EXHIBIT 10.73
Panamco, L.L.C.
Executive Deferred Compensation Plan
PANAMCO, L.L.C., a limited liability company under the laws of the State of
Delaware, hereby establishes the Panamco, L.L.C. Executive Deferred
Compensation Plan (the "Plan"), effective January 1, 2002, to enable
Participants covered under the Plan to enhance their retirement security by
permitting them to enter into agreements with the Company to defer
compensation on a pre-tax basis and receive benefits at retirement, death,
separation from service, and as otherwise provided under the Plan.
ARTICLE 1 - DEFINITIONS
1.1 ANNUAL DEFERRAL: shall mean the portion of a Participant's
Compensation to be paid during the Plan Year that the Participant
elects to defer under the Deferral Commitment pursuant to Article 3
of the Plan. In the event of a Participant's cessation of employment
with the Company prior to the end of a Plan Year, such year's Annual
Deferral amount shall be the actual amount deferred prior to such
event.
1.2 BENEFICIARY: shall mean the person or persons or entity designated
as such in accordance with Article 11 of the Plan.
1.3 BOARD OF DIRECTORS: shall mean the Board of Directors of the
Company.
1.4 CHANGE OF CONTROL: shall mean the occurrence, in a single
transaction or series of transactions after the date hereof, of any
one of the following events or circumstances: (a) merger,
consolidation or reorganization where the beneficial owners of the
voting securities of the Company immediately preceding such merger,
consolidation or reorganization beneficially own less than 50% of
the voting securities of the surviving company (after giving effect
to the merger, consolidation or reorganization); (b) merger,
consolidation or reorganization where 50% or more of the incumbent
directors of the Company are changed; (c) individuals who, as of the
date hereof, constitute the Board of Directors cease for any reason
to constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company
shareholders, was approved by a vote of at least a majority of the
directors then comprising the incumbent board shall be considered as
though such individual were a member of the incumbent board; or (d)
approval by the shareholders of a complete liquidation or
dissolution of the Company or the sale or other disposition of all
or substantially all of the assets of the Company.
1.5 CODE: shall mean the Internal Revenue Code.
1.6 COMMITTEE: shall mean the Compensation Committee of the Board of
Directors, or such other committee appointed by the Board of
Directors to administer the Plan pursuant to Article 10 of the Plan.
1.7 COMPANY: shall mean PANAMCO, L.L.C., its subsidiaries and divisions,
and any successor(s) in interest.
1.8 COMPENSATION: shall mean a Participant's base salary and annual
incentive plan bonus, before reductions for deferral.
1.9 CREDITING RATE: shall mean the rate used to determine earnings and
losses credited to each Participant's Deferral Account, which shall
be: (i) a rate of return based on a pooled investment strategy
determined by the Committee, (ii) a rate of return based on the
specific investment strategy requested by a Participant, or (iii)
such other rate of return designated by the Committee from time to
time. The Committee, in its sole discretion, will establish
administrative rules for determining and applying the Crediting
Rate.
1.10 DEFERRAL ACCOUNT: shall mean the bookkeeping device used by the
Company solely to measure and determine the amounts to be paid to a
Participant under the Plan. One Deferral Account will be established
for each Participant under the Plan. The balance in a Participant's
Deferral Account shall mean the sum of (i) the Participant's Annual
Deferrals, plus (ii) the Employer Matching Contributions made to a
Participant's Account, plus (iii) the Employer Nonelective
Contributions made to a Participant's Account, plus (iv) earnings
and losses credited to the Participant's Deferral Account at the
Crediting Rate, less (v) all distributions.
1.11 DEFERRAL CONTRIBUTION PERIOD: shall mean the period of one (1) Plan
Year, or such other period as the Committee may permit in its
discretion, over which the Participant has elected to defer
Compensation pursuant to Article 3 of the Plan.
1.12 DEFERRAL COMMITMENT: shall mean a commitment made by a Participant
to defer compensation pursuant to Articles 2 and 3 of the Plan for
which a Deferral Election Form has been submitted by the
Participant.
1.13 DEFERRAL ELECTION FORM: shall mean a written agreement between the
Company and the Participant, entered into pursuant to paragraph 2.1
of the Plan, by which the Participant elects to participate in the
Plan and make a Deferral Commitment.
