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Exhibit 10.47
EXECUTIVE DEFERRED COMPENSATION PLAN
OF
FEDERATED DEPARTMENT STORES, INC.
ARTICLE I
1.1 "PLAN" means the Executive Deferred Compensation Plan of Federated
Department Stores, Inc., as described in this instrument.
1.2 "COMPANY" means Federated Department Stores, Inc. or any successor
company thereafter.
1.3 "COMMITTEE" means one or more Committees appointed to administer
the Plan as and to the extent provided in Article VIII.
1.4 "EFFECTIVE DATE" means November 1, 1993.
1.5 "EXECUTIVE" means an employee of the Company or of any division,
subsidiary or affiliate of the Company whose annualized rate of base
compensation as of the first day of a Plan Year or the first day of his Initial
Eligibility is not less than $96,368. Such amount may be adjusted from time to
time as the Committee may determine.
1.6 "INITIAL ELIGIBILITY" means (a) for each Plan Year beginning
January 1, 1994 or later, the first day of the calendar quarter following the
date an employee of the Company becomes an Executive; and (b) as to an Executive
who was hired on or before May 1, 1993, (i) November 1, 1993 if his base salary
on that date was at least $150,000, and (ii) December 1, 1993 if his base salary
on that date was at least $96,368 and less than $150,000.
1.7 "FISCAL YEAR" means the fiscal year of the Company as established
from time to time.
1.8 "PARTICIPANT" means a person a portion of whose compensation for
any Plan Year has been deferred pursuant to the Plan and whose Cash or Stock
Credits have not been wholly distributed.
1.9 "DEFERRED COMPENSATION" means the portion of a Participant's
compensation for any Plan Year, or part thereof, that has been deferred pursuant
to the Plan.
1.10 "CASH CREDITS" of a Participant at any time means the sum of all
amounts, including interest equivalents, theretofore credited to him pursuant to
Section 3.1 less the amounts theretofore distributed.
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1.11 "STOCK CREDITS" of a Participant at any time mean the aggregate
of all stock equivalents and dividend equivalents theretofore credited to him
pursuant to Section 4.1, less the amounts thereof theretofore distributed.
1.12 "TERMINATION OF SERVICE" or similar expression means the
termination of the Participant's employment as a regular employee of the Company
and any division, subsidiary or affiliate thereof, and shall include retirement.
A Participant who is on temporary leave of absence, whether with or without pay,
shall not be deemed to have terminated his service.
1.13 "PLAN YEAR" means the calendar year.
ARTICLE II
2.1 Each Executive of the Company or of any division, subsidiary or
affiliate of the Company may elect to have a percentage of his base
compensation, to be received by him during each Plan Year from and after January
1, 1994 deferred in accordance with the terms and conditions of the Plan. The
percentage of such base compensation that may be so deferred for any Plan Year
shall not exceed 50%, which percentage in each case shall be a multiple of 5%.
An Executive desiring to exercise such election shall, prior to the
beginning of each such Plan Year (or prior to the beginning of the calendar
quarter immediately following the Executive's Initial Eligibility, if other than
at the beginning of a Plan Year, but in no event later than thirty days after
his Initial Eligibility), notify the Company, in writing, of the percentage of
such base compensation for such Plan Year that he elects to be so deferred.
Prior to each Plan Year beginning on or after January 1, 1994 and each
Plan Year thereafter, each Executive may make a separate election to defer all
or a portion of any annual incentive bonus or any long-term incentive bonus, the
measurement period for which commences with or within the Plan Year for which an
election is being made. Such percentage shall not exceed 100% as to any cash
bonuses to be paid under the Company's 1992 Incentive Bonus Plan (or any
successor plan) during any such Plan Year. Each such percentage shall be in each
case a multiple of 5%.
Each Executive eligible for 1993 deferrals may make a separate election
(i) prior to November 1, 1993 to have a percentage of his base compensation
during the period from November 1, 1993 to December 31, 1993, or (ii) prior to
December 1, 1993 to have a percentage of his base compensation during the period
from December 1, 1993 to December 31, 1993, depending on the Initial Eligibility
date applicable to such Executive, deferred in accordance with the terms and
conditions of the Plan. The percentage of such base compensation that may be
deferred for such period shall not exceed 90%, which percentage shall be a
multiple of 5%.
