Exhibit 10.32
GATX CORPORATION
DIRECTORS' VOLUNTARY DEFERRED FEE PLAN
AMENDED AND RESTATED
AS OF JANUARY 1, 2005
SECTION 1. PURPOSE AND EFFECTIVE DATE.
The purpose of the Directors' Voluntary Deferred Fee Plan is to provide to
non-employee directors of GATX Corporation (the "Company") an opportunity to
receive that portion of their cash annual retainer and meeting attendance fees
on a deferred basis, and to provide investment alternatives with respect
thereto.
The Directors' Deferred Fee Plan was amended and restated effective July 1,
1998. The Directors' Deferred Fee Plan is further amended, restated, and
continued in the form set forth herein. The Plan (as so amended and restated) is
effective with respect to amounts that were first accrued and vested under the
Plan after December 31, 2004.
SECTION 2. DEFINITIONS.
Unless the context otherwise requires, the following words as used herein shall
have the following meanings:
(a) AFFILIATE. The term "Affiliate" means any person with whom the Company is
considered to be a single employer under section 414(b) of the Internal
Revenue Code (the "Code") and any person with whom the Company would be
considered a single employer under section 414(c) of the Code.
(b) BOARD. The term "Board" means the Board of Directors of the Company.
(c) CHANGE IN CONTROL EVENT. The term "Change in Control Event" shall have the
meaning ascribed to it under Treas. Reg. Section 1.409A-3(i)(5).
(d) DEFERRAL ELECTION. The term "Deferral Election" means the deferral election
form attached hereto as Exhibit A (subject to such modification as the
Administrator may make from time to time) that is filed with the
Administrator or his or her delegate or filed in accordance with such
procedure as may be specified by the Administrator from time to time,
whereby a Participant may elect to defer the Director's Fees under the
Plan. The Deferral Election shall indicate (i) the percentage of the
Director's Fees to be deferred, and (ii) whether the amount so deferred
shall be credited to a Deferred Fee Account and bear interest as provided
in Section 5 or invested in units of phantom stock to be held in a Phantom
Stock Account as provided in Section 6, or the extent to which the
Director's Fees should be divided between the Deferred Fee Account and the
Phantom Stock Account.
(e) DEFERRED FEE. The term "Deferred Fee" means that part of the Director's
Fees elected to be deferred hereunder.
(f) DIRECTOR'S FEES. An individual's "Director's Fees" means the portion of the
annual retainer and Board and committee meeting attendance fees paid to
each director who is not an employee of the Company or the Affiliates,
that, in the absence of deferral under this Plan, would be paid in cash.
Director's Fees for any calendar year shall mean the Participant's fees
payable by the Company with respect to services performed during that
calendar year.
(g) DISTRIBUTION ELECTION. The term "Distribution Election" means the form
filed with the Administrator in accordance with such procedure as may be
specified by the Administrator from time to time, whereby a Participant may
elect the time at which amounts are to be paid under the Plan, subject to
the provisions of Section 7.
(h) PARTICIPANT. The term "Participant" means an eligible member of the Board
who elects to participate in the Plan.
(i) PERFORMANCE PERIOD. The term "Performance Period" means the period of
service for which the right to the compensation arises.
(j) QUARTER. The term "Quarter" means each of the three calendar month periods
ending on the last day of January, April, July and October, respectively.
(k) QUARTERLY DEFERRAL AMOUNT. The term "Quarterly Deferral Amount" means the
amount of the Deferred Fee that would otherwise be payable to a
participating director each Quarter during the term hereof.
(l) RELATED PLANS. The term "Related Plans" means this Plan and any other
account balance plan providing for the deferral of compensation at the
election of the director that is required to be aggregated with this Plan
pursuant to Treas. Reg. Section 1.409A-1(c)(2)(A).
(m) SPECIFIED EMPLOYEE. 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 or her
delegate from time to time.
(n) TERMINATION DATE. An individual's "Termination Date" is the date on which
the individual ceases to serve on the boards of directors of the Company
and the Affiliates, subject to the following:
(i) A director will be deemed to have ceased to serve on the board of
directors of the Company and the Affiliates at the time the director and
the Company reasonably anticipate that a level of bona fide services the
individual would perform for the Company and the Affiliates as a director
after such date would permanently decrease to
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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 individual has performed services as
a director for the Company and the Affiliates for less than 36 months).
(ii) The relationship as a director will be treated as continuing intact
while the individual is on a bona fide leave of absence (determined in
accordance with Treas. Reg. Section 1.409A-1(h)).
