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Exhibit 10.11 to Motorola, Inc.'s Form 10-K
for the year ended December 31, 2000
MOTOROLA MANAGEMENT DEFERRED COMPENSATION PLAN
(EFFECTIVE AS OF JANUARY 1, 2001)
1. PLAN NAME AND DEFINITIONS
1.1 Plan Name.
This plan is the Motorola Management Deferred Compensation
Plan ("the Plan").
1.2 Definitions.
(a) "Additional Compensation" shall mean bonuses and all other
cash compensation designated by the Administrative Committee as Deferrable
Compensation.
(b) "Administrative Committee" shall mean the committee
appointed by the Compensation Committee of the Board to administer the Plan.
(c) "Base Salary" shall mean a Participant's annual base
salary, excluding bonuses, commissions, incentives and all other remunerations
for services rendered to Company and prior to reduction for any salary
contributions to a plan established pursuant to Section 125 of the Code or
qualified pursuant to Section 401(k) of the Code.
(d) "Beneficiary" or "Beneficiaries" shall mean the person or
persons, including a trustee, personal representative or other fiduciary, last
designated in writing by a Participant in accordance with procedures established
by the Administrative Committee to receive the benefits specified hereunder in
the event of the Participant's death. No beneficiary designation shall become
effective until it is filed with the Administrative Committee. Any designation
shall be revocable at any time through a written instrument filed by the
Participant with the Administrative Committee with or without the consent of the
previous Beneficiary. No designation of a Beneficiary other than the
Participant's spouse shall be valid unless consented to in writing by such
spouse. If there is no such designation, or if there is no surviving designated
Beneficiary, then the Participant's surviving spouse shall be the Beneficiary.
If there is no surviving spouse to receive any benefits payable in accordance
with the preceding sentence, the duly appointed and currently acting personal
representative of the Participant's estate (which shall include either the
Participant's probate estate or living trust) shall be the Beneficiary. In any
case where there is no such personal representative of the Participant's estate
duly appointed and acting in that capacity within 90 days after the
Participant's death (or such extended period as the Administrative Committee
determines is reasonably necessary to allow such personal representative to be
appointed, but not to exceed 180 days after the Participant's death), then
Beneficiary shall mean the person or persons who can verify by affidavit or
court order to the satisfaction of the Administrative Committee that they are
legally entitled to receive the benefits specified hereunder. In the event any
amount is payable under the Plan to a minor, payment shall not be made to the
minor, but instead shall be paid (a) to that person's living parent(s) to act as
custodian, (b) if that person's parents are then divorced, and one parent is the
sole custodial
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parent, to such custodial parent, or (c) if no parent of that person is then
living, to a custodian selected by the Administrative Committee to hold the
funds for the minor under the Uniform Transfers or Gifts to Minors Act in effect
in the jurisdiction in which the minor resides. If no parent is living and the
Administrative Committee decides not to select another custodian to hold the
funds for the minor, then payment shall be made to the duly appointed and
currently acting guardian of the estate for the minor or, if no guardian of the
estate for the minor is duly appointed and currently acting within 60 days after
the date the amount becomes payable, payment shall be deposited with the court
having jurisdiction over the estate of the minor. Payment by the Company
pursuant to any unrevoked Beneficiary designation or to the Participant's estate
if no such designation exists, of all benefits owed hereunder shall terminate
any and all liability of the Company.
(e) "Board of Directors" or "Board" shall mean the Board of
Directors of Motorola.
(f) "Board Fees" shall mean any fees paid to a Board member in
connection with his service on the Board.
