Exhibit 10.27
AMENDMENT OF
GATX CORPORATION EXECUTIVE DEFERRED INCOME PLAN
The GATX Corporation Executive Deferred Income Plan for Plan Years
beginning in 1984, 1985, and 1987 (collectively the "Plan") is hereby amended
with respect to each Plan participant (to the extent that the participant
otherwise participates for each such Plan Year) for amounts deferred (as that
term is used in Treas. Reg. Section 1.409A-6) on or after January 1, 2005, by
amending each of the participation agreements reflecting awards under the Plan
(the "Participation Agreements") as set forth below; provided that, except to
the extent otherwise required by Treas. Reg. Section 1.409A-1 through 6, these
amendments (i) shall not apply to an Employee who remained employed by the
Company until age 65 or (if earlier) his Earliest Retirement Date, if the
Employee attained age 65 or (if earlier) his Earliest Retirement Date prior to
January 1, 2005; and (ii) shall not apply to an Employee whose employment
terminated prior to January 1, 2005.
1. By adding the following immediately prior to the period at the end of
the second sentence of Paragraph 2 of each Participation Agreement:
"; provided, however, that no payment shall be made in accordance with this
sentence if the Participant does not survive until age 65"
2. By substituting the phrase "15 equal" and "10 equal," respectively, for
the phrases "15 substantially equal" and "10 substantially equal" where the
latter phrases appear in the second sentence of Paragraph 2 of each
Participation Agreement.
3. By substituting the following for Paragraphs 4 and 5 of each
Participation Agreement:
"4. Beneficiary Payments, Death Prior to Age 65. If the Employee dies prior
to the Employee's 65th birthday while employed by GATX, the Employer shall pay
the beneficiary designated by the Employee, in a lump sum on the date of death
(subject to paragraph 22), the amount actually deferred by the Employee, net of
any amount paid to the Employee under paragraph 2, with interest thereon at the
rate of 20 percent per annum, compounded annually, all as reflected on Schedule
A attached hereto and made a part hereof. The Employee may elect, by written
direction filed with the Compensation Committee prior to his death, to have the
amount otherwise payable under this paragraph 4 (together with interest from the
date of death at the rate of 10 percent per annum, compounded annually) paid in
equal annual installments over a period not in excess of 15 years commencing as
of the July 1st (or January 1 in the case of a Participation Agreement for the
1987 Plan Year) next following the date of the Employee's death; provided that
an election that is filed under this sentence after December 31, 2007 shall be
disregarded and without effect.
5. Beneficiary Payments, Death After Age 65. If the Employee terminates
employment after the Earliest Retirement Date and survives to age 65 (regardless
of whether the Employee's 65th birthday is before, on, or after termination of
employment), but dies prior to receiving any or all annual installment payments
due to the Employee, the Employer shall continue to pay any
unpaid annual payments to the beneficiary designated by the Employee, in the
same form, at the same time, and in the same amount as those payments would have
been made if the Employee had survived."
4. By substituting the following for Paragraph 7 of each Participation
Agreement:
"7. Disability Termination. Subject to paragraph 25, if the Employee's
employment with GATX is terminated prior to the Employee's 65th birthday by
reason of the Employee becoming permanently and totally disabled, the Employer
shall pay the Employee, in a lump sum on the Termination Date (subject to
paragraph 22), the amount actually deferred by the Employee, net of any amount
paid to the Employee under paragraph 2, with interest thereon at the rate of 20
percent per annum, compounded annually, all as reflected on Schedule A attached
hereto and made a part hereof. For purposes of this Participation Agreement,
permanent and total disability shall mean any disability entitling the Employee
to benefits under the GATX Corporation Disability Income Plan. "
5. By adding the following sentence at the end of Paragraph 10 of each
Participation Agreement:
"However, no amendment under this paragraph 10 or paragraph 16 shall be adopted
or effective if it would result in accelerated recognition of income or
imposition of additional tax under section 409A of the Internal Revenue Code of
1986 or, except as otherwise provided in the amendment, would cause amounts that
were not otherwise subject to section 409A to become subject to section 409A."
6. By substituting the following for Paragraph 13 of each Participation
Agreement:
"13. Effect of Transaction. This Participation Agreement shall be binding
on the Employee and the Employee's heirs and legal representatives and on the
Employer and its successors and assigns. If, as a result of a sale of assets,
sale of stock, spin-off, or through any other means (a "Transaction"), GATX
Corporation ceases to be the owner, directly or indirectly, of 80 percent or
more of the voting stock of the Employer or if the Employee ceases to be
employed by either GATX Corporation or any company at least 80 percent of the
voting stock of which is directly or indirectly owned by GATX Corporation, then
following the occurrence of the Transaction, all references in this
Participation Agreement to GATX or the Compensation Committee shall mean the
Employee's employer or its successor or assign. Notwithstanding any other
provision of this Participation Agreement, if the Employee's employment with
GATX (or a successor, as applicable) terminates before age 65 or for a reason
other than death, total and permanent disability, competitive involvement or
criminal conduct involving GATX, during the 24-month period next following a
Transaction then, subject to paragraph 25, if the Employee is 55 years or older
on the day of such termination of employment, the Employer (or successor, as
applicable) shall pay the Employee, in a lump sum on the Termination Date
(subject to paragraph 22), the amount actually deferred by the Employee, net of
any amount paid to the Employee under paragraph 2, with interest thereon at the
rate of 20 percent per annum, compounded annually, all as reflected on Schedule
A attached hereto and made a part hereof."
