EXHIBIT 10.8
W. P. CAREY & CO. LLC
DEFERRED COMPENSATION PLAN FOR EMPLOYEES
EFFECTIVE DECEMBER 16, 2008
W. P. CAREY & CO. LLC
DEFERRED COMPENSATION PLAN FOR EMPLOYEES
TABLE OF CONTENTS
SECTION
NUMBER TITLE PAGE
- ------- --------------------------------------------------------------- ----
PREAMBLE
ARTICLE I
DEFINITIONS
1.1 Account 1
1.2 Affiliate 1
1.3 Beneficiary 1
1.4 Board 1
1.5 Committee 1
1.6 Company 2
1.7 Company Share Fund Option 2
1.8 Deferral Commitment 2
1.9 Deferral Election 2
1.10 Disability 2
1.11 Effective Date 2
1.12 Elective Deferred Compensation 2
1.13 Employer 2
1.14 Enrollment Period 2
1.15 Internal Revenue Code 2
1.16 Key Employee 2
1.17 Participant 3
1.18 Plan 3
1.19 Plan Year 3
1.20 Retirement 3
1.21 Separation From Service 3
1.22 Standard Distribution Account 3
1.23 Unforeseeable Emergency 3
1.24 Valuation Date 3
1.25 Variable Fund Options 3
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ARTICLE II
ADMINISTRATION
2.1 Administrator 4
2.2 Powers and Duties 4
2.3 Procedures 5
2.4 Limitation of Liability 5
2.5 Claims Procedure 5
ARTICLE III
PARTICIPATION AND DEFERRAL COMMITMENTS
3.1 Eligibility and Participation 5
3.2 Duration of Deferral Commitment 6
3.3 Basic Forms of Deferral 6
3.4 Termination of Deferral Commitments on Unforeseeable Emergency 6
3.5 Commencement of Deferral Commitment 6
ARTICLE IV
DEFERRED COMPENSATION ACCOUNTS
4.1 Accounts 7
4.2 Elective Deferred Compensation 7
4.3 Notional Earnings and Losses 7
4.4 Valuation of Accounts 7
4.5 Vesting of Accounts 8
4.6 Statement of Accounts 8
4.7 Company Share Fund Option 8
ARTICLE V
PLAN BENEFITS
5.1 Standard Distribution Account Benefit 9
5.2 Form of Benefit Payment Upon Separation From Service 11
5.3 Survivor Benefits 11
5.4 Unforeseeable Emergency 12
5.5 Disability 12
5.6 Valuation and Settlement 13
5.7 Distributions From General Assets 13
5.8 Withholding and Payroll Taxes 13
5.9 Payment to Guardian 13
5.10 Small Benefit 13
5.11 Notices and Elections 13
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ARTICLE VI
DESIGNATION OF BENEFICIARY
6.1 Designation of Beneficiary 14
6.2 Failure to Designate Beneficiary 14
ARTICLE VII
FORFEITURES TO COMPANY
7.1 Distribution of Participant's Interest When Company is Unable
to Locate Distributees 14
ARTICLE VIII
MAINTENANCE OF ACCOUNTS
8.1 Books and Records 14
ARTICLE IX
AMENDMENT AND TERMINATION OF THE PLAN
9.1 Amendment and Termination 15
ARTICLE X
SPENDTHRIFT PROVISIONS
10.1 No Right to Alienation or Assignment 15
ARTICLE XI
MISCELLANEOUS
11.1 Right of Employers to Dismiss Employees; Obligations 15
11.2 Title to and Ownership of Assets Held for Accounts 16
11.3 Nature of Liability to Participants 16
11.4 Text of Plan to Control 16
11.5 Law Governing and Severability 16
11.6 Gender 16
11.7 Trust Fund 16
11.8 Ineligible Participant 16
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W. P. CAREY & CO. LLC
DEFERRED COMPENSATION PLAN FOR EMPLOYEES
Effective December 16, 2008
PREAMBLE
The purpose of the W. P. Carey & Co. LLC Deferred Compensation Plan for
Employees (the "Plan") is to provide opportunities for a select group of
management or highly compensated employees of W. P. Carey & Co. LLC (the
"Company") and its Affiliates to accumulate supplemental funds for retirement,
special needs prior to retirement, or death. The Plan is effective as of
December 16, 2008 for deferrals of compensation earned by eligible employees
after such date.
The Company intends to create an unfunded Plan primarily for the purpose of
providing a select group of management or highly compensated employees of the
Company and of its affiliated organizations with deferred compensation in
accordance with their individual elections. It is the intention of the Company
that the Plan be operated in compliance with the American Jobs Creation Act of
2004 ("AJCA") and Section 409A of the Internal Revenue Code. The Compensation
Committee ("Committee") or a successor committee designated by the Board shall
be the administrator responsible for fulfilling the duties and responsibilities
under the Plan.
