EXHIBIT 10.38
HOME DEPOT U.S.A., INC.
DEFERRED COMPENSATION PLAN FOR OFFICERS
(As Amended and Restated Effective January 1, 2003)
HOME DEPOT U.S.A., INC.
DEFERRED COMPENSATION PLAN FOR OFFICERS
(As Amended and Restated Effective January 1, 2003)
TABLE OF CONTENTS
PAGE
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SECTION 1. ESTABLISHMENT AND PURPOSE OF PLAN............................................ 1
1.1. ESTABLISHMENT AND RESTATEMENT OF PLAN........................................ 1
1.2. PURPOSE OF PLAN.............................................................. 1
SECTION 2. DEFINITIONS.................................................................. 1
2.1. ACCOUNT...................................................................... 1
2.2. BASE COMPENSATION............................................................ 1
2.3. BONUS COMPENSATION........................................................... 1
2.4. BOARD........................................................................ 1
2.5. CHANGE IN CONTROL............................................................ 1
2.6. CODE......................................................................... 2
2.7. COMMITTEE.................................................................... 2
2.8. COMPANY...................................................................... 2
2.9. DEDUCTIBLE................................................................... 2
2.10. DISTRIBUTION DATE............................................................ 2
2.11. DISABILITY OR DISABLED....................................................... 2
2.12. EFFECTIVE DATE............................................................... 3
2.13. ELIGIBLE OFFICER............................................................. 3
2.14. EMPLOYMENT TERMINATION....................................................... 3
2.15. ENROLLMENT PERIOD............................................................ 3
2.16. EXCHANGE ACT................................................................. 3
2.17. HARDSHIP..................................................................... 3
2.18. NONDEDUCTIBLE................................................................ 3
2.19. NONDEDUCTIBLE COMPENSATION................................................... 3
2.20. PARENT COMPANY............................................................... 3
2.21. PARTICIPANT.................................................................. 4
2.22. PARTICIPATING COMPANY........................................................ 4
2.23. PLAN......................................................................... 4
2.24. PLAN YEAR.................................................................... 4
2.25. RELATED COMPANY.............................................................. 4
2.26. RETIREMENT DATE.............................................................. 4
SECTION 3. PARTICIPATION, CONTRIBUTIONS AND DEFERRALS................................... 4
3.1. ELIGIBILITY.................................................................. 4
3.2. COMMENCEMENT OF PARTICIPATION................................................ 4
3.3. PARTICIPANT DEFERRAL ELECTIONS............................................... 4
3.4. CONTINUANCE OF DEFERRAL ELECTION DURING SEVERANCE PERIOD..................... 5
3.5. REVOCATION/MODIFICATION OF DEFERRAL ELECTIONS................................ 5
3.6. COMPANY DISCRETIONARY CONTRIBUTIONS.......................................... 5
SECTION 4. VESTING AND ADMINISTRATION OF ACCOUNTS....................................... 5
4.1. VESTING OF DEFERRALS......................................................... 5
4.2. CREDITS/DEBTS TO ACCOUNT..................................................... 6
4.3. ACCOUNT EARNINGS............................................................. 6
4.4. OWNERSHIP AND INVESTMENT OF ACCOUNTS......................................... 6
4.5. ESTABLISHMENT OF RABBI TRUST................................................. 6
SECTION 5. DISPOSITION OF PARTICIPANT ACCOUNTS.......................................... 6
5.1. PLAN DISTRIBUTION ELECTIONS.................................................. 6
5.2. DISTRIBUTION DATE............................................................ 7
5.3. FORM OF DISTRIBUTION......................................................... 7
5.4. HARDSHIP DISTRIBUTIONS....................................................... 7
5.5. IN-SERVICE DISTRIBUTIONS..................................................... 8
5.6. DISABILITY DISTRIBUTIONS..................................................... 8
5.7. DEATH DISTRIBUTIONS.......................................................... 8
5.8. DISPOSITION OF ACCOUNT ON PLAN TERMINATION................................... 9
5.9. ACCOUNTING METHOD FOR DISTRIBUTIONS.......................................... 9
5.10. DISTRIBUTIONS CAUSING LOSS OF COMPENSATION DEDUCTION......................... 9
5.11. TAX WITHHOLDING.............................................................. 9
5.12. PRESUMED COMPETENCY.......................................................... 9
5.13. FORFEITURE OF UNCLAIMED BENEFITS............................................. 10
SECTION 6. COMMITTEE ADMINISTRATION..................................................... 10
6.1. PLAN COMMITTEE............................................................... 10
6.2. COMMITTEE ACTION.............................................................10
6.3. PLAN RULES AND REGULATIONS...................................................10
6.4. DETERMINATIONS BY COMMITTEE..................................................10
6.5. PLAN RECORDS.................................................................11
SECTION 7. CLAIM AND REVIEW PROCEDURES..................................................11
7.1. CLAIMS PROCEDURE.............................................................11
7.2. REVIEW PROCEDURE.............................................................11
7.2(a). GENERAL PROCEDURES...........................................................11
7.2(b). DISABILITY CLAIMS............................................................12
7.2(c). PERIOD FOR REVIEW DECISION...................................................12
7.2(d). DECISIONS BY COMMITTEE.......................................................12
7.2(e). REVIEW DECISION..............................................................13
7.3. PROCEDURES APPLYING TO BOTH CLAIMS AND REVIEW PROCEDURES.....................13
7.3(a). METHOD OF NOTIFICATION.......................................................13
7.3(b). WHEN CLAIM OR APPEAL DEEMED FILED............................................13
7.3(c). TOLLING OF PERIOD FOR MAKING DECISION........................................13
7.3(d). RELEVANT DOCUMENTS...........................................................13
7.3(e). DISABILITY CLAIMS............................................................13
SECTION 8. PARTICIPATION BY RELATED COMPANIES...........................................14
8.1. ADOPTION OF PLAN BY RELATED COMPANY..........................................14
8.2. WITHDRAWAL FROM PLAN BY RELATED COMPANY......................................14
8.3. OBLIGATION OF PARTICIPATING EMPLOYERS........................................14
SECTION 9. MISCELLANEOUS PROVISIONS.....................................................14
9.1. AMENDMENT OR TERMINATION.....................................................14
9.2. PARTICIPANT'S RIGHTS UNSECURED...............................................14
9.3. NONTRANSFERABILITY/NONALIENABILITY...........................................15
9.4. PARTICIPANT OBLIGATION TO FURNISH INFORMATION................................15
9.5. NO RIGHT OF EMPLOYMENT.......................................................15
9.6. PLAN EXPENSES................................................................15
9.7. OFFSETS......................................................................15
9.8. SEVERABILITY.................................................................15
9.9. ENFORCEABILITY...............................................................15
9.10. LIMITATION OF ACTIONS........................................................15
9.11. GOVERNING LAW................................................................16
HOME DEPOT U.S.A., INC.