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7. By substituting the phrase "before age 65 or for a reason other than"
for the phrase "for a reason other than the Employee's retirement on or after
attainment of the Employee's Earliest Retirement Date," where the latter phrase
appears in the first sentence of paragraph 14 of each Participation Agreement.
8. By substituting the following for paragraph 14(b) of each Participation
Agreement:
"(b) subject to paragraph 25, if the Employee is 55 years or older on the
day of such termination of employment, the Employer shall pay the Employee,
in a lump sum on the Termination Date (subject to paragraph 22), the amount
actually deferred by the Employee, net of any amount paid to the Employee
under paragraph 2, with interest thereon at the rate of 20 percent per
annum, compounded annually, all as reflected on Schedule A attached hereto
and made a part hereof."
9. By adding the following paragraphs 22, 23, 24 and 25 to each
Participation Agreement to follow immediately after paragraph 21 thereof:
"22. Permitted Date of Distribution. For purposes of Section 409A, a
payment will be considered to be made under this Participation Agreement as of
the date specified herein if it is made no later than the end of the calendar
year in which such date occurs or, if later, by the 15th day of the third
calendar month following that specified date, provided that the Employee is not
permitted, directly or indirectly, to designate the taxable year of the payment.
Payments under this Participation Agreement shall be made on or as soon as
practicable after the date specified for payment under this Participation
Agreement. The foregoing provisions of this paragraph 22 are intended to conform
the payments under this Participation Agreement to the requirements of Section
409A, and shall not be construed to permit delay by the Employer of payment of
amounts due earlier in accordance with this Participation Agreement.
23. Termination Date. References in this Participation Agreement to the
Employee's termination of employment (including references to an Employee's
employment termination, the Employee's Termination Date, and to the Employee
terminating employment) shall mean the Employee ceasing to be employed by the
Company and the Affiliates, subject to the following:
(i) The employment relationship will be deemed to have ended at the time the
Employee and his employer reasonably anticipate that a level of bona fide
services the Employee would perform for the Company and the Affiliates
after such date (whether as an Employee or independent contractor, but not
as a director) would permanently decrease to no more than 20% of the
average level of bona fide services performed over the immediately
preceding 36 month period (or the full period of service to the Company
and the Affiliates if the Employee has performed services for the Company
and the Affiliates for less than 36 months). In the absence of an
expectation that the Employee will perform at the above-described level,
the date of termination of employment will not be delayed solely by reason
of the Employee continuing to be on the Company's and the Affiliates'
payroll after such date.
(ii) The employment relationship will be treated as continuing intact while the
Employee is on a bona fide leave of absence (determined in accordance with
Treas. Reg. Section 409A-1(h)).
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(iii) If a Transaction occurs while the Employee is employed by GATX, the
determination of whether a Termination Date has occurred will be made in
accordance with paragraph 13.
(iv) The term "Affiliates" means all persons with whom the Company is
considered to be a single employer under section 414(b) of the Internal
Revenue Code of 1986, as amended and all persons with whom the Company
would be considered a single employer under section 414(c) thereof.
24. Delayed Distribution for Specified Employees. If a participant is a
Specified Employee at the time of termination of employment, payments of
benefits under the Plan may not be made before the date that is six months after
the Termination Date or, if earlier, the date of death of the Employee. At the
end of the six-month period described in the preceding sentence, amounts that
could not be paid by reason of the limitation in this paragraph (i) shall be
paid on the first day of the seventh month following the Termination Date. For
purposes of the Plan, the term "Specified Employee" shall be defined in
accordance with Treas. Reg. Section 1.409A-1(i) and such rules as may be
established by the Chief Executive Officer of the Company or his delegate from
time to time.
25. Distribution Election. Subject to the following provisions of this
paragraph 25, the Employee may elect that if he or she otherwise becomes
eligible to receive a lump sum payment upon termination of employment pursuant
paragraph 7, paragraph 13, or paragraph 14(b), no such lump sum payment shall be
made, and instead this Participation Agreement shall remain in effect and,
unless the Employee dies prior to reaching age 65 (in which case the Employee
shall be deemed to have died while employed by GATX), the Employee (and his
beneficiaries) shall be entitled to the benefits hereunder in the same manner as
if the Employee had remained in the continuous employ of the Employer (or
successor) until the Employee retired on the Employee's Earliest Retirement
Date. An election described in this paragraph 25 that is filed after December
31, 2007 shall be disregarded and without effect.
10. By cancelling the terms of the Retirement Supplement to Executive
Deferred Income Plan Participation Agreements.
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