Exhibit 10.7
MESA AIR GROUP, INC.
2005 DEFERRED COMPENSATION PLAN
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms when capitalized herein shall have the
meanings assigned below.
(a) Account. The bookkeeping account established and maintained under the
Plan for each Participant to reflect amounts credited under the Plan
for the benefit of each Participant and any earnings or losses
thereon.
(b) Board. The Board of Directors of Mesa Air Group, Inc.
(c) Code. The Internal Revenue Code of 1986, as amended from time to time.
(d) Committee. The Deferred Compensation Committee responsible for the
administration of the Plan, as selected by the Board.
(e) Company. Mesa Air Group, Inc.
(f) Contribution. The amount contributed to the Plan by the Company on
behalf of a Participant, as determined in the sole discretion of the
Committee or, if applicable, pursuant to a specific provision
contained in an employment agreement between the Participant and the
Company.
(g) Designated Beneficiary. The beneficiary designated by the Participant
to receive the Participant's benefit under this Plan in the event of
the Participant's death.
(h) Eligible Employee. Any employee of the Company who is a member of the
management or highly compensated group of employees of the Company
under ERISA Sections 201(2), 301(a)(3), and 401(a)(1), as determined
by the Committee, in its discretion.
(i) ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
(j) First Eligible Payment Date. The first date that is more than 6 months
after the date a Participant terminates (including by death)
employment with the Company.
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(k) Investment Fund. The separate funds in which amounts allocable to
Participants and held in the Trust may be invested in accordance with
Article IV.
(l) Participant. Each Eligible Employee of the Company who is selected by
the Committee to participate in this Plan.
(m) Plan. The Mesa Air Group, Inc. Deferred Compensation Plan, as set
forth herein, as amended from time to time.
(n) Plan Year. The twelve-month period ending on December 31 of each year.
(o) Trust. The Deferred Compensation Trust in which amounts deferred under
this Plan, and any earnings thereon, may be held, as provided in
Article V and any Deferred Compensation trust agreement.
(p) Trustee. The trustee or trustees of the Trust.
(q) Valuation Date. The last day of each calendar quarter of each Plan
Year, and such other dates as the Committee determines necessary or
appropriate to value the Accounts of Participants.
ARTICLE II
PARTICIPATION AND CONTRIBUTIONS
2.1 Eligibility for Participation. Each Eligible Employee shall be eligible to
be selected to participate in the Plan. The Committee, in its sole
discretion, shall select which Eligible Employees will participate in the
Plan. Notwithstanding the foregoing, a Participant shall include any
Eligible Employee whose employment contract with the Company specifically
provides that such Eligible Employee will be a participant in the Plan.
2.2 Termination of Participation. Participation in the Plan shall terminate on
the date on which a Participant terminates employment with the Company.
2.3 Amount of Contribution. The Committee, in its sole discretion, shall
determine the amounts that will be contributed on behalf of each
Participant, and the times at which such amounts will be contributed to the
Plan. Notwithstanding the foregoing, a Participant's employment agreement
may specify the amounts that will be contributed on behalf of such
Participant, as well as the dates of any such contributions.
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ARTICLE III
VESTING AND DISTRIBUTION OF BENEFITS
3.1 Vesting. A Participant shall always be 100% vested in his or her Account
under the Plan.
3.2 Distribution of Benefits.
(a) Termination of Employment. Distribution of a Participant's vested
Account shall commence within an administratively reasonable period of
time after such Participant's First Eligible Payment Date.
Distribution shall be made in one of the following forms as elected by
the Participant at the time an initial contribution is made to the
Plan on behalf of the Participant. The Participant may elect, at such
time, to receive a distribution in substantially equal quarterly
installments over a maximum period of fifteen years of not less than
$6,000 per installment (with any remaining balance in the
Participant's Account of less than $6,000 to be paid in the final
installment) or in one lump sum distribution which shall be paid
within an administratively reasonable period of time after such
Participant's First Eligible Payment Date, subject to the provisions
of section 3.2(d) hereof. Any lump sum distribution elected by the
Participant shall be equal to the balance credited to the
Participant's Account as of the Valuation Date immediately preceding
such distribution. If no election is made by the Participant, the
distribution shall be made in substantially equal quarterly
installments over a fifteen-year period. To the extent the Account is
paid in installment payments, amounts remaining in the Plan (and, if
applicable, in the Trust) shall continue to be credited with earnings,
and those earnings shall be divided by the number of remaining
installment payments and distributed in substantially equal amounts
along with the remaining installments. Payment of benefits under this
Section shall be a complete discharge of the Company's obligation
under the Plan with respect to that Participant. Any election by the
Participant with respect to the form or timing of his distribution
must be made within thirty (30) days of the Company's notification to
the Participant of his or her initial selection as a Participant.
