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Exhibit 10.17
BOSTON SCIENTIFIC CORPORATION
DEFERRED COMPENSATION PLAN
Effective January 1, 1996
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TABLE OF CONTENTS
Page
Purpose .....................................................................1
ARTICLE 1
Definitions...............................................................1
ARTICLE 2
Eligibility and Enrollment................................................7
2.1 Participation. ....................................................7
2.2 Enrollment Requirements.............................................7
2.3 Commencement of Participation.......................................7
2.4 Termination of Participation and/or Deferrals.......................7
ARTICLE 3
Deferral Commitments/Interest Crediting/Taxes.............................7
3.1 Minimum Deferral....................................................7
3.2 Maximum Deferral....................................................8
3.3 Election to Defer; Effect of Election Form..........................9
3.4 Withholding of Deferral Amounts.....................................9
3.5 Interest Crediting..................................................9
3.6 Interest Crediting for Installment Distributions...................10
3.7 FICA and Other Taxes...............................................11
3.8 Quarterly Statements...............................................11
ARTICLE 4
Short-Term Payout; Withdrawals; Change in Control........................11
4.1 Short-Term Payout..................................................11
4.2 Other Benefits Take Precedence Over Short-Term Payout..............12
4.3 Withdrawal Payout/Suspensions for Unforeseeable
Financial Emergencies.............................................12
4.4 Withdrawal Election................................................12
4.5 Change in Control..................................................12
ARTICLE 5
Retirement Benefit.......................................................13
5.1 Retirement Benefit.................................................13
5.2 Payment of Retirement Benefit......................................13
5.3 Death Prior to Completion of Retirement Benefit....................13
ARTICLE 6
Pre-Retirement Survivor Benefit..........................................13
6.1 Pre-Retirement Survivor Benefit....................................13
6.2 Payment of Pre-Retirement Survivor Benefit.........................14
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ARTICLE 7
Termination Benefit......................................................14
7.1 Termination Benefit................................................14
7.2 Payment of Termination Benefit.....................................14
ARTICLE 8
Disability Waiver and Benefit............................................14
8.1 Disability Waiver..................................................14
8.2 Continued Eligibility; Disability Benefit..........................15
ARTICLE 9
Beneficiary Designation..................................................15
9.1 Beneficiary........................................................15
9.2 Beneficiary Designation; Change....................................15
9.3 Acknowledgment.....................................................16
9.4 No Beneficiary Designation.........................................16
9.5 Doubt as to Beneficiary............................................16
9.6 Discharge of Obligations...........................................16
ARTICLE 10
Leave of Absence.........................................................16
10.1 Paid Leave of Absence..............................................16
10.2 Unpaid Leave of Absence............................................16
ARTICLE 11
Termination, Amendment or Modification...................................17
11.1 Termination........................................................17
11.2 Amendment..........................................................17
11.3 Plan Agreement.....................................................18
11.4 Effect of Payment..................................................18
ARTICLE 12
Administration...........................................................18
12.1 Committee Duties...................................................18
12.2 Agents.............................................................18
12.3 Binding Effect of Decisions........................................18
12.4 Indemnity of Committee.............................................19
12.5 Employer Information...............................................19
ARTICLE 13
Other Benefits and Agreements............................................19
13.1 Coordination with Other Benefits...................................19
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ARTICLE 14
Claims Procedures........................................................19
14.1 Presentation of Claim..............................................19
14.2 Notification of Decision...........................................19
14.3 Review of a Denied Claim...........................................20
14.4 Decision on Review.................................................20
14.5 Legal Action.......................................................21
ARTICLE 15
Funding..................................................................21
15.1 No Funding.........................................................21
15.2 Grantor Trust......................................................21
ARTICLE 16
Miscellaneous............................................................21
16.1 Limitation on Benefit Payment......................................21
16.2 Status of Plan.....................................................22
16.3 Unsecured General Creditor.........................................22
16.4 Employer's Liability...............................................22
16.5 Nonassignability...................................................22
16.6 Not a Contract of Employment.......................................22
16.7 Furnishing Information.............................................23
16.8 Terms..............................................................23
16.9 Captions...........................................................23
16.10 Governing Law......................................................23
16.11 Notice.............................................................23
16.12 Successors.........................................................23
16.13 Spouse's Interest..................................................23
16.14 Validity...........................................................24
16.15 Incompetent........................................................24
16.16 Court Order........................................................24
16.17 Distribution in the Event of Taxation..............................24
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BOSTON SCIENTIFIC CORPORATION
DEFERRED COMPENSATION PLAN
Effective January 1, 1996
Purpose
The purpose of this Plan is to provide specified benefits to a select group
of management, highly compensated Employees, and Directors who contribute
materially to the continued growth, development and future business success of
Boston Scientific Corporation, a Delaware corporation, and its subsidiaries, if
any, that sponsor this Plan. This Plan shall be unfunded for tax purposes and
for purposes of Title I of ERISA.
ARTICLE 1
Definitions
For purposes hereof, unless otherwise clearly apparent from the context,
the following phrases or terms shall have the following indicated meanings:
1.1 "Account Balance" shall mean (i) the Deferral Amount, plus (ii) interest
credited in accordance with all the applicable interest crediting
provisions of this Plan, less (iii) all distributions. This account shall
be a bookkeeping entry only and shall be utilized solely as a device for
the measurement and determination of the amounts to be paid to a
Participant pursuant to this Plan.
1.2 "Annual Bonus" shall mean any compensation, in addition to Base Annual
Salary, paid annually to a Participant as an Employee under any Employer's
annual bonus and incentive plans.
1.3 "Annual Deferral Amount" shall mean that portion of a Participant's Base
Annual Salary, Annual Bonus and/or Directors Fees that a Participant
elects to have deferred in accordance with Article 3, for any one Plan
Year. In the event of a Participant's Retirement, Disability (if deferrals
cease in accordance with Section 8.1), death or a Termination of
Employment prior to the end of a Plan Year, such year's Annual Deferral
Amount shall be the actual amount withheld prior to such event.
1.4 "Base Annual Salary" shall mean the annual compensation, excluding
bonuses, commissions, overtime, fringe benefits, stock options, relocation
expenses, incentive payments, non-monetary awards, directors fees and
other fees, automobile and other allowances (whether or not such
allowances are included in the Employee's gross income), paid to a
Participant for employment services rendered.
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Base Annual Salary shall be calculated before reduction for compensation
voluntarily deferred or contributed by the Participant pursuant to all
qualified or non-qualified plans and shall be calculated to include
amounts not otherwise included in the Participant's gross income under
Code Section 125, 402(e)(3), 402(h) or 403(b) pursuant to plans
established by any Employer; provided, however, that all such amounts will
be included in compensation only to the extent that, had there been no
such plan, the amount would have been payable in cash to the Employee.
