EXHIBIT 10.71
COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
EFFECTIVE JANUARY 1, 2004
COPYRIGHT (C) 2003
BY CLARK CONSULTING, INC.
EXECUTIVE BENEFITS PRACTICE
ALL RIGHTS RESERVED
COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS.................................................. 1
ARTICLE 2 SELECTION, ENROLLMENT, ELIGIBILITY........................... 7
2.1 SELECTION BY COMMITTEE...................................... 7
2.2 ENROLLMENT REQUIREMENTS..................................... 7
2.3 ELIGIBILITY; COMMENCEMENT OF PARTICIPATION.................. 7
2.4 TERMINATION OF PARTICIPATION AND/OR DEFERRALS............... 7
2.5 RE-COMMENCEMENT OF PARTICIPATION............................ 7
ARTICLE 3 DEFERRAL COMMITMENTS/COMPANY CONTRIBUTION AMOUNTS/COMPANY
DISCRETIONARY MATCH/VESTING/CREDITING/TAXES................. 8
3.1 MAXIMUM DEFERRAL............................................ 8
3.2 ELECTION TO DEFER; EFFECT OF ELECTION FORM.................. 8
3.3 WITHHOLDING AND CREDITING OF ANNUAL DEFERRAL AMOUNTS........ 9
3.4 COMPANY CONTRIBUTION AMOUNT................................. 9
3.5 COMPANY DISCRETIONARY MATCH................................. 9
3.6 VESTING..................................................... 9
3.7 CREDITING/DEBITING OF ACCOUNT BALANCES...................... 11
3.8 FICA AND OTHER TAXES........................................ 13
ARTICLE 4 DEDUCTION LIMITATION........................................ 13
4.1 DEDUCTION LIMITATION ON BENEFIT PAYMENTS.................... 13
ARTICLE 5 IN-SERVICE DISTRIBUTION; UNFORESEEABLE FINANCIAL
EMERGENCIES; WITHDRAWAL ELECTION............................ 14
5.1 IN-SERVICE DISTRIBUTION..................................... 14
5.2 OTHER BENEFITS TAKE PRECEDENCE OVER IN-SERVICE DISTRIBUTIONS 14
5.3 WITHDRAWAL PAYOUT/SUSPENSIONS FOR UNFORESEEABLE
FINANCIAL EMERGENCIES....................................... 14
5.4 WITHDRAWAL ELECTION......................................... 15
ARTICLE 6 CHANGE IN CONTROL BENEFIT.................................... 16
6.1 CHANGE IN CONTROL BENEFIT.................................... 16
6.2 PAYMENT OF CHANGE IN CONTROL BENEFIT......................... 16
ARTICLE 7 RETIREMENT BENEFIT............................................ 16
7.1 RETIREMENT BENEFIT............................................ 16
7.2 PAYMENT OF RETIREMENT BENEFIT................................. 16
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COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
ARTICLE 8 TERMINATION BENEFIT......................................... 17
8.1 TERMINATION BENEFIT......................................... 17
8.2 PAYMENT OF TERMINATION BENEFIT.............................. 17
ARTICLE 9 DISABILITY WAIVER AND BENEFIT............................... 17
9.1 DISABILITY WAIVER........................................... 17
9.2 CONTINUED ELIGIBILITY; DISABILITY BENEFIT................... 17
ARTICLE 10 SURVIVOR BENEFIT............................................ 18
10.1 SURVIVOR BENEFIT............................................ 18
10.2 PAYMENT OF SURVIVOR BENEFIT................................. 18
ARTICLE 11 BENEFICIARY DESIGNATION..................................... 18
11.1 BENEFICIARY................................................. 18
11.2 BENEFICIARY DESIGNATION; CHANGE OF BENEFICIARY DESIGNATION.. 19
11.3 ACKNOWLEDGEMENT............................................. 19
11.4 NO BENEFICIARY DESIGNATION.................................. 19
11.5 DOUBT AS TO BENEFICIARY..................................... 19
11.6 DISCHARGE OF OBLIGATIONS.................................... 19
ARTICLE 12 LEAVE OF ABSENCE............................................ 19
12.1 PAID LEAVE OF ABSENCE....................................... 19
12.2 UNPAID LEAVE OF ABSENCE..................................... 19
ARTICLE 13 TERMINATION, AMENDMENT OR MODIFICATION...................... 20
13.1 TERMINATION................................................. 20
13.2 AMENDMENT................................................... 20
13.3 PLAN AGREEMENT.............................................. 21
13.4 EFFECT OF PAYMENT........................................... 21
ARTICLE 14 ADMINISTRATION.............................................. 21
14.1 COMMITTEE DUTIES............................................ 21
14.2 ADMINISTRATION UPON CHANGE IN CONTROL....................... 21
14.3 AGENTS...................................................... 22
14.4 BINDING EFFECT OF DECISIONS................................. 22
14.5 INDEMNITY OF COMMITTEE...................................... 22
14.6 COMPANY INFORMATION......................................... 22
ARTICLE 15 OTHER BENEFITS AND AGREEMENTS............................... 22
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COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
15.1 COORDINATION WITH OTHER BENEFITS............................ 22
ARTICLE 16 CLAIMS PROCEDURES........................................... 23
16.1 PRESENTATION OF CLAIM....................................... 23
16.2 NOTIFICATION OF DECISION.................................... 23
16.3 REVIEW OF A DENIED CLAIM.................................... 23
16.4 DECISION ON REVIEW.......................................... 24
16.5 LEGAL ACTION................................................ 24
ARTICLE 17 TRUST....................................................... 24
17.1 ESTABLISHMENT OF THE TRUST.................................. 24
17.2 INTERRELATIONSHIP OF THE PLAN AND THE TRUST................. 24
17.3 DISTRIBUTIONS FROM THE TRUST................................ 25
ARTICLE 18 MISCELLANEOUS............................................... 25
18.1 STATUS OF PLAN.............................................. 25
18.2 UNSECURED GENERAL CREDITOR.................................. 25
18.3 COMPANY'S LIABILITY......................................... 25
18.4 NONASSIGNABILITY............................................ 25
18.5 NOT A CONTRACT OF EMPLOYMENT................................ 25
18.6 FURNISHING INFORMATION...................................... 26
18.7 TERMS....................................................... 26
18.8 CAPTIONS.................................................... 26
18.9 GOVERNING LAW............................................... 26
18.10 NOTICE...................................................... 27
18.11 SUCCESSORS.................................................. 27
18.12 SPOUSE'S INTEREST........................................... 27
18.13 VALIDITY.................................................... 27
18.14 INCOMPETENT................................................. 27
18.15 COURT ORDER................................................. 27
18.16 DISTRIBUTION IN THE EVENT OF TAXATION....................... 28
18.17 INSURANCE................................................... 28
18.18 LEGAL FEES TO ENFORCE RIGHTS AFTER CHANGE IN CONTROL........ 28
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COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
COUNTRYWIDE FINANCIAL CORPORATION
SELECTED EMPLOYEE DEFERRED COMPENSATION PLAN
Effective January 1, 2004
PURPOSE
The purpose of this Plan is to provide specified benefits to a select
group of management or highly compensated Employees who contribute materially to
the continued growth, development and future business success of Countrywide
Financial Corporation, a Delaware corporation, and its subsidiaries, if any,
that sponsor this Plan. This Plan shall be unfunded for tax purposes and for
purposes of Title I of ERISA.
ARTICLE 1
DEFINITIONS
For the purposes of this Plan, unless otherwise clearly apparent from
the context, the following phrases or terms shall have the following indicated
meanings:
1.1 "Account Balance" shall mean, with respect to a Participant, a credit
on the records of the Company equal to the sum of (i) the Deferral
Account balance, (ii) the Company Contribution Account balance, and
(iii) the Company Discretionary Match Account balance. The Account
Balance, and each other specified account balance, shall be a
bookkeeping entry only and shall be utilized solely as a device for the
measurement and determination of the amounts to be paid to a
Participant, or his or her designated Beneficiary, pursuant to this
Plan.
1.2 "Annual Deferral Amount" shall mean that portion of a Participant's
Base Salary and Compensation that a Participant defers in accordance
with Article 3 for any one Plan Year. In the event of a Participant's
Retirement, Covered Termination, Disability (if deferrals cease in
accordance with Section 9.1), death or a Termination of Employment
prior to the end of a Plan Year, such year's Annual Deferral Amount
shall be the actual amount withheld prior to such event.
1.3 "Base Salary" shall mean the annual cash compensation relating to
services performed during any calendar year, excluding distributions
from nonqualified deferred compensation plans, bonuses, commissions,
overtime, fringe benefits, stock options, relocation expenses,
incentive payments, non-monetary awards, director fees and other fees,
and automobile and other allowances paid to a Participant for
employment services rendered (whether or not such allowances are
included in the Employee's gross income). Base Salary shall be
calculated before reduction for compensation voluntarily deferred or
contributed by the Participant pursuant to all qualified or
non-qualified plans of the Company and shall be calculated to include
amounts not otherwise included in the Participant's gross income under
Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans
established by the Company; provided, however, that all such amounts
will be included in compensation only to the extent that had there been
no such plan, the amount would have been payable in cash to the
Employee.
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COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
1.4 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 11, that are entitled
to receive benefits under this Plan upon the death of a Participant.
1.5 "Beneficiary Designation Form" shall mean the form established from
time to time by the Committee that a Participant completes, signs and
returns to the Committee to designate one or more Beneficiaries.
1.6 "Board" shall mean the board of directors of the Company.
