Exhibit 10.13
SYKES ENTERPRISES, INCORPORATED
DEFERRED COMPENSATION PLAN
This Plan is established effective December 17, 1998, as an unfunded
deferred compensation arrangement for a select group of management or highly
compensated personnel and all rights thereunder shall be governed by and
construed in accordance with the laws of the State of Florida.
ARTICLE I. DEFINITIONS.
1.01 "Administrator" means Sykes, or such individual or individuals
designated by the Chief Executive Officer of Sykes.
"Board" means the Board of Directors of Sykes.
"Change in Control" means (i) the date the majority of the Board
has approved a definitive agreement to merge or consolidate Sykes with or into
another corporation in which Sykes does not control the continuing or surviving
corporation or (ii) the date the Board approves a definitive agreement to sell
or otherwise dispose of substantially all the assets of Sykes.
"Chief Executive Officer" means the Chief Executive Officer of
Sykes or his designee.
"Contingent Deferred Obligation" means the total amount of Sykes'
contingent liability for payment of deferred benefits under the Plan.
"Deferred Compensation Account" means the account maintained for
each Participant composed of deferred income and earnings thereon.
"Disability" means mental or physical disability of at least six
(6) months which prevents a Participant from engaging in the principal duties of
his employment.
"Fiscal Year" or "Year" (unless otherwise specified) means the
twelve-month period ending on December 31.
"Participant" means an employee of Sykes, or of a subsidiary,
designated by the Chief Executive Officer for participation in the Plan, or a
person who was such at the time of his retirement, death, disability or
resignation and who retains, or whose beneficiaries obtain, benefits under the
Plan in accordance with its terms.
"Plan" means this Deferred Compensation Plan as it may be amended
from time to time.
"Retirement" means retirement at or after a Participant attains
age sixty-five (65), or accepts an early retirement offer from Sykes.
"Subsidiary" means a company of which Sykes owns, directly or
indirectly, at least a majority of the shares having voting power in the
election of directors.
"Sykes" means Sykes Enterprises, Incorporated, a Florida
corporation, and its corporate successors.
"Valuation Date" means March 31, June 30, September 30 and
December 31 of each year.
ARTICLE II. DESIGNATION OF PARTICIPANTS AND INCOME DEFERRAL.
2.01 The Chief Executive Officer shall have the sole and exclusive
discretion to designate Participants in the Plan from among the senior
management and highly compensated personnel of Sykes. Such designation shall be
made each year prior to the end of Sykes' fiscal year.
2.02 A designated employee may become eligible to participate in the
Plan as of the first day of a calendar year and may defer income earned during
such calendar year provided that prior to the beginning of the calendar year the
Participant has made an election to defer all or a portion of his income on a
form provided by the Plan for that purpose. Such election is irrevocable. Any
amounts deferred under this provision will be subject to the provisions of this
Deferred Compensation Plan regarding distribution of a Participant's Deferred
Compensation Account. An election made prior to a calendar year shall be binding
for future calendar years unless and until the Participant changes or revokes
the election prior to the beginning of a future calendar year.
2.03 Compensation deferred by a Participant while he is a Participant
in the Plan shall be deferred until such Participant's retirement, termination,
disability or death and in such event shall be paid out to the Participant or
his beneficiary as hereinafter provided.
2.04 In the event of a Change in Control, a Participant will be
entitled to a distribution of the balance of his Deferred Compensation Account,
notwithstanding the provisions of Section 2.03. For purposes of Section 4.01, a
Participant will be treated as if he had retired as of the effective date of the
Change in Control. In the event of a distribution of benefits as a result of a
Change in Control, Sykes will increase the benefit by an amount sufficient to
offset the income tax obligations created by the distribution of benefits.
2.05 A Participant may elect to defer any amount of base compensation
and bonus; provided, however, that a Participant may not defer any payroll
advances, advance payments of bonuses, or any other similar advance of
compensation.
