EXHIBIT 10.72
COUNTRYWIDE FINANCIAL CORPORATION
ERISA Nonqualified Pension Plan
Master Plan Document
EFFECTIVE JANUARY 1, 2003
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS............................................................................. 1
ARTICLE 2 SELECTION, ENROLLMENT, ELIGIBILITY...................................................... 6
2.1 Selection by Committee...................................................................... 6
2.2 Enrollment Requirements..................................................................... 6
2.3 Eligibility; Commencement of Participation.................................................. 6
2.4 Termination of Participation................................................................ 6
ARTICLE 3 LONG-TERM INCENTIVE CONTRIBUTION AMOUNTS/COMPANY
CONTRIBUTION AMOUNTS/VESTING/CONTINGENT
AMOUNTS/CREDITING/TAXES................................................................. 6
3.1 Long-Term Incentive Contribution Amounts.................................................... 7
3.2 Annual Company Contribution Amount.......................................................... 7
3.3 Vesting..................................................................................... 7
3.4 Effect of a Participant's Covered Termination, Retirement, Death while Employed
by an Employer or Disability................................................................ 8
3.5 Crediting/Debiting of Account Balances...................................................... 9
3.6 FICA and Other Taxes........................................................................ 10
ARTICLE 4 UNFORESEEABLE FINANCIAL EMERGENCIES; WITHDRAWAL ELECTION................................ 11
4.1 Withdrawal for Unforeseeable Financial Emergencies.......................................... 11
4.2 Withdrawal Election......................................................................... 11
ARTICLE 5 COVERED TERMINATION BENEFIT............................................................. 12
5.1 Covered Termination Benefit................................................................. 12
5.2 Payment of Change in Control Benefit........................................................ 12
ARTICLE 6 RETIREMENT BENEFIT...................................................................... 12
6.1 Retirement Benefit.......................................................................... 12
6.2 Payment of Retirement Benefit............................................................... 12
ARTICLE 7 TERMINATION BENEFIT..................................................................... 13
7.1 Termination Benefit......................................................................... 13
7.2 Payment of Termination Benefit.............................................................. 13
ARTICLE 8 CONTINUED ELIGIBILITY; DISABILITY BENEFIT............................................... 13
8.1 Continued Eligibility....................................................................... 13
8.2 Deemed Termination of Employment............................................................ 13
8.3 Deemed Retirement........................................................................... 14
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TABLE OF CONTENTS
(continued)
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ARTICLE 9 SURVIVOR BENEFIT........................................................................ 14
9.1 Survivor Benefit............................................................................ 14
9.2 Payment of Survivor Benefit................................................................. 14
ARTICLE 10 BENEFICIARY DESIGNATION................................................................. 14
10.1 Beneficiary................................................................................. 15
10.2 Beneficiary Designation; Change of Beneficiary Designation.................................. 15
10.3 Acknowledgment.............................................................................. 15
10.4 No Beneficiary Designation.................................................................. 15
10.5 Doubt as to Beneficiary..................................................................... 16
10.6 Discharge of Obligations.................................................................... 16
ARTICLE 11 LEAVE OF ABSENCE........................................................................ 16
11.1 Leave of Absence............................................................................ 16
ARTICLE 12 TERMINATION, AMENDMENT OR MODIFICATION.................................................. 16
12.1 Termination................................................................................. 16
12.2 Amendment................................................................................... 17
12.3 Participation Agreement..................................................................... 18
12.4 Effect of Payment........................................................................... 18
ARTICLE 13 ADMINISTRATION.......................................................................... 18
13.1 Committee Duties............................................................................ 18
13.2 Administration Upon Change In Control....................................................... 18
13.3 Agents...................................................................................... 19
13.4 Binding Effect of Decisions................................................................. 19
13.5 Indemnity of Committee...................................................................... 19
13.6 Employer Information........................................................................ 19
ARTICLE 14 OTHER BENEFITS AND AGREEMENTS........................................................... 20
14.1 Coordination with Other Benefits............................................................ 20
ARTICLE 15 CLAIMS PROCEDURES....................................................................... 20
15.1 Presentation of Claim....................................................................... 20
15.2 Notification of Decision.................................................................... 20
15.3 Review of a Denied Claim.................................................................... 21
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TABLE OF CONTENTS
(continued)
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15.4 Decision on Review.......................................................................... 21
15.5 Legal Action................................................................................ 22
ARTICLE 16 TRUST................................................................................... 22
16.1 Establishment of the Trust.................................................................. 22
16.2 Interrelationship of the Plan and the Trust................................................. 22
16.3 Distributions From the Trust................................................................ 23
ARTICLE 17 MISCELLANEOUS........................................................................... 23
17.1 Status of Plan.............................................................................. 23
17.2 Unsecured General Creditor.................................................................. 23
17.3 Employer's Liability........................................................................ 23
17.4 Nonassignability............................................................................ 23
17.5 Not a Contract of Employment................................................................ 23
17.6 Furnishing Information...................................................................... 24
17.7 Terms....................................................................................... 24
17.8 Captions.................................................................................... 24
17.9 Governing Law............................................................................... 24
17.10 Notice...................................................................................... 24
17.11 Successors.................................................................................. 24
17.12 Spouse's Interest........................................................................... 25
17.13 Validity.................................................................................... 25
17.14 Incompetent................................................................................. 25
17.15 Court Order................................................................................. 25
17.16 Distribution in the Event of Taxation....................................................... 25
17.17 Insurance................................................................................... 26
17.18 Legal Fees To Enforce Rights After Change in Control........................................ 26
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COUNTRYWIDE FINANCIAL CORPORATION
ERISA Nonqualified Pension Plan
Master Plan Document
COUNTRYWIDE FINANCIAL CORPORATION
ERISA NONQUALIFIED PENSION PLAN
Effective January 1, 2003
PURPOSE
The purpose of this Plan is to provide retirement and post-termination
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 Employer equal to the sum of the Long-Term
Incentive Account balance and the Company Contribution 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 Company Contribution Amount" shall mean, for any one Plan Year,
the amount determined in accordance with Section 3.2.