1.7 "Change in Control" shall mean the occurrence of any of the following
events:
(a) An acquisition (other than directly from Company) of any
common stock or other "Voting Securities" (as hereinafter
defined) of Company by any "Person" (as the term person is
used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")),
immediately after which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty-five percent (25%) or more of the then
outstanding shares of Company's common stock or the combined
voting power of the Company's then outstanding Voting
Securities; provided, however, in determining whether a
"Change in Control" has occurred, Voting Securities which are
acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would cause
a Change in Control. For purposes of this Plan, (1) "Voting
Securities" shall mean Company's outstanding voting securities
entitled to vote generally in the election of directors and
(2) a "Non-Control Acquisition" shall mean an acquisition by
(i) an employee benefit plan (or a trust forming a part
thereof) maintained by (A) Company or (B) any corporation or
other person of which a majority of its voting power or its
voting equity securities or equity interests are owned
directly, or indirectly, by Company (for purposes of this
definition a "Subsidiary"), (ii) Company or any of its
Subsidiaries, or (iii) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined);
(b) The individuals who, as of May 6, 1996, are members of the
Board (the "Incumbent Board"), cease for any reason to
constitute at least two-thirds of the members of the Board;
provided, however, that if the election, or nomination for
election by Company's common stockholders of any new director
was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Plan, be
considered as a member of the Incumbent Board; provided,
further, however, that no individual shall be considered a
member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated
under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a
Person other than the Board (a "Proxy Contest") including by
reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
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COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
(c) The consummation of:
(i) A merger, consolidation or reorganization, involving
Company, unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A
"Non-Control Transaction" shall mean a merger,
consolidation or reorganization of Company where:
(a) the stockholders of Company, immediately
before such merger, consolidation or
reorganization, own directly or indirectly
immediately following such merger,
consolidation or reorganization, at least
seventy percent (70%) of the combined voting
power of the outstanding Voting Securities
of the corporation resulting from such
merger, consolidation or reorganization (the
"Surviving Corporation") in substantially
the same proportion as their ownership of
the Voting Securities immediately before
such merger, consolidation or
reorganization;
(b) the individuals who were members of the
Incumbent Board immediately prior to the
execution of the agreement providing for
such merger, consolidation or reorganization
constitute at least two-thirds of the
members of the Board of Directors of the
Surviving Corporation, in the event that,
immediately following the consummation of
such transaction, a corporation beneficially
owns, directly or indirectly, a majority of
the Voting Securities of the Surviving
Corporation, the Board of Directors of such
Corporation; and
(c) no Person other than (i) Company, (ii) any
Subsidiary, (iii) any employee benefit plan
(or any trust forming a part thereof)
maintained by Company, the Surviving
Corporation, or any Subsidiary, or (iv) any
Person who, immediately prior to such
merger, consolidation or reorganization had
Beneficial Ownership of twenty-five (25%) or
more of the then outstanding Voting
Securities or common stock of Company, has
Beneficial Ownership of twenty-five (25%) or
more of the combined voting power of the
Surviving Corporation's then outstanding
Voting Securities or its common stock;
(ii) A complete liquidation or dissolution of Company; or
(iii) The sale or other disposition of all or substantially
all of the assets of Company to any Person (other
than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding common stock or Voting Securities as a result of the
acquisition of common stock or Voting Securities by Company, which by
reducing the number of shares of common stock or Voting Securities then
outstanding, increases the proportional number of shares Beneficially
Owned by the Subject Persons; provided, however, that if a Change in
Control
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COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
would occur (but for the operation of this sentence) as a result of the
acquisition of common stock or Voting Securities by Company, and after
such share acquisition by Company, the Subject Person becomes the
Beneficial Owner of any additional common stock or Voting Securities
which increases the percentage of the then outstanding common stock or
Voting Securities Beneficially Owned by the Subject Person, then a
Change in Control shall occur.
Notwithstanding anything to the contrary contained herein, if the
employment of a Participant is terminated (i) at the request of a third
party who has indicated an intention or taken steps reasonably
calculated to effect a Change in Control and who effectuates a Change
in Control, or (ii) otherwise in connection with, or in anticipation
of, a Change in Control which actually occurs, then for purposes of
this Plan the date of a Change in Control with respect to that
Participant shall be deemed to be the date immediately prior to the
date of the Participant's termination.
1.8 "Change in Control Benefit" shall have the meaning set forth in Article
6.
1.9 "Claimant" shall have the meaning set forth in Section 16.1.
1.10 "Code" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time.
1.11 "Committee" shall mean the committee described in Article 14.
1.12 "Company" shall mean Countrywide Financial Corporation, a Delaware
corporation, and any successor to all or substantially all of the
Company's assets or business.
1.13 "Company Contribution Account" shall mean (i) the sum of the
Participant's Company Contribution Amounts, plus (ii) amounts credited
or debited to the Participant's Company Contribution Account in
accordance with this Plan, less (iii) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate
to the Participant's Company Contribution Account.
1.14 "Company Contribution Amount" shall mean, for any one Plan Year, the
amount determined in accordance with Section 3.4.
1.15 "Company Discretionary Match Account" shall mean (i) the sum of all of
a Participant's Company Discretionary Match Amounts, plus (ii) amounts
credited or debited to the Participant's Company Discretionary Match
Account in accordance with this Plan, less (iii) all distributions made
to the Participant or his or her Beneficiary pursuant to this Plan that
relate to the Participant's Company Discretionary Match Account.
1.16 "Company Discretionary Match Amount" for any one Plan Year shall be the
amount determined in accordance with Section 3.5.
1.17 "Compensation" shall mean the amount of "Bonus" and/or "Commissions"
relating to a Plan Year. For purposes of this Plan, Bonus and
Commissions shall be defined as follows:
(a) "Bonus" shall mean any earnings, in addition to Base Salary
and Commissions, attributable to a Plan Year as further
specified on an Election Form, approved by the Committee in
its sole discretion, under any annual bonus and cash incentive
plans, excluding stock options.
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COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
(b) "Commissions" shall mean the cash commissions attributable to
a Plan Year as further specified on an Election Form, approved
by the Committee in its sole discretion, excluding Bonus or
other additional incentives or awards payable to the
Participant.
1.18 "Covered Termination" shall mean the termination of a Participant's
employment with the Company which causes such Participant to be
eligible for a benefit under the Company's Change in Control Severance
Plan.
1.19 "Deduction Limitation" shall mean the limitation on a benefit that may
otherwise be distributable pursuant to the provisions of this Plan, as
set forth in Article 4.
1.20 "Deferral Account" shall mean (i) the sum of all of a Participant's
Annual Deferral Amounts, plus (ii) amounts credited or debited to the
Participant's Deferral Account in accordance with this Plan, less (iii)
all distributions made to the Participant or his or her Beneficiary
pursuant to this Plan that relate to his or her Deferral Account.
1.21 "Disability" or "Disabled" shall mean a determination that a
Participant is disabled made by either (i) the carrier of any
individual or group disability insurance policy, sponsored by the
Company, or (ii) the Social Security Administration. Upon request by
the Company, the Participant must submit proof of the carrier's or
Social Security Administration's determination.
1.22 "Disability Benefit" shall mean the benefit set forth in Article 9.
1.23 "Election Form" shall mean the form established from time to time by
the Committee that a Participant completes, signs and returns to the
Committee to make an election under the Plan.
1.24 "Employee" shall mean a person who is an employee of the Company, as
determined by the Committee.
1.25 "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as it may be amended from time to time.
1.26 "In-Service Distribution" shall mean the distribution set forth in
Section 5.1.
1.27 "Monthly Installment Method" shall be a monthly installment payment
over the number of months selected by the Participant in accordance
with this Plan, calculated as follows: (i) for the first monthly
installment, the vested portion of the Account Balance of the
Participant shall be calculated as of the close of business on or
around the date on which the Participant Retires, is deemed to have
Retired in accordance with Section 9.2(c) or experiences a Covered
Termination, as determined by the Committee in its sole discretion, and
(ii) for remaining monthly installments, the vested portion of the
Account Balance of the Participant shall be calculated on or around the
last business day of the preceding month. Each monthly installment
shall be calculated by multiplying this balance by a fraction, the
numerator of which is one and the denominator of which is the remaining
number of monthly payments due the Participant. By way of example, if
the Participant elects to receive his or her Account Balance pursuant
to a Monthly Installment Method of 120 months, the first payment shall
be 1/120 of the vested Account Balance, calculated as described in this
definition. The following month, the payment shall be 1/119 of the
vested Account Balance, calculated as described in this definition.
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COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
1.28 "Participant" shall mean any Employee (i) who is selected to
participate in the Plan, (ii) who elects to participate in the Plan,
(iii) who signs a Plan Agreement, an Election Form and a Beneficiary
Designation Form, (iv) whose signed Plan Agreement, Election Form and
Beneficiary Designation Form are accepted by the Committee, (v) who
commences participation in the Plan, and (vi) whose Plan Agreement has
not terminated. A spouse or former spouse of a Participant shall not be
treated as a Participant in the Plan or have an account balance under
the Plan, even if he or she has an interest in the Participant's
benefits under the Plan as a result of applicable law or property
settlements resulting from legal separation or divorce.
1.29 "Plan" shall mean the Countrywide Financial Corporation Selected
Employee Deferred Compensation Plan, which shall be evidenced by this
instrument and by each Plan Agreement, as they may be amended from time
to time.