(g) "Change in Control" means a Change in Control of a nature
that would be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A promulgated under the Exchange Act whether or not Motorola is
then subject to such reporting requirement; provided that, without limitation,
such a Change in Control shall be deemed to have occurred if (a) any "person" or
"group" (as such terms are used in Section 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of Motorola representing
20% or more of the combined voting power of Motorola's then outstanding
securities (other than Motorola or any employee benefit plan of Motorola; and,
for purposes of the Plan, no Change in Control shall be deemed to have occurred
as a result of the "beneficial ownership," or changes therein, of Motorola's
securities by either of the foregoing), (b) there shall be consummated (i) any
consolidation or merger of Motorola in which Motorola is not the surviving or
continuing corporation or pursuant to which shares of common stock would be
converted into or exchanged for cash, securities or other property, other than a
merger of Motorola in which the holders of common stock immediately prior to the
merger have, directly or indirectly, at least a 65% ownership interest in the
outstanding common stock of the surviving corporation immediately after the
merger, or (ii) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially all, of the assets
of Motorola other than any such transaction with entities in which the holders
of Motorola Common Stock, directly or indirectly, have at least a 65% ownership
interest, (c) the stockholders of Motorola approve any plan or proposal for the
liquidation or dissolution of Motorola, or (d) as the result of, or in
connection with, any cash tender offer, exchange offer, merger or other business
combination, sale of assets, proxy or consent solicitation (other than by the
Board), contested election or substantial stock accumulation (a "Control
Transaction"), the members of the Board immediately prior to the first public
announcement relating to such Control Transaction shall thereafter cease to
constitute a majority of the Board.
(h) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
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(i) "Company" shall mean Motorola, Inc. and any Subsidiary
designated by the Administrative Committee.
(j) "Compensation" shall be Base Salary and Additional
Compensation.
(k) "Deferral Account" shall mean the bookkeeping account or
accounts maintained by the Administrative Committee pursuant to Section 3.1 for
each Participant pursuant to Section 3.1 that are credited with amounts equal to
(1) the Participant's Deferred Compensation and (2) earnings and losses under
Section 2.2.
(l) "Deferrable Compensation" shall mean the Compensation and
Board Fees designated by the Administrative Committee as eligible to be deferred
in any Plan Year pursuant to Section 2.1(a).
(m) "Deferral Form" shall mean the form or forms required to
be completed and delivered to the Administrative Committee or its designee for
participation in the Plan for a Plan Year.
(n) "Deferred Compensation" shall mean the Compensation or
Director Fees actually deferred by a Participant on the Deferral Form for a Plan
Year.
(o) "Director" shall mean a member of the Board.
(p) "Disability" shall mean an entitlement to long-term
disability benefits under the Motorola Disability Income Plan, as amended, and
any successor plans.
(q) "Distributable Amount" shall mean the balance in the
Participant's Deferral Account.
(r) "Early Distribution" shall mean an election by Participant
in accordance with Section 4.3 to receive a withdrawal of amounts from his or
her Deferral Account prior to the time at which such Participant would otherwise
be entitled to such amounts.
(s) "Eligible Employee" shall be employees selected by the
Administrative Committee or its delegates.
(t) "Fund" or "Funds" shall mean one or more of the investment
funds selected by the Administrative Committee.
(u) "Hardship Distribution" shall mean a severe financial
hardship to the Participant resulting from a sudden and unexpected illness or
accident of the Participant or of his or her Dependent (as defined in Section
152(a) of the Code), loss of a Participant's property due to casualty, or other
similar or extraordinary and unforseeable circumstance arising as a result of
events beyond the control of the Participant. The circumstances that would
constitute an unforseeable emergency will depend upon the facts of each case,
but, in any event, a Hardship Distribution may not be made to the extent that
such hardship is or may be relieved (i) through reimbursement or compensation by
insurance or otherwise, (ii) by liquidation of the Participant's
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assets, to the extent the liquidation of assets would not itself cause a severe
financial hardship, or (iii) by cessation of deferrals under this Plan.
(v) "In-Service Withdrawal Date" shall mean the distribution
date elected on the Deferral Form by the Participant for withdrawal of Deferred
Compensation for a specific Plan Year while still employed or in service of the
Company, and earnings and losses attributable thereto.
(w) "Interest Rate" shall mean, for each Fund, an amount equal
to the net gain or loss on the assets of such Fund during each month.
(x) "Motorola" shall mean Motorola, Inc., a Delaware
corporation.
(y) "Participant" shall mean any Eligible Employee and any
member of the Board who becomes a Participant in this Plan by completing the
Deferral Form.
(z) "Plan" shall be the Motorola Management Deferred
Compensation Plan, as amended.
(aa) "Plan Year" shall be January 1 to December 31.
(bb) "Regular Enrollment Period" shall mean the period
designated by the Administrative Committee for enrollment for a Plan Year.
(cc) "Retirement" shall mean a Participant's retirement from
Motorola or a Subsidiary at or after age 55.
