EXHIBIT 10.2
UNITED COMMUNITY BANKS
DEFERRED COMPENSATION PLAN
Effective October 21, 2004
Pursuant to the authorization of its Board of Directors, UNITED COMMUNITY
BANKS, INC. ("the Company"), a Georgia Corporation, does hereby constitute,
establish and adopt the United Community Banks Deferred Compensation Plan (the
"Plan"), effective October 21, 2004 ("Effective Date").
The purpose of this Plan is to provide specified benefits to a select
group of management or highly compensated employees and members of the Company's
Board of Directors who contribute materially to the continued growth,
development and future business success of the Company and its Affiliates that
participate in this Plan. This Plan shall be unfunded for tax purposes and for
purposes of Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA").
ARTICLE I
DEFINITIONS
1.1 "401(k) Restoration Deferral" shall mean a deferral of Base Salary and/or
Bonus Payments that cannot be deferred under the United 401(k) Plan and,
thus, are ineligible for the matching contribution under the United 401(k)
Plan.
1.2 "Account" or "Accounts" means the records maintained by the Committee to
determine each Participant's interest under this Plan. The accounts may be
reflected as entries in the Company's (or Employer's) records, or as
separate accounts under a trust, or as a combination of both. The
Committee may establish such sub-accounts as it deems necessary for the
proper administration of the Plan.
1.3 "Affiliate" means any person, corporation or other entity that controls or
is controlled by, directly or indirectly, the Company, as determined by
the Committee in its sole discretion.
1.4 "Base Salary" for any Plan Year means the base salary of an Eligible
Employee for such Plan Year, including any amounts of base salary deferred
or set aside under Code Sections 401(k) and 125, amounts deferred under
this Plan or other authorized deferrals and payroll deductions.
1.5 "Beneficial Ownership" shall mean beneficial ownership as that term is
used in Rule 13d-3 promulgated under the Exchange Act.
1.6 "Beneficiary" means any person(s), trusts, partnerships or other legal
entity(ies) designated by the Participant or otherwise determined in
accordance with Section 10.7.
1.7 "Board of Directors" means the Board of Directors of the Company.
1.8 "Bonus Payment(s)" means any bonus amounts awarded to an Eligible Employee
under any incentive plan maintained by the Employer, including annual
bonus payments, long-term incentive plan payments and special incentive or
bonus payments that may be awarded from time to time.
1.9 "Cause" shall mean (i) willful misconduct on the part of a Participant
that is materially detrimental to the Company or any Employer; or (ii) the
commission by a Participant of a felony. The existence of "Cause" under
either (i) or (ii) shall be determined by the Committee. Notwithstanding
the foregoing, if the Participant has entered into an employment agreement
that is binding as of the date of employment termination, and if such
employment agreement defines "Cause," and/or provides a means of
determining whether "Cause" exists, such definition of "Cause" and means
of determining its existence shall supersede this provision.
1.10 "Change in Control" means any of the following events:
(a) The acquisition (other than from the Company) by any Person of
Beneficial Ownership of twenty percent (20%) or more of the combined
voting power of the Company's then outstanding voting securities;
provided, however, that for purposes of this Section 1.10, Person
shall not include any person who on the date hereof owns ten percent
(10%) or more of the Company's outstanding securities, and a Change
in Control shall not be deemed to occur solely because twenty
percent (20%) or more of the combined voting power of the Company's
then outstanding securities is acquired by (i) a trustee or other
fiduciary holding securities under one (1) or more employee benefit
plans maintained by the Company or any of its Subsidiaries, or (ii)
any corporation, which, immediately prior to such acquisition, is
owned directly or indirectly by the shareholders of the Company in
the same proportion as their ownership of stock in the Company
immediately prior to such acquisition.
(b) Approval by shareholders of the Company of (1) a merger or
consolidation involving the Company if the shareholders of the
Company, immediately before such merger or consolidation do not, as
a result of such merger or consolidation, own, directly or
indirectly, more than fifty percent (50%) of the combined voting
power of the then outstanding voting securities of the corporation
resulting from such merger or consolidation in substantially the
same proportion as their ownership of the combined voting power of
the voting securities of the Company outstanding immediately before
such merger or consolidation, or (2) a complete liquidation or
dissolution of the Company or an agreement for the sale or other
disposition of all or substantially all of the assets of the
Company.
(c) A change in the composition of the Board such that the individuals
who, as of the Effective Date, constitute the Board (such Board
shall be hereinafter referred to as the "Incumbent Board") cease for
any reason to constitute at least a majority of the Board; provided,
however, for purposes of this Section 1.10 that any individual who
becomes a member of the Board subsequent to the Effective Date whose
election, or nomination for election by the Company's shareholders,
was
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approved by a vote of at least a majority of those individuals who
are members of the Board and who were also members of the Incumbent
Board (or deemed to be such pursuant to this proviso) shall be
considered as though such individual were a member of the Incumbent
Board; but, provided, further, that any such individual whose
initial assumption of office occurs as a result of either an actual
or threatened election contest (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act,
including any successor to such Rule), or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board, shall not be so considered as a member of the
Incumbent Board.