1.30 "Plan Agreement" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between the Company and a
Participant. Each Plan Agreement executed by a Participant and the
Company shall provide for the entire benefit to which such Participant
is entitled under the Plan; should there be more than one Plan
Agreement, the Plan Agreement bearing the latest date of acceptance by
the Company shall supersede all previous Plan Agreements in their
entirety and shall govern such entitlement. The terms of any Plan
Agreement may be different for any Participant, and any Plan Agreement
may provide additional benefits not set forth in the Plan or limit the
benefits otherwise provided under the Plan; provided, however, that any
such additional benefits or benefit limitations must be agreed to by
both the Company and the Participant.
1.31 "Plan Year" shall mean a period beginning on January 1 of each calendar
year and continuing through December 31 of such calendar year.
1.32 "Retirement", "Retire(s)" or "Retired" shall mean termination of
employment from the Company for any reason other than a leave of
absence, death or Disability on or after the earlier of the attainment
of (a) age sixty-five (65) or (b) age fifty-five (55) with eleven (11)
Years of Service.
1.33 "Retirement Benefit" shall mean the benefit set forth in Article 7.
1.34 "Survivor Benefit" shall mean the benefit set forth in Article 10.
1.35 "Termination Benefit" shall mean the benefit set forth in Article 8.
1.36 "Termination of Employment" shall mean the severing of employment with
the Company, voluntarily or involuntarily, for any reason other than a
Covered Termination, Retirement, Disability, death or an authorized
leave of absence.
1.37 "Trust" shall mean one or more trusts established by the Company in
accordance with Article 17.
1.38 "Unforeseeable Financial Emergency" shall mean an unanticipated
emergency that is caused by an event beyond the control of the
Participant that would result in severe financial hardship to the
Participant resulting from (i) a sudden and unexpected illness or
accident of the Participant or a dependent of the Participant, (ii) a
loss of the Participant's property due to casualty, or (iii) such other
extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant, all as determined in the
sole discretion of the Committee.
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COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
1.39 "Years of Service" shall mean the total number of full years in which a
Participant has been employed by the Company. For purposes of this
definition, a year of employment shall be a 365 day period (or 366 day
period in the case of a leap year) that, for the first year of
employment, commences on the Employee's date of hiring and that, for
any subsequent year, commences on an anniversary of that hiring date.
The Committee in its discretion may adjust the hire date of a
Participant solely for purposes of this Plan to reflect prior Years of
Service in the event a Participant is re-hired by the Company. The
Committee shall make a determination as to whether any partial year of
employment shall be counted as a Year of Service.
ARTICLE 2
SELECTION, ENROLLMENT, ELIGIBILITY
2.1 SELECTION BY COMMITTEE. Participation in the Plan shall be limited to a
select group of management and highly compensated Employees, as
determined by the Committee in its sole discretion. From that group,
the Committee shall select, in its sole discretion, Employees to
participate in the Plan.
2.2 ENROLLMENT REQUIREMENTS. As a condition to participation, each selected
Employee shall complete, execute and return to the Committee a Plan
Agreement, an Election Form and a Beneficiary Designation Form, all
within thirty (30) days after he or she is selected to participate in
the Plan. In addition, the Committee shall establish from time to time
such other enrollment requirements as it determines in its sole
discretion are necessary.
2.3 ELIGIBILITY; COMMENCEMENT OF PARTICIPATION. Provided an Employee
selected to participate in the Plan has met all enrollment requirements
set forth in this Plan and required by the Committee, including
returning all required documents to the Committee within the specified
time period, that Employee shall commence participation in the Plan on
the first day of the month following the month in which the Employee
completes all enrollment requirements. If an Employee fails to meet all
such requirements within the period required, in accordance with
Section 2.2, that Employee shall not be eligible to participate in the
Plan until the first day of the Plan Year following the delivery to and
acceptance by the Committee of the required documents.
2.4 TERMINATION OF PARTICIPATION AND/OR DEFERRALS. If the Committee
determines in good faith that a Participant no longer qualifies as a
member of a select group of management or highly compensated employees,
as membership in such group is determined in accordance with Sections
201(2), 301(a)(3) and 401(a)(1) of ERISA, the Committee shall have the
right, in its sole discretion, to (i) terminate any deferral election
the Participant has made for the remainder of the Plan Year in which
the Participant's membership status changes, (ii) prevent the
Participant from making future deferral elections and/or (iii)
immediately distribute the Participant's then vested Account Balance as
a Termination Benefit and terminate the Participant's participation in
the Plan.
2.5 RE-COMMENCEMENT OF PARTICIPATION. If a Participant leaves the
employment of the Company and is subsequently re-hired as an Employee,
the Committee shall have the right, in its sole discretion, to (i)
cease benefit payments under the Plan, if any, and/or (ii) allow the
Participant to
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COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
re-commence participation in the Plan as soon as administratively
practicable following the date on which the Participant completes all
enrollment requirements.
ARTICLE 3
DEFERRAL COMMITMENTS/COMPANY CONTRIBUTION AMOUNTS/COMPANY DISCRETIONARY MATCH/
VESTING/CREDITING/TAXES
3.1 MAXIMUM DEFERRAL.
(a) ANNUAL DEFERRAL AMOUNT. For each Plan Year, a Participant may
elect to defer, as his or her Annual Deferral Amount, Base
Salary and Compensation up to the following maximum
percentages for each deferral elected:
DEFERRAL MAXIMUM AMOUNT
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Base Salary 75%
Compensation:
Commissions 75%
Bonus 75%
(b) SHORT PLAN YEAR. Notwithstanding the foregoing, if a
Participant first becomes a Participant after the first day of
a Plan Year, the maximum Annual Deferral Amount (i) with
respect to Base Salary shall be limited to the amount of
compensation not yet earned by the Participant as of the date
the Participant submits a Plan Agreement and Election Form to
the Committee for acceptance, and (ii) with respect to
Compensation shall be limited to those amounts deemed eligible
for deferral, in the sole discretion of the Committee.
3.2 ELECTION TO DEFER; EFFECT OF ELECTION FORM.
(a) FIRST PLAN YEAR. In connection with a Participant's
commencement of participation in the Plan, the Participant
shall make an irrevocable deferral election for the Plan Year
in which the Participant commences participation in the Plan,
along with such other elections as the Committee deems
necessary or desirable under the Plan. For these elections to
be valid, the Election Form must be completed and signed by
the Participant, timely delivered to the Committee (in
accordance with Section 2.2 above) and accepted by the
Committee.
(b) SUBSEQUENT PLAN YEARS. For each succeeding Plan Year, an
irrevocable deferral election for that Plan Year, and such
other elections as the Committee deems necessary or desirable
under the Plan, shall be made by timely delivering a new
Election Form to the Committee, in accordance with its rules
and procedures, before the end of the Plan Year preceding the
Plan Year for which the election is made. If no such Election
Form is timely delivered for a Plan Year, the Annual Deferral
Amount shall be zero for that Plan Year.
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COUNTRYWIDE FINANCIAL CORPORATION
Selected Employee Deferred Compensation Plan
Master Plan Document
3.3 WITHHOLDING AND CREDITING OF ANNUAL DEFERRAL AMOUNTS. For each Plan
Year, the Base Salary portion of the Annual Deferral Amount shall be
withheld from each regularly scheduled Base Salary payroll in equal
amounts, as adjusted from time to time for increases and decreases in
Base Salary. The Compensation portion of the Annual Deferral Amount
shall be withheld at the time the Compensation is paid to the
Participant, whether or not this occurs during the Plan Year itself.
Annual Deferral Amounts shall be credited to a Participant's Deferral
Account at the time such amounts would otherwise have been paid to the
Participant.
3.4 COMPANY CONTRIBUTION AMOUNT. For each Plan Year, the Company, in its
sole discretion, may, but is not required to, credit any amount it
desires to any Participant's Company Contribution Account under this
Plan, which amount shall be for that Participant the Company
Contribution Amount for that Plan Year. The amount so credited to a
Participant may be smaller or larger than the amount credited to any
other Participant, and the amount credited to any Participant for a
Plan Year may be zero, even though one or more other Participants
receive a Company Contribution Amount for that Plan Year. The Company
Contribution Amount described in this Section, if any, shall be
credited on a date or dates to be determined by the Committee, in its
sole discretion.
3.5 COMPANY DISCRETIONARY MATCH. A Participant's Company Discretionary
Match for any Plan Year shall be equal to a percentage of his or her
Annual Deferral Amount for such Plan Year, up to an amount that does
not exceed 10% of such Participant's Annual Deferral Amount, which
percentage shall be calculated by multiplying (i) one-percent (1%), by
(ii) the Participant's Years of Service, as determined by the Committee
in its sole discretion. The Committee may adjust this formula at any
time. The amount so credited to a Participant under this Plan shall be
for that Participant the Company Discretionary Match Amount for that
Plan Year and shall be credited to the Participant's Company
Discretionary Match Account on a date or dates to be determined by the
Committee, in its sole discretion.
3.6 VESTING.
(a) A Participant shall at all times be 100% vested in his or her
Deferral Account.
(b) A Participant shall vest in the Company Contribution Amount
described in Section 3.4 plus amounts credited or debited on
such amounts (pursuant to Section 3.7), in accordance with the
vesting schedule(s) set forth in his or her Plan Agreement,
employment agreement or any other agreement entered into
between the Participant and the Company. If not addressed in
such agreements, a Participant shall vest in each Company
Contribution Amount described in Section 3.4, plus amounts
credited or debited on such amounts (pursuant to Section 3.7),
based on the number of years that have elapsed after the date
on which the Company Contribution Amount is contributed to the
Participant's Company Contribution Account, in accordance with
the schedule set forth below; provided, however, the
Participant must remain in the continuous service as an
Employee through each applicable anniversary in order to
receive vesting credit for such Plan Year. A new vesting
schedule shall apply to each Company Contribution Amount that
is credited to the Participant's Company Contribution Account.