(dd) "Subsidiary" shall mean an entity of which Motorola owns
directly or indirectly at least 50% and which is consolidated for financial
reporting purposes.
(ee) "Trust" shall mean the Motorola Management Deferred
Compensation Plan Trust.
(ff) "Trustee" shall mean the trustee of the Trust.
(gg) "Withdrawal Date" shall have the meaning set forth in
Section 4.1.
2. DEFERRAL ELECTIONS
2.1 Elections to Defer Compensation.
(a) Deferrals. To the extent authorized by the Administrative
Committee, a Participant may elect to defer for a Plan Year the following:
(i) in the case of employees of the Company, taxable
Compensation earned in a Plan Year and paid to a Participant by the
Company; and
(ii) in the case of Directors, Board Fees paid by the
Company and earned in a Plan Year;
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provided, however, that a Participant who is an employee of the Company may
defer in any calendar year only that portion of the Participant's Deferrable
Compensation that exceeds the amount necessary to satisfy Social Security Tax
(including Medicare), income tax and employee benefit plan withholding
requirements as determined in the sole and absolute discretion of the
Administrative Committee. The Deferral Form will set forth what the
Administrative Committee has authorized as Deferrable Compensation.
(b) Election and Duration of Compensation Deferral Election.
Each Eligible Employee and Director may elect to defer Deferrable Compensation
for a Plan Year in the time period set by the Administrative Committee and all
elections are irrevocable for that Plan Year. Each Eligible Employee and
Director must complete a new Deferral Form for each Plan Year. All elections to
defer must be filed during the Regular Enrollment Period for the applicable Plan
Year which election shall be effective on the first day of the next following
Plan Year. In the case of an employee who becomes an Eligible Employee or a new
Director. After the start of a Regular Enrollment Period, such Eligible Employee
or Director shall have 30 days from the date he or she has become an Eligible
Employee or Director and has been notified of their participation in the Plan to
make an election to defer Deferrable Compensation. Such election shall be for
the remainder of the Plan Year.
2.2 Investment Elections.
(a) Each Participant shall designate, on the Deferral Form or
other form provided by the Administrative Committee, the Funds in which the
Participant's Deferral Account will be deemed to be invested for purposes of
determining the amount of earnings or losses to be credited or debited to that
Deferral Account. In making the designation, the Participant may specify that
all or any multiple of his Deferral Account be deemed to be invested in one or
more Funds listed on the Deferral Form in the manner set forth on the Deferral
Form. A Participant may change investment designations by filing a new election
with the Administrative Committee by a date specified by the Administrative
Committee. If a Participant fails to designate a Fund for all or a portion of
the Participant's Deferral Account, he or she shall be deemed to have elected
the Money Market type of investment fund.
(b) The Administrative Committee may select from time to time,
in its sole and absolute discretion, new commercially available investments to
replace then existing Funds. Once the Administrative Committee has provided
Participants with information on the replacement Funds, a Participant must
re-designate his Funds and the Interest Rate for the new Funds will be used in
accordance with procedures established by the Administrative Committee at the
time of re-designation. If a Participant fails to re-designate a Fund for all or
a portion of the Participant's Deferral Account, he or she shall be deemed to
have elected the Money Market type of investment fund.
(c) Although the Participant may designate the Funds to be
used to determine the amount of earnings or losses with respect to the
Participant's Deferral Account, the Administrative Committee shall not be bound
to invest any amounts in a Participant's Deferral Account in the designated
Funds. The Funds are to be used only for purposes of crediting or debiting the
Deferral Account with deemed earning or losses thereon, and such crediting or
debiting shall not be considered or construed in any manner as an actual
investment in any such fund.
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3. DEFERRAL ACCOUNTS AND TRUST FUNDING
3.1 Deferral Accounts.
Each Plan Year, the Administrative Committee shall establish
and maintain a separate Deferral Account for each Participant. The
Administrative Committee may establish more than one Deferral Account for each
Participant for each Plan Year for different types of income deferred. Each
Participant's Deferral Account may be further divided into separate subaccounts
("investment fund subaccounts"), each of which corresponds to a Fund elected by
the Participant. A Participant's Deferral Account shall be credited as follows:
(a) On the fifth business day after amounts are withheld and
deferred from a Participant's Deferrable Compensation, the investment fund
subaccounts of the Participant's Deferral Account shall be credited with an
amount equal to the portion of Deferred Compensation deferred and deemed to be
invested in a certain Fund in accordance with the designation.