ARTICLE I
DEFINITIONS
When used herein, the following words shall have the following meanings unless
the content clearly indicates otherwise:
1.1 Account. "Account" means the record-keeping device used by the Company to
measure and determine the amounts to be paid to a Participant under the Plan.
Separate Accounts will be established for each Participant and as may otherwise
be required.
1.2 Affiliate. "Affiliate" means an entity controlled, directly or indirectly,
by the Company.
1.3 Beneficiary. "Beneficiary" means the person who under this Plan becomes
entitled to receive a Participant's interest in the event of his or her death.
1.4 Board. "Board" means the Board of Directors of the Company or any committee
thereof acting within the scope of its authority.
1.5 Committee. "Committee" means the Compensation Committee or a successor
committee appointed to administer the Plan pursuant to Article II.
1.6 Company. "Company" means W. P. Carey & Co. LLC, and any successor in
interest.
1.7 Company Share Fund Option. "Company Share Fund Option" shall mean an
investment fund alternative permitting Participants to direct deferred
compensation to purchase phantom units based on the Company's Common Shares.
1.8 Deferral Commitment. "Deferral Commitment" means a commitment made by a
Participant pursuant to Article III for which a Deferral Election has been
submitted by the Participant to the Committee.
1.9 Deferral Election. "Deferral Election" means the written agreement to defer
receipt of compensation submitted by a Participant to the Committee or its
delegates prior to the commencement of the period in which the deferred
compensation is to be earned.
1.10 Disability. "Disability" means where, by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than
twenty-four (24) months, either (i) a Participant is unable to engage in any
substantial gainful activity or (ii) a Participant is receiving income
replacement benefits for a period of not less than three (3) months under an
accident and health plan covering employees of his or her Employer, as
determined by the Committee, in accordance with Section 409A(a)(2)(C) of the
Internal Revenue Code and Regulation Section 1.409A-3(i)(4) promulgated
thereunder, on the basis of written information supplied by the Participant.
1.11 Effective Date. "Effective Date" of this Plan means December 16, 2008.
1.12 Elective Deferred Compensation. "Elective Deferred Compensation" means the
amount of compensation that a Participant elects to defer pursuant to a Deferral
Commitment.
1.13 Employer. "Employer" means the Company or one of its Affiliates.
1.14 Enrollment Period. "Enrollment Period" means an annual enrollment period
during which eligible employees may file new or amended Deferral Elections
covering compensation to be earned in the following calendar year.
1.15 Internal Revenue Code. "Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended.
1.16 Key Employee. "Key Employee" may include a Participant who is (i) an
officer of the Company having an annual compensation greater than $135,000 (as
adjusted under Internal Revenue Code Section 416(i)(1)(A)), (ii) a five percent
(5%) owner of the Company, or (iii) a one percent (1%) owner of the Company
having an annual compensation from the Company of more than $150,000. The
determination of who is or may be a Key Employee shall be made at the discretion
of the Committee or its delegate, consistent with the requirements of a
"Specified Employee" under Section 409A of the
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Internal Revenue Code and in accordance with Internal Revenue Code Section
416(i), disregarding Section 416(i)(5).
1.17 Participant. "Participant" means any eligible employee of the Company who
is making (or has elected to make) deferrals, or who holds an Account, under the
terms of the Plan.
1.18 Plan. "Plan" means "W. P. Carey & Co. LLC Deferred Compensation Plan for
Employees" as set forth in this document and as the same may be amended,
administered or interpreted from time to time.
1.19 Plan Year. "Plan Year" means each calendar year beginning on January 1 and
ending on December 31; provided, further, that the first Plan Year shall begin
on January 1, 2009 and end on December 31, 2009.
1.20 Retirement. "Retirement" means Separation from Service of a Participant,
other than by reason of death, on or after the date on which the Participant has
attained age fifty-five (55).
1.21 Separation from Service. "Separation from Service" shall have the meaning
set forth in Treasury Regulation Section 1.409A-1(h) or any successor thereto.
1.22 Standard Distribution Account. "Standard Distribution Account" means an
Account established pursuant to Section 5.1, which provides for distribution of
a benefit during employment or following Retirement.
1.23 Unforeseeable Emergency. An "Unforeseeable Emergency" is a severe financial
hardship of the Participant resulting from an illness or accident of the
Participant, the Participant's spouse, or the Participant's dependent (as
defined in Section 152(a) of the Internal Revenue Code); 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 determined by the Committee, in accordance with Section
409A(a)(2)(B)(ii) of the Internal Revenue Code and Regulation Section
1.409A-3(i)(3) promulgated thereunder, on the basis of written information
supplied by the Participant.
1.24 Valuation Date. "Valuation Date" means the last day of each month, or such
other dates as the Committee may determine in its discretion, which may be
either more or less frequent, for the valuation of Participants' Accounts.