1.5 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 9, that are entitled to
receive benefits under this Plan upon the death of a Participant.
1.6 "Beneficiary Designation Form" shall mean the form established from time
to time by the Committee that a Participant completes, signs and returns
to the Committee to designate one or more Beneficiaries.
1.7 "Board" shall mean the board of directors of the Company.
1.8 "Change in Control" shall mean the first to occur of any of the following:
(a) The acquisition, other than from the Company, by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 20% or more of either (i) the then outstanding shares
of Common Stock (the "outstanding Common Stock") or (ii) the combined
voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Company
voting securities"); provided, however, that any acquisition by (x) any
noncorporate shareholder of the Company as of the effective date of the
initial registration of an offering of Common Stock under the Securities
Act of 1933, (y) the company or any of its subsidiaries, or any employee
benefit plan (or related trust) sponsored or maintained by the Company or
any of its subsidiaries or (z) any corporation with respect to which,
following such acquisition, more than 60% of, respectively, the then
outstanding shares of common stock of such corporation and combined voting
power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners, respectively,
of the outstanding Common Stock and Company voting securities immediately
prior to such acquisition in substantially the same proportion as their
ownership, immediately prior to such acquisition, of the outstanding
Common Stock and Company voting securities, as the case may be, shall not
constitute a Change in Control; or
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(b) Continuing directors constitute less than a majority of the
Board, where a "continuing director" is (i) each person who was a director
of the Company on January 2, 1995, and (ii) each person who subsequently
becomes a director of the Company and whose election or nomination was
approved by a vote of at least a majority of the continuing directors in
office at the time of the election or nomination unless that person became
a director in connection with an actual or threatened election contest; or
(c) Approval by the shareholders of the Company of a reorganization,
merger or consolidation (a "business combination"), with respect to which
all or substantially all of the individuals and entities who were the
respective beneficial owners of the outstanding Common Stock and Company
voting securities immediately prior to such business combination do not
own beneficially, directly or indirectly, more than 60% of, respectively,
the then outstanding shares of common stock and the combined voting power
of the then outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation
resulting from such business combination in substantially the same
proportion as their ownership immediately prior to such business
combination of the outstanding Common Stock and Company voting securities,
as the case may be; or
(d) A complete liquidation or dissolution of the Company or a sale
or other disposition of all or substantially all of the assets of the
Company other than to a corporation with respect to which, following such
sale or disposition, more than 60% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election
of directors is then owned beneficially, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the outstanding Common Stock and Company voting
securities immediately prior to such sale or disposition in substantially
the same proportion as their ownership of the outstanding Common Stock and
Company voting securities, as the case may be, immediately prior to such
sale or disposition.
1.9 "Claimant" shall have the meaning set forth in Section 14.1.
1.10 "Code" shall mean the Internal Revenue Code of 1986, as may be amended
from time to time.
1.11 "Committee" shall mean the committee described in Article 12.
1.12 "Common Stock" shall mean the common stock, $.01 par value, of the
Company.
1.13 "Common Stock Option" shall mean the interest crediting option described
in Section 3.5(b).
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1.14 "Company" shall mean Boston Scientific Corporation, a Delaware
corporation, and any successor to all or substantially all of the
Company's assets or business which assumes the obligations of the Company.
1.15 "Crediting Rate" shall mean an interest rate, determined under the Moody's
Rate Option or the Common Stock Option, as elected by the Participant for
each Annual Deferral Amount (or a designated portion thereof).
1.16 "Deferral Amount" shall mean the sum of all of a Participant's Annual
Deferral Amounts.
1.17 "Deduction Limitation" shall mean the limitation described in Section 16.1
on a benefit that may otherwise be distributable pursuant to the
provisions of this Plan.
1.18 "Director" shall mean any member of the board of directors of any
Employer.
1.19 "Directors Fees" shall mean the annual fees paid by any Employer,
including retainer fees and meetings fees, as compensation for serving on
its board of directors.
1.20 "Disability" shall mean a period of disability during which a Participant
qualifies for permanent disability benefits under the Participant's
Employer's long-term disability plan, or, if a Participant does not
participate in such a plan, a period of disability during which the
Participant would have qualified for permanent disability benefits under
such a plan had the Participant been a participant in such a plan, as
determined in the sole discretion of the Committee.
1.21 "Disability Benefit" shall mean the benefit described in Article 8.
1.22 "Election Form" shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the Committee
to make an election under the Plan.
1.23 "Eligible Individual" shall mean, initially, an Outside Director of the
Company. Effective as of such date as the Company determines and
communicates in advance to Eligible Individuals, an "Eligible Individual"
means (a) any Vice President, Senior Vice President or member of the
Office of the Chairman of the Company; (b) any Employee of another
Employer if the Employee is designated by the Committee as eligible for
the Plan; and (c) any Director.
1.24 "Employee" shall mean a person who is an employee of any Employer.
1.25 "Employer(s)" shall mean the Company and/or any of its subsidiaries (now
in existence or hereafter formed or acquired) that have been selected by
the Board to participate in the Plan and have adopted the Plan as a
sponsor.
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1.26 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
1.27 "Market Price" shall mean, as of any trading date, the closing price of
Common Stock on such date (or, if no trading shall have occurred on such
date, on the next previous date on which trading shall have occurred), as
reported on the New York Stock Exchange Composite Tape.
1.28 "Moody's Rate Option" shall mean the interest crediting option described
in Section 3.5(a).
1.29 "Outside Director" shall mean a Director who is not an officer or employee
of the Company or any of its subsidiaries.
1.30 "Participant" shall mean any Eligible Individual (i) who elects to
participate in the Plan, (ii) who signs a Plan Agreement, an Election Form
and a Beneficiary Designation Form, (iii) whose signed Plan Agreement,
Election Form and Beneficiary Designation Form are accepted by the
Committee, (iv) who commences participation in the Plan, and (v) whose
Plan Agreement has not terminated. A spouse or former spouse of a
Participant shall not be treated as a Participant in the Plan, even if he
or she has an interest in the Participant's benefits under the Plan as a
result of applicable law or property settlements resulting from legal
separation or divorce.
1.31 "Plan" shall mean the Boston Scientific Corporation Deferred Compensation
Plan, which shall be evidenced by this instrument and by each Plan
Agreement, as may be amended from time to time.
