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Exhibit 10.9
SHEER, AHEARN AND ASSOCIATES, INC.
PLAN PROVISION
NONQUALIFIED EXCESS DEFERRAL PLAN
EFFECTIVE: SEPTEMBER 1, 1998
ARTICLE I - PURPOSE OF PLAN
1.1. PURPOSE OF PLAN. The Company intends and desires by the adoption of
this Plan to recognize the value to the Company of the past and present
services of Eligible Employees covered by the Plan and to encourage and
assure their continued service with the Company by making additional
provisions for their future retirement security.
This Plan is adopted to provide certain key management or highly
compensated employees of Sheer, Ahearn and Associates, Inc. the
opportunity to accumulate deferred compensation in addition to amounts
accumulated in qualified plans.
ARTICLE II - DEFINITIONS
2.1. ACCOUNTS means the accounts maintained under this Plan on the books of
the Company to measure the benefit of an Eligible Employee.
2.1. BOARD means the Board of Directors of the Sheer, Ahearn and Associates,
Inc.
2.2. CODE means the Internal Revenue Code of 1986, as amended.
2.3. COMMITTEE means the Compensation Committee appointed by the Board.
2.4. COMPANY means Sheer, Ahearn and Associates, Inc. or any company that is
a successor as a result of merger, consolidation, liquidation, transfer
of assets or other reorganization.
2.5. ELIGIBLE EMPLOYEE means, for any Plan year, an employee of the Company
who is a member of a select group of management or highly compensated
employees as determined by the Company.
2.6. PLAN means the Sheer, Ahearn and Associates, Inc. Nonqualified Excess
Deferral Plan.
2.7. PLAN YEAR means the twelve (12) month period ending each December 31
during which the Plan is in effect.
2.8. NONQUALIFIED EXCESS DEFERRAL ACCOUNT means the account on the
books of the Company to which an Eligible Employee's salary deferrals
under Section 3.1, plus earnings, are credited.
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ARTICLE III - SALARY REDUCTION CONTRIBUTIONS
3.1. An Eligible Employee may, for any Plan Year in which he or she is an
Eligible Employee, elect to defer base salary or bonuses from the
Company equal to a whole percentage or specified dollar amount of his
or her base salary or bonus per payroll period. The minimum deferral
that may be made during a Plan Year is $5,000; the maximum deferral
that may be made during any Plan Year is $200,000. Eligible Employee
does so by completing the Enrollment Form and Beneficiary Election
Form. Salary reduction elections for existing employees under this Plan
must be made before the beginning of the Plan Year to which they apply.
New employees to the company are eligible to participate the first
quarter subsequent to their hire date. Once a Plan Year begins, salary
reduction elections for that year under this Plan may not be amended or
revoked, nor may salary reductions be suspended. The company will
credit to each Eligible Employee's Nonqualified Excess Deferral Account
the amount of that Eligible Employee's salary reduction under this
section.
3.2. Contribution amounts may be changed prior to the beginning of the next
Plan Year but the salary reduction may not be less than the minimum
amount as described in Section 3.1.
ARTICLE IV - VESTING
4.1. SALARY DEFERRALS. An Eligible Employee shall always be one hundred
percent (100%) vested in amounts credited to his or her Nonqualified
Excess Deferral Account.
ARTICLE V - ACCOUNTS
5.1. ACCOUNTS. The Company will maintain on its books an Account for each
Eligible Employee, to which shall be credited, as appropriate, salary
reduction contributions under Section 3.1 and earnings as provided in
Section 6.5.
ARTICLE VI - PAYMENT OF BENEFITS
6.1. PAYMENT OF BENEFITS. The benefit payable under this Plan on account of
an Eligible Employee's termination of employment, retirement,
disability, or death shall be paid out based upon his or her payout
schedule, as elected on the Enrollment Form prior to starting
deferrals. Upon the earlier of such termination of employment,
retirement, disability or death, payments shall start within sixty (60)
days after the triggering event. All payments provided for in this Plan
shall be made in conformity with the regular payroll procedures in use
by the Company at the time of payment. Any death benefit payable under
this Plan shall be payable to the beneficiary or beneficiaries listed
on the Beneficiary Election Form.
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6.2. DEFERRAL OF PAYMENTS. The Employee may elect to defer receipt of
retirement benefits by making an election before the first day of the
Plan year before the year he/she would receive benefits.
6.3. HARDSHIP WITHDRAWAL. A participant may at anytime after completion of
twelve months participation in the Plan apply in writing to the
Committee for a single-sum distribution of that portion of such
Employee's Accrued Balance necessary to relieve an immediate financial
need resulting from an Unforeseeable Emergency. Whether, and the extent
to which, the Employee has incurred an Unforeseeable Emergency shall be
determined by the Committee in its sole discretion. The minimum
hardship withdrawal shall be $5,000, and the maximum shall be the
amount necessary to relieve the immediate financial need resulting from
the unforeseeable emergency. An Employee who receives a Hardship
Withdrawal shall not be eligible to make deferrals under the Plan until
the beginning of the next Plan year, or if the beginning of the next
Plan year is less than six months from the effective date of the
withdrawal, until the expiration of such six-month period.