1.25 Variable Fund Options. "Variable Fund Options" means the variable rate
investment fund alternatives, if any, approved by the Committee and offered to
Participants.
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ARTICLE II
ADMINISTRATION
2.1 Administrator. Except as hereinafter provided, the Committee shall be
responsible for the administrative responsibilities hereinafter described with
respect to the Plan. Whenever any action is required or permitted to be taken in
the administration of the Plan, the Committee shall take such action unless the
Committee's power is expressly limited herein or by operation of law. The
Committee shall be the Plan "Administrator" (as such term is defined in Section
3(16)(A) of ERISA). The Committee may delegate its duties and responsibilities
as it, in its sole discretion, deems necessary or appropriate to the execution
of such duties and responsibilities.
2.2 Powers and Duties. The Committee, or its delegates, shall maintain and keep
(or cause to be maintained and kept) such records as are necessary for the
efficient operation of the Plan or as may be required by any applicable law,
regulation, or ruling and shall provide for the preparation and filing of such
forms, reports, information, and documents as may be required to be filed with
any governmental agency or department and with the Plan's Participants and/or
other Beneficiaries.
Except to the extent expressly reserved to the Company, an Employer or the
Board, the Committee shall have all powers necessary to carry out the
administrative provisions of the Plan and to satisfy the requirements of any
applicable law or laws. These powers shall include, by way of illustration and
not limitation, the exclusive powers and discretionary authority necessary to:
(a) construe and interpret the Plan; decide all questions of eligibility;
decide all questions of fact relating to claims for benefits; and determine
the amount, time, manner, method, and mode of payment of any benefits
hereunder;
(b) direct the Employer, and/or the trustee of any trust established at the
discretion of the Company to provide for the payment of benefits under the
Plan, concerning the amount, time, manner, method, and mode of payment of
any benefits hereunder;
(c) prescribe procedures to be followed and forms to be used by
Participants and/or other persons in filing applications or elections;
(d) prepare and distribute, in such manner as may be required by law or as
the Committee deems appropriate, information explaining the Plan; provided,
however, that no such explanation shall contravene the terms of this Plan
or increase the rights of any Participant or Beneficiary or the liabilities
of the Company or any Employer;
(e) require from the Employer and Participants such information as shall be
necessary for the proper administration of the Plan;
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(f) appoint and retain individuals to assist in the administration and
construction of the Plan, including such legal, clerical, accounting, and
actuarial services as it may require or as may be required by any
applicable law or laws;
(g) approve the variable rate investment fund alternatives, if any, that
will be offered as the Variable Fund Options;
(h) approve any special elections and/or payouts permitted under AJCA and
Section 409A of the Internal Revenue Code;
(i) establish such rules or regulations related to its powers and duties as
it may deem necessary and proper to carry out the intent of the Company as
to the purposes of the Plan; and
(j) perform all functions otherwise imposed upon a plan administrator.
2.3 Procedures. The Committee shall be organized and conduct its business with
respect to the Plan in accordance with the organizational and procedural rules
set forth in its charter.
2.4 Limitation of Liability. The Board, the members of the Committee, and any
officer, employee, or agent of the Company or any Employer shall not incur any
liability individually or on behalf of any other individuals or on behalf of the
Company or any Employer for any act, or failure to act, made in good faith in
relation to the Plan.
2.5 Claims Procedure. The right of any Participant or Beneficiary to receive a
benefit hereunder and the amount of such benefit shall be determined in
accordance with the procedures for determination of benefit claims established
and maintained by the Committee in compliance with the requirements of Section
503 of ERISA; which separate procedures, entitled Procedures for Determination
of Benefit Claims, are incorporated herein by this reference.
ARTICLE III
PARTICIPATION AND DEFERRAL COMMITMENTS
3.1 Eligibility and Participation.
(a) Eligibility. Eligibility to make a Deferral Commitment shall be limited
to employees of the Company or its Affiliates as determined by the
Committee, from time to time.
(b) Participation. Except as otherwise provided herein, an eligible
individual may elect to participate in the Plan by submitting a Deferral
Election to the Committee
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or its delegates during the Enrollment Period preceding the commencement of
the period in which the deferred compensation is to be earned.
3.2 Duration of Deferral Commitment.
(a) A Deferral Commitment shall be effective for specified compensation to
be earned during the next Plan Year following the date it is filed and
shall terminate at the end of such Plan Year, unless otherwise provided by
the Committee or its delegates. A Deferral Election shall not apply to any
deferrals that represent payments for services performed prior to the
beginning of the Plan Year to which it applies.
(b) A Participant's Deferral Commitments shall terminate upon the
Participant's Separation from Service and as provided in Section 5.4 in the
case of an Unforeseeable Emergency.