(o) UNFORESEEABLE EMERGENCY. The term "Unforeseeable Emergency" shall mean a
severe financial hardship to the Participant resulting from an illness or
accident of the Participant, the Participant's spouse, the Participant's
beneficiary, or the Participant's dependent; loss of the Participant's
property due to casualty; or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
Participant; provided, however, that the determination of Unforeseeable
Emergency shall be made by the Administrator in a manner that is consistent
with the meaning of Unforeseeable Emergency set forth in Treas. Reg.
1.409A-3(i)(3).
SECTION 3. ELIGIBILITY.
Each member of the Board who is not an employee of the Company or the Affiliates
shall be eligible to participate in the Plan as of the first day he/she begins
service on the Board, by electing to defer the Board member's Directors Fees in
accordance with the following provisions of the Plan.
SECTION 4. ELECTION TO DEFER COMPENSATION.
(a) In General. Subject to the following provisions of this Section 4, any
election by an eligible individual to defer Director's Fees for services
performed during any calendar year may be deferred under the Plan only if
the Deferral Election is filed no later than the last day of the preceding
calendar year.
(b) Initial Participation. For the first calendar year in which an individual
becomes eligible to participate in any of the Related Plans, the individual
may make an initial Deferral Election to participate in this Plan, provided
that such election must be made by filing a Deferral Election to defer the
Director's Fees within 30 days after the date the individual initially
becomes eligible to participate in any of the Related Plans, and may only
apply with respect to the Director's Fees paid for services to be performed
after the election is filed. If an election is filed after the beginning of
a Performance Period, the election may apply to no more than an amount
equal to the total amount of the Director's Fees for that Performance
Period multiplied by the ratio of the number of days remaining in the
Performance Period after the election over the total number of days in the
Performance Period.
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(c) Date of Filing. For purposes of this Section 4, a Deferral Election will be
deemed to be filed on the later of the date it is filed with the
Administrator or the date on which it becomes irrevocable. In the case of a
Deferral Election described in paragraph (b) above that is with respect to
the date an individual initially becomes eligible to participate in any of
the Related Plans, and in the absence of provisions in the Deferral
Election to the contrary, (i) if the Deferral Election is filed on or
before such initial eligibility date, it will be considered to become
irrevocable on the date such individual initially becomes eligible to
participate in any of the Related Plans, and (ii) if the Deferral Election
is filed after such initial eligibility date, it will be considered to
become irrevocable on the 30th day after such initial eligibility date. An
election shall be considered to be irrevocable for any year as of the date
it can no longer be changed with respect to Director's Fees for that year.
(d) Determination of Eligibility. For purposes of paragraph (b) above, an
individual is deemed to be eligible to participate in any of the Related
Plans at any time during which, under the respective plan's terms and
without further amendment or action by the plan sponsor, the individual is
eligible to accrue an amount of deferred compensation (as that term is used
in Treas. Reg. Section 1.409A-2(a)(7)) under the plan other than earnings
on amounts previously deferred, even if the individual has elected not to
accrue (or has not elected to accrue) an amount of deferred compensation
under that plan.
(e) Withdrawal From Plan for Future Director's Fees. A Participant's Deferral
Election for any calendar year shall remain in effect for each subsequent
calendar year unless it is modified or revoked prior to the first day of
calendar year as to which the modification or revocation applies. Such
modification or revocation may be effected by submitting a completed notice
of modification and withdrawal on the election form attached hereto as
Exhibit A. Elections with respect to any calendar year shall be irrevocable
during that calendar year.
SECTION 5. DEFERRED FEE ACCOUNT.
A Deferred Fee Account shall be maintained for each Participant electing to
receive interest on his or her Deferred Fees. Cash and interest thereon shall be
credited to a Participant's Deferred Fee Account as set forth in the following
paragraph.
Until the Valuation Date preceding payment of the Deferred Fees to a Participant
in accordance with Section 7, all amounts credited to a Participant's Deferred
Fee Account shall accrue interest at a rate equal to the twenty-year U.S.
Government bond rate in effect on the 15th day of January, April, July and
October of each year. Interest shall be compounded monthly, and shall be accrued
as of the last day of each calendar month (a "Valuation Date" with respect to
the Deferred Fee Account). As promptly as practicable following the close of
each Quarter, a statement will be sent to each Participant reflecting the
balance in his or her Deferred Fee Account as of the end of such Quarter.
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SECTION 6. PHANTOM STOCK ACCOUNT.