1.3. "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 10, that are entitled
to receive benefits under this Plan upon the death of a Participant.
1.4. "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.
1.5. "Board" shall mean the board of directors of the Company.
1.6. "Change in Control" shall mean a "change in control" as defined under
the Countrywide Financial Corporation Change in Control Severance Plan
as that definition may be amended at any time and from time to time in
accordance with that plan.
1.7. "Claimant" shall have the meaning set forth in Section 15.1.
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ERISA Nonqualified Pension Plan
Master Plan Document
1.8. "Code" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time.
1.9. "Committee" shall mean the committee described in Article 13.
1.10. "Covered Termination" shall mean any termination of a Participant's
employment in connection with a Change in Control that entitles the
Participant to receive severance benefits under the Countrywide
Financial Corporation Change in Control Severance Plan.
1.11. "Covered Termination Benefit" shall have the meaning set forth in
Article 5.
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 Annual 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. "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
Participant's Employer, or (ii) the Social Security Administration.
Upon request by the Employer, the Participant must submit proof of the
carrier's or Social Security Administration's determination.
1.15. "Disability Benefit" shall mean the benefit set forth in Article 8.
1.16. "Distribution 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 a distribution election under the
Plan.
1.17. "Employee" shall mean a person whom any Employer treats as an employee
for purposes of federal income tax withholding, regardless of whether
or not the person would be treated as an employee under applicable
common law.
1.18. "Employer(s)" shall mean the Company, Countrywide Home Loans, Inc.,
Countrywide Capital Markets, Inc., Countrywide Securities Corporation
and any other subsidiary of the Company that elects to participate in
the Plan.
1.19. "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as it may be amended from time to time.
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ERISA Nonqualified Pension Plan
Master Plan Document
1.20. "First Plan Year" shall mean the period beginning January 1, 2003 and
ending December 31, 2003.
1.21. "Investment 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 investment election under the Plan.
1.22. "Long-Term Incentive Account" shall mean (i) the sum of all of a
Participant's Long-Term Incentive Contribution Amounts, plus (ii)
amounts credited or debited to the Participant's Long-Term Incentive
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 Long-Term Incentive Account.
1.23. "Long-Term Incentive Contribution Amounts" shall mean the amounts
determined and contributed in accordance with Section 3.1.
1.24. "Participant" shall mean any Employee who commences participation in
the Plan pursuant to Article 2, and whose Participation Agreement has
not terminated. A spouse, former spouse or domestic partner 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.
1.25. "Participation Agreement" shall mean a written agreement, as may be
amended from time to time, which is entered into by and between an
Employer and a Participant. Each Participation Agreement executed by a
Participant and the Participant's Employer shall provide for the entire
benefit to which such Participant is entitled under the Plan; should
there be more than one Participation Agreement, the Participation
Agreement bearing the latest date of acceptance by the Employer shall
supersede all previous Participation Agreements in their entirety and
shall govern such entitlement. The terms of any Participation Agreement
may be different for any Participant, and any Participation Agreement
may provide additional benefits not set forth in the Plan or limit the
benefits otherwise provided under the Plan.
1.26. "Plan" shall mean the Countrywide Financial Corporation ERISA
Nonqualified Pension Plan, which shall be evidenced by this instrument
and by each Participation Agreement, as they may be amended from time
to time.
1.27. "Plan Year" shall mean a period beginning on January 1 of each calendar
year and continuing through December 31 of such calendar year.