3.3 Basic Forms of Deferral. Subject to such determinations as may be made by
the Committee, an eligible employee may file a Deferral Election to defer any or
all of the following forms of compensation:
(a) Restricted Stock Unit Deferrals. A Participant may elect to defer up to
one hundred percent (100%) of amounts to be paid by the Employer pursuant
to an award of Restricted Stock Units. The amount to be deferred shall be
stated as a whole number percentage or units, or dollar amount of such
award.
(b) Performance Share Unit Deferrals. A Participant may elect to defer up
to one hundred percent (100%) of amounts to be paid by the Employer
pursuant to an award of Performance Share Units. The amount to be deferred
shall be stated as a whole number percentage or units, or dollar amount of
such award.
(c) Special Deferrals. A Participant may elect any special Deferral
Commitment that is authorized by the Committee in its discretion.
3.4 Termination of Deferral Commitments on Unforeseeable Emergency. Upon a
finding that the Participant has suffered an Unforeseeable Emergency, all
previously elected Deferral Commitments of the Participant shall terminate.
3.5 Commencement of Deferral Commitment. A Deferral Commitment shall be deemed
to commence as of the first day of the Plan Year (or other period permitted
under Section 3.3(c) of this Plan) covered by the Deferral Election for such
Deferral Commitment.
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ARTICLE IV
DEFERRED COMPENSATION ACCOUNTS
4.1 Accounts. For record-keeping purposes only, Standard Distribution Accounts
shall be maintained as applicable for each Participant's Elective Deferred
Compensation. Accounts shall be deemed to be credited with notional gains or
losses as provided in Section 4.3 from the date of deferral through the
Valuation Date.
4.2 Elective Deferred Compensation. A Participant's Elective Deferred
Compensation shall be credited to the Participant's Account(s) as of the date
when the corresponding non-deferred portion of the compensation is paid or would
have been paid but for the Deferral Commitment. Any withholding of taxes or
other amounts with respect to deferred compensation that is required by Federal,
state or local law shall be withheld from the Participant's non-deferred
compensation.
4.3 Notional Earnings and Losses. Accounts shall be credited with notional
earnings and losses as of each Valuation Date from the dates when deferred
amounts are credited to Accounts based on the balance of each Account. Earnings
and losses credited to each Account shall be based on the Participant's choices
among the Variable Fund Options and the Company Share Fund Option, subject to
the terms of this Section.
(a) Earnings or Losses During Participant's Lifetime. During a
Participant's lifetime, all compensation deferred by the Participant will
be credited as elected by the Participant with earnings or losses that may
accrue based on the performance of (i) the Variable Fund Options or (ii)
the Company Share Fund Option.
(b) Earnings or Losses After Participant's Death. Following a Participant's
death, all compensation deferred by the Participant will be credited as
elected by the Participant's Beneficiary with earnings or losses that may
accrue based on the performance of (i) the Variable Fund Options or (ii)
the Company Share Fund Option.
(c) Changes to Investment Elections. Except as otherwise approved by the
Committee, Participants and Beneficiaries may elect quarterly to reallocate
previously accrued notional funds among the Variable Fund Options.
Participants shall not be permitted to reallocate previously accrued
amounts between the Company Share Fund Option and any of the Variable Fund
Options.
4.4 Valuation of Accounts. A Participant's Account as of each Valuation Date
shall consist of the balance of the Participant's Account as of the immediately
preceding Valuation Date, increased by the Participant's Elective Deferred
Compensation and earnings credited to such Account and reduced by losses
sustained by any Variable Fund Options or the Company Share Fund Option as
selected by the Participant and by distributions and withdrawals made from such
Account since the immediately preceding Valuation Date.
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4.5 Vesting of Accounts. Each Participant shall be one hundred percent (100%)
vested at all times in the amounts credited to such Participant's Accounts,
subject to any vesting criteria applicable to Restricted Stock Units,
Performance Share Units or other compensation to which the Deferral Election
applies.
4.6 Statement of Accounts. The Company shall submit to each Participant periodic
statements setting forth the balance to the credit of the Accounts maintained
for the Participant.
