waives the right to a jury trial in any action arising under or
with respect to the Plan.
10.7 Disclaimer. The Employers intend that the Plan, together with the
Deferred Compensation Agreements, shall establish a plan deferred of
compensation. However, the Employers and their owners, employees,
officers, directors and agents make no representation or warranty of
any nature or kind whatever relative to the binding nature of the Plan
or with respect to any tax consequences, law, statute, rule,
regulation, decree of any taxing entity of the United States Government
or of any of its individual states (including the District of Columbia)
or subdivisions thereof.
10.8 Transition. All elective deferrals for Plan Years commencing prior to
the Effective Date shall be made in accordance with the provisions of
the Predecessor Plans, but shall be held, administered and distributed
on and after January 1, 2004 in accordance with the provisions set
forth in this restated Plan document. All elective deferrals with
respect to Plan Years commencing after the Effective Date shall be made
in accordance with the provisions hereof. By executing and delivering a
Deferred Compensation Agreement hereunder, each Participant consents to
the amendment and restatement of the Predecessor Plans to read as set
forth herein and agrees that all amounts previously deferred under the
Predecessor Plans shall, on and after the effective date of such
initial Deferred Compensation Agreement, be held, administered and
applied under the terms of this Plan document as amended from time to
time in the future.
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IN WITNESS WHEREOF, the Company has caused this amended and restated Plan to be
adopted, this 1st day of January, 2004.
Merit Medical Systems, Inc.
By: ____________________________________
Name: __________________________________
Its: ___________________________________
The following Participating Employers hereby adopt the Plan:
MERIT SERVICES, INC.
By: ____________________________________
Name: __________________________________
Its: ___________________________________
Effective Date of Adoption:_____________
MERIT SENSOR SYSTEMS, INC.
By: ____________________________________
Name: __________________________________
Its: ___________________________________
Effective Date of Adoption: ____________
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