1.32 "Plan Agreement" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between an Employer and a
Participant. Each Plan Agreement executed by a Participant and the
Participant's Employer shall provide for the entire benefit to which such
Participant is entitled to under the Plan, and the Plan Agreement bearing
the latest date of acceptance by the Committee shall govern such
entitlement. The terms of any Plan Agreement may be varied by Participant,
and any Plan Agreement may provide additional benefits not set forth in
the Plan or limit the benefits otherwise provided under the Plan;
provided, however, that any such additional benefits or benefit
limitations must be agreed to by both the Employer and the Participant.
1.33 "Plan Year" shall mean the twelve (12) month period beginning on January 1
and continuing through December 31.
1.34 "Pre-Retirement Survivor Benefit" shall mean the benefit described in
Article 6.
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1.35 "Retirement", "Retires" or "Retired" shall mean, with respect to an
Employee, severance from employment from all Employers for any reason
other than a leave of absence, death or Disability on or after the earlier
of the attainment of (a) age sixty-five (65) or (b) age fifty-five (55)
with five (5) Years of Service; and shall mean, with respect to a Director
who is not an Employee, severance of his or her directorships with all
Employers on or after the later of (y) the attainment of age seventy (70),
or (z) in the sole discretion of the Committee, an age later than age
seventy (70). If a Participant is both an Employee and a Director,
Retirement shall not occur until he or she Retires as both an Employee and
a Director.
1.36 "Retirement Benefit" shall mean the benefit described in Article 5.
1.37 "Short-Term Payout" shall mean the payout described in Section 4.1.
1.38 "Termination Benefit" shall mean the benefit described in Article 7.
1.39 "Termination of Employment" shall mean the ceasing of employment with all
Employers, or service as a Director of all Employers, voluntarily or
involuntarily, for any reason other than Retirement, Disability, death or
an authorized leave of absence. If a Participant is both an Employee and a
Director, a Termination of Employment shall occur only upon the
termination of the last position held.
1.40 "Unforeseeable Financial Emergency" shall mean an unanticipated emergency
that is caused by an event beyond the control of the Participant that
would result in severe financial hardship to the Participant resulting
from (i) a sudden and unexpected illness or accident of the Participant or
a dependent of the Participant, (ii) a loss of the Participant's property
due to casualty, or (iii) other extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
Participant, all as determined in the sole discretion of the Committee.
1.41 "Years of Service" shall mean the total number of full years in which a
Participant has been an Employee or a Director. Any partial year shall not
be counted.
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ARTICLE 2
Eligibility and Enrollment
2.1 Participation. Participation in the Plan shall be limited to Eligible
Individuals.
2.2 Enrollment Requirements. As a condition to participation, each Eligible
Individual shall complete, execute and return to the Committee a Plan
Agreement, an Election Form and a Beneficiary Designation Form prior to
January 1, 1996 or, if later, within 30 days after the day on which he or
she becomes an Eligible Individual. In addition, the Committee shall
establish from time to time such other enrollment requirements as it
determines, in its sole discretion, are necessary.
2.3 Commencement of Participation. Each Eligible Individual shall commence
participation in the Plan upon satisfaction of all enrollment requirements
set forth in this Plan and required by the Committee, including returning
all required documents to the Committee within the required time frame. If
an Eligible Individual fails to meet all such requirements within the
required time frame, he or she shall not be eligible to participate in the
Plan until the first day of the Plan Year following the delivery to and
acceptance by the Committee of the required documents.
2.4 Termination of Participation and/or Deferrals. If the Committee determines
in good faith that a Participant no longer qualifies as a member of a
select group of management or highly compensated employees, as membership
in such group is determined in accordance with Sections 201(2), 301(a)(3)
and 401(a)(1) of ERISA, the Committee shall have the right, in its sole
discretion, to (i) terminate any deferral election the Participant has
made for the Plan Year in which the Participant's membership status
changes, (ii) prevent the Participant from making future deferral
elections and/or (iii) immediately distribute the Participant's then
Account Balance as a Termination Benefit and terminate the Participant's
participation in the Plan. The Committee may, in its sole discretion,
reinstate the Participant to full Plan participation at such time in the
future as the Participant again becomes a member of the select group
described above.
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ARTICLE 3
Deferral Commitments/Interest Crediting/Taxes
3.1 Minimum Deferral.
(a) Minimum. For each Plan Year, a Participant may elect to defer one or
more of the following forms of compensation in the following minimum
amounts for each deferral elected:
Minimum
Deferral Amount
-------- ------
Base Annual Salary $2,000
Annual Bonus $2,000
Directors Fees $ 0
If an election is made for less than the stated minimum amounts, or
if no election is made, the amount deferred shall be zero.
(b) Short Plan Year. If a Participant first becomes a Participant after
the first day of a Plan Year, the minimum Base Annual Salary
deferral shall be an amount equal to the minimum set forth above,
multiplied by a fraction, the numerator of which is the number of
complete months remaining in the Plan Year and the denominator of
which is 12.
3.2 Maximum Deferral. For each Plan Year, a Participant may elect to defer
Base Annual Salary, Annual Bonus and/or Directors Fees up to the following
maximum percentages for each deferral elected:
Maximum
Deferral Percentage
-------- ----------
Base Annual Salary 50%
Annual Bonus 100%
Directors Fees 100%
Notwithstanding the foregoing, if a Participant first becomes a
Participant after the first day of a Plan Year, the maximum Annual
Deferral Amount shall be limited to the amount of compensation not yet
earned by the Participant as of the date the Participant submits a Plan
Agreement and Election Form that are accepted by the Committee.
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3.3 Election to Defer; Effect of Election Form.
(a) First Plan Year. In connection with a Participant's commencement of
participation in the Plan, the Participant shall make an irrevocable
deferral election for the Plan Year in which the Participant
commences participation in the Plan, along with such other elections
as the Committee deems necessary or desirable under the Plan. For
these elections to be valid, the Election Form must be completed and
signed by the Participant, timely delivered to the Committee (in
accordance with Section 2.3 above) and accepted by the Committee.
(b) Subsequent Plan Years. For each succeeding Plan Year, an irrevocable
deferral election for that Plan Year, and such other elections as
the Committee deems necessary or desirable under the Plan, shall be
made by timely delivering to the Committee, in accordance with its
rules and procedures before the end of the Plan Year preceding the
Plan Year for which the election is made, a new Election Form. If no
Election Form is timely delivered for a Plan Year, there shall be no
Annual Deferral Amount for that Plan Year.