4.7 Company Share Fund Option. Participants shall be permitted to defer
compensation from Restricted Stock Units, Performance Share Units and special
deferral amounts into the Company Share Fund Option. In addition, the Company
may require that special deferral amounts be allocated to the Company Share Fund
Option. Participant deferrals of Restricted Stock Units and Performance Units
into the Company Share Fund Option shall remain in unit form, representing the
Company's Common shares, and special deferral amounts shall be treated as if
Elective Deferred Compensation were invested in the Company's Common Shares on
the dates of such deferrals as determined under Section 4.2. Except for
deferrals denominated in or converted into units representing the Company's
Common Shares, deferrals shall be credited to Participant Accounts as phantom
units representing whole and partial shares of the Company's Common Shares. The
following rules shall apply to such phantom stock units:
(a) Phantom stock units shall be valued at the closing price of a share of
the Company's Common Shares in the New York Stock Exchange Composite
Transactions on the date of such deferral and each other relevant Valuation
Date, or, if no sale shall have been made on such exchange on that date,
the closing price in the New York Stock Exchange Composite Transactions on
the last preceding day on which there was a sale ("Fair Market Value"). If
the Company's Common Shares are not listed on such exchange, the phantom
stock units shall be valued at the closing price of a share of Common
Shares for such date on (or on any composite index including) the principal
United States securities exchange registered under the Securities Exchange
Act of 1934, as amended, on which the Common Shares are listed or, if the
Common Shares are not listed on any such exchange, the Committee shall in
good faith determine the value of such phantom stock units on such date.
(b) Dividend or distribution (each a "Dividend") equivalents shall be
accrued on phantom units at the same rate established by the Company for
the underlying Common Shares and on the established record date, and shall
be paid to Participants on the regularly scheduled payment date(s) provided
the Participant is employed by the Company on such record date(s). If the
Participant is not so employed, such Dividend equivalents shall be accrued
on phantom units, when and if declared and paid on the Company's Common
Shares, and credited to additional phantom units as if such amounts were
reinvested in the Company's Common Shares.
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(c) Participants shall not be permitted to reallocate previously accrued
amounts between the Company Share Fund Option and any of the Variable Fund
Options.
(d) Participants in the Company Share Fund Option shall not be considered
to be shareholders of the Company and shall be entitled only to those
voting rights, if any, as may be approved by the Company with respect to
shares of the Company's Common Shares that may be held in a trust
established by the Company on behalf of Plan Participants.
(e) Plan benefits paid under Article V from phantom stock units accrued
under the Company Share Fund Option shall be settled in shares of the
Company's Common Shares or cash, in the discretion of the Company, which
will be credited to a book-entry account in the Participant's name.
(f) A Participant shall be advised as to the amount of any Federal, state,
local or foreign income tax required to be withheld by the Company on the
compensation income resulting from the payout of shares of the Company's
Common Shares. Participant shall pay any taxes required to be withheld
directly to the Company in cash upon request; provided, however, that if
permitted by the Committee a Participant may satisfy such obligation in
whole or in part by requesting the Company in writing to withhold from the
shares otherwise deliverable that number of shares having a Fair Market
Value on the date on which such tax is calculated equal to the amount of
the aggregate minimum statutory withholding tax obligation to be so
satisfied. No Common Shares shall be delivered to a Participant unless and
until Participant shall have satisfied any obligation for withholding taxes
with respect thereto as provided herein.
ARTICLE V
PLAN BENEFITS
5.1 Standard Distribution Account Benefit.
(a) Election of Benefit. A Participant may file a Deferral Election to
defer compensation into up to three (3) Standard Distribution Accounts and
receive benefits from each such Account following Separation from Service
upon Retirement or while employed by an Employer. A Participant shall elect
one benefit payment option for each elected Standard Distribution Account
specifying a date of commencement and duration of payments for each
Account. A Participant shall direct that each of his or her elected
Standard Distribution Accounts be invested in any one or more of the
Variable Fund Options and/or the Company Share Fund. A Participant's
election of payment options shall be irrevocable, except as follows:
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(i) A Participant shall be permitted to file one new payment election
per year for each elected Standard Distribution Account, which will
supersede his or her original payment option for that Account. Such
change elections must be filed more than twelve (12) months prior to
the previously elected commencement date and may not take effect for
twelve (12) months. Change elections may not accelerate a payment
commencement date and must delay payment for at least five (5) years
from the previously elected payment commencement date. No change
elections will be allowed if the previously elected commencement date
is age sixty-five (65) or older. If it is found that a Participant's
payment election does not comply with AJCA and Section 409A of the
Internal Revenue Code, benefits will be paid in accordance with the
most recent valid election filed by the Participant.
(ii) A Participant may request in writing a payment in a lump sum,
which is reasonably necessary to meet the Participant's requirements
due to an Unforeseeable Emergency, subject to approval by the
Committee and in compliance with Section 409A of the Internal Revenue
Code.
(iii) A Participant may file without penalty any new payment election
permitted by Section 409A of the Internal Revenue Code and approved by
the Committee.
(b) Forms of Benefit Payment. The available forms of payment from a
Standard Distribution Account are as follows:
(i) One lump sum payment.
(ii) Annual installments in approximately equal payments of principal
and earnings, if any, over a payment period of two (2) to five (5)
years, as elected by the Participant. The payment of the annual
installments shall begin the fifteenth day in February (or, if not a
business day, the next business day) following Retirement or of a
specified year elected, as applicable, and the amount shall be
recalculated effective as of the fifteenth day in February (or, if not
a business day, the next business day) of each year based on the
remaining Account balance and the remaining number of installment
payments.