(b) Each business day, each investment fund subaccount of a
Participant's Deferral Account shall be credited with earnings or losses in an
amount equal to that determined by multiplying (i) the sum of the balance
credited to such investment fund subaccount as of the prior day plus
contributions credited that day to the investment fund subaccount by (ii) the
Interest Rate for the corresponding Fund pursuant to Section 2.2.
(c) In the event that a Participant elects for any portion of
a given Plan Year's Deferred Compensation to have an In-Service Withdrawal Date,
all such amounts shall be accounted for in a manner which allows separate
accounting for that portion of Deferred Compensation and earnings and losses
associated with such Plan Year's Deferred Compensation.
3.2 Trust Funding.
The Company has created a Trust with the Trustee. The Company
shall cause the Trust to be funded each year with an amount equal to the amount
deferred by each Participant.
Although the principal of the Trust and any earnings thereon
shall be held separate and apart from other funds of the Company and shall be
used exclusively for the uses and purposes of Participants and Beneficiaries as
set forth therein, neither the Participants nor their Beneficiaries shall have
any preferred claim on, or any beneficial ownership in, any assets of the Trust
prior to the time such assets are paid to the Participants or Beneficiaries as
benefits and all rights created under this Plan and the Trust shall be unsecured
contractual rights of Participants and Beneficiaries against the Company. Any
assets held in the Trust will be subject to the claims of the Company's general
creditors under federal and state law in the event of insolvency as defined in
Section Six of the Trust.
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Except as specifically provided in the Trust, the assets of
the Plan and Trust shall never inure to the benefit of the Company and the same
shall be held for the exclusive purpose of providing benefits to Participants
and their Beneficiaries.
4. DISTRIBUTIONS
4.1 Distribution of Deferred Compensation per the Deferral Form
Elections. A Participant must elect the timing of the distribution of
Distributable Amounts from his Deferral Account on the Deferral Form
("Withdrawal Dates"). If a Participant fails to designate Withdrawal Dates, the
Participant will be deemed to have elected the default election established by
the Administrative Committee for the applicable Plan Year. Participants may
elect an In-Service Withdrawal Date or Withdrawal Dates following Retirement.
All distributions will be cash payments. Notwithstanding any elected Withdrawal
Dates, Distributable Amounts are subject to Section 4.2 below.
(a) Distribution with an In-Service Withdrawal Date. In the
case of a Participant who has elected an In-Service Withdrawal Date (a
distribution while still employed or in the service of the Company), such
Participant shall receive his Distributable Amount as designated on his Deferral
Form; provided that no payment may be made earlier than two years from the last
day of the Plan Year for which the deferral was made; provided, further that, if
a Participant has an aggregate balance in all of his Deferral Accounts under the
Plan of less than $50,000 (or such other amount determined by the Administrative
Committee) at the time of the In-Service Withdrawal Date, the distribution will
be in the form of a single lump-sum payment.
(b) Distribution with a Withdrawal Date following Retirement.
In the case of a Participant who has elected a Withdrawal Date following
Retirement, such Participant shall receive his Distributable Amount as
designated on his Deferral Form; provided, however, if a Participant has an
aggregate balance in all of his Deferral Accounts under the Plan of less than
$50,000 (or such other amount determined by the Administrative Committee) during
the next calendar quarter following written notice to the Administrative
Committee of the Participant's termination.
(c) Revising a Withdrawal Date. A Participant may extend a
Withdrawal Date for a Deferral Account up to two times with respect to any Plan
Year's Deferral Account, provided such change occurs at least one year before a
scheduled Withdrawal Date and in the case of an In-Service Withdrawal Date, is
for a period of not less than two years after the end of the Plan Year of the
deferral.