3.4 Withholding of Deferral Amounts. For each Plan Year, the Base Annual
Salary portion of the Annual Deferral Amount shall be withheld in equal
amounts from each regularly scheduled Base Annual Salary payroll. The
Annual Bonus and/or Directors Fees portion of the Annual Deferral Amount
shall be withheld at the time the Annual Bonus or Directors Fees are or
otherwise would be paid to the Participant.
3.5 Interest Crediting. Interest shall be credited and compounded annually on
a Participant's Account Balance. At the time that a Participant makes a
deferral election under Section 3.3 for any Plan Year, the Participant
shall also elect whether interest shall be credited on the Annual Deferral
Amount for such Plan Year on the basis of the Moody's Rate Option or the
Common Stock Option, or whether a designated portion of the Annual
Deferral Amount shall be subject to each such option.
(a) Moody's Rate Option. If this option is elected, interest shall be
credited for each Plan Year to the Annual Deferral Amount (or the
designated portion thereof) at the applicable Moody's rate. The
applicable Moody's rate for a Plan Year shall be the interest rate,
stated as an annual rate, that (i) is published in Moody's Bond
Record under the heading of "Moody's Corporate Bond Yield Averages
-- Av. Corp.," and (ii) is equal to the average corporate bond yield
calculated for the month of September preceding the Plan Year for
which the rate is to be used.
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Interest shall be credited under this option as though the Annual
Deferral Amount for each Plan Year were withheld at the beginning of
the Plan Year or, in the case of the first year of Plan
participation, were withheld on the date that the Participant
commenced participation in the Plan. In the event distribution of
the Annual Deferral Amount is made or commences prior to the end of
a Plan Year, the basis for that year's interest crediting on such
distribution will be a fraction of the full year's interest, based
on the number of full months prior to such distribution or
commencement. For purposes of crediting interest up to the time of a
distribution, each distribution shall be treated as made on the
first day of the month in which the distribution is actually made.
(b) Common Stock Option: If this option is elected for all or a
designated portion of an Annual Deferral Amount, that amount will be
converted hypothetically into Common Stock equivalent units. The
number of such units shall be determined by dividing that part of
the Annual Deferral Amount (or designated portion thereof ) that is
attributable to each calendar quarter by the average of the Market
Prices of Common Stock during the last five (5) trading days of the
preceding calendar quarter. Units will be calculated to the nearest
thousandth. On each dividend payment date for the Common Stock,
dividend equivalents in the form of additional units representing
Common Stock will be credited to the Participant's Account Balance
equal to (i) the per-share cash dividend divided by the average of
the Market Prices of Common Stock on the five (5) trading days
preceding the payment date, multiplied by (ii) the number of such
units reflected in such Account Balance on the day before the
dividend payment date. Upon the Participant's Retirement, death,
Disability, or Termination of Employment, or in the event of a
Short-Term Payout, the Common Stock equivalent units will be valued
for payment by multiplying the applicable number of units by the
average of the Market Prices of Common Stock during the last five
(5) trading days of the month preceding the date on which the Annual
Deferral Amount is to be paid (or on which payments of such Amount
are to commence). If the outstanding shares of Common Stock are
increased, decreased or exchanged for a different number or kind of
shares or other securities, or if additional shares or new or
different shares or other securities are distributed with respect to
such shares of Common Stock or other securities through merger,
consolidation, sale of all or substantially all the property of the
Company, reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split or other distribution
with respect to such shares of Common Stock Option or other
securities, appropriate adjustments will be made by the Company in
the number of Common Stock equivalent units credited to a
Participant's Account.
3.6 Interest Crediting for Installment Distributions. If a Participant's
benefits under this Plan are to be paid in substantially equal monthly
installments, such payments
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shall be determined by amortizing the Participant's specified benefit over
the number of months elected, using the interest rate determined under the
Moody's Rate Option for each year and treating the first installment
payment as all principal and each subsequent installment payment, first as
interest accrued for the applicable installment period on the unpaid
Account Balance and second as a reduction in the Account Balance. The
Common Stock Option is not available once installment distributions have
begun.
3.7 FICA and Other Taxes. For each Plan Year in which an Annual Deferral
Amount is being withheld for an Employee, the Participant's Employer(s)
shall withhold from that portion of the Participant's Base Annual Salary
and Annual Bonus that is not being deferred, in a manner determined by the
Employer(s), the Participant's share of FICA and other employment taxes.
If necessary, the Committee shall reduce the Annual Deferral Amount in
order to comply with this Section 3.7. In addition, the Participant's
Employer(s), or the trustee of any trust established under Section 15.2,
shall withhold from any payments made to a Participant under this Plan all
federal, state and local income, employment and other taxes required to be
withheld by the Employer(s), or the trustee of the trust, in connection
with such payments, in amounts and in a manner to be determined in the
sole discretion of the Employer(s) or the trustee.
3.8 Quarterly Statements. As soon as practicable after the end of each
calendar quarter, the Committee shall provide a statement to each
Participant showing the Participant's Account Balance as of the end of the
quarter and such other information as the Committee elects to provide. In
determining the Account Balance as of the end of a quarter, the Committee
shall credit interest under the Moody's Rate Option through the last day
of the quarter, and shall value Common Stock equivalent units under the
Common Stock Option based upon the average of the Market Prices of Common
Stock during the last five (5) trading days of the quarter.
ARTICLE 4
Short-Term Payout; Withdrawals; Change in Control
4.1 Short-Term Payout. In connection with each election to defer an Annual
Deferral Amount, a Participant may elect irrevocably to receive a future
"Short-Term Payout" from the Plan. Subject to the Deduction Limitation,
the Short-Term Payout shall be a lump sum payment in an amount that is
equal to such Annual Deferral Amount plus interest credited in the manner
provided in Section 3.5 above on that amount. Subject to the Deduction
Limitation and the other terms and conditions of this Plan, each
Short-Term Payout elected shall be paid within 60 days of the first day of
any Plan Year designated by the Participant that is at least three (3)
years after the first day of the Plan Year in which the Annual Deferral
Amount is actually deferred.
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4.2 Other Benefits Take Precedence Over Short-Term Payout. Should an event
occur that triggers a benefit under Article 5, 6, 7 or 8, any Annual
Deferral Amount, plus interest thereon, that is subject to a Short-Term
Payout election under Section 4.1 shall not be paid in accordance with
Section 4.1, but shall be paid in accordance with the other applicable
Article.