DEFERRED COMPENSATION PLAN FOR OFFICERS
(As Amended and Restated Effective January 1, 2003)
SECTION 1.
ESTABLISHMENT AND PURPOSE OF PLAN
1.1. Establishment of Plan. The Compensation Committee of the Board of
Directors of The Home Depot, Inc. adopted the Home Depot U.S.A., Inc.
Deferred Compensation Plan For Officers effective March 1, 2002. The
Plan is amended and restated, as set forth herein, effective January 1,
2003 except as otherwise expressly provided herein.
1.2. Purpose of Plan. The purpose of the Plan is to provide Eligible
Officers an opportunity to defer to a future date the receipt of base
and bonus compensation for services performed for the Participating
Company. The Plan is intended to constitute, and shall be administered
to qualify as, a "top hat" plan exempt from the requirements of the
Employee Retirement Income Security Act of 1974, as amended, pursuant
to Labor Reg. ss.2520.104-23 and shall be maintained strictly for a
select group of management or highly compensated employees as
contemplated by said regulation.
SECTION 2.
DEFINITIONS
2.1. "Account" means the Participant's bookkeeping account established on
the Company's records showing the amount of the Participant's Base
Compensation and Bonus Compensation deferred pursuant to the
Participant's election and any notional earnings accrued thereon.
2.2 "Base Compensation" means the Participant's base rate of compensation
(including regular compensation, holiday, vacation, personal, sick and
severance pay) payable for services performed for the Participating
Company for the Plan Year, as adjusted to reflect increases and
decreases to the base rate during the Plan Year.
2.3 "Bonus Compensation" means the Participant's bonus or incentive
compensation payable for services performed for the Participating
Company for the Plan Year, including any signing bonus and any
incentive compensation payable to the Participant pursuant to the Home
Depot U.S.A., Inc. Long-Term Performance Incentive Plan or the Home
Depot U.S.A. Management Incentive Plan.
2.4 "Board" means the Company's Board of Directors.
2.5 "Change in Control" means a change in control of the Parent Company of
a nature that would be required to be reported in response to Item 6(e)
of Schedule 14A of Regulation 14A under the Exchange Act as in effect
at the time of such change in control, provided that such a change in
control shall be deemed to have occurred at such time as (1) any
"person" (as that term is used in Sections 13(d) and 14(d) (2) of the
Exchange Act), is or becomes the "beneficial owner," directly or
indirectly, of securities representing twenty percent (20%) or more of
the
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combined voting power for election of directors of the then outstanding
securities of the Parent Company or any successor of the Parent
Company; (2) during any period of two (2) consecutive years or less,
individuals who at the beginning of such period constituted the board
of directors of the Parent Company cease, for any reason, to constitute
at least a majority of the board, unless the election or nomination for
election of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at
the beginning of the period; (3) the stockholders of the Parent Company
approve any merger or consolidation as a result of which the common
stock of the Parent Company shall be changed, converted or exchanged
(other than a merger with a wholly-owned subsidiary of the Parent
Company) or any liquidation of the Parent Company or any sale or other
disposition of fifty percent (50%) or more of the assets or earning
power of the Parent Company; or (4) the stockholders of the Parent
Company approve any merger or consolidation to which the Parent Company
is a party as a result of which the persons who were stockholders of
the Parent Company immediately before the effective date of the merger
or consolidation shall have beneficial ownership of less than
fifty-five percent (55%) of the combined voting power for election of
directors of the surviving corporation following the effective date of
such merger or consolidation.
2.6. "Code" means the Internal Revenue Code of 1986, as amended.
2.7. "Committee" means the Compensation Committee of the Board of Directors
of The Home Depot, Inc.
2.8. "Company" means Home Depot U.S.A., Inc., a Delaware corporation, with
corporate offices at 2455 Paces Ferry Road, N.W., Atlanta, Georgia
30339-4024.
2.9 "Deductible" means a distribution of Base Compensation or Bonus
Compensation and earnings thereon for which the Participating Company
is entitled to a compensation tax deduction.