(d) Section 162(m) Matters. Notwithstanding anything to the
contrary in this Plan whether express or implied, the Administrative Committee
may, in its sole discretion, defer payment of all or any portion of the
Distributable Amount otherwise payable hereunder to any Participant who is
considered a "covered employee" to the extent any such payment would not be
deductible by the Company by reason of Section 162(m) of the Code. For these
purposes, the term "covered employee" shall mean the Chief Executive Officer and
the next four highest paid officers of the Company as determined for purposes of
Code Section 162(m) and the regulations thereunder. In the event of a deferral
of payment by reason of this Section 4.1(d), any such deferred amounts shall be
paid to the Participant at the earliest date or dates such amounts can be paid
without creating or increasing a limitation on deductibility of compensation
under Code
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Section 162(m). Any amounts deferred under this Section 4.1(d) shall be credited
to the Participant's Deferral Account and shall be subject to all of the terms
and condition of this Plan until paid to the Participant.
4.2 Events Impacting Distribution of Deferred Compensation.
Notwithstanding any previously selected Withdrawal Dates, the following events
may alter the timing of the Distribution from a Participant's Deferral Account:
(a) Distribution due to Death. If a Participant dies while
employed by the Company or serving as a Director or while receiving a
distribution, all amounts in the Participant's Deferral Accounts will be
distributed in a single lump-sum payment to his Beneficiaries during the next
calendar quarter following written notice to the Administrative Committee of the
Participant's death.
(b) Disability. If a Participant's employment is terminated
because of Disability, and he has an aggregate balance in all of his Deferral
Accounts under the Plan of least $50,000 (or such amount determined by the
Administrative Committee) at the time of termination, the Participant's
previously selected Withdrawal Dates will remain; provided, however, if he has
an aggregate balance in all of his Deferral Accounts under the Plan of less than
$50,000 (or such other amount determined by the Administrative Committee), the
Participant's Deferral Accounts will be distributed in a single lump-sum payment
during the next calendar quarter following written notice to the Administrative
Committee of the Participant's termination.
(c) Distribution due to Termination for Serious Misconduct. If
a Participant's employment or service is terminated because of serious
misconduct, all amounts in the Participant's Deferral Accounts will be
distributed in a single lump-sum payment within 30 days of the end of the month
that the Administrative Committee receives written notice of the Participant's
termination. Serious misconduct means any misconduct identified as a ground for
termination in the Motorola Code of Business Conduct, or the human resources
policies or other written policies or procedures.
(d) Change in Employment due to a Divestiture. If a
Participant accepts employment with another company in direct connection with
the sale, lease, outsourcing arrangement or other type of asset transfer or
transfers of any facility or any portion of a discrete organizational unit of
the Company or a Subsidiary (a "Divestiture"), and he has an aggregate balance
in all of his Deferral Accounts under the Plan of at least $50,000 (or such
other amount determined by the Administrative Committee) at the time of the
Divestiture, the Participant's previously selected Withdrawal Dates will remain
in effect for that Deferral Account; provided, however, if he has an aggregate
balance in all of his Deferral Accounts under the Plan of less than $50,000 (or
such other amount determined by the Administrative Committee), the Participant's
Deferral Account will be distributed in a single lump-sum payment during the
next calendar quarter following written notice to the Administrative Committee
of the Participant's termination.
(e) Distribution due to Termination of Employment or Service
by the Company other than for Death, Disability, Serious Misconduct or a
Divestiture. If a Participant's employment is terminated by the Company other
than for death, Disability, serious misconduct or a Divestiture, and he has an
aggregate balance in all of his Deferral Accounts of at least
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$50,000 (or other such amount determined by the Administrative Committee) at the
time of the Divesture, the Participant's previously selected Withdrawal Dates
will remain. If the Participant has an aggregate balance in all of his Deferral
Accounts under the Plan of less than $50,000 (or other such amount determined by
the Administrative Committee), the Participant's Deferral Accounts will be
distributed in a single lump-sum payment during the next calendar quarter
following written notice to the Administrative Committee of the Participant's
termination.
(f) Change in Control. If there is a Change in Control of
Motorola, all Participants' Deferral Accounts will be distributed in a single
lump-sum payment within 30 days of the consummation of the transaction.
(g) Termination of Employment or Service for any other Reason
than Described Above. If a Participant's employment or service is terminated for
any other reason than described above, all amounts in the Participant's Deferral
Accounts will be distributed in a single lump-sum payment during the next
calendar quarter following written notice to that the Administrative Committee
of the Participant's termination.