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TIME ELAPSED AFTER THE DATE ON WHICH THE COMPANY
CONTRIBUTION AMOUNT IS CONTRIBUTED TO THE
PARTICIPANT'S COMPANY CONTRIBUTION ACCOUNT VESTED PERCENTAGE
- ------------------------------------------------ -----------------
Less than 2 years 0%
2 years or more, but less than 3 34%
3 years or more, but less than 4 67%
4 years or more 100%
(c) A Participant shall vest in each Company Discretionary Match
Amount described in Section 3.5 credited to his or her Company
Discretionary Match Account, plus amounts credited or debited
on such amounts (pursuant to Section 3.7), based on the number
of years that have elapsed after the date on which the Company
Discretionary Match Amount is contributed to the Participant's
Company Discretionary Match Account, in accordance with the
schedule set forth below; provided, however, the Participant
must remain in the continuous service as an Employee through
each applicable anniversary in order to receive vesting credit
for such Plan Year. A new vesting schedule shall apply to each
Company Discretionary Match Amount credited to his or her
Company Discretionary Match Account.
TIME ELAPSED AFTER THE DATE ON WHICH THE COMPANY
DISCRETIONARY MATCH AMOUNT IS CONTRIBUTED TO THE
PARTICIPANT'S COMPANY DISCRETIONARY MATCH ACCOUNT VESTED PERCENTAGE
- ------------------------------------------------ -----------------
Less than 2 years 0%
2 years or more, but less than 3 34%
3 years or more, but less than 4 67%
4 years or more, 100%
(d) Notwithstanding anything to the contrary contained in this
Section 3.6, in the event of a Participant's Covered
Termination, or upon a Participant's Retirement, death while
employed by the Company, or Disability, a Participant's
Company Contribution Account and Company Discretionary Match
Account shall immediately become 100% vested (if it is not
already vested in accordance with the above vesting
schedules).
(e) Notwithstanding subsection 3.6(d) above, the vesting schedule
for a Participant's Company Contribution Account and Company
Discretionary Match Account shall not be accelerated upon a
Covered Termination to the extent that the Committee
determines that
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such acceleration would cause the deduction limitations of
section 280G of the Code to become effective. In the event
that all of a Participant's Company Contribution Account
and/or Company Discretionary Match Account is not vested
pursuant to such a determination, the Participant may request
independent verification of the Committee's calculations with
respect to the application of section 280G. In such case, the
Committee must provide to the Participant within ninety (90)
days of such a request an opinion from a nationally recognized
accounting firm selected by the Participant (the "Accounting
Firm"). The opinion shall state the Accounting Firm's opinion
that any limitation in the vested percentage hereunder is
necessary to avoid the limits of section 280G and contain
supporting calculations. The cost of such opinion shall be
paid for by the Company.
(f) Section 3.6(e) shall not prevent the acceleration of the
vesting schedule applicable to a Participant's Company
Contribution Account and/or Company Discretionary Match
Account if such Participant is entitled to a "gross-up"
payment, to eliminate the effect of the Code section 4999
excise tax, pursuant to his or her employment agreement or
other agreement entered into between such Participant and the
Company.
3.7 CREDITING/DEBITING OF ACCOUNT BALANCES. In accordance with, and subject
to, the rules and procedures that are established from time to time by
the Committee, in its sole discretion, amounts shall be credited or
debited to a Participant's Account Balance in accordance with the
following rules:
(a) MEASUREMENT FUNDS. Subject to the restrictions found in
Section 3.7(c) below, the Participant may elect one or more of
the measurement funds selected by the Countrywide Financial
Corporation Investment Committee of Employee Benefit Plans, in
its sole discretion, which are based on certain mutual funds
(the "Measurement Funds"), for the purpose of crediting or
debiting additional amounts to his or her Account Balance. As
necessary, the Countrywide Financial Corporation Investment
Committee of Employee Benefit Plans may, in its sole
discretion, discontinue, substitute or add a Measurement Fund.
Each such action will take effect as of the first day of the
first calendar quarter that begins at least thirty (30) days
after the day on which the Countrywide Financial Corporation
Investment Committee of Employee Benefit Plans gives
Participants advance written notice of such change.
(b) ELECTION OF MEASUREMENT FUNDS. Subject to the restrictions
found in Section 3.7(c) below, a Participant, in connection
with his or her initial deferral election in accordance with
Section 3.2(a) above, shall elect, on the Election Form, one
or more Measurement Fund(s) (as described in Section 3.7(a)
above) to be used to determine the amounts to be credited or
debited to his or her Account Balance. If a Participant does
not elect any of the Measurement Funds as described in the
previous sentence, the Participant's Account Balance shall
automatically be allocated into the lowest-risk Measurement
Fund, as determined by the Committee, in its sole discretion.
Subject to the restrictions found in Section 3.7(c) below, the
Participant may (but is not required to) elect, by submitting
an Election Form to the Committee that is accepted by the
Committee, to add or delete one or more Measurement Fund(s) to
be used to determine the amounts to be credited or debited to
his or her Account Balance, or to change the portion of his or
her Account
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Balance allocated to each previously or newly elected
Measurement Fund. If an election is made in accordance with
the previous sentence, it shall apply as of the first business
day deemed reasonably practicable by the Committee, in its
sole discretion, and shall continue thereafter for each
subsequent day in which the Participant participates in the
Plan, unless changed in accordance with the previous sentence.
(c) FIXED RATE FUND OR OTHER SPECIAL MEASUREMENT FUND. If the
Countrywide Financial Corporation Investment Committee of
Employee Benefit Plans, in its sole discretion, adds a Fixed
Rate Fund Measurement Fund or other special Measurement Fund
to this Plan, the provisions this Section 3.7(c) shall apply.
Prior to each Plan Year, the Committee shall, in its sole
discretion, determine whether it (i) will allow allocations to
and/or from the Fixed Rate Fund Measurement Fund or other
special Measurement Fund, (ii) will require allocations to
and/or from the Fixed Rate Fund Measurement Fund or other
special Measurement Fund only upon advance written
notification of a Participant's intended allocation, and (iii)
will impose limits on the portion of a Participant's Account
Balance that may be invested in the Fixed Rate Fund
Measurement Fund or other special Measurement Fund, at any
given time. In the event that the Committee imposes a limit on
the portion of a Participant's Account Balance that may be
invested in the Fixed Rate Fund Measurement Fund or other
special Measurement Fund, the Committee may request that a
Participant re-allocate his or her Account Balance among the
other Measurement Funds; provided, however, if a Participant
fails or refuses to re-allocate his or her Account Balance in
accordance with the Committee's request, the Committee may
re-allocate that portion of the Participant's Account Balance
which is in excess of the limits imposed on the Fixed Rate
Fund Measurement Fund or other special Measurement Fund, on a
pro-rata basis, among the Measurement Funds to which the
Participant's Account Balance is allocated.
(d) PROPORTIONATE ALLOCATION. In making any election described in
Section 3.7(b) above, the Participant shall specify on the
Election Form, in increments of one percent (1%), the
percentage of his or her Account Balance to be allocated to a
Measurement Fund (as if the Participant was making an
investment in that Measurement Fund with that portion of his
or her Account Balance).
(e) CREDITING OR DEBITING METHOD. The performance of each
Measurement Fund (either positive or negative) will be
determined by the Committee, in its sole discretion on a daily
basis based on the manner in which such Participant's Account
Balance has been hypothetically allocated among the
Measurement Funds by the Participant.
(f) NO ACTUAL INVESTMENT. Notwithstanding any other provision of
this Plan that may be interpreted to the contrary, the
Measurement Funds are to be used for measurement purposes
only, and a Participant's election of any such Measurement
Fund, the allocation of his or her Account Balance thereto,
the calculation of additional amounts and the crediting or
debiting of such amounts to a Participant's Account Balance
shall not be considered or construed in any manner ----- ---
as an actual investment of his or her Account Balance in any
such Measurement Fund. In the event that the Company or the
Trustee (as that term is defined in the Trust), in its own
discretion, decides to invest funds in any or
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all of the investments on which the Measurement Funds are
based, no Participant shall have any rights in or to such
investments themselves. Without limiting the foregoing, a
Participant's Account Balance shall at all times be a
bookkeeping entry only and shall not represent any investment
made on his or her behalf by the Company or the Trust; the
Participant shall at all times remain an unsecured creditor of
the Company.
3.8 FICA AND OTHER TAXES.
(a) ANNUAL DEFERRAL AMOUNTS. For each Plan Year in which an Annual
Deferral Amount is being withheld from a Participant, the
Company shall withhold from that portion of the Participant's
Base Salary and Compensation that is not being deferred, in a
manner determined by the Company, the Participant's share of
FICA and other employment taxes on such Annual Deferral
Amount. If necessary, the Committee may reduce the Annual
Deferral Amount in order to comply with this Section 3.8.
(b) COMPANY DISCRETIONARY MATCH ACCOUNT AND COMPANY CONTRIBUTION
ACCOUNT. When a Participant becomes vested in a portion of his
or her Company Discretionary Match Account or Company
Contribution Account, the Company shall withhold from the
Participant's Base Salary and Compensation that is not
deferred, in a manner determined by the Company, the
Participant's share of FICA and other employment taxes. If
necessary, the Committee may reduce the vested portion of the
Participant's Company Discretionary Match Account or Company
Contribution Account, as applicable, in order to comply with
this Section 3.8.
(c) DISTRIBUTIONS. The Company, or the trustee of the Trust, shall
withhold from any payments made to a Participant under this
Plan all federal, state and local income, employment and other
taxes required to be withheld by the Company, or the trustee
of the Trust, in connection with such payments, in amounts and
in a manner to be determined in the sole discretion of the
Company and the trustee of the Trust.