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2.2 The amount of a Participant's Deferred Compensation shall be
credited to him either as a Cash Credit or as a Stock Credit as provided in
Article III or Article IV, as the case may be, pursuant to the Participant's
election for any Plan Year. Such election shall be made in writing at the same
time that the Participant elects said percentage as provided in Section 2.1. If
a Participant shall fail to make such election at such time, he shall be deemed
to have elected the Deferred Compensation credited to him as a Stock Credit.
2.3 A Participant's Cash Credits and Stock Credits shall be
distributable in the manner and subject to the conditions set forth in Article
VI.
ARTICLE III
3.1 (a) If a Cash Credit is elected, the Participant shall be credited,
as of the end of each calendar quarter of each Plan Year for which the election
was made, with the dollar amount of the Deferred Compensation.
(b) The Cash Credits of each Participant shall be credited, as
of the end of each calendar quarter, with an interest equivalent determined by
applying to 100% of such Participant's Cash Credits at the beginning of each
calendar quarter, less the amounts distributable or withdrawn pursuant to
Article VI during such quarter, an interest rate equal to one quarter of the
percent per annum on United States Five-Year Treasury Bills as of the last day
of such calendar quarter.
ARTICLE IV
4.1 (a) If a Stock Credit is elected, the Participant shall be
credited, as of the end of each calendar quarter, with a stock equivalent which
shall be the number of full shares of common stock of the Company that is
transferred to or purchased by the Trust provided for in Section 7.4 with the
amount of his Deferred Compensation for such calendar quarter and with the
dollar amount of any part of such credit that is not convertible into a full
share.
(b) The Stock Credits of each Participant shall be credited,
as of the end of each calendar quarter, with a dividend equivalent which shall
be an amount determined by multiplying the dividends payable, either in cash or
property (other than common stock of the Company), upon a share of common stock
of the Company to a stockholder of record during such calendar quarter, by the
number of shares in the Participant's Stock Credits at the beginning of such
calendar quarter, less the number of shares distributable or withdrawn pursuant
to Article VI during such quarter for which credit is being made. In case of
dividends payable in property, the dividend equivalent shall be based on the
fair market value of the property at the time of distribution of the dividend,
as determined by the Committee. If the dollar amount credited to the Stock
Credits of a Participant at the end of any calendar quarter equals or exceeds
the average
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closing price of one share of common stock of the Company determined as provided
in subsection (a) of this Section 4.1, such amount shall be treated as if it
were a Stock Credit made on such date and such dollar amount shall be reduced
accordingly.
(c) If at any time the number of outstanding shares of
common stock of the Company shall be increased as the result of any stock
dividend or split-up, the number of shares credited to each Participant's Stock
Credits shall be increased in the same proportion as the outstanding number of
shares of common stock is increased, or if the number of outstanding shares of
common stock of the Company shall at any time be decreased as the result of any
combination of outstanding shares, the number of shares credited to each
Participant's Stock Credits shall be decreased in the same proportion as the
outstanding number of shares of common stock is decreased. In the event the
Company shall at any time be consolidated with or merged into any other
corporation, there shall be credited to each Participant's Stock Credits, in
lieu of the common stock of the Company then credited thereto, the stock of
securities given in exchange for a share of common stock of the Company upon
such consolidation or merger, multiplied by the number of shares of common stock
then credited to the Stock Credits of the Participant.
ARTICLE V
5.1 If the Company shall be adjudicated or determined to be insolvent
by a court of competent jurisdiction, either in bankruptcy or otherwise, all
Stock Credits of all Participants shall be deemed as of the date of commencement
of such proceeding, to be Cash Credits in the same dollar amount as would have
been credited to them at the time such Stock Credits were credited had they at
that time elected to have them credited as Cash Credits, together with interest
equivalents thereon from that time computed as provided in Section 3.1(b); and
together with all other credits of all Participants shall constitute debts of
the Company in any such proceeding.
ARTICLE VI
6.1 (a) The following rules shall apply to distributions
under the Plan.
(i) Except in the case of a Participant who has
exercised the election provided in the following paragraph of
this Section 6.1(a), such distribution shall be made in
fifteen approximately equal annual installments.
(ii) A Participant may request in writing to the
Committee at any time prior to the termination of his service
that the distribution of his Cash or Stock Credits to him
following such termination shall be made in one to fifteen
approximately equal installments as the Participant shall
request. The Committee in its sole discretion shall determine
whether to grant such request. Such request by a Participant
may be exercised only once and shall, if approved by the
Committee, be irrevocable.