A Participant may elect to invest all or a portion of his or her Deferred Fees
in units of phantom stock. In such case, the Participant's Phantom Stock Account
will be credited each Quarter in which his or her election remains in effect
with the number of units of phantom stock equal to the result obtained by
dividing the portion of the Quarterly Deferral Amount to be invested in phantom
stock by the average of the high and low price of the Company's common stock on
the New York Stock Exchange on the last trading day of each Quarter. Until
distribution as provided herein, the Participant's Phantom Stock Account will be
credited with additional units of phantom stock representing dividends declared
on the Company's common stock based on the average of the high and low price of
such stock on the New York Stock Exchange on the date such dividend is paid. The
last day of each Quarter shall be a "Valuation Date" with respect to the Phantom
Stock Account.
The Phantom Stock Account will be merely a bookkeeping entry on the Company's
books so that no trust or escrow arrangement will be used and the Participant
will remain a general, unsecured creditor with respect to his or her account. As
promptly as practicable following the end of each Quarter, a statement will be
sent to each Participant reflecting the balance in his or her Phantom Stock
Account as of the end of such month.
SECTION 7. PAYMENT OF DEFERRED FEES.
(a) Distributions Pursuant to Participant's Elections.
(i) By filing a Distribution Election, a Participant may elect to receive
distribution of benefits under the Plan in a lump sum in a specified
calendar year, or in annual installments commencing in a specified calendar
year, provided that such year of payment or commencement, respectively, may
not be later than the second calendar year following the calendar year in
which the Participant's Termination Date occurs, or (B) in a lump sum that
is made, or annual installments that commence in the calendar year in which
the Participant's Termination Date occurs, or in the first or second
calendar year following the calendar year in which the Participant's
Termination Date occurs. Subject to Section 7(e)(iv) and to the following
sentence, distribution to be made in any year in accordance with this
Section 7 shall be made on February 15 of that calendar year; provided that
if the distribution is to be made in the calendar year in which the
Participant's Termination Date occurs, distribution shall be made on the
Participant's Termination Date. A Participant's Distribution Election may
also specify that distribution of Plan benefits will be accelerated to the
date of a Change in Control Event.
(ii) A director may elect a different time of payment for benefits
attributable to fees for each different calendar year of service, provided
that the Distribution Election applicable to fees attributable to services
for any calendar year must be filed no later than the date for filing the
Deferral Election for such fees.
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(iii) In the absence of filing a timely Distribution Election for fees
deferred under the Plan for any calendar year, distribution of amounts
attributable to that year shall be paid in a lump sum on the Participant's
Termination Date.
(b) Distributions Upon Death of Participant.
If a Participant's Termination Date occurs on or after January 1, 2005 by
reason of death, or if a Participant dies prior to having received all
annual installments otherwise scheduled to be paid to him under this
Section 7, the Participant's executor or administrator will receive a lump
sum payment equal to the Account balances determined as of the Valuation
Date next prior to the date of actual distribution. Subject to Section
(e)(iv) below, such payment shall be made within 30 days after the date of
death.
(c) Distributions Upon Occurrence of Unforeseeable Emergency.
A Participant may request the Administrator to allow withdrawal from the
Participant's Accounts in the event of an Unforeseeable Emergency.
Distributions because of an Unforeseeable Emergency shall be limited to the
amount reasonably necessary to satisfy the emergency need (which may
include amounts necessary to pay any federal, state, local, or foreign
income taxes or penalties reasonably anticipated to result from the
distribution). However, in making the determination of amounts reasonably
necessary to satisfy the emergency need, the Administrator is not required
to take into account any additional compensation that due to the
Unforeseeable Emergency is available under another nonqualified deferred
compensation plan but has not actually been paid, or that is available due
to the Unforeseeable Emergency under another plan that would provide for
deferred compensation except due to the application of the effective date
provisions under Treas. Reg. Section 1.409A-6.
(d) Distributions to Specified Employees.
If a Participant is a Specified Employee at the Participant's Termination
Date, and distribution is made to the Participant by reason of the
occurrence of such Termination Date, distributions of benefits under the
Plan may not be made before the date that is six months after the
Participant's Termination Date or, if earlier, the date of death of the
Participant. 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 Section (d) shall be paid on the first day of the seventh month
following the Termination Date.
(e) General Distribution Rules.