ARTICLE 4
DEDUCTION LIMITATION
4.1 DEDUCTION LIMITATION ON BENEFIT PAYMENTS. If the Company determines in
good faith prior to a Change in Control that there is a reasonable
likelihood that any compensation paid to a Participant for a taxable
year of the Company would not be deductible by the Company solely by
reason of the limitation under Code Section 162(m), then to the extent
deemed necessary by the Company to ensure that the entire amount of any
distribution to the Participant pursuant to this Plan prior to the
Change in Control is deductible, the Company may defer all or any
portion of a distribution under this Plan. Any amounts deferred
pursuant to this limitation shall continue to be credited/debited with
additional amounts in accordance with Section 3.7 above, even if such
amount is being paid out in installments. The amounts so deferred and
amounts credited thereon shall be distributed to the Participant or his
or her Beneficiary (in the event of the Participant's death) at the
earliest possible date, as determined by the Company in good faith, on
which the deductibility of compensation paid or payable to the
Participant for the taxable year of the Company during which the
distribution is made will not be limited by Section 162(m), or if
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earlier, the effective date of a Change in Control. Notwithstanding
anything to the contrary in this Plan, the Deduction Limitation shall
not apply to any distributions made after a Change in Control.
ARTICLE 5
IN-SERVICE DISTRIBUTION; UNFORESEEABLE FINANCIAL EMERGENCIES;
WITHDRAWAL ELECTION
5.1 IN-SERVICE DISTRIBUTION. In connection with each election to defer an
Annual Deferral Amount, a Participant may irrevocably elect to receive
an In-Service Distribution from the Plan with respect to all or a
portion of the Annual Deferral Amount. The In-Service Distribution
shall be a lump sum payment in an amount that is equal to the portion
of the Annual Deferral Amount that the Participant elected to have
distributed as an In-Service Distribution, plus amounts credited or
debited in the manner provided in Section 3.7 above on that amount,
calculated as of the close of business on or around the date on which
the In-Service Distribution becomes payable, as determined by the
Committee in its sole discretion. Subject to the other terms and
conditions of this Plan, each In-Service Distribution elected shall be
paid out during a sixty (60) day period commencing immediately after
the first day of any Plan Year designated by the Participant. The Plan
Year designated by the Participant must be at least three Plan Years
after the end of the Plan Year in which the Annual Deferral Amount is
actually deferred. By way of example, if an In-Service Distribution is
elected for Annual Deferral Amounts that are deferred in the Plan Year
commencing January 1, 2004, the In-Service Distribution would become
payable during a sixty (60) day period commencing January 1, 2008.
5.2 OTHER BENEFITS TAKE PRECEDENCE OVER IN-SERVICE DISTRIBUTIONS. Should an
event occur that triggers a benefit under Article 6, 7, 8, 9 or 10, any
Annual Deferral Amount, plus amounts credited or debited thereon, that
is subject to an In-Service Distribution election under Section 5.1
shall not be paid in accordance with Section 5.1 but shall be paid in
accordance with the other applicable Article.
5.3 WITHDRAWAL PAYOUT/SUSPENSIONS FOR UNFORESEEABLE FINANCIAL EMERGENCIES.
(a) If the Participant experiences an Unforeseeable Financial
Emergency, the Participant may petition the Committee to
suspend deferrals of Base Salary and Compensation required to
be made by such Participant, to the extent deemed necessary by
the Committee to satisfy the Unforeseeable Financial
Emergency. If suspension of deferrals is not sufficient to
satisfy the Participant's Unforeseeable Financial Emergency,
the Participant may further petition the Committee to receive
a partial or full payout from the Plan. The Participant shall
only receive a payout from the Plan to the extent such payout
is deemed necessary by the Committee to satisfy the
Participant's Unforeseeable Financial Emergency.
(b) The payout shall not exceed the lesser of (i) the portion of
the Participant's vested Account Balance which is attributable
to his or her Deferral Account, calculated as of the close of
business on or around the date on which the amount becomes
payable, as determined by the Committee in its sole
discretion, or (ii) the amount reasonably needed to satisfy
the Unforeseeable Financial Emergency. Notwithstanding the
foregoing, a
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Participant may not receive a payout from the Plan to the
extent that the Unforeseeable Financial Emergency is or may be
relieved (A) through reimbursement or compensation by
insurance or otherwise, (B) by liquidation of the
Participant's assets, to the extent the liquidation of such
assets would not itself cause severe financial hardship or (C)
by suspension of deferrals under this Plan.
(c) If the Committee, in its sole discretion, approves a
Participant's petition for suspension, the Participant's
deferrals under this Plan shall be suspended as of the date of
such approval. If the Committee, in its sole discretion,
approves a Participant's petition for suspension and payout,
the Participant's deferrals under this Plan shall be suspended
as of the date of such approval and the Participant shall
receive a payout from the Plan within sixty (60) days of the
date of such approval.
5.4 WITHDRAWAL ELECTION.
(a) At any time prior to Retirement, death, Disability, Covered
Termination, or Termination of Employment, a Participant may
elect to withdraw all or a portion of his or her Deferral
Account. For purposes of this Section 5.4(a), the value of a
Participant's Deferral Account shall be calculated as of the
close of business on the date on which receipt of the
Participant's election is acknowledged by the Committee, as
determined by the Committee in its sole discretion, less a
withdrawal penalty equal to ten percent (10%) of the amount
withdrawn (the net amount shall be referred to as the
"Withdrawal Amount").
(b) At any time after Retirement, Disability or a Covered
Termination, a Participant may elect, at any time, to withdraw
all or a portion of his or her entire vested Account Balance.
For purposes of this Section 5.4(b), the value of a
Participant's vested Account Balance shall be calculated as of
the close of business on the date on which receipt of the
Participant's election is acknowledged by the Committee, as
determined by the Committee in its sole discretion, less a
withdrawal penalty equal to ten percent (10%) of the amount
withdrawn (the net amount shall be referred to as the
"Withdrawal Amount").
The Participant shall make this election by giving the Committee
advance written notice of the election in a form determined from time
to time by the Committee. The Participant shall be paid the Withdrawal
Amount in a lump sum within sixty (60) days of his or her election.
Once the Withdrawal Amount is paid, the Participant's participation in
the Plan shall be suspended for the remainder of the Plan Year in which
the withdrawal is elected and for one (1) full Plan Year thereafter
(the "Suspension Period"). During the Suspension Period, the
Participant will continue to be eligible for the benefits provided in
Articles 5, 6, 7, 8, 9 or 10 in accordance with the provisions of those
Articles. However, the Participant's Annual Deferral Amount shall not
be withheld during the Suspension Period, and the Participant shall not
be allowed to make any deferral elections during the Suspension Period.
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ARTICLE 6
CHANGE IN CONTROL BENEFIT
6.1 CHANGE IN CONTROL BENEFIT. A Participant will receive a Change in
Control Benefit if he or she experiences a Covered Termination prior to
becoming eligible for the benefits provided in Articles 5, 6, 7, 8, 9
or 10 in accordance with the provisions of those Articles. The Change
in Control Benefit shall be equal to the Participant's vested Account
Balance, calculated as of the close of business on or around the date
on which the Participant experiences the Covered Termination, as
determined by the Committee in its sole discretion.
6.2 PAYMENT OF CHANGE IN CONTROL BENEFIT. A Participant, in connection with
his or her commencement of participation in the Plan, shall irrevocably
elect on an Election Form to receive the Change in Control Benefit in a
lump sum or pursuant to a Monthly Installment Method over thirty-six
(36) months. If a Participant does not make any election with respect
to the payment of the Change in Control Benefit, then such benefit
shall be payable in a lump sum. The lump sum payment shall be made, or
installment payments shall commence, no later than sixty (60) days
after the date on which the Participant experiences a Covered
Termination, as determined by the Committee in its sole discretion.
Remaining installments, if any, shall be paid no later than fifteen
(15) days after the last business day of the preceding month.
ARTICLE 7
RETIREMENT BENEFIT
7.1 RETIREMENT BENEFIT. A Participant who Retires shall receive, as a
Retirement Benefit, his or her vested Account Balance, calculated as of
the close of business on or around the date on which the Participant
Retires, as determined by the Committee in its sole discretion.
7.2 PAYMENT OF RETIREMENT BENEFIT. A Participant, in connection with his or
her commencement of participation in the Plan, shall elect on an
Election Form to receive the Retirement Benefit in a lump sum or
pursuant to a Monthly Installment Method of 60, 120 or 180 months. The
Participant may change his or her election to an allowable alternative
payout period by submitting a new Election Form to the Committee or its
designee, provided that any such Election Form is submitted to and
accepted by the Committee or its designee in its sole discretion at
least thirteen (13) months prior to the Participant's Retirement. The
Election Form most recently accepted by the Committee shall govern the
payout of the Retirement Benefit. If a Participant does not make any
election with respect to the payment of the Retirement Benefit, then
such benefit shall be payable in a lump sum. The lump sum payment shall
be made, or installment payments shall commence, no later than sixty
(60) days after the date on which the Participant Retires. Remaining
installments, if any, shall be paid no later than fifteen (15) days
after the last business day of the preceding month.
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ARTICLE 8
TERMINATION BENEFIT
8.1 TERMINATION BENEFIT. A Participant who experiences a Termination of
Employment shall receive a Termination Benefit, which shall be equal to
the Participant's vested Account Balance, calculated as of the close of
business on or around the date on which the Participant experiences a
Termination of Employment, as determined by the Committee in its sole
discretion.