4.3 Early Non-Scheduled Distributions.
A Participant shall be permitted to elect an Early
Distribution from his or her Deferral Account prior to any previously selected
Withdrawal Date, subject to the following restrictions:
(a) The election to take an Early Distribution shall be made
by filing a form provided by and filed with the Administrative Committee prior
to the end of any calendar month.
(b) The amount of the Early Distribution shall equal up to 90%
of his Deferral Account balance.
(c) The amount described in subsection (b) above shall be paid
in a single lump sum as soon as practicable after the end of the calendar month
in which the Early Distribution election is made.
(d) If a Participant requests an Early Distribution of his
entire Deferral Account, the remaining balance of his Deferral Account (10% of
the Deferral Account) shall be permanently forfeited and the Company shall have
no obligation to the Participant or his Beneficiary with respect to such
forfeited amount. If a Participant receives an Early Distribution of less than
his entire Deferral Account, such Participant shall forfeit 10% of the gross
amount to be distributed from the Participant's Deferral Account and the Company
shall have no obligation to the Participant or his or her Beneficiary with
respect to such forfeited amount.
(e) If a Participant receives an Early Distribution of either
all or a part of his Deferral Account, the Participant will be ineligible to
participate in the Plan for the balance of the Plan Year and the following Plan
Year. All distributions shall be made on a pro rata basis from among a
Participant's Deferral Accounts.
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4.4 Hardship Distribution.
A Participant shall be permitted to elect a Hardship
Distribution from his or her Deferral Accounts prior to the Withdrawal Date,
subject to the following restrictions:
(a) The election to take a Hardship Distribution shall be made
by filing a form provided by and filed with the Administrative Committee prior
to the end of any calendar month.
(b) The Administrative Committee shall have made a
determination that the requested distribution constitutes a Hardship
Distribution.
(c) The amount determined by the Administrative Committee as a
Hardship Distribution shall be paid in a single cash lump sum as soon as
practicable after the end of the calendar month in which the Hardship
Distribution election is made and approved by the Administrative Committee.
(d) If a Participant receives a Hardship Distribution, the
Participant will be ineligible to participate in the Plan for the balance of the
Plan Year and the following Plan Year.
4.5 Credit or Debit of Earnings or Losses.
Unless otherwise provided, a Participant's Deferral Account
will continue to be credited or debited with earnings or losses thereon pursuant
to Section 3.1 until all amounts in a Deferral Account are distributed.
4.6 Inability to Locate Participant.
In the event that the Administrative Committee is unable to
locate a Participant or Beneficiary within two years following a Withdrawal
Date, the amount allocated to the Participant's Deferral Account shall be
forfeited. If, after such forfeiture, the Participant or Beneficiary later
claims such benefit, such benefit shall be reinstated without interest or
earnings.
5. ADMINISTRATION
5.1 Administrative Committee.
An Administrative Committee shall be appointed by, and serve
at the pleasure of, the Compensation Committee of the Board of Directors (the
"Compensation Committee"). The number of members comprising the Administrative
Committee shall be determined by the Compensation Committee, which may from time
to time vary the number of members. The Compensation Committee may remove any
member at anytime at its discretion. The Compensation Committee shall fill
vacancies in the membership of the Administrative Committee.
5.2 Administrative Committee Action.
The Administrative Committee shall act at meetings by
affirmative vote of a majority of the members of the Administrative Committee.
The Administrative Committee may
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also take action without a written consent signed by a majority of members of
the Administrative Committee. The Administrative Committee may delegate its
authority.
5.3 Powers and Duties of the Administrative Committee.
(a) The Administrative Committee, on behalf of the
Participants and their Beneficiaries, shall enforce the Plan in accordance with
its terms, shall be charged with the general administration of the Plan, and
shall have all powers necessary to accomplish its purposes, including, but not
by way of limitation, the following:
(1) To select the Funds;
(2) To construe and interpret the terms and provisions of
this Plan;
(3) To compute and certify to the amount and kind of
benefits payable to Participants and their Beneficiaries;
(4) To maintain all records that may be necessary for the
administration of the Plan;
(5) To provide for the disclosure of all information and
the filing or provision of all reports and statements to Participants,
Beneficiaries or governmental agencies as shall be required by law;
(6) To make and publish such rules for the regulation of
the Plan and procedures for the administration of the Plan as are not
inconsistent with the terms hereof;
(7) To appoint a Plan administrator or any other agent,
and to delegate to them such powers and duties in connection with the
administration of the Plan as the Administrative Committee may from time to time
prescribe;
(8) To take all actions necessary for the administration
of the Plan, including determining whether to hold or discontinue the Policies;
and
(9) To delegate its powers and duties.