4.3 Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies. If
a Participant experiences an Unforeseeable Financial Emergency, the
Participant may, with the consent of a majority of the disinterested
members of the Committee, (i) suspend any deferrals required to be made by
a Participant and/or (ii) receive from the Plan a partial or full payout
of that portion, if any, of his or her Account Balance as to which
interest is being credited under the Moody's Rate Option. The payout shall
not exceed the amount reasonably needed to satisfy the Unforeseeable
Financial Emergency. Any such suspension shall take effect upon the date
of approval and any payout shall be made within 60 days of the date of
approval. The payment of any amount under this Section 4.3 shall not be
subject to the Deduction Limitation. Any portion of the Participant's
Account Balance as to which interest is being credited under the Common
Stock Option shall not be available for withdrawal under this Section 4.3.
4.4 Withdrawal Election. A Participant (or, after the Participant's death, his
or her Beneficiary) may elect, at any time, to withdraw all of that
portion, if any, of his or her Account Balance as to which interest is
being credited under the Moody's Rate Option, less a withdrawal penalty
equal to 10% of such amount (the net amount to be referred to as the
"withdrawal amount"). This election can be made at any time before or
after Retirement, Disability, death or Termination of Employment, and
whether or not the Participant (or Beneficiary) is in the process of being
paid pursuant to an installment payment schedule. No partial withdrawals
of the withdrawal amount shall be allowed. The Participant (or
Beneficiary) shall make this election by giving the Committee advance
written notice of the election in a form determined from time to time by
the Committee. The Participant (or Beneficiary) shall be paid the
withdrawal amount within 60 days of his or her election. Once the
withdrawal amount is paid to a Participant, the Participant's
participation in the Plan shall terminate and the Participant shall not be
eligible to participate in the Plan again until the beginning of the Plan
Year following the fifth anniversary of the date on which the withdrawal
amount is paid to the Participant. The payment of this withdrawal amount
shall not be subject to the Deduction Limitation. Any portion of the
Participant's Account Balance as to which interest is being credited under
the Common Stock Option shall not be available for withdrawal under this
Section 4.4.
4.5 Change in Control. If a Change in Control occurs, all deferral elections
under the Plan shall automatically cease, and each Participant (or
Beneficiary of a deceased Participant) shall be paid that portion, if any,
of his or her Account Balance as to which interest is being credited under
the Moody's Rate Option. Such portion shall
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be paid in a single lump sum payment as soon as practicable, and no later
than 60 days, after such Change in Control. Any portion of the
Participant's Account Balance as to which interest is being credited under
the Common Stock Option shall not be paid under this Section 4.5 but
shall, instead, be paid out in accordance with the other provisions of the
Plan.
ARTICLE 5
Retirement Benefit
5.1 Retirement Benefit. Subject to the Deduction Limitation, a Participant who
Retires shall receive, as a Retirement Benefit, his or her Account
Balance.
5.2 Payment of Retirement Benefit. A Participant, in connection with his or
her commencement of participation in the Plan, shall elect on an Election
Form to receive the Retirement Benefit in a lump sum or in substantially
equal monthly payments (the latter determined in accordance with Section
3.6 above) over a period of 60 or 120 months. The Participant may annually
change his or her election to an allowable alternative payout period by
submitting a new Election Form to the Committee, provided that Election
Form is submitted at least one (1) year prior to the Participant's
Retirement and is accepted by the Committee in its sole discretion. The
Election Form most recently accepted by the Committee shall govern the
payout of the Retirement Benefit. If a Participant does not make any
election with respect to the payment of the Retirement Benefit, then such
benefit shall be payable in a lump sum. The lump sum payment shall be
made, or installment payments shall commence, no later than 60 days after
the date the Participant Retires. Any payment made shall be subject to the
Deduction Limitation.
5.3 Death Prior to Completion of Retirement Benefit. If a Participant dies
after Retirement but before the Retirement Benefit is paid in full, the
Participant's unpaid Retirement Benefit payments shall continue and shall
be paid to the Participant's Beneficiary (a) over the remaining number of
months and in the same amounts as that benefit would have been paid to the
Participant had the Participant survived, or (b) in a lump sum, if
requested by the Beneficiary and allowed in the sole discretion of the
Committee, that is equal to the Participant's unpaid remaining Account
Balance.
ARTICLE 6
Pre-Retirement Survivor Benefit
6.1 Pre-Retirement Survivor Benefit. Subject to the Deduction Limitation, the
Participant's Beneficiary shall receive a Pre-Retirement Survivor Benefit
equal to the Participant's Account Balance, if the Participant dies before
he or she Retires, experiences a Termination of Employment or suffers a
Disability.
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6.2 Payment of Pre-Retirement Survivor Benefit. A Participant, in connection
with his or her commencement of participation in the Plan, shall elect on
an Election Form whether the Pre-Retirement Survivor Benefit shall be
received by his or her Beneficiary in a lump sum or in equal monthly
payments (the latter determined in accordance with Section 3.6 above) over
a period of 60 or 120 months. The Participant may annually change this
election by submitting a new Election Form to the Committee that is
accepted by the Committee in its sole discretion. The Election Form most
recently accepted by the Committee prior to the Participant's death shall
govern the payout of the Participant's Pre-Retirement Survivor Benefit. If
a Participant does not make any election with respect to the payment of
the Pre- Retirement Survivor Benefit, then such benefit shall be paid in a
lump sum. Despite the foregoing, if the Participant's Account Balance at
the time of his or her death is less than $25,000, payment of the
Pre-Retirement Survivor Benefit may be made, in the sole discretion of the
Committee, in a lump sum or in monthly installment payments that do not
exceed five years in duration. The lump sum payment shall be made, or
installment payments shall commence, no later than 60 days after the date
the Committee is provided with proof that is satisfactory to the Committee
of the Participant's death. Any payment made shall be subject to the
Deduction Limitation.
ARTICLE 7
Termination Benefit
7.1 Termination Benefit. Subject to the Deduction Limitation, the Participant
shall receive a Termination Benefit, which shall be equal to the
Participant's Account Balance, with interest credited in the manner
provided in Section 3.5 above, if a Participant experiences a Termination
of Employment prior to his or her Retirement, death or Disability.
7.2 Payment of Termination Benefit. The Termination Benefit shall be paid in
two (2) installments, with one-half of the Participant's Account Balance
paid within ninety (90) days of the Termination and the remainder paid on
or about January 1 of the year following the year of the Termination. Such
remainder shall be credited with interest under the Moody's Rate Option
until the date paid.
ARTICLE 8
Disability Waiver and Benefit
8.1 Disability Waiver.
(a) Waiver of Deferral. A Participant who is determined by the Committee
to be suffering from a Disability shall be excused from fulfilling
that portion of the Annual Deferral Amount commitment that would
otherwise have been
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withheld from a Participant's Base Annual Salary, Annual Bonus
and/or Directors Fees for the Plan Year during which the Participant
first suffers a Disability. During the period of Disability, the
Participant shall not be allowed to make any additional deferral
elections, but will continue to be considered a Participant for all
other purposes of this Plan.