1.28. "Retirement", "Retire(s)" or "Retired" shall mean, with respect to an
Employee, severance from employment from all Employers for any reason
other than a leave of
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ERISA Nonqualified Pension Plan
Master Plan Document
absence, death or Disability on or after the date on which (i) a
Participant attains age 45 (ii) such Participant's age plus Years of
Service equals at least 65, and (iii) the Participant has completed at
least five (5) Years of Plan Participation.
1.29. "Retirement Compensation" shall mean any compensation (i) the
Participant becomes eligible to receive in exchange for satisfying
performance criteria set forth in the Participant's Participation
Agreement and (ii) remains contingent upon the Participant's
performance of future services. As soon as reasonably practicable after
the beginning of each Plan Year, the Committee shall in its sole
discretion establish the criteria that will be used to determine the
Participant's Retirement Compensation for that Plan Year and shall
notify the Participant in writing of the criteria via an addendum to
the Participant's Participation Agreement.
1.30. "Retirement Benefit" shall mean the benefit set forth in Article 6.
1.31. "Semi-Monthly Installment Method" shall be a semi-monthly installment
payment over the number of months selected by the Participant in
accordance with this Plan, calculated as follows: (i) for the first
semi-monthly installment, the vested and nonforfeitable 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 8.3 or experiences a
Covered Termination, as determined by the Committee in its sole
discretion, and (ii) for remaining semi-monthly installments, the
vested and nonforfeitable portion of the Account Balance of the
Participant shall be calculated on or around the last business day of
the preceding semi-monthly payment. Each semi-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
semi-monthly payments due the Participant. By way of example, if the
Participant elects to receive his or her Account Balance pursuant to a
Semi-Monthly Installment Method of 120 months, the first payment shall
be 1/240 of the vested and nonforfeitable portion of the Account
Balance, calculated as described in this definition. The following
semi-monthly payment shall be 1/239 of the vested and nonforfeitable
portion of the Account Balance, calculated as described in this
definition.
1.32. "Service Period" shall mean (i) with respect to Long-Term Incentive
Contribution Amounts, the applicable period of Participant's service
during which such amounts were measured and credited, as provided in
the Countrywide Securities Corporation long-term incentive plan or any
other long-term incentive arrangement, designated by the Committee, in
effect for the applicable period, and (ii) with respect to Annual
Company Contribution Amounts, the calendar year during which such
Annual Company Contribution Amounts shall be deemed measured and
earned, as described more fully in Section 3.2.
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ERISA Nonqualified Pension Plan
Master Plan Document
1.33. "Survivor Benefit" shall mean the benefit set forth in Article 9.
1.34. "Termination Benefit" shall mean the benefit set forth in Article 7.
1.35. "Termination of Employment" shall mean severing the status of an
Employee with all Employers, voluntarily or involuntarily, for any
reason other than a Covered Termination, Retirement, Disability, death
or an authorized leave of absence.
1.36. "Threshold" shall mean the Retirement Compensation threshold set forth
in the Participant's Participation Agreement. As soon a reasonably
practicable after the beginning of each Plan Year, the Employer shall,
in its sole discretion, establish the Participant's Threshold for that
Plan Year and shall notify the Participant in writing of the Threshold
via an addendum to the Participant's Participation Agreement.
1.37. "Trust" shall mean one or more trusts established by the Company in
accordance with Article 16.
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.
1.39. "Years of Plan Participation" shall mean the total number of full Plan
Years a Participant has been a Participant in the Plan prior to his or
her severance from employment from all Employers for any reason other
than a leave of absence, death or Disability (determined without regard
to whether deferral elections have been made by the Participant for any
Plan Year). Any partial year shall not be counted. Notwithstanding the
previous sentence, a Participant's first Plan Year of participation
shall be treated as a full Plan Year for purposes of this definition,
even if it is only a partial Plan Year of participation or relates to
the First Plan Year.
1.40. "Years of Service" shall mean the total number of full years in which a
Participant has been employed by one or more Employers. 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 shall make a determination as to whether any partial year
of employment shall be counted as a Year of Service. If a Participant
terminates employment and is subsequently reemployed by any Employer,
the Participant's service before
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ERISA Nonqualified Pension Plan
Master Plan Document
reemployment shall be disregarded unless the Committee determines
otherwise in a Participation Agreement or other written document.
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 of the
Employer, 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
Participation Agreement, a Distribution Election Form, an Investment
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 in a form accepted by
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 has satisfied all enrollment
requirements.
2.4 TERMINATION OF PARTICIPATION. 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) cease contributing Annual Company Contribution
Amounts to the Participant's Company Contribution Account; and/or (ii)
immediately distribute the Participant's then vested and nonforfeitable
portion of the Account Balance as a Termination Benefit and terminate
the Participant's participation in the Plan.