Notwithstanding anything else to the contrary set forth in this Plan, if
(i) an agreement is executed by the Company providing for any of the
transactions or events constituting a Change in Control as defined herein,
and the agreement subsequently expires or is terminated without the
transaction or event being consummated, and (ii) Participant's employment
did not terminate during the period after the agreement and prior to such
expiration or termination, for purposes of this Plan it shall be as though
such agreement was never executed and no Change in Control event shall be
deemed to have occurred as a result of the execution of such agreement.
1.11 "Code" means the Internal Revenue Code of 1986, as it may be amended from
time to time.
1.12 "Committee" means the Administrative Committee that administers the Plan
in accordance with Article VIII.
1.13 "Company" means United Community Banks, Inc., a Georgia corporation, or
any successor thereto.
1.14 "Continuous Service" means the total uninterrupted service of a
Participant with the Employer or any Affiliate from the date of employment
to the date of his Termination of Employment.
1.15 "Deferral Account" means any account maintained under the Plan for a
Participant pursuant to Section 4.2.
1.16 "Director" means a member of the Board of Directors of the Company who is
not also an employee of the Company or an Affiliate.
1.17 "Director's Fees" means any retainer and meeting fees payable to the
Director by the Company for the Plan Year, before reductions for
contributions to or deferrals under this or any other deferred
compensation or benefit plans sponsored by the Company.
1.18 "Disability" means the Participant has been determined to be "Disabled" as
defined under Section 409A (a)(2)(C) of the Code.
1.19 "Effective Date" means October 21, 2004.
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1.20 "Eligible Employee" means for each Plan Year an officer or other key
management employee of the Employer designated by the Committee as
eligible to participate in the Plan for such Plan Year or portion thereof.
1.21 "Employer" means the Company and any Affiliate other than any Affiliate
that shall be designated by the Board of Directors or the Committee as not
eligible to participate under the Plan.
1.22 "Employer Contribution Account" means any account maintained for a
Participant pursuant to Section 4.3.
1.23 "ERISA" means the Employee Retirement Income Security Act of 1974, as it
may be amended from time to time.
1.24 "Exchange Act" shall mean the Securities Exchange Act of 1934, including
amendments, or successor statutes of similar intent.
1.25 "Fiscal Year" means each twelve month period beginning January 1 and
ending the next following December 31.
1.26 "Investment Option" means a deemed investment fund or asset allocation
account that is available in accordance with Section 6.1 as the basis to
calculate earnings, gains and losses on the amount credited to a
Participant's Account.
1.27 "Key Employee" shall mean a key employee as defined in Section 416(i) of
the Code (without regard to Section 416(i)(5)).
1.28 "Participant" means an Eligible Employee who participates in the Plan in
accordance with Article 2 and a Director who participates in the Plan in
accordance with Article 3.
1.29 "Person" shall mean any individual, entity or group within the meaning of
Section 13(d)(3) or 14 (d)(2) of the Exchange Act.
1.30 "Plan" means the United Community Banks Deferred Compensation Plan as set
forth in this document and as amended from time to time.
1.31 "Plan Year" means the calendar year.
1.32 "Retirement" means a Participant's voluntary or involuntary Termination of
Employment or Termination of Service on or after age 65 or under
circumstances qualifying the Participant for an "Early Retirement Benefit"
as defined in and subject to the rules of the Company's Modified
Retirement Plan, as may be amended from time to time.
1.33 "Termination of Employment" means termination of a Participant's
employment with the Employer and the Affiliates for any reason. Transfer
of employment among the entities constituting the Employer and the
Affiliates shall not be deemed to be a Termination of Employment.
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1.34 "Termination of Service" shall mean the date a Director ceases to serve as
a member of the Company's Board of Directors for any reason including
resignation, removal, or the failure to be re-elected by the Company's
shareholders.
1.35 "Trust" means any trust established by the Company that includes the Plan
as a plan with respect to which assets are to be held by the Trustee,
provided that such trust shall not affect the status of the Plan as an
unfunded plan for purposes of Title I of ERISA.
1.36 "Trustee" means the trustee or trustees or their successors under the
Trust.
1.37 "United 401(k) Plan" means the United Community Banks, Inc. Profit Sharing
Plan, or any successor plan maintained by an Employer that is qualified
under Section 401(a) of the Code and includes a Code Section 401(k)
feature that allows employees the ability to defer a portion of their
compensation. Any reference herein to a provision or term of the United
401(k) Plan shall mean such provision or term as it may be amended from
time to time.
1.38 "Valuation Date" means the Annual Valuation Date, December 31, and any
other dates selected by the Committee as of which the Participant's
Accounts are valued.