2.06 Sykes will match a portion of amounts deferred by a Participant
on a quarterly basis as follows: 50% match on salary deferred, up to a total
match of $12,000.00 per year for senior vice presidents and $7,500.00 per year
for vice presidents and other Participants. The total amount of the matching
contribution made to this Plan will be made in the form of Sykes common stock,
valued as of the last day of the quarter to which the matching contribution is
applicable.
ARTICLE III. CONTINGENCY PAYMENTS, INVESTMENTS AND FORFEITURES.
3.01 Sykes shall cause an account to be kept in the name of each
Participant (the Deferred Compensation Account) established for this purpose.
Such amounts deferred by a Participant shall be credited to the Participant's
Deferred Compensation Account on a pro rata basis after each payroll period
during the Fiscal Year. Matching contributions will be made at the end of each
quarter. Earnings on the deferred compensation and the matching contribution
shall be credited to the Participant's Deferred Compensation Account on a
quarterly basis and statements reflecting the balance of each Participant's
Deferred Compensation Account shall be prepared on a quarterly basis as soon as
is practicable after the end of each quarter. A Deferred Compensation Account
shall be kept in the name of each Participant and each beneficiary of a deceased
Participant which shall reflect the value of the deferred contingent benefits,
or in the event that the Participant's benefit has become vested as provided
herein, the value of any vested benefits, payable to such Participant or
beneficiary under the Plan.
(a) Investment earnings on the deferred compensation and the
matching contribution accounts maintained for each
participant shall be credited at the end of each calendar
quarter (3/31, 6/30, 9/30, and 12/31), in accordance with
the following procedure:
(1) Payments - The total amount of any payments made from
the accounts since the last valuation date shall be
subtracted from the account balance that existed at the
beginning of the quarter.
(2) Deferred Compensation Contributions - Fifty percent of
any deferred compensation contributions made by the
Participant since the last valuation date shall be
added to the account balance that existed at the
beginning of the quarter.
(3) Net Gain or Loss - Each Participant's Deferred
Compensation Account shall be increased or decreased to
reflect a proportionate share of the net increase or
net decrease for each investment fund held in the
Deferred Compensation Account, since the beginning of
the quarter.
(4) Deferred Compensation Contributions - The remaining
fifty percent of any deferred compensation
contributions made by the participant since the last
valuation date shall be added to the account balance
that existed at the beginning of the quarter.
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(5) Matching Contributions - The entire amount of any
matching contributions made by the Company shall be
added to the account balance that existed at the
beginning of the quarter.
(6) Investment Transfers - The amount(s) necessary in order
to effect an investment transfer requested by the
participant shall be added to or subtracted from each
investment fund as required. Such transfers shall be
made as soon as is practicable.
3.02 Until and except to the extent that deferred benefits hereunder
are distributed to or vested in a Participant or beneficiary from time to time
in accordance with the provisions of the Plan, the interest of each Participant
and beneficiary therein is contingent only and is subject to forfeiture as
provided in this Plan. Title to and beneficial ownership of any assets, whether
cash or investments, which Sykes may set aside or earmark to meet its contingent
deferred obligation hereunder, shall at all times remain in Sykes; and no
Participant or beneficiary shall under any circumstances acquire any property
interest and any specific assets of Sykes.
3.03 Any such funds credited to the Deferred Compensation Account of a
Participant shall be invested and reinvested in mutual funds, stocks, bonds,
securities or any other assets that may be selected by the Administrator in its
discretion, provided that it is the intention of the Board in establishing this
Plan that the Administrator will select investment vehicles which are
substantially identical to those investment vehicles provided under the Sykes
401(k) Savings Plan and Trust. In selecting investment vehicles, the Board may
engage investment counsel, and may delegate to such counsel authority to
recommend investment choices be made available for investment within the Plan.
Any such service shall be charged as an expense of administering the Plan.