ARTICLE 3
LONG-TERM INCENTIVE CONTRIBUTION AMOUNTS/COMPANY CONTRIBUTION
AMOUNTS/VESTING/CONTINGENT AMOUNTS/CREDITING/TAXES
3.1 LONG-TERM INCENTIVE CONTRIBUTION AMOUNTS. In connection with a
Participant's commencement of participation in the Plan during the
First Plan Year, the Employer shall credit to the Participant's
Long-Term Incentive Account an amount equal to 110-percent of any
compensation that (i) would have become payable to a Participant under
the
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COUNTRYWIDE FINANCIAL CORPORATION
ERISA Nonqualified Pension Plan
Master Plan Document
Countrywide Securities Corporation Long-Term Incentive Plan or any
other long-term incentive arrangement, as determined by the Committee,
had such arrangements been continued by the Employer, (ii) is
attributable to Service Periods beginning after February 28, 2001,
excluding amounts that are payable in 2004, and (iii) remains
contingent upon the Participant's performance of future services.
Long-Term Incentive Contribution Amounts shall be credited to a
Participant's Long-Term Incentive Account within 30 days after the
later of September 1, 2003 or the date the Participant enrolls in the
Plan pursuant to Section 2.2.
3.2 ANNUAL COMPANY CONTRIBUTION AMOUNT.
(a) For each Plan Year, an Employer may be
required to credit amounts to a Participant's Company Contribution Account in
accordance with employment or other agreements entered into between the
Participant and the Employer. Such amounts shall be credited on the date or
dates prescribed by such agreements, or if not provided in such agreements, such
amounts shall be credited on a date or dates to be determined by the Committee
in its sole discretion.
(b) For each Plan Year, the Employer shall
credit to a Participant's Company Contribution Account an amount equal to the
Participant's Retirement Compensation in excess of the Threshold. The Annual
Company Contribution Amount described in this Section 3.2(b) if any, shall be
credited on the last day of the first calendar month following the Service
Period to which such amount relates, as determined by the Committee in its sole
discretion.
3.3 VESTING.
(a) A Participant shall vest in the Annual
Company Contribution Amount described in Section 3.2(a) plus amounts credited or
debited on such amounts (pursuant to Section 3.5), in accordance with the
vesting schedule(s) set forth in his or her Participation Agreement, employment
agreement or any other agreement entered into between the Participant and his or
her Employer. If not addressed in such agreements, a Participant shall vest in
such amounts in accordance with the schedule declared by the Committee in its
sole discretion.
(b) A Participant shall vest in his or her
Long-Term Incentive Contribution Amounts and Annual Company Contributions
described in Section 3.2(b), plus amounts credited or debited on such amounts
(pursuant to Section 3.6), on the last day of the calendar month following the
first (1st), second (2nd) or third (3rd) anniversary of the Service Period to
which such amounts relate, in accordance with the schedule set forth below;
provided, however, the Participant must remain in continuous service as an
Employee through the last day of the calendar month following the anniversary of
the Service Period to which such amounts relate, in order to receive vesting
credit for such Service Period. A new vesting schedule shall
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ERISA Nonqualified Pension Plan
Master Plan Document
apply to each Long-Term Incentive Contribution Amount credited to the
Participant's Long-Term Incentive Account and to each Annual Company
Contribution described in Section 3.2(b) credited to the Participant's Company
Contribution Account.
TIME ELAPSED AFTER THE END OF THE SERVICE
PERIOD TO WHICH AMOUNTS RELATE VESTED PERCENTAGE
Less than 1 year None
1 year or more, but less than 2 15%
2 years or more, but less than 3 40%
3 years or more 100%
3.4 EFFECT OF A PARTICIPANT'S COVERED TERMINATION, RETIREMENT, DEATH WHILE
EMPLOYED BY AN EMPLOYER OR DISABILITY
(a) Notwithstanding anything to the contrary
contained in Section 3.3, in the event of a Participant's Covered Termination,
or upon a Participant's death while employed by an Employer or Disability, any
amounts which are not vested in accordance with Section 3.3, shall immediately
become vested and nonforfeitable. Upon a Participant's Retirement, the Committee
in its sole discretion may provide that any amounts that are not vested in
accordance with Section 3.3 shall immediately become vested and nonforfeitable.
(b) Notwithstanding subsection 3.4(a) above,
upon a Participant's Covered Termination, the applicable vesting schedule for
amounts described in Section 3.3 shall not be accelerated to the extent that the
Committee determines that such release and/or acceleration would cause a loss of
an Employer's tax deductions associated with such amounts under section 280G of
the Code. 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 and/or released 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.