1.14 DISABILITY: shall mean that the Participant has been determined to
be Totally Disabled under the Qualified 401(k) Plan.
1.15 ELIGIBLE EMPLOYEE: shall mean an officer or member of the senior
management of the Company as designated by the Committee to be
eligible to participate in the Plan.
1.16 EMPLOYER MATCHING CONTRIBUTION: shall equal such percentage, if any,
of Compensation deferred by the Participant under Section 3, as from
time to time may be determined by the Company in its sole
discretion, as provided in Section 5.1.
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1.17 EMPLOYER NONELECTIVE CONTRIBUTION: shall equal such percentage, if
any, of Compensation, as from time to time may be determined by the
Company in its sole discretion, as provided in Section 5.2.
1.18 ERISA: shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.19 FINANCIAL HARDSHIP: shall mean a Participant's unexpected need for
cash arising from an illness, casualty loss, sudden financial
reversal, or other such unforeseeable occurrence as determined by
the Committee. Cash needs arising from foreseeable events such as,
for example, the purchase of a residence or education expenses for
children shall not, alone, be considered a Financial Hardship.
1.20 PARTICIPANT: shall mean an Eligible Employee who is participating in
the Plan as provided in Article 2, or a former Eligible Employee for
whom a Deferral Account is being maintained under the Plan.
1.21 PLAN: shall mean the Panamco, L.L.C. Executive Deferred Compensation
Plan as set forth in this document and as the same may be amended,
supplemented and/or restated from time to time and any successor
plan.
1.22 PLAN YEAR: shall mean the 12-month period from January 1 through
December 31.
1.23 QUALIFIED 401(K) PLAN: shall mean the Panamco 401(k) Plan.
1.24 RETIREMENT: shall mean the date of the cessation of the
Participant's employment with the Company for any reason whatsoever,
whether voluntary or involuntary, other than as a result of the
Participant's death, after the Participant attains age 55, or such
other date as the Committee may determine in its discretion.
1.25 SERVICE: shall mean the period during which an Employee is employed
by the Company, including periods before the effective date of this
Plan.
1.26 TERMINATION OF EMPLOYMENT: shall mean the date of the cessation of
the Participant's employment with the Company for any reason
whatsoever, whether voluntary or involuntary, other than as a result
of the Participant's Retirement, death, or, to the extent provided
in Article 8 of the Plan, Disability.
1.27 VALUATION DATE: shall mean the last day of each Plan Year calendar
quarter, or such other dates as the Committee may determine in its
discretion, which must be at least annually, for the valuation of a
Participant's Deferral Account.
1.28 VESTING DATE: shall mean the date on which a Participant is vested
in the Employer Matching Contributions based on date of employment
and each 12 month anniversary following. A vesting schedule is shown
in the following chart.
3
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YEARS LESS 1 2 3 4 5 OR MORE
THAN 1
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VESTING % 0% 20% 40% 60% 80% 100%
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ARTICLE 2 - PARTICIPATION
2.1 ELIGIBILITY. An Eligible Employee who has completed at least three
months of Service may elect to begin participation in the Plan and
to make a Deferral Commitment by submitting a Deferral Election Form
to the Committee prior to the beginning of the Deferral Contribution
Period. An Eligible Employee who completes three months of Service
after January 1, 2002 may elect to begin participation in the Plan
and to make a Deferral Commitment after the start of the Deferral
Contribution Period in which the Eligible Employee completes three
months of Service by submitting a Deferral Election Form to the
Committee, with such participation to become effective as of the
first day of the month following the later of (i) the two week
anniversary of the date on which the Committee receives the Deferral
Election Form or (ii) the date on which the Participant completes
three months of Service. An employee who has completed three months
of Service before being designated an Eligible Employee may elect to
begin participation in the Plan and to make a Deferral Commitment
after the start of the Deferral Contribution Period in which the
employee is designated an Eligible Employee by submitting a Deferral
Election Form to the Committee, with such participation to become
effective as of the first day of the month following the two week
anniversary of the date on which the Committee receives the Deferral
Election Form. Except as otherwise provided in this Plan, the
Participant's Deferral Commitment shall be irrevocable.
Eligible Employees shall be required to make a new Deferral
Commitment for each Deferral Contribution Period by submitting a new
Deferral Election Form to the Committee prior to the beginning of
each Deferral Commitment Period.