(c) Commencement of Benefit Payment. Except as provided below for Key
Employees, the available commencement dates for payment of benefits from a
Participant's Standard Distribution Account are as follows:
(i) Upon retirement; provided, that in the case of a lump sum
distribution, payment will be made within sixty (60) days of the end
of the month following Separation from Service.
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(ii) The fifteenth day in February (or, if not a business day, the
next business day) of a specified year while employed; provided,
however, that no payment may commence earlier than the completion of
two Plan Years following the effective date of each deferral election
with regard to such Account.
(iii) The fifteenth day in February (or, if not a business day, the
next business day) of a specified year following Retirement; provided,
however, that no payment may commence later than the fifth year
following the Participant's Retirement.
(iv) Payments to Key Employees may commence as stated above, except
that any payment based upon a Separation from Service shall be delayed
until the first day following the six-month anniversary of such
Participant's Separation from Service.
(d) Default Retirement Benefit. If a Participant does not elect a benefit
payment option for his or her Standard Distribution Account, Plan benefits
from such Account will be paid in a lump sum within sixty (60) days of the
end of the month following Separation from Service, subject to any delay
required for Key Employees.
5.2 Form of Benefit Payment Upon Separation from Service. Benefits payable upon
a Participant's Separation from Service, for reasons other than Disability or
death, before eligibility for Retirement shall be paid in a lump sum within
sixty (60) days of the end of the month following Separation from Service;
provided, however, that payments to Key Employees shall be delayed until the
first day following the six-month anniversary of such Participant's Separation
from Service.
5.3 Survivor Benefits.
(a) Pre-Retirement Survivor Benefits. If a Participant dies while in
employment with an Employer prior to complete distribution of his or her
Account balances, the Employer will pay the balance remaining in such
Accounts to the Participant's Beneficiary in a lump sum within ninety (90)
days following the Participant's death. Amounts credited to the Company
Share Fund Option for a Participant shall be included in the calculation of
the amount payable, but such amounts shall be distributed in shares of the
Company's Common Shares and credited against the obligations under this
section in a manner to be approved by the Committee.
If a Participant dies while in employment with an Employer after complete
distribution of his or her Account balances, no survivor benefit will be
payable to the Participant's Beneficiary under the Plan.
(b) Post-Retirement Survivor Benefits. If a Participant dies after
Separation from Service but before commencement of payment of benefits with
respect to his or
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her Standard Distribution Account balances, the Employer will pay to the
Participant's Beneficiary the balances of the Participant's Accounts in a
lump-sum within ninety (90) days following the Participant's death.
If a Participant dies after the commencement of payment of benefits with
respect to his or her Standard Distribution Accounts, the Employer will pay
to the Participant's Beneficiary the remaining installments of any such
benefit that would have been paid to the Participant had the Participant
survived.
(c) Valuation Date. The amount payable with respect to each of the
Participant's Standard Distribution Accounts shall be determined by
crediting such Accounts through the date of the Participant's death with
all the Participant's deferrals and all earnings or losses based on the
performance of the Variable Fund Options or the Company Share Fund Option
as elected by the Participant for each of such Accounts. After the
Participant's death, the Accounts will be increased or reduced as provided
in Section 4.3(b).
(d) Death of Survivor. Upon the death of a Participant's Beneficiary, the
amount of any survivor benefit remaining payable to such Beneficiary will
be paid in a lump sum to the Beneficiary's estate or personal
representative. The lump sum amount will be determined by taking the
present value of the remaining payments using such discount rate as the
Committee may determine.
5.4 Unforeseeable Emergency. Upon finding that a Participant has suffered an
Unforeseeable Emergency, the Committee will make distributions from an Account
prior to the time specified for payment of benefits under the Plan. The amount
of such distributions will be limited to the amount reasonably necessary to meet
the Participant's requirements during the Unforeseeable Emergency. Applications
for Unforeseeable Emergency distributions and determinations thereon by the
Committee shall be in writing, and a Participant may be required to furnish
written proof of the Unforeseeable Emergency.
Following a complete distribution of an entire Account balance necessary to meet
Participant's Unforeseeable Emergency, a Participant and his or her Beneficiary
will be entitled to no further benefits under the Plan with respect to that
Account. Amounts paid to a Participant pursuant to this Section 5.4 shall be
treated as distributions from the Participant's Account. Any Participant who
receives an Unforeseeable Emergency distribution of any part of an Account
balance shall not be allowed to make any deferrals under the Plan during the
remainder of the Plan Year in which he receives such distribution or during the
next Plan Year.