8.2 PAYMENT OF TERMINATION BENEFIT. The Termination Benefit shall be paid
to the Participant in a lump sum payment no later than sixty (60) days
after the date on which the Participant experiences the Termination of
Employment.
ARTICLE 9
DISABILITY WAIVER AND BENEFIT
9.1 DISABILITY WAIVER.
(a) WAIVER OF DEFERRAL. A Participant who is determined to be
Disabled shall continue to be eligible for the benefits
provided in Articles 5, 6, 7, 8, 9 or 10 in accordance with
the provisions of those Articles. However, such Disabled
Participant shall be excused from fulfilling his or her Annual
Deferral Amount commitment that would otherwise have been
withheld during the remainder of the Plan Year in which the
Participant first suffers the Disability. During the period of
Disability, the Participant shall not be allowed to make any
additional deferral elections.
(b) DEFERRAL FOLLOWING DISABILITY. If a Participant returns to
employment with the Company after a Disability ceases, the
Participant may elect to defer an Annual Deferral Amount for
the Plan Year following his or her return to employment or
service and for every Plan Year thereafter while a Participant
in the Plan; provided such deferral elections are otherwise
allowed and an Election Form is delivered to and accepted by
the Committee for each such election in accordance with
Section 3.2 above.
9.2 CONTINUED ELIGIBILITY; DISABILITY BENEFIT.
(a) CONTINUED ELIGIBILITY. A Participant who is Disabled shall,
for benefit purposes under this Plan, continue to be
considered to be employed and shall be eligible for the
benefits provided for in Articles 5, 6, 7, 8 or 10 in
accordance with the provisions of those Articles.
Notwithstanding the above, the Committee shall have the right
to, in its sole and absolute discretion and for purposes of
this Plan only, deem the Participant's employment to have
terminated at any time after such Participant is determined to
be Disabled.
(b) DEEMED TERMINATION OF EMPLOYMENT. If, in the Committee's
discretion, the Disabled Participant's employment has
terminated, and such Participant is not otherwise eligible to
Retire, the Participant shall be deemed to have experienced a
Termination of Employment for purposes of this Plan and will
receive a Disability Benefit. The Disability Benefit shall be
equal to his or her vested Account Balance, calculated as of
the close of business
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on or around the date on which the Disabled Participant is
deemed to have experienced a Termination of Employment, as
determined by the Committee in its sole discretion. The
Participant shall receive his or her Disability Benefit in a
lump sum payment no later than sixty (60) days after the date
on which the Committee deems the Disabled Participant to have
experienced a Termination of Employment.
(c) DEEMED RETIREMENT. If, in the Committee's discretion, the
Disabled Participant's employment has terminated, and such
Participant is otherwise eligible to Retire, the Participant
shall be deemed to have Retired for purposes of this Plan and
will receive a Disability Benefit. The Disability Benefit
shall be equal to his or her vested Account Balance,
calculated as of the close of business on or around the date
on which the Participant is deemed to have Retired, as
determined by the Committee in its sole discretion. The
Participant shall receive his or her Disability Benefit in the
same form in which such Participant elected to receive his or
her Retirement Benefit. The lump sum payment shall be made, or
installment payments shall commence, no later than sixty (60)
days after the date on which the Disabled Participant is
deemed to have Retired. Remaining installments, if any, shall
be paid no later than fifteen (15) days after the last
business day of the preceding month.
ARTICLE 10
SURVIVOR BENEFIT
10.1 SURVIVOR BENEFIT. If a Participant dies prior to the complete
distribution of his or her vested Account Balance, the Participant's
Beneficiary(ies) shall receive a Survivor Benefit which will be equal
to the Participant's vested Account Balance, calculated as of the close
of business on the first business day following the date of the
Participant's death, as selected by the Committee in its sole
discretion.
10.2 PAYMENT OF SURVIVOR BENEFIT. The Survivor Benefit shall be paid to the
Participant's Beneficiary(ies) in a lump sum payment no later than
sixty (60) days after the date on which the Committee is provided a
death certificate.
ARTICLE 11
BENEFICIARY DESIGNATION
11.1 BENEFICIARY. Each Participant shall have the right, at any time, to
designate his or her Beneficiary(ies) (both primary as well as
contingent) to receive any benefits payable under the Plan to a
beneficiary upon the death of a Participant. The Beneficiary designated
under this Plan may be the same as or different from the Beneficiary
designation under any other plan of the Company in which the
Participant participates.
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11.2 BENEFICIARY DESIGNATION; CHANGE OF BENEFICIARY DESIGNATION. A
Participant shall designate his or her Beneficiary by completing and
signing the Beneficiary Designation Form, and returning it to the
Committee or its designated agent. A Participant shall have the right
to change a Beneficiary by completing, signing and otherwise complying
with the terms of the Beneficiary Designation Form and the Committee's
rules and procedures, as in effect from time to time. The Committee
shall be entitled to rely on the last Beneficiary Designation Form
filed by the Participant and accepted by the Committee prior to his or
her death.
11.3 ACKNOWLEDGMENT. No designation or change in designation of a
Beneficiary shall be effective until received and acknowledged in
writing by the Committee or its designated agent.
11.4 NO BENEFICIARY DESIGNATION. If a Participant fails to designate a
Beneficiary as provided in Sections 11.1, 11.2 and 11.3 above or, if
all designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the
Participant's designated Beneficiary shall be deemed to be his or her
surviving spouse. If the Participant has no surviving spouse, the
benefits remaining under the Plan to be paid to a Beneficiary shall be
payable to the executor or personal representative of the Participant's
estate.
11.5 DOUBT AS TO BENEFICIARY. If the Committee has any doubt as to the
proper Beneficiary to receive payments pursuant to this Plan, the
Committee shall have the right, exercisable in its discretion, to cause
the Company to withhold such payments until this matter is resolved to
the Committee's satisfaction.
11.6 DISCHARGE OF OBLIGATIONS. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge the Company and the
Committee from all further obligations under this Plan with respect to
the Participant, and that Participant's Plan Agreement shall terminate
upon such full payment of benefits.
ARTICLE 12
LEAVE OF ABSENCE
12.1 PAID LEAVE OF ABSENCE. If a Participant is authorized by the Company to
take a paid leave of absence from the employment of the Company, (i)
the Participant shall continue to be considered eligible for the
benefits provided in Articles 5, 6, 7, 8, 9 or 10 in accordance with
the provisions of those Articles, and (ii) the Annual Deferral Amount
shall continue to be withheld during such paid leave of absence in
accordance with Section 3.2.
12.2 UNPAID LEAVE OF ABSENCE. If a Participant is authorized by the Company
to take an unpaid leave of absence from the employment of the Company
for any reason, such Participant shall continue to be eligible for the
benefits provided in Articles 5, 6, 7, 8, 9 or 10 in accordance with
the provisions of those Articles. However, the Participant shall be
excused from fulfilling his or her Annual Deferral Amount commitment
that would otherwise have been withheld during the remainder of the
Plan Year in which the unpaid leave of absence is taken. During the
unpaid leave of absence, the Participant shall not be allowed to make
any additional deferral elections. However, if the Participant returns
to employment, the Participant may elect to defer an Annual Deferral
Amount for the Plan Year following his or her return to employment and
for every Plan Year thereafter while a Participant in the Plan;
provided such deferral elections are otherwise
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allowed and an Election Form is delivered to and accepted by the
Committee or its designee for each such election in accordance with
Section 3.2 above.
ARTICLE 13
TERMINATION, AMENDMENT OR MODIFICATION
13.1 TERMINATION. Although the Company anticipates that it will continue the
Plan for an indefinite period of time, there is no guarantee that the
Company will continue the Plan or will not terminate the Plan at any
time in the future. Accordingly, the Company reserves the right to
discontinue its sponsorship of the Plan and/or to terminate the Plan at
any time with respect to any or all of its participating Employees, by
action of its board of directors. Upon the termination of the Plan with
respect to the Company, the Plan Agreements of the affected
Participants who are employed by the Company, shall terminate and their
vested Account Balances shall be determined (i) as if they had
experienced a Termination of Employment on the date of Plan
termination; or (ii) if Plan termination occurs after the date upon
which a Participant was eligible to Retire, then with respect to that
Participant as if he or she had Retired on the date of Plan
termination. Such benefits shall be paid to the Participants as
follows: (i) prior to a Change in Control, if the Plan is terminated
with respect to all of its Participants, the Company shall have the
right, in its sole discretion, and notwithstanding any elections made
by the Participant, to pay such benefits in a lump sum or pursuant to a
Monthly Installment Method of up to 180 months, with amounts credited
and debited during the installment period as provided herein; or (ii)
prior to a Change in Control, if the Plan is terminated with respect to
less than all of its Participants, the Company shall be required to pay
such benefits in a lump sum; or (iii) after a Change in Control, if the
Plan is terminated with respect to some or all of its Participants, the
Company shall be required to pay such benefits in a lump sum. The
termination of the Plan shall not adversely affect any Participant or
Beneficiary who has become entitled to the payment of any benefits
under the Plan as of the date of termination; provided however, that
the Company shall have the right to accelerate installment payments
without a premium or prepayment penalty by paying the vested Account
Balance in a lump sum or pursuant to a Monthly Installment Method using
fewer months (provided that the present value of all payments that will
have been received by a Participant at any given point of time under
the different payment schedule shall equal or exceed the present value
of all payments that would have been received at that point in time
under the original payment schedule).