(c) Section 3.4(b) shall not prevent the
acceleration of the applicable vesting schedule for amounts described in Section
3.3, 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
Employer.
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ERISA Nonqualified Pension Plan
Master Plan Document
3.5 CREDITING/DEBITING OF ACCOUNT BALANCES. Effective September 1, 2003, 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 3.5(c) below, the Participant may elect one or
more of the measurement funds selected by the Committee, 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 or desired within the Committee's discretion, the
Committee 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 Committee gives Participants advance written notice of such change.
(b) ELECTION OF MEASUREMENT FUNDS. Subject to
the restrictions found in Section 3.5(c) below, a Participant, in connection
with his or her initial enrollment in accordance with Section 2.2 above, shall
elect, on the Investment Election Form, one or more Measurement Fund(s) (as
described in Section 3.5(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 3.5(c) below, the
Participant may (but is not required to) elect, by submitting an Investment
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 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 of the month immediately
following the date of the election, 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 Committee, in its sole discretion, adds a Fixed Rate Fund
Measurement Fund or other special Measurement Fund to this Plan, the provisions
this Section 3.5(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
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ERISA Nonqualified Pension Plan
Master Plan Document
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 3.5(b) above, the Participant shall specify on the
Investment 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 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.
3.6 FICA AND OTHER TAXES.
(a) NONFORFEITABLE CONTRIBUTIONS. When any
portion of a Participant's Account Balance becomes vested and nonforfeitable,
the Participant's Employer(s) shall withhold from the Participant's cash
compensation, in a manner determined by the Employer(s), the Participant's share
of FICA and other employment taxes. If necessary, the Committee may reduce the
vested and nonforfeitable portion of the Participant's Account Balance Account,
as applicable, in order to comply with this Section 3.6.
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(b) DISTRIBUTIONS. The Participant's
Employer(s), 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 Employer(s), 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 Employer(s) and the trustee of the
Trust.
ARTICLE 4
UNFORESEEABLE FINANCIAL EMERGENCIES; WITHDRAWAL ELECTION
4.1 WITHDRAWAL FOR UNFORESEEABLE FINANCIAL EMERGENCIES.
(a) If the Participant experiences an
Unforeseeable Financial Emergency during employment or after termination due to
Disability or Retirement, the Participant may 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 vested and nonforfeitable portion of the Participant's Account Balance,
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 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, or
(B) by liquidation of the Participant's assets, to the extent the liquidation of
such assets would not itself cause severe financial hardship.
(c) If the Committee, in its sole discretion,
approves a Participant's petition for payout, the Participant shall receive a
payout from the Plan within sixty (60) days of the date of such approval.
4.2 WITHDRAWAL ELECTION. A Participant (or, after a Participant's death,
his or her Beneficiary) may elect, subject to Committee approval, to
withdraw up to his or her vested and nonforfeitable Account Balance,
less a withdrawal penalty equal to 10% of such amount (the net amount
shall be referred to as the "Withdrawal Amount"). This election can be
made at any time, before or after Retirement, Disability, death Covered
Termination or Termination of Employment, and whether or not the
Participant (or Beneficiary) is in the process of being paid pursuant
to an installment payment schedule. If made before Retirement,
Disability Covered Termination, or death, a Participant's Withdrawal
Amount shall be his or her Account Balance calculated as if there had
occurred a Termination of Employment as of the day of the election. The
Participant (or his or her Beneficiary) shall make this election by
giving the Committee advance written
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notice of the election in a form determined from time to time by the
Committee. The Participant (or his or her Beneficiary) shall be paid
the Withdrawal Amount in a lump sum within 60 days of Committee
approval.
ARTICLE 5
COVERED TERMINATION BENEFIT
5.1 COVERED TERMINATION BENEFIT. A Participant will receive a Covered
Termination Benefit if he or she experiences a Covered Termination
prior to becoming eligible for the benefits provided in Articles 6, 7,
8 or 9 in accordance with the provisions of those Articles. The Covered
Termination Benefit shall be equal to the Participant's vested and
nonforfeitable portion of the 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.
5.2 PAYMENT OF CHANGE IN CONTROL BENEFIT. A Participant, in connection with
his or her commencement of participation in the Plan, may elect on a
Distribution Election Form to receive the Covered Termination Benefit
in a lump sum or pursuant to a Semi-Monthly Installment Method over
thirty-six (36) months. The Participant may change his or her election
to an allowable alternative payout period by submitting a new
Distribution Election Form to the Committee, provided that any such
Distribution Election Form is submitted to and accepted by the
Committee in its sole discretion at least ninety (90) days prior to a
Covered Termination. If a Participant does not make any election with
respect to the payment of the Covered Termination 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 preceding installment payment.