Distributions of amounts under the Plan are subject to the following:
(i) Amount of Lump Sum Distributions. If a Participant's Account balances
are to be distributed in a lump sum in accordance with this Section 7, the
distribution shall be comprised of: (A) a cash payment equal to the amount
credited to the Participant's
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Deferred Fee Account as of the Valuation Date coincident with or
immediately preceding the date on which the distribution is in fact made;
plus (B) shares of the Company's common stock equal in amount to the number
of units of phantom stock credited to the Participant's Phantom Stock
Account of as of the Valuation Date coincident with or immediately
preceding the date on which the distribution is in fact made. If, after the
Valuation Date used to determine the amount of cash and number of shares to
be distributed, additional amounts of cash or phantom units are credited to
the Participant's Accounts, such amounts (including shares of stock with
respect to the Phantom Stock Account) shall be distributed as soon as
practicable after being credited.
(ii) Amount of Annual Installment Distributions. If a Participant's Account
balances are to be distributed in annual installments in accordance with
this Section 7, each annual installment distribution shall be comprised of:
(A) a cash payment equal to the amount credited to the Participant's
Deferred Fee Account of as of the Valuation Date coincident with or
immediately preceding the date on which the distribution is in fact made,
multiplied by a fraction, the numerator of which shall be one and the
denominator of which shall be the total number of annual installments
elected minus the number of annual installments, if any, previously paid;
plus (B) shares of the Company's common stock equal in amount to the number
of units of phantom stock credited to the Participant's Phantom Stock
Account of as of the Valuation Date coincident with or immediately
preceding the date on which the distribution is in fact made, multiplied by
a fraction, the numerator of which shall be one and the denominator of
which shall be the total number of annual installments elected minus the
number of annual installments, if any, previously distributed, provided
that any fractional units of phantom stock shall be paid in cash. If, after
the Valuation Date used to determine the amount of cash and number of
shares to be distributed as the final installment, additional amounts of
cash or phantom units are credited to the Participant's Accounts under the
Plan, such amounts (including shares of stock with respect to the Phantom
Stock Account) shall be distributed as soon as practicable after being
credited.
(iii) Deferrals During Year of Termination. For the avoidance of doubt, it
is recited that Director's Fees that are deferred with respect to any
calendar year shall be allocated to the Participant's Accounts in
accordance with the provisions of the Plan and shall be distributed in
accordance with the terms of the Plan, regardless of whether the
Participant's Termination Date occurs during that year.
(iv) Permitted Date of Distribution. For purposes of Code section 409A, a
distribution will be considered to be made under the Plan as of the date
specified in the Plan 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 Participant
is not permitted, directly or indirectly, to designate the taxable year of
the payment. The foregoing provisions of this paragraph (iv) are intended
to conform the payments under this Plan to the requirements of Code section
409A, and shall not be construed to permit delay by the Company of payment
of amounts due earlier in accordance with this Agreement.
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(v) Fractional Shares. Cash shall be paid in lieu of any fractional share
of Company stock that would otherwise be distributed with respect to the
Phantom Stock Account.
(vi) Application of Section 7. Distributions from a Participant's Deferred
Fee Account and/or Phantom Stock Account may only be made pursuant to the
provisions of this Section 7.
SECTION 8. PARTICIPANT'S RIGHTS UNSECURED.
No fund is to be created to meet payment obligations under this Plan, and the
right of a Participant to receive any unpaid portion of any amounts credited to
the Participant's Deferred Fee Account and/or Phantom Stock Account shall be an
unsecured claim against the general assets of the Company.
SECTION 9. NON-ASSIGNABILITY.
The right of a Participant to receive any unpaid portion of any amounts credited
to his or her Deferred Fee Account and/or Phantom Stock Account shall not be
assigned, transferred, pledged or encumbered or be subject in any manner to
alienation or anticipation, except that a Participant may designate, on forms
provided by the Company, a beneficiary to receive benefits under the Plan in the
event of such Participant's death.
SECTION 10. ADMINISTRATION.
The "Administrator" of this Plan shall be the Senior Vice President, Human
Resources of the Company, who shall have authority to adopt rules and
regulations for carrying out the Plan and to interpret and implement the
provisions hereof.
SECTION 11. AMENDMENT AND TERMINATION
This Plan may at any time be amended, modified or terminated by the Board. No
amendment, modification or termination shall, without the consent of a
Participant, adversely affect such Participant's rights with respect to amounts
credited to the Participant's Deferred Fee Account and/or Phantom Stock Account.
No such amendment, modification, or termination shall be adopted or effective if
it would result in accelerated recognition of income or imposition of additional
tax under Code section 409A or, except as otherwise provided in the amendment,
would cause amounts that were not otherwise subject to Code section 409A to
become subject to section 409A.
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SECTION 12. EXECUTION AND ADOPTION.
The amended and restated Plan as set forth herein is hereby adopted by the
undersigned officer of the Company, on ______________, 2007.
GATX CORPORATION
By:
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Senior Vice President, Human Resources
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