2.10. "Distribution Date" means the earliest of the following events: (1) a
year elected by the Participant that is after the Plan Year for which
the deferrals are made; or (2) the Participant's Employment Termination
for any reason (including death and Disability) before the
Participant's Retirement Date; or (3) the Participant's Retirement Date
or, if elected by the Participant, the Participant's Retirement Date
plus one (1) year; or (4) if elected by the Participant, the date of a
Change in Control.
2.11. "Disability" or "Disabled" means a physical or mental condition of the
Participant which results in the Participant receiving benefits under
the Participating Company's long term disability insurance plan, or in
the event that the Participant is not participating in the
Participating Company's long term disability insurance plan, means a
physical or mental condition which in the judgment of the Committee,
based on medical reports and other evidence satisfactory to the
Committee, prevents the Participant from satisfactorily performing
Participant's usual duties for the Participating Company or duties of
such other job or position which the Participating Company makes
available to the Participant and for which the Participant is qualified
by reason of training, education or experience.
2.12. "Effective Date" means January 1, 2003.
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2.13. "Eligible Officer" means an employee officer of the Participating
Company who: (1) has completed at least thirty (30) days of employment
with the Participating Company in an eligible position as defined in
Section 2.13(2); and (2) who is an executive officer of the
Participating Company (Chief Executive Officer, Executive Vice
President, Senior Vice President or Division President) or who is a
Vice President of a Participating Company; and (3) is part of a select
group of management or highly compensated employees of the
Participating Company within the meaning of Labor Reg. ss.2520.104-23.
2.14. "Employment Termination" means the date that the Participant ceases to
perform services for the Participating Company and is no longer on the
Participating Company's active payroll; provided, however, that a
Participant shall not be treated as having terminated employment with
the Participating Company for purposes of Section 5 if, concurrently
with or immediately after such termination, the Participant is employed
by a subsidiary or affiliate of the Participating Company.
2.15. "Enrollment Period" means the period established by the Committee
before the beginning of each Plan Year, and the thirty (30) day period
after first becoming eligible to participate in the Plan, during which
Participant deferral and distribution elections must be made.
2.16 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
2.17. "Hardship" means a severe financial hardship to the Participant
resulting from a sudden and unexpected illness or accident of the
Participant or the Participant's dependent (as defined in Code Section
152(a)) loss of the Participant's property due to casualty or other
similar extraordinary and unforeseeable circumstances arising as a
result of events beyond the Participant's control. The need to send a
Participant's child to college or the desire to purchase a home are not
considered unforeseeable emergencies that qualify as a "hardship."
After the Participant's death, the phrase "Participant's beneficiary"
shall be substituted for the word "Participant" in the first sentence
of this Section 2.17.
2.18 "Nondeductible" means a distribution of Base Compensation or Bonus
Compensation and earnings thereon for which the Participating Company
would not be entitled to a compensation tax deduction.
2.19 "Nondeductible Compensation" means Base Compensation or Bonus
Compensation that in the year deferred is nondeductible by the Company
and its affiliated companies pursuant to Code Section 162(m).
2.20 "Parent Company" means The Home Depot, Inc., a Delaware corporation,
with corporate offices at 2455 Paces Ferry Road, N.W., Atlanta, Georgia
30339-4024.
2.21 "Participant" means an Eligible Officer who has made a deferral
election under the Plan and any former Eligible Officer who has an
amount credited to an Account for his or her benefit under the Plan.
2.22 "Participating Company" means the Company, Home Depot Services LLC
(effective upon organization) and any other Related Company that the
Committee authorizes by appropriate
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resolution to participate in the Plan as to its Eligible Officers.
2.23 "Plan" means the Home Depot U.S.A., Inc. Deferred Compensation Plan for
Officers as described herein and as amended from time to time.
2.24 "Plan Year" means the calendar year.
2.25 "Related Company" means any trade or business, whether or not
incorporated, which is a member of a controlled group of corporations
within the meaning of Code Section 414(b) that includes the Company, or
is under common control with the Company within the meaning of Code
Section 414(c), or is part of an affiliated service group within the
meaning of Code Section 414(m) that includes the Company.
2.26 "Retirement Date" means the date of the Participant's Employment
Termination on or after the Participant's attainment of age sixty (60).
SECTION 3.
PARTICIPATION AND DEFERRALS
3.1. Eligibility. Eligible Officers may participate in the Plan as provided
in Section 3.2. The Committee shall communicate a summary of the terms
and conditions of the Plan to Eligible Officers, in writing, as soon as
administratively practicable after they become eligible.
3.2. Commencement of Participation. Deferral elections are effective, and an
Eligible Officer shall commence participation in the Plan, on the first
day of the Plan Year following the date the Eligible Officer files his
or her deferral election with the Committee in accordance with Section
3.3. Notwithstanding the foregoing, an Eligible Officer who first
becomes eligible during the Plan Year shall commence participation in
the Plan on the first available payroll period after the Eligible
Officer timely files his or her deferral election with the Committee in
accordance with Section 3.3, provided, however, that such newly
Eligible Officer shall be eligible to defer Bonus Compensation for such
Plan Year only to the extent it is earned and payable after the
effective date of such officer's deferral election.
3.3. Deferral Elections. An Eligible Officer may elect during the Enrollment
Period, in writing on forms approved by the Committee, to defer the
receipt of a designated percentage of Base Compensation per payroll
period that is earned and payable after the effective date of such
election and a designated percentage of Bonus Compensation per payroll
period that is payable after the effective date of such election and
have such amount credited to the Participant's Account pursuant to the
terms of the Plan. Deferral elections are effective at the time
provided in Section 3.2. The Participant shall make a separate deferral
election for Base and Bonus Compensation deferrals for each Plan Year.