6.4. DISABILITY BENEFITS. The Employee shall be deemed to have become
disabled for purposes of this Plan if the Committee shall find, on the
basis of medical evidence satisfactory to it, that the Employee is so
totally mentally or physically disabled as to be unable to engage in
further employment, and that such disability shall be permanent and
continuous during the remainder of his or her life. No disability
payments under this Plan will be paid until benefits from all other
sources of Employer Sponsored and Employee- owned Disability Income
Insurance are accessed and in the process of paying benefits as
described by each applicable contract.
6.5. EARNINGS BASED ON DEEMED INVESTMENT. At the end of each calendar
quarter, each Account will be adjusted, with either an increase or a
decrease, to reflect earnings on the Account during the quarter. The
Account will be adjusted to reflect the investment return under the
Eligible Employee's election for deemed investment (noted an the
Enrollment Form). Interest for a quarter will be credited or debited
only on Accounts which are on the books of the Company at the end of
the quarter, and accounts which are distributed in full during a
quarter will not be credited with earnings for that quarter. The return
credited or debited to the account is only a measuring device and does
not reflect that the Employee has any right to any assets owned by the
Company.
ARTICLE VII - ADMINISTRATION
7.1. COMMITTEE. The Committee shall administer, construe, and interpret this
Plan and shall determine, subject to the provisions of this Plan, the
Eligible Employees who shall participate in the Plan from time to time
and the amount, if any, due an Eligible Employee (or his at her
beneficiary) under this Plan. No member of the Committee shall be
liable for any act done or determination made in good faith. No member
of the Committee who is a participant in this Plan may vote on matters
affecting his or her personal benefit under this Plan, but any such
member shall otherwise be fully entitled to
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act in matters arising out of or affecting this Plan notwithstanding
his or her participation herein. In carrying out its duties herein, the
Committee shall have discretionary authority to exercise all powers and
to make all determinations, consistent with the terms of the Plan, in
all matters entrusted to it, and its determinations shall be given
deference and shall be final and binding on all interested parties.
7.2. CLAIMS PROCEDURE. The following claims procedure shall apply to the
Plan:
a. FILING OF A CLAIM FOR BENEFITS. The Employee or the
beneficiaries of the Plan shall make a claim for the benefits
provided under the Plan in the manner provided in the Plan.
b. CLAIM APPROVAL OR DENIAL WITH RESPECT TO PLAN BENEFITS. With
respect to a claim for benefits, the Plan Administrator shall
review and make decisions on claims for benefits. The Plan
Administrator shall have complete and sole discretionary
authority to determine eligibility for benefits and to
construe the terms of the Plan.
c. NOTIFICATION TO CLAIMANT OF DECISION. If a claim is wholly or
partially denied, notice of the decision, meeting the
requirements of paragraph d. following, shall be furnished to
the claimant within a reasonable period of time after the
claim has been filed.
d. CONTENT OF NOTICE. The Plan Administrator shall provide to any
claimant whose claim for benefits is denied in whole or in
part a written notice setting forth, in a manner calculated to
be understood by the claimant, the following:
(1) the specific reason or reasons for the denial or
partial denial;
(2) specific reference to pertinent Plan provisions on
which the denial is based;
(3) a description of any additional material or
information necessary for the claimant to perfect the
claim and an explanation of why such material or
information is necessary; and,
(4) an explanation of the Plan's claim review procedure,
as set forth in paragraphs e. and f. following.
e. REVIEW PROCEDURE. The purpose of the review procedure set
forth in this paragraph and in paragraph f. following is to
provide a procedure by which a claimant under the Plan may
have a reasonable opportunity to appeal a denial or partial
denial of a claim and request a full and fair review. To
accomplish that purpose, the claimant or a duly authorized
representative:
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(1) may request a review by written application to the
Plan Administrator;
(2) may review pertinent Plan documents or agreements;
and,
(3) may submit issues and comments in writing.
A claimant (or duly authorized representative) shall request a
review at any time within sixty (60) days by filing a written
application after receipt by the claimant of written notice of
the denial of his or her claim.
f. DECISION ON REVIEW. A decision on review of a denial of a
claim shall be made in the following manner.
(1) The decision on review shall be made by the Plan
Administrator, which may in his or her discretion
hold a hearing on the denied claim. The Plan
Administrator shall make his or her decision
promptly, unless special circumstances (such as the
need to hold a hearing) require an extension of time
for processing, in which case a decision shall be
rendered as soon as possible, but no later than one
hundred twenty (120) days after receipt of the
request for review.