Participants may request that the Administrator allocate deferred compensation
among investment vehicles selected by the Administrator on a quarterly basis;
and may request reallocation of amounts already deferred and earnings
attributable thereto on the same basis.
3.04 As a condition of participation in this Plan, the Participant
agrees that on behalf of himself and his designated beneficiary to assume all
risk in connection with any decrease in value of the funds which are invested
and which continue to be invested in accordance with the provisions of this
Plan.
ARTICLE IV. DISTRIBUTION OF BENEFITS.
4.01 The benefits to be distributed by the Plan (unless they are
forfeited by the occurrence of any of the events of forfeiture specified in
Section 4.04 below) are as follows: The normal form of benefit is a lump sum of
amounts deferred by the Participant and earnings attributable thereto payable
upon retirement or termination of employment.
(a) With respect to the distribution of the Participant's
matching contribution, a Participant may elect a
distribution of Sykes common stock in the Participant's
Deferred Compensation Account, or a distribution of the cash
value of the Sykes common stock in the
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Participant's Deferred compensation Account, valued as of
the Valuation Date coincident with or next following the
first anniversary date of the Participant's last day of
active employment. The distribution of any matching
contribution made by Sykes and earnings attributable thereto
will be paid as soon as administratively feasible twelve
(12) months after retirement or termination of employment,
subject to the provisions of this Section 4.01, and provided
that the Participant maintains full compliance with the
terms of any confidentiality or non-compete agreement to
which he is subject.
(b) In the event the Participant terminates employment (for
reasons other than death, disability or retirement) without
participating in the plan for three (3) years, the matching
contributions and earnings attributable thereto will be
forfeited. In the event that a Participant terminates
employment after three (3) years, but less than six (6)
years of participation in the Plan, the Participant shall
forfeit 75% of the matching contribution and earnings
theron. In the event that a Participant terminates
employment after six (6) years but less than ten (10) years
of participation in the Plan, the Participant shall forfeit
50% of the matching contribution and earnings thereon.
Forfeitures shall be deducted from the Participant's account
upon distribution of the vested account balance. Forfeitures
shall be utilized to offset future matching contributions
made by the Company.
(c) In the event of death of the Participant while still an
employee, a lump sum of both Participant's deferrals and a
lump sum cash value of the Sykes common stock (valued as of
the Valuation Date coincident with or next following the
date of the Participant's death) constituting the matching
contribution, will be paid to the Participant's named
beneficiary as soon as administratively feasible.
(d) In the event of the Participant's disability as defined in
the Plan, both the Participant's deferrals and the lump sum
cash value of the Sykes common stock (valued as of the
Valuation Date coincident with or next following the date of
the Participant's last day of active employment)
constituting the matching contribution will be paid to the
Participant in a lump sum as soon as administratively
feasible.
4.02 A Participant may, at the time of initial participation in the
Plan, elect to receive benefits under the Plan in the event of retirement or
disability in one hundred twenty (120) monthly installments of an amount equal
to the fair market value of the assets in the Participant's Deferred
Compensation Account as of the effective date of his retirement or termination
of employment due to disability. In the event that the Participant elects the
distribution of benefits in monthly installments, the total amount payable to
the Participant shall be appropriately increased or decreased as the case may
be, but not more than semi-annually, to reflect the appreciation or depreciation
in value and the net income or loss on the funds which remain invested in the
Participant's Deferred Compensation Account. If the Participant should die
before the one hundred twenty (120) monthly installments are made, the unpaid
balance will continue to be paid in installments for the unexpired portion due
to the Participant's designated
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beneficiary in the same manner as set forth above.
4.03 A Participant shall have the right to designate one or more
beneficiaries who are to succeed to his contingent right to receive future
payments under the Plan in the event of his death. In case of a failure to
designate or the death of a designated beneficiary without a designated
successor, distribution shall be made to the Participant's estate. No
designation of beneficiaries shall be valid unless in writing signed by the
Participant, dated and filed with the Administrator. Beneficiaries may be
changed without the consent of any prior beneficiaries.