2.2 CONTINUATION OF PARTICIPATION. A Participant who has elected to
participate in the Plan by making a Deferral Commitment shall
continue as a Participant in the Plan for purposes of such Deferral
Commitment even though in any Plan Year after such Deferral
Commitment such Participant elects not to make a new Deferral
Commitment or ceases to be an Eligible Employee. A Participant shall
not be eligible to make a new Deferral Commitment unless the
Participant is an Eligible Employee with respect to the Plan Year
for which the election is made.
ARTICLE 3 - DEFERRAL COMMITMENTS
3.1 DEFERRAL COMMITMENT. Subject to paragraphs 3.2 and 3.3, a
Participant may elect in the Deferral Election Form to defer an
amount equal to a percentage of Compensation, provided that the
deferral percentage must be a whole percentage of Compensation. The
Committee, in its sole discretion, will determine other rules
regarding the deferral of Compensation, as necessary.
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3.2 MINIMUM DEFERRAL COMMITMENT. A participant may not elect to defer
less than $5,000 in any one year, unless otherwise waived by the
Committee.
3.3 MAXIMUM DEFERRAL COMMITMENT. The Participant may not elect to defer
more than 50% of Compensation in the aggregate when deferrals under
this Plan are added to deferrals under the Qualified 401(k) Plan.
The Committee, in its sole discretion, may establish other maximum
Deferral Commitment limits for the purpose of controlling the
Company's financial obligations under the Plan or for any other
reason deemed necessary.
3.4 INCOMPLETE DEFERRAL COMMITMENT. Notwithstanding anything contained
herein to the contrary, if the Participant has not or will not
actually defer the amount specified in such Participant's Deferral
Election Form during the Deferral Contribution Period, the
Participant shall, nevertheless, be permitted to continue
participation in the Plan. No new Deferral Commitment will be
accepted by the Company until the previously Incomplete Deferral
Commitment is fulfilled by the Participant.
ARTICLE 4 - DEFERRAL ACCOUNTS
4.1 DEFERRAL ACCOUNTS. A Deferral Account shall be established for each
Participant. The Deferral Account shall be credited with the
applicable portion of the Annual Deferral as of the approximate date
such amounts would otherwise have been paid to the Participant.
Deferral Accounts shall, except as otherwise provided in the Plan,
be credited monthly with interest at the Crediting Rate on the
balance in the Deferral Account from the approximate date such
Deferrals would have been paid through the date of distribution of
such balance to the Participant. Notwithstanding anything in this
paragraph to the contrary, the Committee may, in its sole
discretion, establish administrative rules for the purpose of
crediting Deferral Accounts.
4.2 HYPOTHETICAL INVESTMENT CHOICE. In connection with the determination
of the Crediting Rate, the Committee may, in its discretion, offer
Participants a choice among various hypothetical investments, the
rate of return on which the Committee may use to determine the
Crediting Rate for their Deferral Accounts. Such a choice is nominal
in nature and grants Participants no real or beneficial interest in
any specific fund or property. Provision of a choice among
hypothetical investment options grants the Participant no ability to
affect the actual aggregate investments the Company may or may not
make to cover its obligations under the Plan. Any adjustments the
Company may make in its actual investments for the Plan may only be
instigated by the Company, and may or may not bear a resemblance to
the Participants' hypothetical investment choices on an account by
account basis. The time, allowance and frequency of hypothetical
investment choices, and a Participant's ability to change how his or
her deferral Account is credited, is within the sole discretion of
the Committee.
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4.3 STATEMENT OF ACCOUNT. The Committee shall provide periodically (but
no less frequently than annually) to each Participant a statement
setting forth the balance of the Deferral Account maintained for
such Participant.
4.4 VESTING OF DEFERRAL ACCOUNTS. Each Participant shall be one hundred
percent (100%) vested at all times in the amount of Annual Deferrals
he or she makes and the Employer Nonelective Contributions and
interest actually credited at the Crediting Rate on these amounts to
such Participant's Deferral Account. A Participant shall become
vested in Employer Matching Contributions made on his or her behalf,
and all earnings allocable thereto, in accordance with the Vesting
Date. The balance, if any, of such Employer Matching Contributions
and all earnings and losses allocable thereto shall be forfeited
upon termination of the Participant's employment to the extent not
vested.