The minimum deferral each for Base Compensation and Bonus Compensation
for any payroll period is One Thousand Dollars ($1,000.00) divided by
the number of the Participant's remaining payroll periods for the Plan
Year over which the deferral will be made. The maximum deferral is
Fifty Percent (50%) of Base Compensation and One Hundred Percent (100%)
of Bonus Compensation per payroll period. In no event may a Participant
defer Base Compensation or Bonus Compensation for any payroll period to
the extent the Participant has no Base or Bonus Compensation for such
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payroll period or to the extent the Participant's Base or Bonus
Compensation is insufficient after other payroll deductions are made,
in which case the Participant's Base and Bonus Compensation deferral
shall be accordingly adjusted by the Committee for such payroll period.
Notwithstanding the foregoing, deferrals under this Plan are made
before any elective deferrals into the Participating Company's
qualified retirement plans. Deferrals shall be deemed to be made first
from Base or Bonus Compensation that is deductible to the Company and
its affiliates before nondeductible Base or Bonus Compensation.
3.4 Continuance of Deferral Election During Severance Period. Deferral
elections shall continue during any period that the Participant remains
on the Participating Company's active payroll through salary
continuation, severance or other similar payments made to the
Participant through the Participating Company's payroll system.
3.5. Revocation/Modification of Deferral Elections. Deferral elections made
for a Plan Year are irrevocable and may not be revoked or modified by
the Participant. Deferral elections shall be automatically revoked on
the effective date of Plan termination and on the date the Participant
becomes ineligible to participate in the Plan.
3.6 Discretionary Contributions. The Participating Company may make a
discretionary contribution, such as a signing bonus, to the Plan to be
credited to the Account of a designated Participant, to vest and to be
distributed to the Participant at such times and in such manner as
determined by the Company. The Committee shall communicate, in writing,
to the Participant any special vesting and distribution provisions that
apply to a discretionary contribution.
SECTION 4.
VESTING AND ADMINISTRATION OF ACCOUNTS
4.1. Vesting. Base Compensation and Bonus Compensation credited to a
Participant's Account, and notional earnings thereon, shall be one
hundred percent (100%) vested and non-forfeitable at all times;
provided, however, that the Company may provide for a discretionary
contribution made pursuant to Section 3.6 to vest over such period and
in such installments as determined by the Company.
4.2. Credits/Debts to Account. Base Compensation and Bonus Compensation
deferred under this Plan pursuant to the Participant's election in
accordance with Section 3.3 shall be credited to the Participant's
Account as soon as administratively practical after the date the
deferrals would otherwise have been payable to the Participant in
accordance with the Participating Company's normal payroll practices.
4.3. Account Earnings. As of the last day of each Plan Year, amounts
credited to a Participant's Account shall be credited with notional
earnings for the Plan Year equal to the yield on ten (10) year Treasury
notes on the first business day of the Plan Year (the rate published
for that day in the Wall Street Journal issued the following day) plus
two and one-half percent (2.5%); provided, however, that the rate for
the short 2002 Plan Year shall be 7.55%. Crediting of notional earnings
shall be prorated for partial years of participation based on the
number of days of participation during such Plan Year. Any change by
the Committee in the method of
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crediting earnings shall be communicated to Participants in writing
during the Enrollment Period for the Plan Year such change is to become
effective and such change shall apply only to amounts credited to
Participant Accounts on and after the first day of such Plan Year.
4.4. Ownership and Investment of Accounts. Amounts credited to a
Participant's Account may be kept in any investment vehicles or assets
as may be selected by the Committee in its discretion. The
Participating Company shall be the owner of all amounts credited to
Participant Accounts until paid to the Participant pursuant to Section
5.
4.5. Establishment of Rabbi Trust. The Committee shall establish and fully
fund an irrevocable grantor trust to provide itself a source of funds
to satisfy its liability to Participants and their beneficiaries under
the Plan. The Participating Company shall make cash contributions to
the trust as soon as administratively practical after payroll
deductions are made and as soon as administratively practical after the
end of the Plan Year for notional earnings credited to Participant
Accounts for the Plan Year. The Participating Company shall be the sole
owner of the assets of the trust and trust assets shall be subject to
the claims of the Participating Company's general creditors. The sole
interest of the Participant and the Participant's beneficiaries to the
assets of the trust shall be as a general creditor of the Participating
Company.
SECTION 5.
DISPOSITION OF PARTICIPANT ACCOUNTS
5.1. Distribution Elections. Except as otherwise expressly provided herein,
amounts credited to a Participant's Account for each Plan Year shall be
paid to the Participant in accordance with the Participant's
distribution election. The Participant shall make a separate
distribution election for: (1) deferrals made each Plan Year and
notional earnings thereon; and (2) for Disability distributions
pursuant to Section 5.6; and (3) death distributions pursuant to
Section 5.7. Distribution elections shall be in writing on forms
approved by the Committee and shall specify a Distribution Date in
accordance with Section 5.2, shall specify the form of distribution in
accordance with Section 5.3, and shall be filed with the Committee
during the Enrollment Period. A Participant may make a one (1) time
change to his or her distribution election to elect a later
Distribution Date in accordance with Section 5.2 and may make a one (1)
time change to his or her distribution election to change the form of
the distribution in accordance with Section 5.3; provided, however,
that only the most recent election that is at least twelve (12) months
from the Participant's elected Distribution Date shall control (or the
Participant's first distribution election if Participant has less than
twelve (12) months of Plan participation); any distribution election
that is changed within twelve (12) months of the Distribution Date
shall be ignored.