ARTICLE 6
RETIREMENT BENEFIT
6.1 RETIREMENT BENEFIT. A Participant who Retires shall receive, as a
Retirement Benefit, his or her vested and nonforfeitable portion of the
Account Balance, calculated as of the close of business on or as soon
as administratively feasible following the date on which the
Participant Retires, as determined by the Committee in its sole
discretion.
6.2 PAYMENT OF RETIREMENT BENEFIT. A Participant, in connection with his or
her commencement of participation in the Plan, shall elect on a
Distribution Election Form to receive the Retirement Benefit in a lump
sum or pursuant to a Semi-Monthly Installment Method of 60, 120 or 180
months. The Participant may change his or her election to an
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allowable alternative payout period by submitting a new Distribution
Election Form to the Committee, provided that any such Distribution
Election Form is submitted to and accepted by the Committee in its sole
discretion at least thirteen (13) months prior to the Participant's
Retirement. The Distribution 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, as determined by the Committee in its sole
discretion. Remaining installments, if any, shall be paid no later than
fifteen (15) days after the preceding installment payment.
ARTICLE 7
TERMINATION BENEFIT
7.1 TERMINATION BENEFIT. A Participant who experiences a Termination of
Employment, as determined by the Committee in its sole discretion,
shall receive a Termination Benefit, which shall be equal to the
Participant's vested and nonforfeitable portion of the Account Balance,
calculated as of the close of business on or as soon as
administratively feasible following the date on which the Participant
experiences a Termination of Employment.
7.2 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 8
CONTINUED ELIGIBILITY; DISABILITY BENEFIT
8.1 CONTINUED ELIGIBILITY. A Participant suffering a Disability 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 4, 5, 6, 7, 8 or 9 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 suffering a Disability.
8.2 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 and unvested Account
Balance, calculated as of the close of business on or as soon as
administratively feasible following
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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.
8.3 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 and
unvested Account Balance, calculated as of the close of business on or
as soon as administratively feasible following 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 preceding installment payment.
ARTICLE 9
SURVIVOR BENEFIT
9.1 SURVIVOR BENEFIT. The Participant's Beneficiary(ies) shall receive a
Survivor Benefit upon the Participant's death which will be equal to
the Participant's vested and unvested Account Balance, calculated as of
the close of business on or around the date of the Participant's death,
as selected by the Committee in its sole discretion, if the Participant
dies prior to (i) his or her Retirement, Covered Termination,
Termination of Employment or Disability, or (ii) the complete
distribution of Participant's Retirement Benefit, Change in Control
Benefit or Disability Benefit, calculated as of the close of business
on or around the date of the Participant's death, as selected by the
Committee in its sole discretion.
9.2 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 with
proof that is satisfactory to the Committee of the Participant's death.
ARTICLE 10
BENEFICIARY DESIGNATION
10.1 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
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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 an Employer in
which the Participant participates. In the event any amount is payable
under the Plan to a minor, payment shall not be made to the minor, but
instead be paid (a) to that person's living parent(s) to act as
custodian, (b) if that person's parents are then divorced, and one
parent is the sole custodial parent, to such custodial parent, or (c)
if no parent of that person is then living, to a custodian selected by
the Committee to hold the funds for the minor under the Uniform
Transfers of Gifts to Minors Act in effect in the jurisdiction in which
the minor resides. If no parent is living and the Committee decides not
to select another custodian to hold the funds for the minor, then
payment shall be made to the duly appointed and currently acting
guardian of the estate for the minor or, if no guardian of the estate
for the minor is duly appointed and currently acting within 60 days
after the date the amount becomes payable, payment shall be deposited
with the court having jurisdiction over the estate of the minor.
10.2 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. Upon the
acceptance by the Committee of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be canceled. 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.
10.3 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.
10.4 NO BENEFICIARY DESIGNATION. If a Participant fails to designate a
Beneficiary as provided in Sections 10.1 and 10.2 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.
10.5 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 Participant's Employer to withhold such payments until this matter
is resolved to the Committee's satisfaction.
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10.6 DISCHARGE OF OBLIGATIONS. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge all Employers and the
Committee from all further obligations under this Plan with respect to
the Participant, and that Participant's Participation Agreement shall
terminate upon such full payment of benefits.
ARTICLE 11
LEAVE OF ABSENCE
11.1 LEAVE OF ABSENCE. If a Participant is authorized by the Participant's
Employer to take a paid or unpaid leave of absence from the employment
of the Employer, the Participant (i) shall continue to be considered
eligible for the benefits provided in Articles 4, 5, 6, 7, 8 or 9 in
accordance with the provisions of those Articles, including vesting of
Long-Term Incentive Contribution Amounts and Annual Company
Contributions unless otherwise determined by the Employer in granting
the leave of absence, and (ii) shall not be eligible to receive future
Annual Company Contributions described in Section 3.2(b).