13.2 AMENDMENT. The Company may, at any time, amend or modify the Plan in
whole or in part with respect to that Company by the action of its
board of directors; provided, however, that: (i) no amendment or
modification shall be effective to decrease or restrict the value of a
Participant's vested Account Balance in existence at the time the
amendment or modification is made, calculated as if the Participant had
experienced a Termination of Employment as of the effective date of the
amendment or modification or, if the amendment or modification occurs
after the date upon which the Participant was eligible to Retire, the
Participant had Retired as of the effective date of the amendment or
modification, and (ii) no amendment or modification of this Section
13.2 or Section 14.2 of the Plan shall be effective. The amendment or
modification of the Plan shall not affect any Participant or
Beneficiary who has become entitled to the payment of benefits
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under the Plan as of the date of the amendment or modification;
provided, however, that the Company shall have the right to accelerate
installment payments by paying the vested Account Balance in a lump sum
or pursuant to a Monthly Installment Method using fewer months
(provided that the present value of all payments that will have been
received by a Participant at any given point of time under the
different payment schedule shall equal or exceed the present value of
all payments that would have been received at that point in time under
the original payment schedule).
13.3 PLAN AGREEMENT. Despite the provisions of Sections 13.1 and 13.2 above,
if a Participant's Plan Agreement contains benefits or limitations that
are not in this Plan document, the Company may only amend or terminate
such provisions with the written consent of the Participant.
13.4 EFFECT OF PAYMENT. The full payment of the Participant's vested Account
Balance under Articles 5, 6, 7, 8, 9 or 10 of the Plan shall completely
discharge all obligations to a Participant and his or her designated
Beneficiaries under this Plan and the Participant's Plan Agreement
shall terminate.
ARTICLE 14
ADMINISTRATION
14.1 COMMITTEE DUTIES. Except as otherwise provided in this Article 14, this
Plan shall be administered by the Chief Administrative Officer of the
Company, or such committee as the Board shall appoint. Members of the
Committee may be Participants under this Plan. The Committee shall also
have the discretion and authority to (i) make, amend, interpret, and
enforce all appropriate rules and regulations for the administration of
this Plan and (ii) decide or resolve any and all questions including
interpretations of this Plan, as may arise in connection with the Plan.
Any individual serving on the Committee who is a Participant shall not
vote or act on any matter relating solely to himself or herself. When
making a determination or calculation, the Committee shall be entitled
to rely on information furnished by a Participant or the Company.
14.2 ADMINISTRATION UPON CHANGE IN CONTROL. For purposes of this Plan, the
Committee shall be the "Administrator" at all times prior to the
occurrence of a Change in Control. Within one-hundred and twenty (120)
days following a Change in Control, an independent third party
"Administrator" may be selected by the individual who, immediately
prior to the Change in Control, was the Company's Chief Executive
Officer or, if not so identified, the Company's highest ranking officer
(the "Ex-CEO"), and approved by the Trustee. The Committee, as
constituted prior to the Change in Control, shall continue to be the
Administrator until the earlier of (i) the date on which such
independent third party is selected and approved, or (ii) the
expiration of the one-hundred and twenty (120) day period following the
Change in Control. If an independent third party is not selected within
one-hundred and twenty (120) days of such Change in Control, the
Committee, as described in Section 14.1 above, shall be the
Administrator. The Administrator shall have the discretionary power to
determine all questions arising in connection with the administration
of the Plan and the interpretation of the Plan and Trust including, but
not limited to benefit entitlement determinations; provided, however,
upon and after the occurrence of a Change in Control, the Administrator
shall have no power to direct
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the investment of Plan or Trust assets or select any investment manager
or custodial firm for the Plan or Trust. Upon and after the occurrence
of a Change in Control, the Company must: (1) pay all reasonable
administrative expenses and fees of the Administrator; (2) indemnify
the Administrator against any costs, expenses and liabilities
including, without limitation, attorney's fees and expenses arising in
connection with the performance of the Administrator hereunder, except
with respect to matters resulting from the gross negligence or willful
misconduct of the Administrator or its employees or agents; and (3)
supply full and timely information to the Administrator on all matters
relating to the Plan, the Trust, the Participants and their
Beneficiaries, the Account Balances of the Participants, the date and
circumstances of the Retirement, Covered Termination, Disability, death
or Termination of Employment of the Participants, and such other
pertinent information as the Administrator may reasonably require. Upon
and after a Change in Control, the Administrator may be terminated (and
a replacement appointed) by the Trustee only with the approval of the
Ex-CEO. Upon and after a Change in Control, the Administrator may not
be terminated by the Company.
14.3 AGENTS. In the administration of this Plan, the Committee may, from
time to time, employ agents and delegate to them such administrative
duties as it sees fit (including acting through a duly appointed
representative) and may from time to time consult with counsel who may
be counsel to the Company.
14.4 BINDING EFFECT OF DECISIONS. The decision or action of the
Administrator with respect to any question arising out of or in
connection with the administration, interpretation and application of
the Plan and the rules and regulations promulgated hereunder shall be
final and conclusive and binding upon all persons having any interest
in the Plan.
14.5 INDEMNITY OF COMMITTEE. The Company shall indemnify and hold harmless
the members of the Committee, any Employee to whom the duties of the
Committee may be delegated, and the Administrator against any and all
claims, losses, damages, expenses or liabilities arising from any
action or failure to act with respect to this Plan, except in the case
of willful misconduct by the Committee, any of its members, any such
Employee or the Administrator.
14.6 COMPANY INFORMATION. To enable the Committee and/or Administrator to
perform its functions, the Company shall supply full and timely
information to the Committee and/or Administrator, as the case may be,
on all matters relating to the compensation of its Participants, the
date and circumstances of the Retirement, Covered Termination,
Disability, death or Termination of Employment of its Participants, and
such other pertinent information as the Committee or Administrator may
reasonably require.
ARTICLE 15
OTHER BENEFITS AND AGREEMENTS
15.1 COORDINATION WITH OTHER BENEFITS. The benefits provided for a
Participant and Participant's Beneficiary under the Plan are in
addition to any other benefits available to such Participant under any
other plan or program for employees of the Company. The Plan shall
supplement and shall not supersede, modify or amend any other such plan
or program except as may otherwise be expressly provided.
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ARTICLE 16
CLAIMS PROCEDURES
16.1 PRESENTATION OF CLAIM. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as
a "Claimant") may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such
Claimant from the Plan. If such a claim relates to the contents of a
notice received by the Claimant, the claim must be made within sixty
(60) days after such notice was received by the Claimant. All other
claims must be made within 180 days of the date on which the event that
caused the claim to arise occurred. The claim must state with
particularity the determination desired by the Claimant.
16.2 NOTIFICATION OF DECISION. The Committee shall consider a Claimant's
claim within a reasonable time, but no later than ninety (90) days
after receiving the claim. If the Committee determines that special
circumstances require an extension of time for processing the claim,
written notice of the extension shall be furnished to the Claimant
prior to the termination of the initial ninety (90) day period. In no
event shall such extension exceed a period of ninety (90) days from the
end of the initial period. The extension notice shall indicate the
special circumstances requiring an extension of time and the date by
which the Committee expects to render the benefit determination. The
Committee shall notify the Claimant in writing:
(a) that the Claimant's requested determination has been made, and
that the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole
or in part, to the Claimant's requested determination, and
such notice must set forth in a manner calculated to be
understood by the Claimant:
(i) the specific reason(s) for the denial of the claim,
or any part of it;
(ii) specific reference(s) to pertinent provisions of the
Plan upon which such denial was based;
(iii) a description of any additional material or
information necessary for the Claimant to perfect the
claim, and an explanation of why such material or
information is necessary;
(iv) an explanation of the claim review procedure set
forth in Section 16.3 below; and
(v) a statement of the Claimant's right to bring a civil
action under ERISA Section 502(a) following an
adverse benefit determination on review.
16.3 REVIEW OF A DENIED CLAIM. On or before sixty (60) days after receiving
a notice from the Committee that a claim has been denied, in whole or
in part, a Claimant (or the Claimant's duly authorized representative)
may file with the Committee a written request for a review of the
denial of the claim. The Claimant (or the Claimant's duly authorized
representative):
(a) may, upon request and free of charge, have reasonable access
to, and copies of, all documents, records and other
information relevant to the claim for benefits;
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(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole
discretion, may grant.
16.4 DECISION ON REVIEW. The Committee shall render its decision on review
promptly, and no later than sixty (60) days after the Committee
receives the Claimant's written request for a review of the denial of
the claim. If the Committee determines that special circumstances
require an extension of time for processing the claim, written notice
of the extension shall be furnished to the Claimant prior to the
termination of the initial sixty (60) day period. In no event shall
such extension exceed a period of sixty (60) days from the end of the
initial period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the
Committee expects to render the benefit determination. In rendering its
decision, the Committee 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. The
decision must be written in a manner calculated to be understood by the
Claimant, and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon
which the decision was based;
(c) 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 (as
defined in applicable ERISA regulations) to the Claimant's
claim for benefits; and
(d) a statement of the Claimant's right to bring a civil action
under ERISA Section 502(a).
16.5 LEGAL ACTION. A Claimant's compliance with the foregoing provisions of
this Article 16 is a mandatory prerequisite to a Claimant's right to
commence any legal action with respect to any claim for benefits under
this Plan.
ARTICLE 17
TRUST
17.1 ESTABLISHMENT OF THE TRUST. The Company shall establish a trust by a
trust agreement with a third party, the trustee, (the "Trust"), and the
Company shall at least annually transfer over to the Trust such assets
as the Company determines, in its sole discretion, are necessary to
provide, on a present value basis, for its respective future
liabilities created with respect to the Annual Deferral Amounts,
Company Contribution Amounts, and Company Discretionary Match Amounts
for such Company's Participants for all periods prior to the transfer,
as well as any debits and credits to the Participants' Account Balances
for all periods prior to the transfer, taking into consideration the
value of the assets in the trust at the time of the transfer.