5.5 Disability. If a Participant suffers a Disability, the Participant's
Deferral Commitments will cease except as to any compensation which has been
earned prior to the Committee's determination of Disability but is payable
thereafter. The Participant's Accounts will be distributed in accordance with
the method of payment that the
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Participant has elected for payment of benefits upon Separation from Service at
Retirement.
5.6 Valuation and Settlement. The date on which a lump sum is paid or the date
on which installment payments commence shall be the "Settlement Date." The
Settlement Date for a Standard Distribution Account payable during employment or
delayed payments shall be the date that the Participant elects for commencement
of such payments in the Deferral Election designating the form of payment for
the Account. The amount of a lump sum payment and the initial amount of
installment payments shall be based on the value of the Participant's Account as
of the Valuation Date at the end of the immediately preceding month before the
Settlement Date. For example, the Valuation Date at the end of December shall be
used to determine lump sum payments and the initial amount of installment
payments which will be made in the following January.
5.7 Distributions from General Assets. The Employer shall make any or all
distributions pursuant to this Plan in cash out of its general assets, except
that all distributions from the Company Share Fund Option shall be settled only
in shares of the Company's Common Shares credited to a book-entry account in the
Participant's name.
5.8 Withholding and Payroll Taxes. The Employer shall withhold any taxes
required to be withheld under federal, state or local law.
5.9 Payment to Guardian. If a benefit is payable to a minor or a person of
unsound mind, whether or not declared incompetent, or to a person incapable of
handling the disposition of his or her property, the Committee may direct
payment of such benefit to the guardian, legal representative or person having
the care and custody of such minor, incompetent or incapacitated person. The
Committee may require proof of minority, incompetency, incapacity or
guardianship, as it may deem appropriate prior to distribution of the benefit.
Such distribution shall completely discharge the Committee from all liability
with respect to such benefit.
5.10 Small Benefit. Notwithstanding any election made by the Participant, the
Committee, in its sole discretion, may direct payment of any benefit in the form
of a lump sum payment to the Participant or any Beneficiary, if the lump sum
amount of the Account balance which is payable to the Participant or Beneficiary
when payments to such Participant or Beneficiary would otherwise commence is
less than the limit on elective deferrals under Section 402(g) of the Internal
Revenue Code.
5.11 Notices and Elections. Any notice or election required or permitted to be
given to the Company or the Committee under the Plan shall be sufficient only if
it is in writing on a form prescribed or accepted by the Committee and hand
delivered, or sent by registered or certified mail return receipt requested, or
facsimile with proof of transmission, to the principal office of the Company,
directed to the attention of the Human Resources Department of the Company. Such
notice or election shall be deemed given as of the date of delivery or, if
delivery is made by mail or facsimile, as of the date
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shown on the postmark on the receipt for registration or certification or
transmission, as applicable.
ARTICLE VI
DESIGNATION OF BENEFICIARY
6.1 Designation of Beneficiary. Each Participant shall have the right to
designate a Beneficiary or Beneficiaries to receive his or her interest in each
of his or her Accounts upon his or her death. Such designation shall be made on
a form prescribed by and delivered to the Company. The Participant shall have
the right to change or revoke any such designation from time to time by filing a
new designation or notice of revocation with the Company, and no notice to any
Beneficiary or consent by any Beneficiary shall be required to effect any such
change or revocation.
6.2 Failure to Designate Beneficiary. If a Participant shall fail to designate a
Beneficiary before his or her death, or if no designated Beneficiary survives
the Participant, the Committee may direct the Company to pay the balance in each
of his or her Accounts in a lump sum to the executor or administrator for the
Participant's estate; provided, however, if no executor or administrator shall
have been appointed, the Committee may direct the Company to pay his or her
Account balances to such person or persons as the Committee reasonably
determines, and the Committee may require such proof of right and/or identity of
such person or persons as the Committee may deem appropriate or necessary.
ARTICLE VII
FORFEITURES TO COMPANY
7.1 Distribution of Participant's Interest When Company is Unable to Locate
Distributees. In case the Company is unable within three (3) years after payment
is due to a Participant, or within three (3) years after payment is due to the
Beneficiary or estate of a deceased Participant, to make such payment to him or
her or his or her Beneficiary, executor or administrator because it cannot
ascertain his or her whereabouts or the identity or whereabouts of his or her
Beneficiary, executor or administrator by mailing to the last known address
shown on the Employer's or the Company's records, and neither he or she, his or
her Beneficiary, nor his or her executor or administrator had made written claim
therefore before the expiration of the aforesaid time limit, then in such case,
the amount due shall be forfeited to the Company.
ARTICLE VIII
MAINTENANCE OF ACCOUNTS
8.1 Books and Records. The Company shall keep, or cause to be kept, all such
books of account, records and other data as may be necessary or advisable in its
judgment for the
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administration of this Plan, and properly to reflect the affairs thereof, and to
determine the nature and amount of the interests of the respective Participants
in each Account.