ARTICLE 12
TERMINATION, AMENDMENT OR MODIFICATION
12.1 TERMINATION. Although each Employer anticipates that it will continue
the Plan for an indefinite period of time, there is no guarantee that
any Employer will continue the Plan or will not terminate the Plan at
any time in the future. Accordingly, each Employer 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 any Employer, the Participation Agreements of the
affected Participants who are employed by that Employer shall
terminate, and their vested and nonforfeitable portion of their Account
Balances shall be determined (i) as if they had experienced a
Termination of Employment on the date of Plan termination if that date
is before a Change in Control; (ii) as if they had experienced a
Covered Termination on the date of Plan termination if that date is on
or after a Change in control; or (iii) 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, an Employer 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
Semi-Monthly Installment Method determined by the Committee 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,
an Employer shall be required to pay such benefits in accordance with
Articles 6, 7, 8 and 9; or (iii) after a Change in Control, if the Plan
is terminated with respect to some or all of its Participants, the
Employer shall be required to pay such
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benefits in accordance with Section 5.2. The termination of the Plan
shall not adversely affect any Participant or Beneficiary who has
become entitled to the payment of any vested and nonforfeitable
benefits under the Plan as of the date of termination; provided
however, that the Employer shall have the right to accelerate
installment payments without a premium or prepayment penalty by paying
the vested and nonforfeitable portion of the Account Balance in a lump
sum or pursuant to a Semi-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). If the Plan is terminated and a
Participant would not otherwise be entitled to his or her entire
Long-Term Incentive Account balance, the unvested portion(s) of the
Participant's Long-Term Incentive Account balance shall become vested
and be distributed to the Participant within sixty (60) days after the
date on which such portion(s) would otherwise have become vested
pursuant to Section 3.3(b) of the Plan had it not terminated; provided,
however, the Participant must remain in continuous service as an
Employee through such vesting date in order to receive a distribution
of that portion.
12.2 AMENDMENT. Any Employer may, at any time, amend or modify the Plan in
whole or in part with respect to that Employer 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 and nonforfeitable portion of the 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 12.2 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 vested and nonforfeitable under the Plan as of the date of the
amendment or modification; provided, however, that the Employer shall
have the right to accelerate installment payments by paying the vested
and nonforfeitable portion of the Account Balance in a lump sum or
pursuant to an Semi-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). Nothing in this Section 12.2 shall
prevent the Employer from amending or modifying the Plan at any time to
preserve its intended tax consequences.
12.3 PARTICIPATION AGREEMENT. Despite the provisions of Sections 12.1 and
12.1 above, if a Participant's Participation Agreement contains
benefits or limitations that are not
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addressed in this Plan document, the Employer may only amend or
terminate such provisions with the written consent of the Participant.
Notwithstanding the preceding sentence, an Employer may modify, amend
or discontinue Annual Company Contributions described in Section 3.2(b)
at any time for any reason.
12.4 EFFECT OF PAYMENT. The full payment of the Participant's vested and
nonforfeitable portion of the Account Balance under Articles 4, 5, 6,
7, 8 or 9 of the Plan shall completely discharge all obligations to a
Participant and his or her designated Beneficiaries under this Plan and
the Participant's Participation Agreement shall terminate.
ARTICLE 13
ADMINISTRATION
13.1 COMMITTEE DUTIES. Except as otherwise provided in this Article 13, this
Plan shall be administered by a Committee, which shall consist of the
Chief Administrative Officer, Managing Director of Human Resources and
Managing Director, President and Chief Executive Officer of Countrywide
Securities Corporation. 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.
13.2 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 13.1 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
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and after the occurrence of a Change in Control, the Administrator
shall have no power to direct 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, Disability,
Covered Termination, 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.
13.3 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 any Employer.
13.4 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.
13.5 INDEMNITY OF COMMITTEE. All Employers 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.
13.6 EMPLOYER INFORMATION. To enable the Committee and/or Administrator to
perform its functions, the Company and each Employer 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, Disability,
Covered Termination, death or Termination of Employment of its
Participants, and such other pertinent information as the Committee or
Administrator may reasonably require.
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ARTICLE 14
OTHER BENEFITS AND AGREEMENTS
14.1 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 Participant's Employer. The
Plan shall supplement and shall not supersede, modify or amend any
other such plan or program except as may otherwise be expressly
provided. For purpose of calculating "Bonus" under the Countrywide
Financial Corporation Change in Control Severance Plan, any Long-Term
Incentive Contribution Amount or Annual Company Contribution that is
calculated based on services rendered in a specific calendar year shall
be deemed to be a bonus paid or payable for such calendar year, even
though such amounts may be contributed to the Plan and become vested
and nonforfeitable in a later year.