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5.2. Distribution Date. Distribution shall commence to the Participant, in
the manner elected by the Participant in accordance with Section 5.3,
during the month of December of the year of the Distribution Date for
in-service distributions (other than pursuant to Section 5.5) and as
soon as administratively practical after the next January 1 following
the Distribution Date for all other distributions. Notwithstanding the
foregoing, Disability, Hardship, Change in Control and in-service
distributions pursuant to Section 5.5 shall be made as soon as
administratively practical following the approval by the Committee of
the Disability, Hardship distribution or the occurrence of a Change in
Control or a request for an in-service distribution pursuant to Section
5.5.
5.3. Form of Distribution. Vested amounts credited to a Participant's
Account shall, at the Participant's election, be payable to the
Participant in a single sum cash payment or in substantially equal
annual cash installments over not more than ten (10) years. Annual
installment payments shall be calculated by dividing the Account
balance by the remaining annual installments to be made.
Notwithstanding the Participant's distribution election, payment shall
be made to the Participant in a single sum cash distribution in
accordance with Section 5.2 if: (1) the vested amount credited to the
Participant's Account as of the Participant's Distribution Date is
Twenty-Five Thousand Dollars ($25,000.00) or less; or (2) the
Participant's employment with the Participating Company terminates for
any reason other than death or Disability before the Participant's
Retirement Date; or (3) the Participant has elected a distribution in
connection with a Change in Control. In the event the Participant's
employment with the Participating Company terminates for any reason
other than death or Disability before the Participant's Retirement Date
and the Participant is receiving distributions under the Plan, such
distributions shall be accelerated and paid to the Participant in a
single sum cash distribution.
5.4. Hardship Distributions. In the event of a request by the Participant,
or by the Participant's beneficiary after the Participant's death, for
distribution due to Hardship, and a finding by the Committee that a
Hardship exists, deferrals pursuant to Section 3.3 shall cease for a
period of twelve (12) months from the date of a Hardship distribution
pursuant to this section and vested amounts credited to the
Participant's Account shall be paid to the Participant in a single sum
cash payment as soon as administratively practicable after the date of
the Hardship. Notwithstanding the foregoing: (1) payment shall be
limited to the amount reasonably necessary to satisfy the Hardship, and
(2) payment shall not be made to the extent that the Hardship is or may
be relieved through reimbursement or compensation by insurance or
otherwise, by liquidation of the Participant's assets, to the extent
the liquidation of such assets would not itself cause several financial
hardship, or by cessation of deferrals under this Plan. Any decision of
the Committee with respect to the application of the provisions of this
section shall have a presumption of correctness, and the burden shall
be on Participant to rebut such presumption by a preponderance of the
evidence. The Participant shall be provided with a reasonable
opportunity to present any and all evidence on his or her behalf.
5.5. In-Service Distributions With Penalty. A Participant may request, on
forms approved by the Committee, a minimum distribution of One Thousand
Dollar ($1,000.00) and a maximum distribution of one hundred percent
(100%) of the Participant's vested total Account balance at any time
for any reason, provided that the Participant shall forfeit to the
Participating Company Ten Percent (10%) of the amount of the requested
distribution. Said distribution
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shall be paid to the Participant in a single sum distribution as soon
as administratively practical after receipt by the Committee of the
Participant's signed and completed distribution request form. All
deferrals pursuant to Section 3.3 shall cease for a period of twelve
(12) months from the date of a distribution pursuant to this Section
5.5.
5.6. Disability Distributions. If a Participant becomes Disabled before the
Participant's Retirement Date, vested amounts credited to the
Participant's Account shall be distributed to the Participant, in
accordance with the Participant's Disability distribution election in
accordance with Sections 5.2 and 5.3. Any decision of the Committee
with respect to the application of the provisions of this section shall
have a presumption of correctness, and the burden shall be on
Participant to rebut such presumption by a preponderance of the
evidence. The Participant shall be provided with a reasonable
opportunity to present any and all evidence on his or her behalf.
5.7. Death Distributions. If a Participant dies before distribution of all
the amounts credited to the Participant's Account, any vested amounts
remaining in the Participant's Account shall be distributed to the
deceased Participant's designated beneficiary or beneficiaries in the
form specified by the Participant in accordance with Sections 5.2 and
5.3. If distributions have already commenced before the Participant's
death, the Participant's designated beneficiary will continue to
receive payments according to the same schedule as had been made to the
Participant before his or her death. All beneficiary designations shall
be in writing on forms approved by the Committee and shall be filed
with the Committee. A Participant may, at any time, revoke or change
any beneficiary designation by filing a new written designation with
the Committee. If there is no effective beneficiary designation filed
with the Committee at the time of the Participant's death, distribution
of amounts otherwise payable to the deceased Participant under the Plan
shall be paid in a single sum cash distribution to the personal
representative of the Participant's estate as a part of the
Participant's estate in accordance with Section 5.2. If a beneficiary
designated by the Participant to receive the Participant's benefits
shall survive the Participant but die before receiving all
distributions hereunder, the balance thereof shall be paid in a single
sum cash distribution to such deceased beneficiary's estate in a single
sum distribution as soon as administratively practical after your
beneficiary's death. The Committee, upon making a reasonable effort to
ascertain the identity of the proper beneficiary or beneficiaries to
receive any amounts payable pursuant to these provisions shall be
entitled to rely on information reasonably available to it, and upon
making any payments provided herein to any beneficiary believed in good
faith by the Committee to be entitled thereto, shall have no further
liability to any person for such payments.