The Company is not required to physically segregate any assets with respect to
the Accounts under this Plan from any other assets of the Company and may
commingle any such assets with any other moneys, securities and properties of
any kind of the Company. Separate accounts or records for the respective
Participants' interests shall be maintained for operational and accounting
purposes, but no such account or record shall be considered as creating a lien
of any nature whatsoever on or as segregating any of the assets with respect to
the Accounts under this Plan from any other funds or property of the Company.
ARTICLE IX
AMENDMENT AND TERMINATION OF THE PLAN
9.1 Amendment or Termination. The Board and/or the Committee may at any time
amend or terminate the Plan in whole or in part, provided however, that, except
as may be provided herein or required by applicable law, no amendment or
termination shall be effective to decrease or restrict the amount accrued
(including earnings at the appropriate interest rate) in any Account to the date
of such amendment, cause a payment of deferred amounts or otherwise affect a
deferral election with respect to the then current Plan Year.
ARTICLE X
SPENDTHRIFT PROVISIONS
10.1 No Right to Alienation or Assignment. The Employer shall, except as
otherwise provided hereunder, pay all amounts payable hereunder only to the
person or persons entitled thereto hereunder, and all such payments shall be
made directly into the hands of each such person or persons and not into the
hands of any other person or corporation whatsoever, so that said payments may
not be liable for the debts, contracts or engagements of any such designated
person or persons, or taken in execution by attachment or garnishment or by any
other legal or equitable proceedings, nor shall any such designated person or
persons have any right to alienate, arbitrate, execute, pledge, encumber, or
assign any such payments or the benefits or proceeds thereof. Notwithstanding
the foregoing, the Committee may assign and/or accelerate the payment of a
Participant's vested account balances to an individual other than the
Participant as may be necessary to comply with a "qualified domestic relations
order" as defined by and under the terms provided in Code Section 414(p), Code
Section 409A and other applicable authorities.
ARTICLE XI
MISCELLANEOUS
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11.1 Right of Employers to Dismiss Employees; Obligations. Neither the action of
the Company and the Employers in establishing this Plan, nor any provisions of
this Plan, shall be construed as giving any employee the right to be retained in
his or her Employer's employ, or any right to any payment whatsoever except to
the extent of the benefits provided for by this Plan. The Employers expressly
reserve their right at any time to dismiss any employee without any liability
for any claim against the Employers, or any of them, for any payment whatsoever
except to the extent provided for in this Plan. The Employers, or any of them,
have no obligation to create any other or subsequent deferred compensation plan
for any employees.
11.2 Title to and Ownership of Assets Held for Accounts. Title to and ownership
of all assets held for any Accounts shall be vested in the Employer and shall
constitute general assets of the Employer.
11.3 Nature of Liability to Participants. Any and all payments required to be
made by the Employer to Participants in the Plan shall be general and unsecured
liabilities of the Employer.
11.4 Text of Plan to Control. The headings of the Articles and Sections are
included solely for convenience of reference, and if there be any conflict
between such headings and the text of this Plan, the text shall control. This
Plan document sets forth the complete terms of the Plan. In the event of any
discrepancies or conflicts between this Plan document and any summary or other
information regarding the Plan, the terms of this Plan document shall apply and
control. The Plans and any Deferral Elections will be interpreted and
administered in accordance with Internal Revenue Code Section 409A. In the event
that any provision that is necessary to effectuate such intent as determined by
the Company, in its sole discretion, to have been omitted, such omitted
provision shall be deemed included herein and is hereby incorporated.
11.5 Law Governing and Severability. This Plan shall be construed, regulated and
administered under the laws of the State of New York. If any provisions of this
Plan shall be held invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect the remaining provisions of this Plan, and
this Plan shall be deemed to be modified to the least extent possible to make it
valid and enforceable in its entirety.
11.6 Gender. The masculine gender shall include the feminine, and the singular
shall include the plural, except when the context expressly dictates otherwise.
11.7 Trust Fund. The Employer shall be responsible for the payment of all
benefits provided under the Plan. At its discretion, the Company may establish
one or more trusts, with such trustees as the Board or the Committee may
approve, for the purpose of providing for the payment of such benefits. Such
trust or trusts may be irrevocable, but the assets thereof shall be subject to
the claims of the Company's creditors. To the extent any benefits provided under
the Plan are actually paid from any such trust, the Employer shall have no
further obligation with respect thereto, but to the extent not so paid, such
benefits shall remain the obligation of, and shall be paid by, the Employer.
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11.8 Ineligible Participant. Notwithstanding any other provisions of this Plan
to the contrary, if any Participant is determined not to be a "management or
highly compensated employee" within the meaning of ERISA or Regulations
thereunder, such Participant will not be eligible for this Plan.
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