ARTICLE II
EMPLOYEE PARTICIPATION, DEFERRALS AND EMPLOYER CREDITS
2.1 Eligibility
Participation in the Plan shall be limited to Directors and to a select
group of management and highly compensated employees of an Employer, as
determined by the Committee, in its sole discretion. From that group of
employees, the Committee shall determine the individual Eligible Employees
who are eligible to participate in the Plan for any Plan Year. The
Committee may make such determination by establishing a minimum
compensation level or job title for participation or by the use of such
other criteria as the Committee deems appropriate for time to time.
2.2 Election to Participate
Each Eligible Employee may elect to participate for the Plan Year, or part
of a Plan Year for which he is eligible, by delivering to the Committee a
written notice, at such time and in such form as approved by the
Committee, electing to participate and specifying the dollar amount or
percentage of Base Salary he elects to defer for such Plan Year (or part
of a Plan Year), as a 401(k) Restoration Deferral or otherwise. An
election to defer Base Salary for a Plan Year shall be made prior to the
commencement of the Plan Year (or within thirty (30) days after the date
the Plan is adopted or the Participant's initial eligibility to
participate in the Plan).
Each Eligible Employee may also elect to participate by delivering to the
Committee a written notice, at such time and in such form as approved by
the Committee, specifying the dollar amount or percentage of any Bonus
Payment he elects to defer for the Plan
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Year, as a 401(k) Restoration Deferral or otherwise. An election to defer
a Bonus Payment for a Plan Year shall be made prior to the commencement of
such Plan Year (or within thirty (30) days after the date the Plan is
adopted or the Participant's initial eligibility to participate in the
Plan) or, with respect to performance-based compensation based on services
performed over a period of at least 12 months, no later than 6 months
before the end of the period. The Committee may provide for different
elections with respect to different types of Bonus Payments.
A Participant may at any time during the Plan Year terminate an election
to defer and discontinue future deferrals of Base Salary (but not Bonus
Payments) under this Plan by providing written notice to the Committee
prior to the start of the next payroll period for which Base Salary will
be payable. In such event, Base Salary earned for services subsequent to
such termination notice will be paid directly to the Participant and will
not be subject to his prior deferral election. A Participant who elects to
discontinue deferrals of Base Salary for a Plan Year may not recommence
such deferrals until the next following Plan Year (or such later Plan Year
in which he is again eligible to participate), provided the Participant
completes and executes the required election form. Increases or decreases
in the amount of Base Salary a Participant elects to defer (other than a
suspension of deferrals) shall not be permitted during the Plan Year.
A Participant shall be required to submit a new election form on a timely
basis to change the Participant's election for a subsequent Plan Year. If
no new election form is filed during the prescribed enrollment period, the
Participant's elections for the prior Plan Year shall continue in force
for the next Plan Year.
2.3 Amount of Deferral
(a) 401(k) Restoration Deferral. Each Eligible Employee may make a
401(k) Restoration Deferral by electing to defer from 1 to 5% (or
such lesser or greater percentage or amount as would be subject to a
matching contribution under the United 401(k) Plan but for certain
limitations applicable to the Participant under the United 401(k)
Plan and assuming Bonus Payments were eligible for deferral and
match under the United 401(k) Plan) of the Eligible Employee's Base
Salary and/or Bonus Payments; provided, that any election to defer
Base Salary shall only apply to the extent such amount is not and
cannot be deferred to the United 401(k) Plan. The Committee may set
a minimum amount of deferrals for a Plan Year and/or for any payroll
period.
(b) Additional Deferrals. In addition to and/or in lieu of the 401(k)
Restoration Deferrals, each Eligible Employee may elect to defer an
amount not to exceed: (a) 75% of Base Salary for a Plan Year (or
part of a Plan Year), and (b) 100% of Bonus Payments. An Eligible
Employee shall not be permitted to reduce his compensation below the
amount necessary to make required or elected contributions to
employee benefit plans, required federal, state and local tax
withholdings, and any other withholdings deemed necessary by the
Committee or required by law. The Committee may also set a minimum
amount of deferrals for a Plan Year and/or for any payroll period.
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2.4 Employer Contribution
(a) 401(k) Matching Contribution. The Employer Contribution Account of
each Participant who has elected to make a 401(k) Restoration
Deferral of Base Salary and/or Bonus Payments shall, within 10
business days of the date such Base Salary and/or Bonus Payment
would otherwise be paid, be credited with an amount determined by
subtracting the amount described in (2) below from the amount
described in (1) below:
(1) The amount that the Employer would have contributed as a
matching contribution for the Participant under the United
401(k) Plan for the pay period pursuant to the provisions of
the United 401(k) Plan if the amount of Base Salary and Bonus
Payments that the Participant elected to defer under this Plan
was instead deferred under the United 401(k) Plan, subject to
any limitation in the United 401(k) Plan that matching
contributions shall only be made with respect to the first
stated percentage of a Participant's compensation, but without
regard to the other limitations of the United 401(k) Plan and
of the Code or ERISA, and including all Base Salary and Bonus
Payments as compensation eligible for a matching contribution.