(b) Death of Participant. Upon the death of a Participant while employed
with the Company, the Participant's Designated Beneficiary shall be
paid the vested balance credited to the Participant's Account under
this Plan. Distribution to the Designated Beneficiary shall commence
within an administratively reasonable period of time after such
Participant's First Eligible Payment Date. Distribution shall be made
in one of the following
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forms as elected by the Participant within 30 days of his or her
selection as a Participant. The Participant may elect to receive a
lump sum distribution or a distribution in substantially equal
quarterly installments over a maximum period of fifteen years.
(c) A Participant may elect one form of distribution in the event of death
and a different form of distribution in the event of termination of
employment, provided that all elections relating to such forms of
distribution shall be made within thirty (30) days of the Company's
notification to the Participant of his or her initial selection as a
Participant.
(d) Notwithstanding any other provision hereof, no distribution may be
made to any Participant who is a "specified employee" (within the
meaning of section 409A of the Code) prior to the date that is 6
months after the date such employee terminates employment with the
Company.
ARTICLE IV
FUNDING, INVESTMENT, AND VALUATION OF ACCOUNTS
4.1 Plan Accounts Are Unfunded and May be Held in Trust.
(a) All amounts payable in accordance with this Plan shall constitute a
contractual general unsecured obligation of the Company. Such amounts,
as well as any administrative costs relating to the Plan, shall be
paid out of the general assets of the Company, to the extent not paid
from the assets of any Trust established pursuant to Section 4.1(b)
below.
(b) The Company may establish a grantor trust for the benefit of all or
some of the Participants under the Plan. Any assets placed in the
Trust shall be comprised of all or any portion of amounts in Accounts
and shall be held separate and apart from other Company funds, and
shall be used exclusively for the purposes set forth in the Plan and
Trust subject to the following conditions:
(i) the Company shall be treated as "grantor" of the Trust for
federal income tax purposes; and
(ii) the Trust agreement shall provide that its assets may be used
upon the insolvency of the Company to satisfy claims of the
Company's general creditors, and that the rights of such general
creditors are enforceable by them under federal and state law.
(c) In the event that a Trust is established pursuant to this Section
4.1(b), the amounts contributed in the form of Contributions shall be
transferred by the Company to such Trust, as directed by the
Committee.
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4.2 Account Investment. Each Participant may direct the investment of the
amounts allocable to the Participant's Account under the Plan, whether or
not such amounts are held in a Trust, into one or more of the Investment
Funds offered by the Committee.
4.3 Investment Funds. The Committee may designate one or more Investment Funds
for the investment of Participant's Accounts. The Committee may change the
designation of Investment Funds from time to time, in its sole discretion.
The Committee shall determine from time to time the manner in which
Participants may provide investment instructions for their Accounts under
the Plan.
4.4 Individual Records. The Committee shall maintain, or cause to be
maintained, records showing the individual balances of each Participant's
Account and the amounts allocable to each Participant under this Plan (and,
if applicable, under the Trust); provided, however, the Committee may
delegate this responsibility to another administrator. At least once a
year, each Participant shall be furnished with a statement setting forth
the balance credited to his or her Account under the Plan.
4.5 Valuations.
(a) Except as provided in Section 4.3, on each Valuation Date each
Participant's Account shall be allocated its proportionate share of
the increase or decrease (including earnings) in the fair market value
of that portion of any Investment Fund or interest under Section 4.3
which is allocable to the Participant's Account, as well as any
brokerage or other investment expenses. All other expenses of the
Trust shall be paid by the Company.