17.2 INTERRELATIONSHIP OF THE PLAN AND THE TRUST. The provisions of the Plan
and the Plan Agreement shall govern the rights of a Participant to
receive distributions pursuant to the Plan. The provisions of the Trust
shall govern the rights of the Company, Participants and the creditors
of the Company to the assets transferred to the Trust. The Company
shall at all times remain liable to carry out its obligations under the
Plan.
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17.3 DISTRIBUTIONS FROM THE TRUST. The Company's obligations under the
Plan may be satisfied with Trust assets distributed pursuant to the
terms of the Trust, and any such distribution shall reduce the
Company's obligations under this Plan.
ARTICLE 18
MISCELLANEOUS
18.1 STATUS OF PLAN. The Plan is intended to be a plan that is not
qualified within the meaning of Code Section 401(a) and that
"is unfunded and is maintained by the Company primarily for
the purpose of providing deferred compensation for a select
group of management or highly compensated employees" within
the meaning of ERISA Sections 201(2), 301(a)(3) and 401(a)(1).
The Plan shall be administered and interpreted to the extent
possible in a manner consistent with that intent.
18.2 UNSECURED GENERAL CREDITOR. Participants and their
Beneficiaries, heirs, successors and assigns shall have no
legal or equitable rights, interests or claims in any property
or assets of the Company. For purposes of the payment of
benefits under this Plan, any and all of the Company's assets
shall be, and remain, the general, unpledged unrestricted
assets of the Company. The Company's obligation under the Plan
shall be merely that of an unfunded and unsecured promise to
pay money in the future.
18.3 COMPANY'S LIABILITY. The Company's liability for the payment
of benefits shall be defined only by the Plan and the Plan
Agreement, as entered into between the Company and a
Participant. The Company shall have no obligation to a
Participant under the Plan except as expressly provided in the
Plan and his or her Plan Agreement.
18.4 NONASSIGNABILITY. Neither a Participant nor any other person
shall have any right to commute, sell, assign, transfer,
pledge, anticipate, mortgage or otherwise encumber, transfer,
hypothecate, alienate or convey in advance of actual receipt,
the amounts, if any, payable hereunder, or any part thereof,
which are, and all rights to which are expressly declared to
be, unassignable and non-transferable. No part of the amounts
payable shall, prior to actual payment, be subject to seizure,
attachment, garnishment or sequestration for the payment of
any debts, judgments, alimony or separate maintenance owed by
a Participant or any other person, be transferable by
operation of law in the event of a Participant's or any other
person's bankruptcy or insolvency or be transferable to a
spouse as a result of a property settlement or otherwise.
18.5 NOT A CONTRACT OF EMPLOYMENT. The terms and conditions of this
Plan shall not be deemed to constitute a contract of
employment between the Company and the Participant. Such
employment is hereby acknowledged to be an "at will"
employment relationship that can be terminated at any time for
any reason, or no reason, with or without cause, and with or
without notice, unless expressly provided in a written
employment agreement. Nothing in this Plan shall be deemed to
give a Participant the right to be retained in the service of
the Company as an Employee or to interfere with the right of
the Company to discipline or discharge the Participant at any
time.
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18.6 FURNISHING INFORMATION. A Participant or his or her
Beneficiary will cooperate with the Committee by furnishing
any and all information requested by the Committee and take
such other actions as may be requested in order to facilitate
the administration of the Plan and the payments of benefits
hereunder, including but not limited to taking such physical
examinations as the Committee may deem necessary.
18.7 TERMS. Whenever any words are used herein in the masculine,
they shall be construed as though they were in the feminine in
all cases where they would so apply; and whenever any words
are used herein in the singular or in the plural, they shall
be construed as though they were used in the plural or the
singular, as the case may be, in all cases where they would so
apply.
18.8 CAPTIONS. The captions of the articles, sections and
paragraphs of this Plan are for convenience only and shall not
control or affect the meaning or construction of any of its
provisions.
18.9 GOVERNING LAW. Subject to ERISA, the provisions of this Plan
shall be construed and interpreted according to the internal
laws of the State of California without regard to its
conflicts of laws principles.
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18.10 NOTICE. Any notice or filing required or permitted to be given
to the Committee under this Plan shall be sufficient if in
writing and hand-delivered, or sent by registered or certified
mail, to the address below:
Countrywide Financial Corporation
Attn: Chief Administrative Officer
4500 Park Granada
Calabasas, California 91302
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a
Participant under this Plan shall be sufficient if in writing and
hand-delivered, or sent by mail, to the last known address of the
Participant.
18.11 SUCCESSORS. The provisions of this Plan shall bind and inure
to the benefit of the Company and its successors and assigns
and the Participant and the Participant's designated
Beneficiaries.
18.12 SPOUSE'S INTEREST. The interest in the benefits hereunder of a
spouse of a Participant who has predeceased the Participant
shall automatically pass to the Participant and shall not be
transferable by such spouse in any manner, including but not
limited to such spouse's will, nor shall such interest pass
under the laws of intestate succession.
18.13 VALIDITY. In case any provision of this Plan shall be illegal
or invalid for any reason, said illegality or invalidity shall
not affect the remaining parts hereof, but this Plan shall be
construed and enforced as if such illegal or invalid provision
had never been inserted herein.
18.14 INCOMPETENT. If the Committee determines in its discretion
that a benefit under this Plan is to be paid to a minor, a
person declared incompetent or to a person incapable of
handling the disposition of that person's property, the
Committee may direct payment of such benefit to the guardian,
legal representative or person having the care and custody of
such minor, incompetent or incapable person. The Committee may
require proof of minority, incompetence, incapacity or
guardianship, as it may deem appropriate prior to distribution
of the benefit. Any payment of a benefit shall be a payment
for the account of the Participant and the Participant's
Beneficiary, as the case may be, and shall be a complete
discharge of any liability under the Plan for such payment
amount.
18.15 COURT ORDER. The Committee is authorized to make any payments
directed by court order in any action in which the Plan or the
Committee has been named as a party. In addition, if a court
determines that a spouse or former spouse of a Participant has
an interest in the Participant's benefits under the Plan in
connection with a property settlement or otherwise, the
Committee, in its sole discretion, shall have the right,
notwithstanding any election
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made by a Participant, to immediately distribute the spouse's or
former spouse's interest in the Participant's benefits under the Plan
to that spouse or former spouse.
18.16 DISTRIBUTION IN THE EVENT OF TAXATION.
(a) IN GENERAL. If, for any reason, all or any portion of a
Participant's benefits under this Plan becomes taxable to the
Participant prior to receipt, a Participant may petition the
Committee before a Change in Control, or the trustee of the
Trust after a Change in Control, for a distribution of that
portion of his or her benefit that has become taxable. Upon
the grant of such a petition, which grant shall not be
unreasonably withheld (and, after a Change in Control, shall
be granted), a Participant's Company shall distribute to the
Participant immediately available funds in an amount equal to
the taxable portion of his or her benefit (which amount shall
not exceed a Participant's unpaid vested Account Balance under
the Plan). If the petition is granted, the tax liability
distribution shall be made within 90 days of the date when the
Participant's petition is granted. Such a distribution shall
affect and reduce the benefits to be paid under this Plan.
(b) TRUST. If the Trust terminates in accordance with its terms
and benefits are distributed from the Trust to a Participant
in accordance therewith, the Participant's benefits under this
Plan shall be reduced to the extent of such distributions.
18.17 INSURANCE. The Company on its own behalf or on behalf of the
trustee of the Trust, and, in their sole discretion, may apply
for and procure insurance on the life of the Participant, in
such amounts and in such forms as the Trust may choose. The
Company or the trustee of the Trust, as the case may be, shall
be the sole owner and beneficiary of any such insurance. The
Participant shall have no interest whatsoever in any such
policy or policies, and at the request of the Company shall
submit to medical examinations and supply such information and
execute such documents as may be required by the insurance
company or companies to whom the Company have applied for
insurance.
18.18 LEGAL FEES TO ENFORCE RIGHTS AFTER CHANGE IN CONTROL. The
Company is aware that upon the occurrence of a Change in
Control, the Board or the board of directors of the Company
(which might then be composed of new members) or a shareholder
of the Company, or of any successor corporation might then
cause or attempt to cause the Company or such successor to
refuse to comply with its obligations under the Plan and might
cause or attempt to cause the Company to institute, or may
institute, litigation seeking to deny Participants the
benefits intended under the Plan. In these circumstances, the
purpose of the Plan could be frustrated. Accordingly, if,
following a Change in Control, it should appear to any
Participant that the Company or any successor corporation has
failed to comply with any of its obligations under the Plan or
any agreement thereunder or, if the Company or any other
person takes any action to declare the Plan
void or unenforceable or institutes any litigation or other
legal action designed to deny, diminish or to recover from any
Participant the benefits intended to be provided, then the
Company irrevocably authorizes such Participant to retain
counsel of his or her choice at the expense of the Company to
represent such Participant in connection with the initiation
or defense of any litigation or other legal action, whether by
or against the Company or any
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director, officer, shareholder or other person affiliated with the
Company or any successor thereto in any jurisdiction.
IN WITNESS WHEREOF, the Company has signed this Plan document as of December 23,
2003.
"Company"
Countrywide Financial Corporation, a Delaware
corporation
By: /s/ Thomas H. Boone
----------------------------------------------
Title: Senior Managing Director,
Chief Administrative Officer
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