(2) The amount actually contributed by the Employer as a matching
contribution for the Participant under the United 401(k) Plan
for such pay period.
(b) Discretionary Contribution. During a Plan Year, the Committee may,
in its sole discretion, credit to an Eligible Employee's Employer
Contribution Account an amount determined in the discretion of the
Committee that may be a percentage of the Eligible Employee's Base
Salary, a dollar amount, or some other amount. The Employer
Contribution for a Plan Year may differ among Eligible Employees and
may be made for some Eligible Employees but not others. The Employer
Contribution shall be credited to the Employer Contribution Account
for the Eligible Employee.
2.5 Withholding
The amount of Base Salary or Bonus Payments that an Eligible Employee
elects to defer under Section 2.2 shall be withheld from his Base Salary
or Bonus Payments in accordance with such rules and procedures as the
Committee shall establish.
ARTICLE III
DIRECTOR PARTICIPATION AND DEFERRALS
3.1 Director's Election to Participate
Each Director may elect to participate for the Plan Year, or part of a
Plan Year for which he is eligible, by delivering to the Committee a
written notice, at such time and in such
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form as approved by the Committee, electing to participate and specifying
the dollar amount or percentage of his Director's Fees he elects to defer
for such Plan Year (or part of a Plan Year), which may include separate
elections with respect to meeting fees and retainer fees. An election to
defer Director's Fees for a Plan Year shall be made prior to the
commencement of the Plan Year (or within thirty (30) days after the date
the Plan is adopted or the Participant's initial eligibility to
participate in the Plan), unless the Committee in its discretion permits
an extension of the election period. Increases or decreases in the amount
of Director's Fees a Director elects to defer shall not be permitted
during the Plan Year. The Director shall be required to submit a new
election form to change the Director's election for a subsequent Plan
Year. If no new election form is filed during the prescribed enrollment
period, the Director's election for the prior Plan Year shall continue in
force for the next Plan Year.
3.2 Amount of Deferral
Each Director may elect to defer an amount up to 100% of his Director's
Fees for a Plan Year; provided, a Director shall not be permitted to
reduce his Director's Fees below the amount necessary to make required or
elected contributions to employee benefit plans, required federal, state
and local tax withholdings, and any other withholdings deemed necessary by
the Committee or required by law.
ARTICLE IV
DEFERRED COMPENSATION ACCOUNTS
4.1 Accounts
The Committee shall establish a Deferral Account and, if applicable, an
Employer Contribution Account for each Eligible Employee for all periods
during which such Eligible Employee is a Participant in the Plan. The
Committees shall also establish a Deferral Account for each Director for
all periods during which such Director is a Participant in the Plan.
4.2 Deferral Account
Each Participant's Deferral Account shall be credited with an amount equal
to all of the Participant's Base Salary, Bonus Payments or Director's Fees
elected by the Participant to be deferred on or about the dates such
amounts would, but for the election to defer, have been payable to the
Participant (or as otherwise determined by the Committee), and shall be
credited with earnings, gains or losses in accordance with Section 6.1.
4.3 Employer Contribution Account
Each Participant's Employer Contribution Account shall be credited each
Plan Year with an amount equal to the Employer Contribution for the Plan
Year (including make-up 401(k) matching contributions and/or any
discretionary contributions) and shall be credited with earnings, gains or
losses in accordance with Section 6.1.
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ARTICLE V
VESTING
5.1 Deferral Account
A Participant shall be immediately 100% vested in all amounts credited to
his Deferral Account.
5.2 Employer Contribution Account.
A Participant shall become vested in his Employer Contribution Account in
accordance with the following vesting schedule or such other vesting
schedule as may be determined by the Committee to apply to an Employer
Contribution at the time such Employer Contribution is made to the Plan.
Years of Service % of Account Vested
- ---------------- -------------------
Less Than 1 0%
1 but less than 2 33%
2 but less than 3 66%
3 or more 100%
Years of Service for purpose of vesting shall be determined in the same
manner as determined under the United 401(k) Plan. If the Participant
terminates employment prior to becoming fully vested in his Employer
Contribution Account, any unvested amount shall be immediately forfeited.
ARTICLE VI
EARNINGS; TRUST ARRANGEMENTS
6.1 Crediting of Earnings, Gains and Losses.
The Investment Options shall consist of such investment options as the
Committee may, in its discretion, designate from time to time. Each
Participant may select from time to time, in accordance with such rules as
the Committee may establish, the Investment Options in which his Accounts
will be deemed to be invested; provided, that the Committee may in its
discretion make certain Investment Options available to only a limited
group of Participants. Based on such selection, the Committee will credit
an amount to Participants' Accounts to reflect the amounts by which the
Participants' Accounts would have increased or decreased if they had been
invested in the Investment Options selected by the Participant. The
selection of Investment Options is to be used only for the purpose of
valuing each Participant's Accounts. The Company and the Committee are
under no obligation to acquire or provide any of the Investment Options
designated by a Participant, and any investments actually made by the
Committee will be made solely in the name of the Company and will remain
the property of the Company,
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subject to the terms of any Trust. If a Participant fails to direct the
deemed investment of 100% of his Accounts, any undirected amount shall be
deemed to be invested in such fixed income Investment Option as shall be
designated by the Committee.