5.8. Disposition of Account on Plan Termination. Upon termination of the
Plan, distribution of vested Accounts shall be made, at the time and in
the form elected by the Participant, according to the distribution
election on file with the Committee at the time of such termination.
5.9. Accounting Method For Distributions. Distributions shall be made first,
in descending order, from the portion of the Participant's Account
earning the highest rate of notional earnings. For portions of
Participant's Account earning the same rate of notional earnings,
distribution shall made first from the oldest such Account in
chronological order (first in-first out method). Debits and offsets
shall be made first, in descending order, from the Nondeductible
portion of the Participant's Account earning the
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highest rate of notional earnings and then, in descending order, from
the Deductible portion of the Participant's Account earnings the
highest rate of notional earnings.
5.10. Distributions Causing Loss of Compensation Deduction. Notwithstanding
the Participant's distribution election, no distribution shall be made
to the extent the distribution would cause the Participant to have
compensation from the Company and its affiliated companies for any year
in excess of $1 million and that is nondeductible by the Company and
its affiliated companies pursuant to Code Section 162(m). Any
distribution not made because of this limitation shall be distributed
in the first subsequent year in which the distribution would not cause
the loss of the Company's or its affiliated companies' compensation tax
deduction. This section shall not apply to: (1) Nondeductible
Compensation; (2) death distributions pursuant to Section 5.7; (2)
Disability distributions pursuant to Section 5.6; (3) In-Service
distributions pursuant to Section 5.5; (4) Hardship Distributions
pursuant to Section 5.4; (5) Change in Control distributions; and (6)
distributions made with respect to compensation deferred for the 2002
Plan Year, including earnings thereon.
5.11. Tax Withholding. The Committee shall deduct from distributions under
the Plan any federal, state or local tax withholding or other taxes or
charges that the Participating Company is required to deduct under
applicable law. The Participating Company shall be entitled to deduct
from other compensation payable to the Participant, any employment or
other tax required to be withheld as amounts are deferred under the
Plan and the Participating Company may adjust the Participant's
deferral election to cover required tax withholdings.
5.12. Presumed Competency. Every person receiving or claiming payments under
the Plan shall be conclusively presumed to be mentally competent until
the date on which the Committee receives a written notice in a form and
manner acceptable to the Committee that such person is incompetent and
that a guardian, conservator or other person legally vested with the
interest of his or her estate has been appointed. In the event a
guardian or conservator of the estate or any person receiving or
claiming payments under the Plan shall be appointed by a court of
competent jurisdiction, payments under the Plan may be made to such
guardian or conservator provided that the proper proof of appointment
and continuing qualification is furnished in a form and manner
acceptable to the Committee. Any such payments so made shall be a
complete discharge of any liability or obligation of Participating
Company or the Committee regarding such payments.
5.13. Forfeiture of Unclaimed Benefits. Each Participant shall keep the
Committee informed of his or her current address and the current
address of his or her beneficiary. The Committee shall not be obligated
to search for the whereabouts of any person. If the Committee is unable
to locate any person to whom a payment is due under the Plan or a
distribution payment check is not presented for payment, such payment
shall be irrevocably forfeited two (2) years after the date on which
the payment was first due. Forfeited payments shall be returned to the
source of the payment (e.g., if benefits are funded through
contributions by the Participating Company from its general assets, the
forfeited payment shall be returned to the Participating Company; if
the forfeited benefit payment is made from trust funds, the forfeited
payment shall revert to the trust from which the payment was made).
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SECTION 6.
COMMITTEE ADMINISTRATION
6.1. Plan Committee. The Plan shall be administered by the Committee. A
Participant who is also a member of the Committee shall not participate
in any decision involving an election made by him or her or relating in
any way to his or her individual rights, duties and obligations as a
Participant under the Plan (other than decisions that affect all
Participants). The Committee may appoint an administrative committee or
one or more employees or agents to assist it in administration of the
Plan and may delegate its duties under the Plan to such committee,
employees or agents. Any references in the Plan to the Committee shall
be to the administrative committee or such other designated agent to
the extent the Committee has delegated its duties under the Plan to an
administrative committee or other agent.
6.2. Committee Action. A majority of the Committee shall constitute a quorum
for the transaction of business. All actions taken by the Committee at
a meeting shall be by the vote of a majority of those present at such
meeting but any action may be taken by the Committee without a meeting
upon written consent signed by all of the members of the Committee.
6.3. Plan Rules and Regulations. The Committee may from time to time
establish rules and regulations for the administration of the Plan and
adopt standard forms for such matters as elections, beneficiary
designations and applications for benefits, provided such rules and
forms are not inconsistent with the provisions of the Plan.
6.4. Determinations by Committee. All determinations of the Committee,
including, but not limited to, all questions of construction and
interpretation, shall be final, binding and conclusive on all parties
and the Committee shall have complete discretion in making such
determinations.
6.5. Plan Records. The Committee shall be responsible for maintaining books
and records for the Plan.
SECTION 7.