4.5 ACCELERATION OF VESTING. Upon a Change of Control, a Participant
shall become one hundred percent (100%) vested in all amounts
credited to his Deferral Account (including the Employer Matching
Contribution) as of the day immediately prior to the Change of
Control. In the event a Participant dies or becomes Disabled prior
to reaching one hundred percent (100%) vesting, the Benefits
calculated under Article 6 of the Plan shall assume that the
Participant became one hundred percent (100%) vested in all amounts
credited to his Deferral Account (including the Employer Matching
Contribution) as of the day prior to his date of death or
Disability.
ARTICLE 5 - COMPANY CONTRIBUTIONS
5.1 EMPLOYER MATCHING CONTRIBUTION. The Company may from time to time,
in its discretion, credit the Deferral Account of each Participant
who is an Eligible Employee with an Employer Matching Contribution.
The amount of the Employer Matching Contribution, if any, for a
Participant shall be limited to and contingent upon the Participant
deferring at least a like percentage of Compensation under Section 4
hereof. The Company anticipates crediting the Deferral Account of a
Participant with an Employer Matching Contribution at the same rate
as the employer matching contribution under the Qualified 401(k)
Plan. Compensation that exceeds the limit specified in Code Section
401(a)(17) shall not be taken into account for purposes of
determining the amount of the Employer Matching Contribution..
Employer Matching Contributions held in the Deferral Account shall
be distributed to a Participant only to the extent such amounts are
vested.
5.2 EMPLOYER NONELECTIVE CONTRIBUTION. The Company may from time to
time, in its discretion, credit the Deferral Account of each
Participant who is an Eligible Employee with an Employer Nonelective
Contribution. An Eligible Employee shall be entitled to receive the
Employer Nonelective Contribution whether or not the Eligible
Employee is a Participant (i.e., makes an Annual Deferral pursuant
to Section 2 hereof). The Company anticipates crediting the Deferral
Account of a Participant with an Employer Nonelective Contribution
at the same rate as the employer nonelective contribution under the
Qualified 401(k) Plan. Compensation that exceeds the limit specified
in Code Section 401(a)(17)
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shall not be taken into account for purposes of determining the
amount of the Employer Nonelective Contribution.
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ARTICLE 6 - PAYMENT OF BENEFITS
6.1 RETIREMENT BENEFITS. Upon Retirement, the Company shall pay to the
Participant a benefit in the form provided in paragraph 6.2 of the
Plan, based on the vested balance of the Participant's Deferral
Account.
6.2 FORM OF RETIREMENT BENEFITS. The retirement benefit attributable to
a Deferral Account shall be paid in accordance with the
Participant's direction as set forth on a Deferral Election Form
prescribed by the Committee for designation of form of payment; such
payment election shall be made at the time the Deferral Commitment
election is made. The available forms of payment after Retirement
are as follows:
(a) Lump Sum. A lump sum payment equal to the balance of the
applicable Deferral Account as of the Valuation Date following
Retirement. Payment is to commence no earlier than the first
month following the date of Retirement and no later than the
first month following his/her 70th birthday.
(b) 15 Installment Payments. Annual installment payments in
substantially equal amounts over a period of 15 years.
Installment payments shall be made in January of each year
following Retirement. Payments must commence no later than the
January following a Participant's 70th birthday. Interest will
be credited to the unpaid balance in the Deferral Account at
the Crediting Rate. The Committee, in its sole discretion, may
establish rules for making payments and crediting interest to
the unpaid Deferral Account balance.
(c) 3 Installment Payments. Effective January 1, 2003, annual
installment payments in substantially equal amounts over a
period of 3 years. Installment payments shall be made in
January of each year following Retirement. Payments must
commence no later than the January following a Participant's
70th birthday. Interest will be credited to the unpaid balance
in the Deferral Account at the Crediting Rate. The Committee,
in its sole discretion, may establish rules for making payments
and crediting interest to the unpaid Deferral Account balance.
The Participant may change this retirement benefit payment election
to an allowable alternative payout period by submitting a new
Deferral Election Form to the Committee, provided that any such
Deferral Election Form is submitted at least one (1) year prior to
the Participant's Retirement. Subject to the foregoing, the Deferral
Election Form most recently accepted by the Committee shall govern
the payout of the retirement benefit. If no election is submitted,
payment will be made in 15 installment payments.