The Employer shall pay all taxes required to be paid in connection with
the deemed investment experience of Participants' Accounts. At least as
often as the last business day of each calendar quarter, the Committee
shall provide the Participant with a statement of his Accounts, in such
reasonable detail as the Committee shall deem appropriate, showing the
income, gains and losses (realized and unrealized), amounts of deferrals,
and distributions from his Accounts since the prior statement.
The Investment Options are used solely for the purpose of determining the
deemed earnings, gains and losses to be credited to a Participant's
Accounts and no actual investment in the Investment Options shall be
required. The Participant has no rights to any particular asset of the
Employer or the Employer.
6.2 Trust
The Company may establish a trust fund with regard to the Accounts
hereunder, which is designed to be a grantor trust under Code Section 671.
It is the intention of the Company that any trust established for this
purpose shall constitute an unfunded arrangement and shall not affect the
status of the Plan as an unfunded plan maintained for the purpose of
providing deferred compensation for a select group of highly compensated
management employees for purposes of Title I of ERISA. The Employer may
make payment of benefits directly to Participants or their Beneficiaries
as they become due under the terms of the Plan. In addition, if the
principal of any trust established for this purpose, and any earnings
thereon, is not sufficient to make payments of benefits in accordance with
the terms of the Plan, the Employer shall make the balance of each such
payment as it falls due.
With respect to any benefits payable under the Plan, the Participants (and
their Beneficiaries) shall have the same status as general unsecured
creditors of the Company, and the Plan shall constitute a mere unsecured
promise by the Company to make benefit payments in the future.
ARTICLE VII
PAYMENT OF ACCOUNTS
7.1 Time and Method of Payment
(a) Retirement or Disability. At the time an Eligible Employee or
Director elects to participate in the Plan and to defer Base Salary,
Bonus Payments or Director's Fees, he shall also elect, in such form
as approved by the Committee, the time and method for the payment of
such deferrals upon his Retirement or Disability. The Participant
may make a separate election each Plan Year with respect to
deferrals made for such Plan Year. If the Participant does not make
an election for any Plan Year, the most recent previous election of
the Participant shall apply, and if
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no valid election has been made by the Participant, he shall be
deemed to have elected a lump sum. Upon Retirement or Disability, a
Participant's vested Account balance (or applicable portions of the
Account) may be payable in one or more of the following methods:
(i) A lump sum payment; or
(ii) Annual installment payments over a period of 5, 10, or
15 years, with each installment equal to the unpaid
balance of the Account (or the portion of the Account to
which the election applies) as of the preceding December
31st divided by the number of remaining payments.
Except with respect to Key Employees as provided in Section 7.1(g),
lump sum payments and the first annual installment payment shall be
made on or before the January 31st of the calendar year following
the calendar year in which the Participant's Retirement or
Disability occurs. Second and subsequent installment payments shall
be payable each year on or before January 31st of such year.
The Committee (or its designee) may establish from time to time
limitations on the Participant's ability to select the time and
method of payment of his Account based upon the amount in the
Participant's Account. For example, unless and until changed by the
Committee (or its designee), any Account that has a total vested
balance of less than $50,000 at the time of Retirement or Disability
shall be paid in a lump sum regardless of an election by the
Participant to be paid in installments. For purposes of this Article
VII, the Committee may, if required by liquidity limitations
resulting from a financial investment used to support an Investment
Option (but only to such extent), establish limits on the timing and
manner of payouts otherwise provided for under this Article VII for
amounts attributable to such Investment Option.
(b) Scheduled Withdrawals During Employment. In addition to the election
with respect to the time and method of payment upon Retirement as
specified in Section 7.1(a), a Participant may elect, at the time he
makes his deferral election, in such manner as approved by the
Committee, to receive payment of such deferrals at, or commencing
at, a specified date during his term of employment or during his
service as a Director, pursuant to one of the following payment
methods:
(1) A lump sum payment; or
(2) Annual installment payments over a period of 2, 3, 4 or 5
years with each installment equal to the unpaid balance (or
designated portion) of such vested Account as of the preceding
December 31st divided by the number of remaining payments.
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If a Participant incurs a Disability or terminates employment due to
Retirement prior to the payment date in (b)(1), or the completion of
the installment payments in (b)(2), the provisions of subsection (a)
above (and if applicable, subsection (g) below) relating to payments
after Retirement shall control with respect to the payment of (or
payment of all remaining amounts of) the vested portion of the
Participant's Account.