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(iii) Notwithstanding the foregoing provisions of
this section, if a Participant's Cash and Stock Credits shall
have a value of less than $15,000 at the date of termination
of his service, payment of such Cash and Stock Credits shall
be made in one installment. Such value of Stock Credits shall
be based on the closing market price on the New York Stock
Exchange on the nearest day of sale preceding the date of
termination of his service.
(b) Distribution of the Cash and Stock Credits pursuant to subsection
(a) of this Section 6.1 shall be made as soon as practicable following the end
of the Fiscal Year in which such termination of service occurred.
(c) A Participant may request in writing to the Committee prior to the
termination of his service, that the distribution of his Cash or Stock Credits,
in the event that his service shall terminate by reason of his death, to the
person or persons designated as provided in Section 6.2 or to his estate, as the
case may be, shall be made in approximately equal installments as the
Participant shall request not to exceed fifteen. The Committee in its sole
discretion shall determine whether to grant such request. If no request is made,
such distribution shall be made in fifteen installments. In any event, if the
beneficiary is an estate or if the value of the Participant's Cash and Stock
Credits shall be less than $15,000 at the date of the Participant's death (such
value determined in accordance with Section 6.1(a)(iii), payment shall be made
in one installment.
(d) Notwithstanding the foregoing provisions of this section, in the
event of a "designated change of control" (as defined herein) of the Company,
distribution of the Cash and Stock Credits of a Participant (or the person or
persons designated as provided in Section 6.2) shall be made to such person in a
single payment as soon as practicable following such "designated change of
control", in accordance with the provisions of Section 6.4 but not sooner than
30 days after such "designated change of control" occurs. For purposes of this
paragraph, a "designated change of control" of the Company shall be deemed to
have occurred if any of the following transactions shall have transpired: (i)
any person or group (within the meaning of Section 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Act"), other than an employee
benefit plan sponsored by the Company) makes a tender or exchange offer for
shares of common stock of the Company (other than pursuant to a merger or
consolidation agreement) pursuant to which purchases are made which result
(together with any other holding) in such person or group becoming the
beneficial owner within the meaning of Rule 13d-3 under the Act of more than 20%
of the Company's then outstanding common stock; (ii) the Company becomes aware
that any person or group (as defined above) has become the beneficial owner (as
defined above) of more than 20% of the Company's then outstanding common stock
and such information has been presented to and considered by the Board of
Directors; (iii) the stockholders of the Company approve a definitive agreement
to merge or consolidate the Company with or into another corporation or to sell
or otherwise dispose of all or substantially all its assets, or adopt a plan of
dissolution
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or liquidation; or (iv) individuals who were members of the Board of Directors
cease to constitute at least a majority thereof as a result of a contested
election. The foregoing notwithstanding, a merger of Federated Department
Stores, Inc. with R.H. Macy & Co., Inc. pursuant to the Joint Plan of
Reorganization of R.H. Macy & Co., Inc. and certain of its subsidiaries for
which Federated Department Stores, Inc. and R.H. Macy & Co., Inc. are joint plan
proponents, filed with the United States Bankruptcy Court for the Southern
District of New York on July 29, 1994, as the same may be amended or modified,
shall not be deemed a "designated change of control" of the Company for the
purposes of this Plan.
6.2 Any Cash or Stock Credits or remaining undistributed installments
thereof, which become distributable after the death of a Participant, shall be
distributed in installments, as provided in this Article VI, to such person or
persons, or the survivors thereof, including corporations, unincorporated
associations or trusts as the Participant may designate. The Participant may
also designate to his widow the absolute power to appoint by will one or more
persons including her estate, to receive payments distributable to her if she
should die before all distributions have been received. All such designations
shall be made in writing delivered to the Committee. The Participant may from
time to time revoke or change any such designation on file with the Committee.
At the time of the Participant's death, if the person or persons designated
therein shall have all predeceased the Participant or otherwise ceased to exist
or if no beneficiary designation is on file, such distributions shall be made to
the Participant's estate. If the person or persons designated therein shall
survive the Participant but shall die before receiving all of such distribution,
the balance thereof payable to such deceased distributee shall, unless the
Participant's designation provides otherwise, be distributed to such deceased
distributee's estate.