(2) The decision on review shall be in writing, and shall
include specific reasons for the decision, written in
a manner calculated to be understood by the claimant,
and specific references to the pertinent Policy or
Plan provisions on which the decision is based.
g. IMPLEMENTATION. For purposes of implementing this claims
procedure, the Committee is hereby designated as Plan
Administrator of this Plan and Agreement.
ARTICLE VIII - MISCELLANEOUS PROVISIONS
8.1. LIMITATION OF RIGHTS. Nothing contained in this Plan shall be construed
to:
(a) Limit in any way the right of the Company to terminate an
Eligible Employee's employment at any time; or
(b) Be evidence of any agreement or understanding, express or
implied, that the Company will employ an Eligible Employee in
any particular position or at any particular rate of
remuneration.
8.2. NONALIENATION OF BENEFITS; NO WITHDRAWALS. No amounts payable
hereunder may be assigned, pledged, mortgaged, or hypothecated, and, to
the extent permitted by law, no such amounts shall be subject to legal
process or attachment of the payment of any claims against any person
entitled to receive the same. No amounts
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credited to an Eligible Employee's account[s] may be withdrawn or paid
to the Eligible Employee prior to his or her termination of employment.
8.3. AMENDMENT OR TERMINATION OF PLAN. Although it is expected that this
Plan shall continue indefinitely, the Board may amend this Plan from
time to time in any respect, and may at any time terminate the Plan in
its entirety; provided, however, that an Eligible Employee's account[s]
as of the date of any such amendment or termination may not be reduced
nor may any such amendment or termination adversely affect an Eligible
Employee's entitlement to his or her account[s] as of such date.
8.4. ACCELERATION OF BENEFITS BASED ON COMPANY'S FINANCIAL
HARDSHIP. If the Executive Management Committee or some other committee
duly appointed by the Board of Directors of the Corporation to
supervise the Plan deems that MedPartners, Inc. or any other owner of
the company is financially insecure, illiquid or in any way unable to
pay its debts and in particular its obligations under this Plan, then
the Employee's Deferred Compensation Account will immediately vest and
be made payable as an immediate payment at the discretion of the
participant, in the Employee and the Company shall credit 100% to the
deferred book reserve.
8.5. CONSTRUCTION OF PLAN. This Plan is unfunded. The obligations of the
Company with respect to the amounts payable hereunder shall be paid out
of the Company's general assets and shall not be secured by any form of
trust, escrow, or otherwise. This provision shall not require the
Company to set aside any funds, but the Company may set aside such
funds if it chooses to do so. This Plan shall be so construed that it
will be "unfunded" and maintained "primarily for the purpose of
providing deferred compensation for a select group of management or
highly compensated employees," as those terms are used in the Employee
Retirement Income Security Act of 1974.
8.6. INCAPACITY OF BENEFICIARY. If the Company shall find that any person to
whom any payment is payable under this Plan is unable to care for his
or her affairs because of illness or accident or is a minor, any
payment due (unless a prior claim thereof shall have been made by a
duly appointed guardian, committee, or other legal representative) may
be paid to the spouse, child, parent, or brother or sister, or to any
person deemed by the Company to have incurred expense for such person
otherwise entitled to payment, in accordance with the applicable
provision of this Plan. Any such payment shall be a complete discharge
of the Company's liabilities under this Plan.
8.7. SEVERABILITY. If the Internal Revenue Service shall at any time
interpret this Plan to be ineffective with regard to deferral of the
Employee's income, and that interpretation becomes final and is not
appealed, then only those amounts in the account[s] which would be
treated as currently taxable income by the Service at the time of such
final interpretation shall be paid over to the Employee. All other
assets shall be distributed to the Employee according to the Enrollment
and Beneficiary Election Form.
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8.8. NOTICE. Any notice to be delivered under this Plan shall be given in
writing and delivered, personally or by certified mail, postage
prepaid, addressed to the Company at its last known address.
8.9. NONWAIVER. No delay or failure by either party to exercise any right
under this Plan, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right.
8.10. GENDER AND NUMBER. Wherever used in this Plan, the masculine shall be
deemed to include the feminine and the singular shall be deemed to
include the plural, unless the context clearly indicates otherwise.
8.11. LAW GOVERNING. This Plan shall be construed in accordance with and
governed by the laws of the State of Florida to the extent such laws
are not preempted by federal law.
8.12. BINDING EFFECT. This Plan shall be binding upon the parties hereto,
their heirs, assigns, successors, executors, and administrators. In the
event the Company becomes a party to any merger, sale, consolidation,
or reorganization, this Plan shall remain in full force and continue to
be offered as a benefit for the class of employees for which it is
intended. The continuation of this Plan shall remain as an obligation
of the Company or its successors in interest.
ATTEST/WITNESS Sheer, Ahearn and Associates, Inc.
Witness: /s/ Christopher P. Davis By: /s/ H. Kirby Blankenship
Title: President
Print Name: Christopher P. Davis Print Name: H. Kirby Blankenship
Date: February 25, 1999
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