(b) Return to Work. If a Participant returns to employment, or service
as a Director, with an Employer after a Disability ceases, the
Participant may elect to defer an Annual Deferral Amount for the
Plan Year following his or her return to employment or service and
for every Plan Year thereafter while a Participant in the Plan;
provided such deferral elections are otherwise allowed and an
Election Form is delivered to and accepted by the Committee for each
such election in accordance with Section 3.3 above.
8.2 Continued Eligibility; Disability Benefit. A Participant suffering a
Disability shall, for benefit purposes under this Plan, continue to be
considered to be employed, or in the service of an Employer as a Director,
and shall be eligible for the benefits provided for in Articles 4, 5, 6 or
7 in accordance with the provisions of those Articles. Notwithstanding the
above, the Committee shall have the right, in its sole and absolute
discretion, to pay the Participant a Disability Benefit equal to his or
her Account Balance at the time of the Committee's determination. The
Disability Benefit shall be paid in a lump sum within 60 days of the
Committee's exercise of such right. Any payment made shall be subject to
the Deduction Limitation.
ARTICLE 9
Beneficiary Designation
9.1 Beneficiary. Each Participant shall have the right, at any time, to
designate his or her Beneficiary(ies) (both primary as well as contingent)
to receive any benefits payable under the Plan to a beneficiary upon the
death of a Participant. The Beneficiary designated under this Plan may be
the same as or different from the Beneficiary designation under any other
plan of an Employer in which the Participant participates.
9.2 Beneficiary Designation; Change. A Participant shall designate his or her
Beneficiary by completing and signing the Beneficiary Designation Form,
and returning it to the Committee or its designated agent. A Participant
shall have the right to change a Beneficiary by completing, signing and
otherwise complying with the terms of the Beneficiary Designation Form and
the Committee's rules and procedures, as in effect from time to time. Upon
the acceptance by the Committee of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be canceled. The Committee
shall be entitled to rely on the last
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Beneficiary Designation Form filed by the Participant and accepted by the
Committee prior to his or her death.
9.3 Acknowledgment. No designation or change in designation of a Beneficiary
shall be effective until received, accepted and acknowledged in writing by
the Committee or its designated agent.
9.4 No Beneficiary Designation. If a Participant fails to designate a
Beneficiary as provided in Sections 9.1, 9.2 and 9.3 above, or if all
designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the
Participant's designated Beneficiary shall be deemed to be his or her
surviving spouse. If the Participant has no surviving spouse, the benefits
remaining under the Plan to be paid to a Beneficiary shall be payable to
the executor or personal representative of the Participant's estate.
9.5 Doubt as to Beneficiary. If the Committee has any doubt as to the proper
Beneficiary to receive payments pursuant to this Plan, the Committee shall
have the right, exercisable in its discretion, to cause the Participant's
Employer to withhold such payments until this matter is resolved to the
Committee's satisfaction.
9.6 Discharge of Obligations. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge all Employers and the
Committee from all further obligations under this Plan with respect to the
Participant, and that Participant's Plan Agreement shall terminate upon
such full payment of benefits.
ARTICLE 10
Leave of Absence
10.1 Paid Leave of Absence. If a Participant is authorized by the Participant's
Employer for any reason to take a paid leave of absence from the
employment of the Employer, the Participant shall continue to be
considered employed by the Employer and the Annual Deferral Amount shall
continue to be withheld during such paid leave of absence in accordance
with Section 3.4.
10.2 Unpaid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take an unpaid leave of absence
from the employment of the Employer, the Participant shall continue to be
considered employed by the Employer and the Participant shall be excused
from making deferrals until the earlier of the date the leave of absence
expires or the Participant returns to a paid employment status. Upon such
expiration or return, deferrals shall resume for the remaining portion of
the Plan Year in which the expiration or return occurs, based on the
deferral election, if any, made for that Plan Year. If no election was
made for that Plan Year, no deferral shall be withheld.
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21
ARTICLE 11
Termination, Amendment or Modification
11.1 Termination. Although the Employers anticipate that they will continue the
Plan for an indefinite period of time, there is no guarantee that any
Employer will continue the Plan or will not terminate the Plan at any time
in the future. Accordingly, each Employer reserves the right to
discontinue its sponsorship of the Plan and/or to terminate the Plan, at
any time, with respect to its participating Employees and Directors by the
actions of its board of directors. In addition, the Company may terminate
the Plan with respect to any or all Employers by action of the Board. Upon
the termination of the Plan with respect to any Employer, the Plan
Agreements of the affected Participants who are employed by that Employer,
or in the service of that Employer as a Director, shall terminate and
their Account Balances, determined as if they had experienced a
Termination of Employment on the date of Plan termination or, if Plan
termination occurs after the date upon which a Participant was eligible to
Retire, then with respect to that Participant as if he or she had Retired
on the date of Plan termination, shall be paid to the Participants in
accordance with Article 5 or 7, subject to the following provisions. Prior
to a Change in Control, an Employer shall have the right, in its sole
discretion, and notwithstanding any elections made by the Participant, to
pay such benefits in a lump sum. After a Change in Control, the Employer
shall be required to pay such benefits in a lump sum. The termination of
the Plan shall not adversely affect any Participant or Beneficiary who has
become entitled to the payment of any benefits under the Plan as of the
date of termination; provided, however, that the Employer shall have the
right to accelerate installment payments by paying the present value
equivalent of such payments, using the Crediting Rate (determined under
the Moody's Rate Option) for the Plan Year in which the termination occurs
as the discount rate, in a lump sum or pursuant to a different payment
schedule (provided that the present value of all payments that will have
been received by a Participant at any given point in time under the
different payment schedule shall equal or exceed the present value of all
payments that would have been received at that point in time under the
original payment schedule).
11.2 Amendment. The Company may, at any time, amend or modify the Plan in whole
or in part with respect to any or all Employers by action of the Board;
provided, however, that no amendment or modification shall be effective to
decrease or restrict the value of a Participant's Account Balance in
existence at the time the amendment or modification is made, calculated as
if the Participant had experienced a Termination of Employment as of the
effective date of the amendment or modification, or, if the amendment or
modification occurs after the date upon which the Participant was eligible
to Retire, the Participant had Retired as of the effective date of the
amendment or modification. The amendment or modification of the Plan shall
not affect any Participant or Beneficiary who has become entitled to the
payment of benefits under the Plan as of the date of the amendment or
modification; provided, however, that the Company shall have the right to
accelerate installment
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payments by paying the present value equivalent of such payments, using
the Crediting Rate (determined under the Moody's Rate Option) for the Plan
Year of the amendment or modification as the discount rate, in a lump sum
or pursuant to a different payment schedule (provided that the present
value of all payments that will have been received by a Participant at any
given point in time under the different payment schedule shall equal or
exceed the present value of all payments that would have been received at
that point in time under the original payment schedule).