6.3 The distribution of the Cash or Stock Credits of a Participant
whose service is terminated by reason of his death shall be made as provided in
Section 6.1(c). If the death of the Participant occurs after the termination of
his service, the number of installments remaining to be paid shall be the number
which otherwise would be distributable to the Participant, provided that the
beneficiary may request, within six months of the death of the Participant, in
writing to the Committee a shorter number of installments as to all installments
which have not yet become payable. The Committee in its sole discretion shall
determine whether to grant such request. In any event, if the beneficiary is an
estate, payment shall be made in one installment.
6.4 Distribution of the Cash Credits of a Participant shall be made in
cash. Distribution of the Stock Credits of a Participant shall be made by
delivery of the number of shares of common stock of the Company credited from
the shares held in the Trust provided for in Section 7.4 hereof and by payment
of the balance, if any, in cash, except to the extent provided for in Section
6.5. The Committee may, with the consent of the person or persons then entitled
to receive distribution of the next payable Cash or Stock Credits (including
Stock Credits as to which the elections provided in the following
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paragraphs have been exercised), make other changes in the time of distribution
of all or part of the undistributed Cash or Stock Credits.
6.5 To the extent that the Company or the trustee provided for in
Section 7.4 hereof is required to withhold federal, state, local or foreign
taxes in connection with any payment made to a Participant or other person
hereunder, it shall be a condition to the receipt of such payment that the
Participant or such other person make arrangements satisfactory to the Company
or the trustee, as the case may be, for the payment of all such taxes required
to be withheld. In the case of any distribution to be made in shares of common
stock of the Company, the Participant shall have the right to have the Company
or the trustee, as the case may be, retain shares having a then fair market
value equal to the amount of tax required to be withheld in respect of such
distribution.
6.6 Notwithstanding any other provision of this Article VI, in the
event of a "designated change of control" of the Company, all Stock Credits of
Participants (or the person or persons designated as provided in Section 6.2)
shall be changed following the date of such "designated change of control" to,
and each Participant (or the person or persons designated as provided in Section
6.2) shall instead be credited as of such date with, their cash equivalent
determined as follows: the number of shares of common stock of the Company
represented by the Stock Credits of a Participant shall be multiplied by the
greater of (i) the average price of such stock computed on a daily basis for the
ninety (90) day calendar period immediately preceding said date of "designated
change of control", or (ii) the highest price offered for shares of common stock
of the Company by the corporation, person or group making a tender or exchange
offer for shares of common stock of the Company that is comprised within a
transaction constituting a "designated change of control" of the Company. Such
Participant shall not be credited with any dividend equivalents with respect to
such Stock Credits for the quarter of the Plan Year in which said Stock Credits
shall be so changed, but the dollar amount distributable to him as aforesaid in
lieu thereof shall instead be credited, in that Plan Year and subsequent Plan
Years, with an interest equivalent to the same extent that Cash Credits would be
so credited. For purposes of this Section 6.6 a "designated change of control"
shall have the same meaning as set forth in Section 6.1(d) hereof.
6.7 Notwithstanding any other provision of the Plan, a Participant or a
beneficiary of a Participant may withdraw all or a portion of his account in the
event of unforseeable emergency. For this purpose, unforseeable emergency means
that funds are necessary in light of the immediate and heavy unexpected
financial needs of the Participant or beneficiary. Any such distribution shall
be limited to the amount required to meet any immediate financial need that is
not reasonably available from other sources, all as determined by the Committee.
Distribution shall be made in cash as soon as practicable following approval of
the withdrawal request by the Committee. The Participant's deferrals shall be
suspended and the Participant shall not be permitted to again defer until the
beginning of the second Plan Year following the withdrawal. The Stock Credits
shall be converted to cash based on the closing market price on the New
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York Stock Exchange on the nearest day of sale preceding the day such withdrawal
request is approved by the Committee.
ARTICLE VII
7.1 No Participant or any other person shall have any interest in any
fund or in any specific asset or assets of the Company by reason of any Cash or
Stock Credits or interest or dividend equivalent credited to him hereunder, nor
the right to exercise any of the rights or privileges of a stockholder with
respect to any common stock credited to his Stock Credits, nor any right to
receive any distribution under the Plan except as to the extent expressly
provided in the Plan. Nothing in the Plan shall be deemed to give any officer or
any employee of the Company or any division, subsidiary or affiliate of the
Company any right to participate in the Plan, except in accordance with the
provisions of the Plan.