5.4 Construction and Interpretation.
The Committee shall have full discretion to construe and
interpret the terms and provisions of this Plan, which interpretations or
construction shall be final and binding on all parties, including but not
limited to the Company and any Participant or Beneficiary. The Administrative
Committee shall administer such terms and provisions in a uniform and
nondiscriminatory manner and in full accordance with any and all laws applicable
to the Plan.
5.5 Information.
To enable the Administrative Committee to perform its
functions, the Company shall supply full and timely information to the
Administrative Committee on all matters relating
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to the Compensation of all Participants, their death or other events which cause
termination of their participation in this Plan, and such other pertinent facts
as the Administrative Committee may require.
5.6 Compensation, Expenses and Indemnity.
(a) The members of the Administrative Committee shall serve
without compensation for their services hereunder.
(b) To the extent permitted by Delaware law and the Company's
amended Certificate of Incorporation, the Company shall indemnify and hold
harmless the Administrative Committee and each member thereof, the Compensation
Committee, the Board of Directors and any delegate of the Administrative
Committee who is an employee of the Company against any and all expenses,
liabilities and claims, including legal fees to defend against such liabilities
and claims arising out of their discharge in good faith of responsibilities
under or incident to the Plan, other than expenses and liabilities arising out
of willful misconduct. This indemnity shall not preclude such further
indemnities as may be available under insurance purchased by the Company or
provided by the Company.
5.7 Account Statements.
Under procedures established by the Administrative Committee,
a Participant shall receive a statement with respect to such Participant's
Accounts on a quarterly basis.
5.8 Disputes.
(a) Claim.
A person who believes that he or she is being denied a benefit
to which he or she is entitled under this Plan (hereinafter referred to as
"Claimant") must file a written request for such benefit with the Administrative
Committee and the Secretary of the Company, setting forth his or her claim.
(b) Claim Decision.
Upon receipt of a claim, the Company shall advise the Claimant
that a reply will be forthcoming within 90 days and shall, in fact, deliver such
reply within such period. The Company may, however, extend the reply period for
an additional 90 days for special circumstances.
If the claim is denied in whole or in part, the Company shall
inform the Claimant in writing, setting forth: (A) the specified reason or
reasons for such denial; (B) the specific reference to pertinent provisions of
this Plan or the rules related to the Plan on which such denial is based; (C) a
description of any additional material or information necessary for the Claimant
to perfect his or her claim and an explanation of why such material or such
information is necessary; (D) appropriate information as to the steps to be
taken if the Claimant wishes to submit the claim for review; and (E) the time
limits for requesting a review under subsection (c).
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(c) Request For Review.
Within 60 days after the receipt by the Claimant of the
written opinion described above, the Claimant may request in writing that the
Administrative Committee review the determination of the Company. Such request
must be addressed to the Secretary of the Company, at its then principal place
of business. The Claimant or his or her duly authorized representative may, but
need not, review the pertinent documents and submit issues and comments in
writing for consideration by the Administrative Committee. If the Claimant does
not request a review within such 60-day period, he or she shall be barred and
estopped from challenging the Company's determination.
(d) Review of Decision.
Within 60 days after the Administrative Committee's receipt of
a request for review, after considering all materials presented by the Claimant,
the Administrative Committee will inform the Participant in writing, in a manner
calculated to be understood by the Claimant, the decision setting forth the
specific reasons for the decision containing specific references to the
pertinent provisions of this Plan on which the decision is based. If special
circumstances require that the 60 day time period be extended, the
Administrative Committee will so notify the Claimant and will render the
decision as soon as possible, but no later than 120 days after receipt of the
request for review.
6. MISCELLANEOUS
6.1 Unsecured General Creditor.
Participants and their Beneficiaries, heirs, successors, and
assigns shall have no legal or equitable rights, claims, or interest in any
specific property or assets of the Company. No assets of the Company shall be
held in any way as collateral security for the fulfilling of the obligations of
the Company under this Plan. Any and all of the Company's assets shall be, and
remain, the general unpledged, unrestricted assets of the Company. In the event
the Company, in its sole discretion, decides to invest in any of the Funds,
Participants and Beneficiaries shall have no rights in or to such investments.