4.04 Notwithstanding anything herein contained to the contrary, no
payment of any then unpaid distribution of Company matching contributions shall
be made and all rights of the Participant, his designated beneficiary, executors
or administrators, or any other person to receive payments of such matching
contribution shall be forfeited if any of the following events shall occur:
(a) The Participant is terminated for "Cause." For the purposes
of this Plan, the Company shall have "Cause" to terminate a
Participant's employment hereunder: (i) if the Participant
engages in conduct which has caused or is reasonably likely
to cause demonstrable and serious injury to Company; (ii) if
the Participant is convicted of a felony as evidenced by a
binding and final judgment, order, or decree of a court of
competent jurisdiction; (iii) for the Participant's neglect
of his duties hereunder or the Participant's refusal to
perform his duties or responsibilities hereunder as
determined by the Company's Board of Directors in good
faith; (iv) for the Participant's chronic absenteeism; (v)
for the Participant's use of illegal drugs; (vi) for the
Participant's insobriety while performing his or her duties
hereunder; or(vii) for any act of dishonesty, embezzlement
or falsification of reports, records, or information
submitted by the Participant to the Company.
(b) The Participant enters into a business or employment which
the Chief Executive Officer determines to be in violation of
any non-compete agreement signed by the Participant in favor
of Sykes or a subsidiary.
4.05 The Administrator may at any time and from time to time order all
or any part of the value of the contingent right of a Participant or beneficiary
to receive future payments without forfeiture.
ARTICLE V. GENERAL PROVISIONS.
5.01 Nothing contained in this Plan and no actions taken pursuant to
the provisions of this Plan shall create or be construed to create a trust of
any kind, or a fiduciary relationship between Sykes and a Participant, his
designated beneficiary or any other person. Any funds, which may be invested
under the provisions of this Plan, shall continue for all purposes to be part of
the general funds of Sykes and no person other than Sykes shall by virtue of the
provisions of this Plan have any interest in such funds. To the extent that any
person acquires a right to receive payments from Sykes under this Plan, such
right shall be no greater than the right of any unsecured general creditor of
Sykes.
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5.02 The right of a Participant or any other person to the payment of
deferred compensation or other benefits under this Plan shall not be assigned,
transferred, pledged or encumbered except by will or by the laws of descent and
distribution.
5.03 If the Administrator shall find that any person to whom any
payment is payable under this Plan is unable to care for his affairs because of
illness or accident, or is a minor, any payment due (unless a prior claim
therefor shall have been made by a duly appointed guardian or other legal
representative) may be paid to the spouse, a child, a parent, or a brother or
sister, or to any person deemed by the Administrator to have incurred expense
for such person otherwise entitled to payment, in such manner and proportions as
the Administrator may determine. Any such payment shall be in a complete
discharge of the liabilities of Sykes to the Participant or person under this
Plan.
5.04 Nothing contained in this Plan shall be construed as conferring
upon a Participant the right to continue in the employ of Sykes as an Executive
or in any other capacity.
5.05 The Administrator shall have full power and authority to
interpret, construe and administer this Plan; and the Administrator's
interpretations and construction thereof, and actions thereunder, including an
valuation of a Deferred Compensation Account, or the amount or recipient of the
payment to be made therefrom, shall be binding and conclusive upon all persons
for all purposes. No member of the Board of Sykes shall be liable to any person
for any action taken or omitted in connection with the interpretation and
administration of this Plan, unless attributable to his own willful misconduct
or lack of good faith.
5.06 This Plan shall be binding upon and inure to the benefit of
Sykes, its successors and assigns, and the Participant and his heirs, executors,
administrators and legal representatives.
SYKES ENTERPRISES, INCORPORATED
By: /s/ Margery Bass
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Margery Bass
Secretary of the Corporation
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