7.2 Neither the adoption nor the amendment of the Plan, nor any action
of the Board of Directors of the Company or the Committee, nor any election to
defer compensation hereunder, shall be held or construed to confer on any person
any legal right to continue as an employee of the Company or any division,
subsidiary or affiliate of the Company.
7.3 No Participant shall have the right to assign, pledge or otherwise
dispose of (except (i) by the exercise of a power of appointment designated as
in Article VI provided or (ii) as provided in Article VI) any Cash or Stock
Credits nor shall the Participant's interest therein be subject to garnishment,
attachment, transfer by operations of law, or any legal process; nor shall any
person entitled to receive Cash or Stock Credits or remaining undistributed
installments thereof, which become distributable after the death of a
Participant in accordance with Article VI, have the right to assign or pledge
any such credits or remaining undistributed installments.
7.4 The Company shall establish and keep in effect as long as benefits
are payable under the Plan, a Grantor (Rabbi) Trust, intended to meet the safe
harbor provisions of RevProc 92-64, for the benefit of Participant's Stock
Credits under the Plan (the "Trust"). The Company shall transfer to the Trust or
cause the Trust to purchase shares of common stock of the Company from time to
time which shall be held for the benefit of all Participants who have Stock
Credits in such amounts so that the number of shares at the end of each calendar
quarter shall equal the number of Stock Credits of all Participants outstanding
under the Plan. Distribution of shares pursuant to Section 6.4 of the Plan shall
be made directly from the Trust.
The Trust (i) shall be governed by and subject to the terms of
a trust agreement entered into between the Company, as grantor, and the trustee
and (ii) shall provide that the trustee shall promptly distribute to a
Participant such shares of common stock as the Participant shall be entitled to
pursuant to the Plan as directed by the
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Company. For purposes of making such distributions the trustee shall be entitled
to rely upon the written directions of the Company.
ARTICLE VIII
8.1 The administration of various aspects of the Plan by the Company
shall be monitored by one or more Committees appointed from time to time by the
Board of Directors of the Company to serve at the pleasure of the Board of
Directors.
8.2 As to each such Committee, three members of the Committee shall
constitute a quorum for the transaction of business by such Committee. All
action taken by the Committee at a meeting shall be by the vote of a majority of
those present at such meeting, but any action may be taken by the Committee
without a meeting upon written consent signed by all of the members of the
Committee.
8.3 All determinations of the Committee with respect to such
Committee's responsibilities as designated by the Board of Directors, including
but without limitation the determination of the Committee as to any disputed
question arising under the Plan, including all questions of construction and
interpretation, shall be final, binding and conclusive upon all persons. Without
limiting the generality of the foregoing, the determination of the Committee as
to whether a Participant has terminated his service and the date thereof shall
be final, binding and conclusive upon all persons.
8.4 The acknowledgment by the Company or the Committee of an assignment
or pledge made in accordance with provisions of Section 7.3 and any distribution
by the Company to the assignee or pledgee shall be final, binding and conclusive
upon all persons and shall relieve the Company and Committee of any liability or
obligation to any other person or persons with respect to such distribution. As
a condition to such acknowledgment or distribution the Company or the Committee
may require the submission of such statements, opinions, orders, certificates,
resolutions, or other instruments, or documents, consents or evidence, as the
case may be, and may impose such requirements of conditions, as either of them,
in its sole discretion, shall determine to be necessary or appropriate. Such
acknowledgment or distribution shall in no event constitute an amendment,
modification or waiver of any of the provisions of the Plan, or impose any
obligation on the Company or Committee except as expressly provided by the Plan.
8.5 The Company or the committee may consult with legal counsel, who
may be counsel for the Company or other counsel, with respect to its obligation
or duties hereunder, or with respect to any action or proceeding or any question
of law, and shall not be liable with respect to any action taken or omitted by
it in good faith pursuant to the advise of such counsel.
8.6 Whenever the context so requires, words in the masculine include
the feminine and in the feminine include the masculine.
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ARTICLE IX
9.1 The Board of Directors of the Company may, in its absolute
discretion, without notice, any time and from time to time, modify or amend, in
whole or in part, any or all of the provisions of the Plan, or suspend or
terminate it entirely, provided, that no such modification, amendment,
suspension or termination may, without his consent, apply to or affect the
payment or distribution to any Participant of any Cash or Stock Credits,
credited to him for any Plan Year ended prior to the effective date of such
modification, amendment, suspension or termination.
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