(c) Termination for Cause. Upon a Participant's Termination of
Employment by the Employer for Cause, the Participant's Employer
Contribution Account (whether or not otherwise vested) shall be
immediately forfeited. Except as provided in Section 7.1(g), any
vested amount in the Participant's Deferral Account shall be
distributed to the Participant in a single, lump sum as soon as
administratively feasible following the Participant's Termination of
Employment for Cause.
(d) Other Termination of Employment. Except as provided in Section
7.1(g) below, upon a Participant's Termination of Employment or
Termination of Service other than due to death, Disability,
Retirement or for Cause, the Participant's entire vested Account
balance shall be distributed to the Participant in a single, lump
sum as soon as administratively feasible following the Participant's
Termination of Employment or Termination of Service.
(e) Death. Upon the death of the Participant, the Participant's Account
shall become 100% vested and shall be payable to the Participant's
Beneficiary in a lump sum by January 31st of the year following the
year in which the Participant died; provided, however, the
Participant may elect in advance, at such time and in such manner as
determined by the Committee, that the Participant's Account will be
paid to his Beneficiary in annual installments over a period of 5,
10, or 15 years, with the first installment paid on or before the
January 31st of the calendar year following the calendar year in
which the Participant died.
(f) Unforeseeable Emergency. Upon the occurrence of an "unforeseeable
emergency", as defined in Code Section 409A and the regulations
thereunder, the Participant may receive a lump sum distribution of
such amounts as necessary to satisfy such emergency plus amounts
necessary to pay taxes reasonably anticipated as a result of the
distribution. The Committee or its designee shall determine the
existence of an unforeseeable emergency and the maximum amount of
any distribution in accordance with the requirements of Code Section
409A and the regulations and other guidance thereunder. Any
distribution on account of an unforeseeable emergency shall be
payable in a lump sum as soon as administratively practical
following approval by the Committee or its designee and shall be
payable only from the vested portion of the Participant's Account.
The Committee or its designee may prescribe that a Participant who
receives a distribution on account of an unforeseeable emergency may
not make additional deferrals of Base Salary or Director's Fees for
the remainder of the Plan Year or some other time period.
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(g) Special Rule for Key Employees. Notwithstanding any other provision
of this Plan, if the Participant is or could likely be considered a
Key Employee (as determined by the Committee or its designee),
distributions to such Participant may not be made before the date
which is 6 months after the date of the Participant's Termination of
Employment (or, if earlier, the date of death of the Participant),
and any distribution that would otherwise be payable before the
6-month anniversary shall be delayed and shall be paid within 30
days following such 6-month anniversary.
7.2 Changes in Election.
A Participant may request a change in his election as to the date or
method of payment under Section 7.1(b) on such form as may be established
by the Committee. A Participant may only change his election two times;
provided, however, a Participant who has changed his election two times
and who experiences a change in family circumstances (divorce, marriage,
death of a spouse, or the birth or adoption of a child), may make a third
change to his election as long as such change is otherwise consistent with
the requirements of this provision and is made within 60 days of the date
of the change in family circumstance. To be effective, a request for a
change must be made at least one year prior to the date the Participant's
distributions would otherwise commence. A Participant who requests a
change as to the date or method of payment with respect to payments during
employment or service as a Director must request a new payment
commencement date that is at least five (5) years after the date of
commencement of payment previously elected by the Participant.
7.3 Direction of Payments.
Payment under this Article VII of amounts credited to a Participant's
Account shall be made to the Participant, provided that the Committee may,
in its discretion and in accordance with such procedures as may be
established by the Committee, allow the Participant to direct (which
direction may be required to be irrevocable) that the Plan make such
payments directly to a trust, partnership or other legal entity
established by, or for the benefit of, the Participant. Regardless of the
entity to which a Participant's Accounts are paid, the Participant shall
remain liable for all income and other taxes with respect to such payments
as provided in Section 10.4.
7.4 Consequences of a Change of Control.
Notwithstanding anything to the contrary contained in this Plan, upon the
occurrence of a Change of Control, each Participant's Account shall become
fully vested but shall remain subject to the Participant's elections as to
time and method of payment.
ARTICLE VIII
ADMINISTRATION
8.1 Committee
The general administration of the Plan and the responsibility for carrying
out its provisions shall be placed in the Compensation Committee of the
Company's Board of Directors or such other committee as may be appointed
from time to time by the Board of Directors to serve at the pleasure
thereof (the "Committee").
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8.2 Duties and Binding Effect of Decisions
The Committee shall have the discretion and authority to (i) make, amend,
interpret and enforce all appropriate rules and procedures for the
administration of this Plan, (ii) select the Investment Options, (iii)
decide or resolve any and all questions, including interpretations of this
Plan, as may arise in connection with the Plan or the benefits payable
under the Plan, and (iv) maintain all records that may be necessary for
the administration of the Plan. The decision or action of the Committee
with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules,
regulations and procedures promulgated hereunder shall be final and
conclusive and binding upon all persons having any interest in the Plan.