The Company's obligation under the Plan shall be merely that of an unfunded and
unsecured promise of the Company to pay money in the future, and the rights of
the Participants and Beneficiaries shall be no greater than those of unsecured
general creditors. It is the intention of the Company that this Plan be unfunded
for purposes of the Code and for purposes of Title 1 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA").
6.2 Restriction Against Assignment.
The Company shall pay all amounts payable hereunder only to
the person or persons designated by the Plan and not to any other person or
corporation. No part of a Participant's Accounts shall be liable for the debts,
contracts, or engagements of any Participant, his or her Beneficiary, or
successors in interest, nor shall a Participant's Accounts be subject to
execution by levy, attachment, or garnishment or by any other legal or equitable
proceeding, nor shall any such person have any right to alienate, anticipate,
sell, transfer, commute, pledge,
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encumber, or assign any benefits or payments hereunder in any manner whatsoever.
If any Participant, Beneficiary or successor in interest is adjudicated bankrupt
or purports to anticipate, alienate, sell, transfer, commute, assign, pledge,
encumber or charge any distribution or payment from the Plan, voluntarily or
involuntarily, the Administrative Committee, in its discretion, may cancel such
distribution or payment (or any part thereof) to or for the benefit of such
Participant, Beneficiary or successor in interest in such manner as the
Administrative Committee shall direct.
6.3 Withholding.
There shall be deducted from each payment made under the Plan
or any other Deferred Compensation payable to the Participant (or Beneficiary)
all taxes that are required to be withheld by the Company in respect to such
payment or this Plan. The Company shall have the right to reduce any payment (or
compensation) by the amount of cash sufficient to provide the amount of said
taxes. Each participant agrees the Company shall have such rights to withhold
such taxes.
6.4 Effective Date.
The effective date of the Plan is January 1, 2001.
6.5 Amendment, Modification, Suspension or Termination.
The Board, the Compensation Committee or the Administrative
Committee may amend, modify, suspend or terminate the Plan in whole or in part,
except that no amendment, modification, suspension or termination shall have any
retroactive effect to reduce any amounts allocated to a Participant's Accounts.
In the event that this Plan is terminated, the amounts allocated to a
Participant's Accounts shall be distributed to the Participant or, in the event
of his or her death, his or her Beneficiary in a lump sum within 30 days
following the date of termination.
6.6 Governing Law.
This Plan shall be construed, governed and administered in
accordance with the laws of the State of Delaware, except when preempted by
federal law.
6.7 Receipt or Release.
Any payment to a Participant or the Participant's Beneficiary
in accordance with the provisions of the Plan shall, to the extent thereof, be
in full satisfaction of all claims against the Administrative Committee, the
Compensation Committee, the Board and the Company. The Administrative Committee
may require such Participant or Beneficiary, as a condition precedent to such
payment, to execute a receipt and release to such effect.
6.8 Payments on Behalf of Persons Under Incapacity.
In the event that any amount becomes payable under the Plan to
a person who, in the sole judgment of the Compensation Committee or the
Administrative Committee, is considered by reason of physical or mental
condition to be unable to give a valid receipt
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therefore, the Compensation Committee or the Administrative Committee may direct
that such payment be made to any person found by the Compensation Committee or
the Administrative Committee, in its sole judgment, to have assumed the care of
such person. Any payment made pursuant to such determination shall constitute a
full release and discharge of the Compensation Committee or the Administrative
Committee and the Company.
6.9 Limitation of Rights and Employment Relationship
Neither the establishment of the Plan and Trust nor any
modification thereof, nor the creating of any fund or account, nor the payment
of any benefits shall be construed as giving to any Participant, or Beneficiary
or other person any legal or equitable right against the Company or the trustee
of the Trust except as provided in the Plan and Trust; and in no event shall the
terms of employment of any Employee or Participant be modified or in any way be
affected by the provisions of the Plan and Trust.
6.10 Headings.
Headings and subheadings in this Plan are inserted for
convenience of reference only and are not to be considered in the construction
of the provisions hereof.
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