CLAIM AND REVIEW PROCEDURES
7.1. Claims Procedure: Any person who believes he or she is being denied
rights or benefits under the Plan may file a written claim with the
Committee, containing the claimant's name, mailing address, telephone
number and a detailed description of the claim or dispute. The
Committee shall notify the claimant of its decision if a claim is
denied in whole or part. The notification will be given within 90 days
(45 days for disability benefit claims) after the claim is filed, or
within 180 days (75 days for disability claims) if special
circumstances require an extension of time for processing the claim (in
the case of disability claims due to matters beyond the Plan's control)
and written notice of the extension, the circumstances and the date the
Plan expects to make its decision is given to the claimant within the
initial 90 day period (45 day period for disability claims). The
notification shall be written in a manner calculated to be understood
by the claimant and shall contain: (1) specific reasons for the denial,
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(2) specific reference to Plan provisions on which the decision is
based, (3) a description of any necessary additional material or
information and an explanation of why it is necessary, and (4)
information as to the steps to be taken and time limits for submitting
a request for review, including a statement of the claimant's right to
bring a civil action under ERISA Section 502(a) after an adverse
benefit determination on review. The processing of a disability benefit
claim may be extended an additional 30 days beyond the first 30 day
extension if written notice of the extension, the circumstances and the
date the Plan expects to make its decision is given to the claimant
before the expiration of the first 30 day extension. In the case of any
extension of time for processing a disability benefit claim, the notice
of extension shall explain the standards on which entitlement to a
benefit is based, the unresolved issues that prevent a decision on the
claim and the additional information needed to resolve those issues and
the claimant shall be afforded at least 45 days within which to provide
the specified information. If notification is not given by the
Committee within the periods set forth above, the claim will be
considered denied as of the last day of such period and the claimant
may request review of the claim.
7.2. Review Procedure:
(a) General Procedures. Within 60 days (180 days for disability benefit
claims) of receipt by the claimant of the written notice of denial of
the claim, or within 60 days (180 days for disability benefit claims)
after the claim is deemed denied, the claimant may file an appeal of an
adverse benefit determination with the Committee for a full and fair
review of the denied claim. The claimant may submit written comments,
documents, records and other information relating to the claim. Upon
request, the claimant shall be provided, free of charge, reasonable
access to and copies of all documents, records and other information
relevant to the claim. The review decision shall take into account all
comments, documents, records and other information submitted by the
claimant relating to the claim without regard to whether such
information was submitted or considered in the initial benefit
determination. In the event of an adverse benefit determination on
review, the Committee shall provide access to, and copies of, relevant
documents, records and other information.
(b) Disability Claims. The following special rules apply to review
decisions on disability benefit claims: (1) the review shall not afford
deference to the initial adverse benefit determination and shall be
conducted by an appropriate named Plan fiduciary who is neither the
individual who made the adverse benefit determination that is the
subject of the appeal nor the subordinate of such individual; and (2)
in deciding an appeal of any adverse benefit determination that is
based in whole or in part on a medical judgment, the appropriate named
fiduciary shall consult with a healthcare professional who has
appropriate training and experience in the field of medicine involved
in the medical judgment and who is neither an individual who was
consulted in connection with the adverse benefit determination that is
the subject of the appeal nor the subordinate of any such individual;
and (3) the review decision shall identify the medical or vocational
experts whose advice was obtained on the Plan's behalf in connection
with a claimant's adverse benefit determination, without regarding to
whether the advice was relied upon in making the benefit determination.
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(c) Period For Review Decision. The Committee shall make its review
decision within 60 days (45 days for disability benefit claims) after
the receipt of the claimant's request for review, unless special
circumstances require an extension of time, in which case the 60 day
period (45 day period for disability benefit claims) may be extended to
120 days (90 for disability benefit claims). The Committee shall notify
the claimant in writing of any extension before the end of the initial
60-day period (45 day period for disability benefit claims), explaining
the circumstances requiring the extension and the date the Plan expects
to make the determination on review.
(d) Decisions By Committee. Benefit determinations by the Committee, if the
Committee holds regularly scheduled meetings at least quarterly, shall
be made no later than the date of the meeting after the Plan's receipt
of a request for review. If the request for review is filed within 30
days preceding the date of such meeting, the benefit determination may
be made by no later than the date of the second meeting after the
Plan's receipt of the request for review. If special circumstances
require a further extension of time for processing, a benefit
determination shall be made not later than the third meeting of the
Committee after the Plan's receipt of the request for review. The
Committee shall provide the claimant with written notice of any
extension, describing the special circumstances and the date as of
which the benefit determination will be made, before the commencement
of the extension. The Committee shall notify the claimant of the
benefit determination not later than 5 days after the benefit
determination is made.
(e) Review Decision. An adverse benefit determination on review shall set
forth, in a manner calculated to be understood by the claimant: (1) the
specific reason or reasons for the adverse determination; (2) reference
to the specific plan provisions on which the benefit determination is
based; (3) a statement that the claimant is entitled to receive, upon
request and free of charge, reasonable access to, and copies of, all
documents, records, and other information relevant to the claimant's
claim for benefits; and (4) a statement describing the claimant's right
to bring an action under ERISA Section 502(a).
7.3. Procedures Applying To Both Claims and Review Procedures:
(a) Method of Notification. Notice of the Committee's adverse benefit
determination may be by written or electronic notification. Any
electronic notification shall comply with the standards imposed by 29
CFR 2520.104b-1(c)(1)(i), (iii) and (iv).
(b) When Claim or Appeal Deemed Filed. A claim or appeal shall be
considered filed when received by the Committee regardless of whether
all the information necessary to make a benefit determination
accompanies the filing.
(c) Tolling of Period for Making Decision. If a time period is extended
because of the claimant's failure to submit information necessary to
decide a claim, the period for making the benefit determination shall
be tolled from the date notification of the extension is sent to the
claimant until the date the claimant responds to the request for
additional information.
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(d) Relevant Documents. A document, record or other information shall be
considered relevant to a claim if it: (1) was relied upon in making the
benefit determination, (2) was submitted, considered or generated in
making the benefit determination, regardless of whether it was relied
upon in making the benefit determination, or (3) demonstrates
compliance with the administrative processes and safeguards required in
making the benefit determination.