ARTICLE 15
CLAIMS PROCEDURES
15.1 PRESENTATION OF CLAIM. Any Participant, Beneficiary of a deceased
Participant, or authorized representative of either of them (such
person 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.
15.2 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
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(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 15.3 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.
15.3 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;
(b) may submit written comments or other
documents; and/or
(c) may request a hearing, which the Committee,
in its sole discretion, may grant.
15.4 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
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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).
15.5 LEGAL ACTION. A Claimant's compliance with the foregoing provisions of
this Article 15 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 16
TRUST
16.1 ESTABLISHMENT OF THE TRUST. The Company shall establish a trust by a
trust agreement with a third party, the trustee, (the "Trust"), and
each Employer shall at least annually transfer over to the Trust such
assets as the Employer 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 Company
Contribution Amounts and Long-Term Incentive Contribution Amounts, for
such Employer'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.
16.2 INTERRELATIONSHIP OF THE PLAN AND THE TRUST. The provisions of the Plan
and the Participation 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 Employers,
Participants and the creditors of the Employers to the assets
transferred to the Trust. Each Employer shall at all times remain
liable to carry out its obligations under the Plan.
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16.3 DISTRIBUTIONS FROM THE TRUST. Each Employer'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
Employer's obligations under this Plan.
ARTICLE 17
MISCELLANEOUS
17.1 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 an employer 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.
17.2 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 an Employer. For
purposes of the payment of benefits under this Plan, any and all of an
Employer's assets shall be, and remain, the general, unpledged
unrestricted assets of the Employer. An Employer's obligation under the
Plan shall be merely that of an unfunded and unsecured promise to pay
money in the future.
17.3 EMPLOYER'S LIABILITY. An Employer's liability for the payment of
benefits shall be defined only by the Plan and the Participation
Agreement, as entered into between the Employer and a Participant. An
Employer shall have no obligation to a Participant under the Plan
except as expressly provided in the Plan and his or her Participation
Agreement.
17.4 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.
17.5 NOT A CONTRACT OF EMPLOYMENT. The terms and conditions of this Plan
shall not be deemed to constitute a contract of employment between any
Employer 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
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employment agreement. Nothing in this Plan shall be deemed to give a
Participant the right to be retained in the service of any Employer as
an Employee, or to interfere with the right of any Employer to
discipline or discharge the Participant at any time.
17.6 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.
17.7 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.
17.8 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.
17.9 GOVERNING LAW. The Plan is subject to and shall be construed and
interpreted in accordance with ERISA. To the extent state laws are not
preempted by ERISA or other federal laws, this Plan shall be subject to
and construed and interpreted in accordance with the laws of the State
of California without regard to its conflicts of laws principles.
17.10 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, CA 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.
17.11 SUCCESSORS. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns
and the Participant and the Participant's designated Beneficiaries.
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17.12 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 interstate
succession.
17.13 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.
17.14 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.
17.15 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 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.
17.16 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 Employer
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 and nonforfeitable portion of the 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.
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(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.
17.17 INSURANCE. The Employers, on their 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 Employers 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
Employers 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 Employers have applied for
insurance.
17.18 LEGAL FEES TO ENFORCE RIGHTS AFTER CHANGE IN CONTROL. The Company and
each Employer is aware that upon the occurrence of a Change in Control,
the Board or the board of directors of a Participant's Employer (which
might then be composed of new members) or a shareholder of the Company
or the Participant's Employer, or of any successor corporation might
then cause or attempt to cause the Company, the Participant's Employer
or such successor to refuse to comply with its obligations under the
Plan and might cause or attempt to cause the Company or the
Participant's Employer 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, the Participant's Employer or any
successor corporation has failed to comply with any of its obligations
under the Plan or any agreement thereunder or, if the Company, such
Employer 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 and the
Participant's Employer irrevocably authorize such Participant to retain
counsel of his or her choice at the expense of the Company and the
Participant's Employer (who shall be jointly and severally liable) to
represent such Participant in connection with the initiation or defense
of any litigation or other legal action, whether by or against the
Company, the Participant's Employer or any director, officer,
shareholder or other person affiliated with the Company, the
Participant's Employer or any successor thereto in any jurisdiction. In
consideration of this right, each Participant shall hold the Company
harmless from any loss or expense (including attorney's fees) that may
arise if with respect to any litigation relating to this Plan (whether
or not involving a Change in Control), the Participant unsuccessfully
contests the applicability of ERISA to this Plan or commences an action
relating to this Plan in state court.
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IN WITNESS WHEREOF, the Company has signed this Plan document as of August, 12,
2003.
"Company"
Countrywide Financial Corporation, a Delaware
corporation
By: /s/ Thomas H. Boone
-------------------------------
Title: Senior Managing Director,
Chief Administrative Officer
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