(b) In the event that a Trust is established under section 4.1 hereof,
immediately after any gain or loss or earnings are allocated to a
Participant's Account under the Trust in accordance with Section
4.5(a), an equal amount of gain or loss or earnings shall be credited
to the Participant's Account under the Plan.
ARTICLE V
ADMINISTRATION
5.1 Modification, Amendment, and Termination. The Board reserves the right to
modify, amend in whole or in part, discontinue benefit accrual under, or
terminate the Plan at any time. However, no modification or amendment shall
adversely affect the right of any Participant to receive the benefits
accrued and the vested balance to the credit of such Participant's Account
as of the date of such
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modification, discontinuance, amendment, or termination, without the
written consent of the affected Participant. In the event of any
termination of the Plan, distributions shall be made to Participants only
in accordance with the provisions of section 3.2 hereof and the termination
of the Plan shall not result in any acceleration of such distributions.
5.2 Administration and Interpretation. Full power and authority to construe,
interpret, and administer the Plan shall be vested in the Committee. Any
interpretation of the Plan by the Committee or any administrative act by
the Committee shall be final and binding on all Participants. The Committee
shall, from time to time, establish rules and regulations for the
administration of the Plan and the transaction of its business and shall
maintain or cause to be maintained all records which it shall deem
necessary for purposes of the Plan.
5.3 No Contract of Employment. The establishment of the Plan (and the
establishment of any Trust) shall not be construed as conferring any legal
rights upon any person for a continuation of employment, nor shall it
interfere with the rights of the company to discharge any employee and to
treat such employee without regard to the effect which such treatment might
have upon such employee as a Participant in the Plan.
5.4 Facility of Payment. In the event that the Committee shall find that a
Participant is unable to care for his or her affairs because of illness or
accident, the Committee may direct that any benefit payment due to such
Participant, unless a claim shall have been made therefore by a duly
appointed legal representative, be paid to such Participant's spouse,
child, or other blood relative, or to a person with whom such Participant
resides, and any such payment so made shall be in complete discharge of the
liabilities of the Company, the Plan, and the Trust therefor.
5.5 Withholding and Tax Consequences. The Company and the Trustee shall have
the right to deduct from each payment to be made under the Plan and the
Trust any required withholding or other taxes. In the event the Internal
Revenue Service determines (pursuant to section 409A of the Code or
otherwise) that the value of all or any portion of the benefits accrued
under this Plan are taxable to Participants in any year prior to the year
of actual distribution, the Committee may authorize distribution of a
portion of a Participant's Account in an amount sufficient to satisfy such
tax liability. The Company shall not be responsible for any income taxes
(or additions to tax imposed by section 409A of the Code) attributable to
distributions from the Plan.
5.6 Nonalienation. Subject to any applicable law, no benefit under the Plan
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge, and any attempt to do so shall
be void, nor shall any such benefit be in any manner liable for or subject
to garnishment,
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attachment, execution of levy, or liability for or subject to the debts,
contracts, liabilities, engagements or torts of a Participant.
5.7 Construction. The Plan shall be construed, regulated and administered under
the laws of the State of Arizona. When used herein the masculine pronoun
shall include the feminine pronoun, and the singular shall include the
plural, where appropriate.
5.8 Claims Procedure. Any Participant, beneficiary, or his duly authorized
representative may file a claim for a Plan benefit to which the claimant
believes that he or she is entitled. Such a claim must be in writing and
delivered or mailed to the Committee. The Committee shall have full
discretion to deny or grant a claim in whole or in part.
5.9 Unfunded Plan. The Company shall not be required to fund its obligations
under this Plan in any manner, whether by purchase of insurance or
endowment contracts, or contributions to a trust, or deposits in an escrow
account or otherwise; and if the Company does choose to do so, then the
Participant shall not have any right or interest in such contract, trust
(other than the Participant's right to the funds held in a trust created
under Section 4.1), or account but may look only to the Company's unsecured
promise to pay in accordance with the provisions of this Plan. Nothing
contained in this Plan will be deemed to create a trust of any kind or to
create any fiduciary relationship.
IN WITNESS WHEREOF, Mesa Air Group, Inc. has approved this Plan effective
February 7, 2005.
MESA AIR GROUP, INC.
By:
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Its:
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