11.3 Plan Agreement. Despite the provisions of Sections 11.1 and 11.2 above, if
a Participant's Plan Agreement contains benefits or limitations that are
not in this Plan document, the Employer may only amend or terminate such
provisions with the consent of the Participant.
11.4 Effect of Payment. The full payment of the applicable benefit under
Articles 5, 6, 7 or 8 of the Plan shall completely discharge all
obligations to a Participant and his or her designated Beneficiaries under
this Plan and the Participant's Plan Agreement shall terminate.
ARTICLE 12
Administration
12.1 Committee Duties. This Plan shall be administered by a Committee which
shall consist of the Board, or such committee as the Board shall appoint.
Members of the Committee may be Participants under this Plan. The
Committee shall also have the discretion and authority to (i) make, amend,
interpret, and enforce all appropriate rules and regulations for the
administration of this Plan and (ii) decide or resolve any and all
questions including interpretations of this Plan, as may arise in
connection with the Plan. Any individual serving on the Committee who is a
Participant will not vote or act on any matter relating solely to himself
or herself. When making a determination or calculation, the Committee
shall be entitled to rely on information furnished by a Participant or the
Company.
12.2 Agents. In the administration of this Plan, the Committee may, from time
to time, employ agents and delegate to them such duties as it sees fit
(including acting through a duly appointed representative) and may from
time to time consult with counsel who may be counsel to any Employer.
12.3 Binding Effect of Decisions. The decision or action of the Committee with
respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules
and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan, in the absence
of clear and convincing evidence that the Committee acted arbitrarily and
capriciously.
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12.4 Indemnity of Committee. All Employers shall indemnify and hold harmless
the members of the Committee, and any Employee to whom duties of the
Committee may be delegated, against any and all claims, losses, damages,
expenses or liabilities arising from any action or failure to act with
respect to this Plan, except in the case of willful misconduct by the
Committee, any of its members or any such Employee.
12.5 Employer Information. To enable the Committee to perform its functions,
each Employer shall supply full and timely information to the Committee on
all matters relating to the compensation of its Participants, the date and
circumstances of the Retirement, Disability, death or Termination of
Employment of its Participants, and such other pertinent information as
the Committee may reasonably require.
ARTICLE 13
Other Benefits and Agreements
13.1 Coordination with Other Benefits. The benefits provided for a Participant
and Participant's Beneficiary under the Plan are in addition to any other
benefits available to such Participant under any other plan or program for
employees of the Participant's Employer. The Plan shall supplement and
shall not supersede, modify or amend any other such plan or program except
as may otherwise be expressly provided.
ARTICLE 14
Claims Procedures
14.1 Presentation of Claim. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as a
"Claimant") may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such Claimant
from the Plan. If such a claim relates to the contents of a notice
received by the Claimant, the claim must be made within 60 days after such
notice was received by the Claimant. The claim must state with
particularity the determination desired by the Claimant. All other claims
must be made within 180 days of the date on which the event that caused
the claim to arise occurred. The claim must state with particularity the
determination desired by the Claimant.
14.2 Notification of Decision. The Committee shall consider a Claimant's claim
within a reasonable time, and shall notify the Claimant in writing:
(a) that the Claimant's requested determination has been made, and that
the claim has been allowed in full; or
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(b) that the Committee has reached a conclusion contrary, in whole or in
part, to the Claimant's requested determination, and such notice
must set forth in a manner calculated to be understood by the
Claimant:
(i) the specific reason(s) for the denial of the claim, or any
part of it;
(ii) specific reference(s) to pertinent provisions of the Plan upon
which such denial was based;
(iii) 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
(iv) an explanation of the claim review procedure set forth in
Section 14.3 below.
14.3 Review of a Denied Claim. Within 60 days after receiving a notice from the
Committee that a claim has been denied, in whole or in part, a Claimant
(or the Claimant's duly authorized representative) may file with the
Committee a written request for a review of the denial of the claim.
Thereafter, but not later than 30 days after the review procedure began,
the Claimant (or the Claimant's duly authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole discretion,
may grant.
14.4 Decision on Review. The Committee shall render its decision on review
promptly, and not later than 60 days after the filing of a written request
for review of the denial, unless a hearing is held or other special
circumstances require additional time, in which case the Committee's
decision must be rendered within 120 days after such date. Such decision
must be written in a manner calculated to be understood by the Claimant,
and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon which
the decision was based; and
(c) such other matters as the Committee deems relevant.
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14.5 Legal Action. A Claimant's compliance with the foregoing provisions of
this Article 14 is a mandatory prerequisite to a Claimant's right to
commence any legal action with respect to any claim for benefits under
this Plan.
ARTICLE 15
Funding
15.1 No Funding. Nothing in the Plan will be construed to create a trust or to
obligate the Company or any other person to segregate a fund, purchase an
insurance contract, or in any other way currently to fund the future
payment of any benefits hereunder, nor will anything herein be construed
to give any Participant or any other person rights to any specific assets
of the Company or of any other person. The Plan constitutes a mere promise
by the Company to make benefit payments in the future, and is intended to
be unfunded for tax purposes. Any benefits which become payable hereunder
shall be paid from the general assets of the Company, and the rights of
any Participant or of his or her estate or beneficiary shall be those of
an unsecured general creditor.
15.2 Grantor Trust. The Company, in its sole discretion, may establish a trust
(a "grantor trust") of which it is treated as the owner under Subpart E of
Subchapter J, Chapter 1 of the Code to provide for the payment of benefits
hereunder, subject to the claims of the Company's general creditors in the
event of insolvency, and subject to such other terms and conditions as the
Company may deem necessary or advisable to ensure that benefits are not
includable, by reason of the trust, in the income of trust beneficiaries
prior to their actual distribution.
ARTICLE 16
Miscellaneous
16.1 Limitation on Benefit Payment. Except as otherwise provided, this
limitation shall be applied to all distributions that are "subject to the
Deduction Limitation" under this Plan. If an Employer determines in good
faith prior to a Change in Control that there is a reasonable likelihood
that any compensation paid to a Participant for a taxable year of the
Employer would not be deductible by the Employer solely by reason of the
limitation under Code Section 162(m), then to the extent deemed necessary
by the Employer to ensure that the entire amount of any distribution to
the Participant pursuant to this Plan prior to the Change in Control is
deductible, the Employer may defer all or any portion of a distribution
under this Plan. Any amounts deferred pursuant to this limitation shall
continue to be credited with interest in accordance with Section 3.5(a).