8.3 Committee Action
Any act which the Plan authorizes or requires the Committee to do may be
done by a majority of its members. The action of such majority, expressed
from time to time by a vote at a meeting (a) in person, (b) by telephone
or other means by which all members may hear one another or (c) in writing
without a meeting, shall constitute the action of the Committee and shall
have the same effect for all purposes as if assented to by all members of
the Committee at the time in office.
8.4 Delegation
The members of the Committee may authorize one or more of its members or
any other person or persons to execute and deliver any instrument, make
any payment or perform any other act which the Plan authorizes or requires
the Committee to do. Without limiting the generality of the foregoing,
until the Committee determines otherwise, the Chief Executive Officer of
the Company shall be responsible for the execution of the routine
administration of the Plan.
8.5 Services
The Committee may employ or retain agents to perform such clerical,
accounting, legal, consulting, trust, trustee and other services as may be
necessary or desirable to carry out the provisions of the Plan.
8.6 Indemnification
The Company shall indemnify and save harmless each member of the Committee
against all expenses and liabilities, including reasonable legal fees and
expenses, arising out of membership on the Committee or any actions taken
as a member of the Committee, excepting only expenses and liabilities
arising from his own gross negligence or willful misconduct, as determined
by the Board of Directors.
8.7 Claims Procedure
(a) A Participant or his duly authorized representative (the "claimant")
may make a claim for benefits under the Plan by filing a written
claim with the Committee.
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Determinations of each such claim shall be made as described below;
provided, however, that the claimant and the Committee may agree to
extended periods of time for making determinations beyond those
periods described below.
(b) The Committee will notify a claimant of its decision regarding his
claim within a reasonable period of time, but not later than 90 days
following the date on which the claim is filed, unless special
circumstances require a longer period for adjudication and the
claimant is notified in writing of the reasons for an extension of
time prior to the end of the initial 90-day period and the date by
which the Committee expects to make the final decision. In no event
will the Committee be given an extension for processing the claim
beyond 180 days after the date on which the claim is first filed
with the Committee unless otherwise agreed in writing by the
claimant and the Committee.
(c) If a claim is denied, the Committee will notify the claimant of its
decision in writing. Such notification will be written in a manner
calculated to be understood by the claimant and will contain the
following information:
(1) the specific reason(s) for the denial;
(2) a specific reference to the Plan provision(s) on which the
denial is based;
(3) a description of additional information necessary for the
claimant to perfect his claim, if any, and an explanation of
why such material is necessary; and
(4) an explanation of the Plan's claim review procedure and the
applicable time limits under such procedure and a statement as
to the claimant's right to bring a civil action under ERISA
after all of the Plan's review procedures have been satisfied.
(d) The claimant shall have 60 days following receipt of the notice of
denial to file a written request with the Committee for a review of
the denied claim. The decision by the Committee with respect to the
review must be given within 60 days after receipt of the request,
unless special circumstances require an extension and the claimant
is notified in writing of the reasons for an extension of time prior
to the end of the initial 60-day period and the date by which the
Committee expects to make the final decision. In no event will the
decision be delayed beyond 120 days after receipt of the request for
review unless otherwise agreed in writing by the claimant and the
Committee.
(e) Every claimant will be provided a reasonable opportunity for a full
and fair review of an adverse determination. A full and fair review
means the following:
(1) the claimant will be given the opportunity to submit written
comments, documents, records, etc. with regard to the claim
for benefits, and the review will actually take into account
all information submitted by the
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claimant, regardless of whether it was reviewed as part of the
initial determination; and
(2) the claimant will be provided, upon request and free of
charge, with copies of all documents and information relevant
to the claim for benefits.
(f) The Committee will notify the claimant of its decision regarding an
appeal of a denied claim in writing. The decision will be written in
a manner calculated to be understood by the claimant, and will
include:
(1) the specific reason(s) for the denial and adverse
determination;
(2) a reference to the specific Plan provisions on which the
denial 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 information relevant to the claimant's claim for benefits;
and
(4) a statement regarding the claimant's right to bring a civil
action under ERISA.
(g) If the Committee fails to follow these procedures consistent with
the requirements of ERISA with respect to any claim, the claimant
will be deemed to have exhausted all administrative remedies under
the Plan and will have the right to bring a civil action under
section 502(a) of ERISA.
(h) The Committee shall interpret this Section 8.7 such that the claims
procedures applicable under the Plan conform to the claims review
requirements of Part 5, Title I, of ERISA.
ARTICLE IX
AMENDMENT AND TERMINATION
The Company, by action of the Board of Directors or the Compensation Committee
of the Board of Directors, may at any time or from time to time modify or amend
any or all of the provisions of the Plan, stop future deferrals to the Plan, or
terminate the Plan, provided that no such amendment or termination shall reduce
a Participant's Account balance or change existing elections with respect to the
time and method of payment of a Participant's Account.