(e) Disability Claims. If an internal rule, guideline, protocol, or other
similar criterion is relied upon in making an adverse claim or review
determination, either the specific rule, guideline, protocol, or other
similar criterion, or a statement that such a rule, guideline,
protocol, or other similar criterion was relied upon in making the
adverse determination shall be stated in the claim and review decisions
and that a copy of such rule, guideline, protocol, or other criterion
will be provided free of charge to the claimant upon request.
SECTION 8.
PARTICIPATION BY RELATED COMPANIES
8.1 Adoption of Plan by Related Company. The Committee may designate a
Related Company to become a Participating Company in the Plan as to its
Eligible Officers. Any Related Company so designated may adopt the Plan
and become a Participating Company by resolution of its Board of
Directors, as of the effective date provided in such resolution.
Participating Companies shall be subject to the terms and provisions of
the Plan. By adopting the Plan, the Related Company designates the
Company to administer the Plan and to amend or terminate the Plan
pursuant to Article 9.
8.2 Withdrawal From Plan by Related Company. A Participating Company that
wishes to withdraw from the Plan shall deliver to the Company a
resolution of its Board of Directors which authorizes its withdrawal as
a Participating Company. The Board may at any time, in its sole
discretion, determine that a Participating Company shall no longer
participate in the Plan and may direct that the Participating Company
withdraw from the Plan.
8.3 Obligation of Participating Company. Each Related Company adopting the
Plan agrees to make all payments required to be made under the Plan or
provided to or on behalf of the Participants employed by such
Participating Company, and agrees that the liability for making such
payments and providing such benefits shall be the sole and exclusive
obligation of such Participating Company. Each Related Company by
adopting this Plan agrees to pay all fees and reimburse all expenses to
the Company as required by the Company and as agreed to by the parties
in connection with the administration of this Plan.
SECTION 9.
MISCELLANEOUS PROVISIONS
9.1. Amendment or Termination. The Company reserves the right to amend,
modify, terminate or discontinue the Plan at any time by appropriate
action taken by
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the Committee, provided, however, that no such action shall reduce the
amounts then credited to any Account of any Participant except for
reductions necessitated by the claims of the Participating Company's
general creditors as contemplated by Section 9.2, Plan expenses
contemplated by Section 9.6 and offsets contemplated by Section 9.7.
9.2. Participant's Rights Unsecured. The Participating Company shall remain
the owner of amounts deferred under the Plan. The Participant and the
Participant's beneficiary have only the Participating Company's
unsecured promise to pay. The rights accruing to the Participant and
the Participant's beneficiary are those of an unsecured general
creditor of the Participating Company. Any contract, policy or other
asset which the Participating Company may utilize to assure itself of
the funds to make payment shall not serve in any way as security to the
Participant or beneficiary for the Participating Company's obligations
under the Plan. Accounts established under the Plan are for bookkeeping
purposes only and shall not be considered to create a fund for the
Participant or beneficiary.
9.3. Nontransferability/Nonalienability. No right of any Participant or
beneficiary to receive any Plan payment shall be subject to alienation,
transfer, sale, assignment, pledge, attachment, garnishment or
encumbrance of any kind. Any attempt to alienate, sell, transfer,
assign, pledge or otherwise encumber any such payments whether
presently or thereafter payable shall be void.
9.4. Participant Obligation to Furnish Information. Each person entitled to
receive a Plan payment, whether a Participant, a duly designated
beneficiary, a guardian or otherwise, shall provide the Committee with
such information as it may from time to time deem necessary or in its
best interest in administering the Plan. Any such person shall also
furnish the Committee with such documents, evidence, data or other
information as the Committee may from time to time deem necessary or
advisable.
9.5. No Right of Employment. The Plan shall not be deemed to constitute a
contract of employment between a Participant and the Participating
Company, nor shall any Plan provision restrict the right of the
Participating Company to discharge a Participant, or restrict the right
of a Participant to terminate his or her employment.
9.6. Plan Expenses. Unless paid by the Participating Company, expenses of
administering the Plan shall be paid by the Participants, except as
otherwise provided herein, and shall be debited among Participant
Accounts in proportion to the Participant's Account balance to total
Account balances.
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9.7. Offsets. As a condition to eligibility to participate in the Plan, each
Participant consents to the deduction from amounts otherwise payable
under the Plan to the Participant and the Participant beneficiaries all
amounts owed by the Participant to the Participating Company and the
Participating Company and its affiliates to the maximum extent
permitted by applicable law.
9.8 Severability. The invalidity or unenforceability of any provision in
this Plan shall not in any way affect the validity or enforceability of
any other provision and the Plan shall be construed in all respects as
if such invalid or unenforceable provision had never been in the Plan.
9.9 Enforceability. The Plan shall be binding upon, inure to the benefit of
and be enforceable by the Participating Company and Participants and
their respective legal representatives, successors and assigns.
9.10. Limitation of Actions. No lawsuit with respect to any benefit payable
or other matter arising out or relating to the Plan may be brought
before exhaustion of the claim and review procedures set forth in
Section 7 and any lawsuit must be filed no later than one (1) year
after a claim is denied or be forever barred.
9.11. Governing Law. The Plan shall be construed, administered and governed
in all respects under and by the applicable laws of the State of
Georgia. By participating in the Plan, the Participant irrevocably
consents to the exclusive jurisdiction of the courts of the State of
Georgia and of any federal court located in Northern District of
Georgia in connection with any action or proceeding arising out of or
relating to the Plan, any document or instrument delivered pursuant to
or in connection with the Plan.
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