The amounts so deferred and interest thereon shall be distributed to the
Participant or his or her Beneficiary (in the event of the Participant's
death) at the earliest possible date, as determined by the Employer in
good faith, on which the deductibility of compensation paid or payable to
the Participant for the taxable year of the Employer during which the
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distribution is made will not be limited by Code Section 162(m) or, if
earlier, the effective date of a Change in Control. Notwithstanding
anything to the contrary in this Plan, the Deduction Limitation shall not
apply to any distributions made after a Change in Control.
16.2 Status of Plan. The Plan is intended to be a plan that is not qualified
within the meaning of Code Section 401(a) and that "is unfunded and is
maintained by an employer primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated
employees" within the meaning of ERISA Sections 201(2), 301(a)(3) and
401(a)(1). The Plan shall be administered and interpreted to the extent
possible in a manner consistent with that intent.
16.3 Unsecured General Creditor. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interests
or claims in any property or assets of an Employer. For purposes of the
payment of benefits under this Plan, any and all of an Employer's assets
shall be, and remain, the general, unpledged unrestricted assets of the
Employer. An Employer's obligation under the Plan shall be merely that of
an unfunded and unsecured promise to pay money in the future.
16.4 Employer's Liability. An Employer's liability for the payment of benefits
shall be defined only by the Plan and the Plan Agreement, as entered into
between the Employer and a Participant. An Employer shall have no
obligation to a Participant under the Plan except as expressly provided in
the Plan and his or her Plan Agreement.
16.5 Nonassignability. Neither a Participant nor any other person shall have
any right to commute, sell, assign, transfer, pledge, anticipate, mortgage
or otherwise encumber, transfer, hypothecate, alienate or convey in
advance of actual receipt, the amounts, if any, payable hereunder, or any
part thereof, which are, and all rights to which are expressly declared to
be, unassignable and non-transferable, except that the foregoing shall not
apply to any court order specified in Section 16.16 below. No part of the
amounts payable shall, prior to actual payment, be subject to seizure,
attachment, garnishment or sequestration for the payment of any debts,
judgments, alimony or separate maintenance owed by a Participant or any
other person, nor be transferable by operation of law in the event of a
Participant's or any other person's bankruptcy or insolvency.
16.6 Not a Contract of Employment. The terms and conditions of this Plan shall
not be deemed to constitute a contract of employment between any Employer
and the Participant. Such employment is hereby acknowledged to be an "at
will" employment relationship that can be terminated at any time for any
reason, or no reason, with or without cause, and with or without notice,
except as may be expressly provided in a written employment agreement.
Nothing in this Plan shall be deemed to give a Participant the right to be
retained in the service of any
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Employer, either as an Employee or a Director, or to interfere with the
right of any Employer to discipline or discharge the Participant at any
time.
16.7 Furnishing Information. A Participant or his or her Beneficiary will
cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be requested
in order to facilitate the administration of the Plan and the payments of
benefits hereunder, including but not limited to taking such physical
examinations as the Committee may deem necessary.
16.8 Terms. Whenever any words are used herein in the masculine, they shall be
construed as though they were in the feminine in all cases where they
would so apply; and whenever any words are used herein in the singular or
in the plural, they shall be construed as though they were used in the
plural or the singular, as the case may be, in all cases where they would
so apply.
16.9 Captions. The captions of the articles, sections and paragraphs of this
Plan are for convenience only and shall not control or affect the meaning
or construction of any of its provisions.
16.10 Governing Law. Subject to ERISA, the provisions of this Plan shall be
construed and interpreted according to the laws of the Commonwealth of
Massachusetts without regard to its conflict of laws principles.
16.11 Notice. Any notice or filing required or permitted to be given to the
Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address
below:
Plan Committee
c/o General Counsel
Boston Scientific Corporation
1 Boston Scientific Place
Natick, MA 01760-1537
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification. Any notice or filing required
or permitted to be given to a Participant under this Plan shall be
sufficient if in writing and hand-delivered, or sent by mail, to the last
known address of the Participant.
16.12 Successors. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns and
the Participant and the Participant's designated Beneficiaries.
16.13 Spouse's Interest. The interest in the benefits hereunder of a spouse of a
Participant who has predeceased the Participant shall automatically pass
to the
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Participant and shall not be transferable by such spouse in any manner,
including but not limited to such spouse's will, nor shall such interest
pass under the laws of intestate succession.
16.14 Validity. In case any provision of this Plan shall be illegal or invalid
for any reason, said illegality or invalidly shall not affect the
remaining parts hereof, but this Plan shall be construed and enforced as
if such illegal or invalid provision had never been inserted herein.
16.15 Incompetent. If the Committee determines in its discretion that a benefit
under this Plan is to be paid to a minor, a person declared incompetent or
a person incapable of handling the disposition of that person's 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 incapable person. The Committee may require proof of
minority, incompetency, incapacity or guardianship, as it may deem
appropriate prior to distribution of the benefit. Any payment of a benefit
shall be a payment for the account of the Participant and the
Participant's Beneficiary, as the case may be, and shall be a complete
discharge of any liability under the Plan for such payment amount.
16.16 Court Order. The Committee is authorized to make any payments directed by
court order in any action in which the Plan or the Committee has been
named as a party. In addition, if a court determines that a spouse or
former spouse of a Participant has an interest in the Plan as the result
of a property settlement or otherwise, the Committee, in its sole
discretion, shall have the right, notwithstanding any election made by a
Participant, to distribute immediately the spouse's or former spouse's
interest in the Plan to that spouse or former spouse.
16.17 Distribution in the Event of Taxation.
If, for any reason, all or any portion of a Participant's benefit under
this Plan becomes taxable to the Participant prior to receipt, a
Participant may petition the Committee for a distribution of that portion
of his or her benefit that has become taxable. Upon the grant of such a
petition, which grant shall not be unreasonably withheld, a Participant's
Employer shall distribute to the Participant immediately available funds
in an amount equal to the taxable portion of his or her benefit (which
amount shall not exceed a Participant's unpaid Account Balance under the
Plan). If the petition is granted, the tax liability distribution shall be
made within
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90 days of the date when the Participant's petition is granted. Such a
distribution shall affect and reduce the benefits to be paid under this
Plan.
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