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ARTICLE X
GENERAL PROVISIONS
10.1 Limitation on Participant's Rights.
Participation in this Plan shall not give any Participant the right to be
retained in the Employer's employ, or any right or interest in this Plan
or any assets of the Employer other than as herein provided. The Employer
reserve the right to terminate the employment of any Participant at any
time without any liability for any claim against the Employer under this
Plan, except to the extent expressly provided herein.
10.2 Unsecured General Creditor.
Participants and their beneficiaries shall have no legal or equitable
rights, interests or claims in any property or assets of the Company or an
Employer. The Company's or Employer's obligation under the Plan shall be
merely that of an unfunded and unsecured promise to pay money in the
future.
10.3 Participation in Other Plans.
Nothing in this Plan shall be construed to alter, abridge, or in any
manner affect the rights and privileges of the Participant to participate
in and be covered by any pension, profit sharing, group insurance, bonus
or similar employee plans which an Employer may now or hereafter maintain.
10.4 Taxes.
If the whole or any part of any Participant's Account shall become liable
for the payment of any estate, inheritance, income, or other tax which the
Employer shall be required to pay or withhold, the Employer shall have the
full power and authority to withhold and pay such tax out of any moneys or
other property in its hand for the account of the Participant whose
interests hereunder are so liable. The Employer shall provide notice to
the Participant of any such withholding. Prior to making any payment, the
Employer may require such releases or other documents from any lawful
taxing authority as it shall deem necessary.
10.5 Assignment, Pledge or Encumbrance.
Except as expressly provided in Section 7.3, the amounts credited to the
Accounts of a Participant shall not be subject to assignment, alienation,
pledge, transfer or other encumbrance of any kind, whether voluntary or
involuntary, and any such purported assignment, alienation, pledge,
transfer or other encumbrance shall be void and unenforceable against the
Plan, the Trust, the Company or any Affiliate; further, the amounts
credited to the Accounts shall not be liable for, or subject to, legal
process, claims of creditors, tort claims, or attachment for the payment
of any claim against any Participant or other person entitled to receive
such amount; provided, that nothing herein shall prevent an assignment or
other encumbrance in favor of the Employer to secure any indebtedness of
any kind of the Participant to the Employer.
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10.6 Minor or Incompetent.
If the Committee determines that any person to whom a payment is due
hereunder is a minor or is incompetent by reason of a physical or mental
disability, the Committee shall have the power to cause the payments
becoming due to such person to be made to another for the benefit of such
minor or incompetent without responsibility of the Company or the
Committee to see to the application of such payment. Payments made
pursuant to such power shall operate as a complete discharge of the
Company and the Committee.
10.7 Beneficiary.
Each Participant may designate, on such form as may be provided by the
Committee, any person(s), trusts, partnerships, foundations, or other
legal entity(ies), including his estate, as his Beneficiary under the
Plan. A Participant may revoke his designation of a Beneficiary or change
his Beneficiary at any time prior to his death by executing a change of
beneficiary form and delivering such form to the Committee. If no person
or legal entity shall be properly designated by a Participant as his
Beneficiary or if no designated Beneficiary survives him, his Beneficiary
shall be his estate.
10.8 Binding Provisions
The provisions of this Plan shall be binding upon each Participant as a
consequence of his election to participate in the Plan, and his heirs,
executors, administrators, and assigns. This Plan shall be binding upon,
and enforceable against, the Company and any successor(s) (whether direct
or indirect, by purchase, merger, consolidation, sale of assets or
otherwise) to substantially all of the business or assets of the Company.
10.9 Notices.
Any election made or notice given by a Participant pursuant to the Plan
shall be in writing to the Committee or to such representative as may be
designated by the Committee for such purpose, shall be on such form as may
be specified by the Committee, and shall not be deemed to have been made
or given until the date it is received by the Committee or its designated
representative.
10.10 Alternative Action.
In the event it shall become impossible for the Company or the Committee
to perform any act required by this Plan, the Company or Committee may in
its discretion perform such alternative act as most nearly carries out the
intent and purpose of this Plan.
10.11 Compliance with Code Section 409A.
The Plan is intended to satisfy the requirements of Code Section 409A and
any regulations or guidance that may be adopted thereunder from time to
time, including any transition relief available under applicable guidance
related to Code Section 409A. The Plan may be amended or interpreted by
the Committee as it determines necessary or
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appropriate in accordance with Code Section 409A and to avoid a plan
failure under Code Section 409A(1).
10.12 Governing Law.
The Plan shall be governed by and construed in accordance with ERISA and
the Code, and to the extent not preempted by such laws, in accordance with
the laws of the State of Georgia, but not including the choice of law
provisions thereof.
10.13 Headings.
Article and section headings are for convenient reference only and shall
not control or affect the meaning or construction of any of its
provisions.
10.14 Pronouns.
The masculine pronoun shall be deemed to include the feminine wherever it
appears in the Plan unless a different meaning is required by the context.
IN WITNESS WHEREOF, the Company, through resolutions adopted by its Board
of Directors, adopted the foregoing Plan the 21st day of October, 2004.
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