6.3 TERMINATION OF EMPLOYMENT BENEFITS. Upon Termination of Employment,
the Company shall pay the Participant a benefit in the form of a
lump sum payment equal to the vested balance of the applicable
Deferral Account as of the Valuation Date following the Termination
of Employment. Such payment shall be made within ninety (90) days of
said Valuation Date.
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Effective January 1, 2003, the Participant shall have the option to
elect to have the benefit attributable to a Deferral Account paid
either in a lump sum or in three annual installments in accordance
with the Participant's direction as set forth on a Deferral Election
Form prescribed by the Committee for designation of form of payment;
such payment election shall be made at the time the Deferral
Commitment election is made. If a Participant elects to have the
benefit paid in three annual installments, the first of the three
annual installment payments shall be made within ninety (90) days of
said Valuation Date. The Participant may change this benefit payment
election to an allowable alternative payout period by submitting a
new Deferral Election Form to the Committee, provided that any such
Deferral Election Form is submitted at least one (1) year prior to
the Participant's Termination of Employment. Subject to the
foregoing, the Deferral Election Form most recently accepted by the
Committee shall govern the payout of the benefit. If no election is
submitted, payment will be made in a single lump sum payment.
6.4 Small Benefit Exception. Notwithstanding any of the foregoing, in
the event the sum of all benefits payable to the Participant is less
than or equal to ten thousand dollars ($10,000), the Company may, in
its sole discretion, elect to pay such benefits in a single lump sum
payment on the date such benefits first become payable.
ARTICLE 7 - Survivor Benefits
7.1 PRE-RETIREMENT SURVIVOR BENEFIT. If a Participant dies prior to
Retirement or Termination of Employment the Company shall pay to the
Participant's Beneficiary a lump sum benefit equal to the balance of
the Participant's Deferral Account as of the Valuation Date
following the death of the Participant.
7.2 POST-RETIREMENT SURVIVOR BENEFIT. If a Participant dies after
Retirement or Termination of Employment, and after benefit payments
have commenced, but before the entire vested balance of the
Participant's Deferral Account has been distributed, the Company
shall pay to the Participant's Beneficiary a lump sum benefit equal
to the balance of the Participant's Deferral Account as of the
Valuation Date following the death of the Participant.
ARTICLE 8 - DISABILITY
If a Participant is determined to have a Disability, the Participant shall,
effective as of the date such Participant is no longer paid his Compensation
by the Company, cease deferrals under the Plan except for any Deferral
Commitment regarding any Compensation which is earned or payable subsequent to
the Disability. The Participant's Deferral Account shall continue to be
credited with interest at the Crediting Rate until such time as the
Participant's benefits under the Plan are distributed in accordance with the
Participant's election or as provided for in paragraph 9.2 of the Plan.
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ARTICLE 9 - CONDITIONS RELATED TO BENEFITS
9.1 NONASSIGNABILITY. The benefits provided under the Plan may not be
alienated, assigned, transferred, pledged or hypothecated by or to
any person or entity, at any time or in any manner whatsoever. These
benefits shall be exempt from the claims of creditors or other
claimants of any Participant and from all orders, decrees, levies,
garnishment or executions against any Participant to the fullest
extent allowed by law.
9.2 FINANCIAL HARDSHIP DISTRIBUTION. Upon finding that the Participant
or the Beneficiary has suffered a Financial Hardship, the Committee
may, in its sole discretion and upon written petition by the
Participant or Beneficiary, accelerate distributions of benefits
under the Plan. Such a distribution shall be limited to the amount
reasonably necessary to alleviate such Financial Hardship, plus the
amount needed to pay federal, state and local income taxes
reasonably anticipated from the payment. If a distribution is to be
made to a Participant on account of Financial Hardship, the
Participant may not make subsequent Deferral Commitments under the
Plan until the Plan Year following the Plan Year in which a
distribution based on Financial Hardship was made. Any Deferral
Commitment in effect at the time such distribution is made under
this section shall be canceled. A distribution made on account of
Financial Hardship shall cause the Participant's Deferral Account to
be reduced in a manner determined by the Company.
9.3 NO RIGHT TO COMPANY ASSETS. The benefits paid under the Plan shall
be paid from the general funds of the Company, and the Participant
and any Beneficiary shall be no more than unsecured general
creditors of the Company with no special or prior right to any
assets of the Company for payment of any obligations hereunder. As
its discretion, the Company may establish a trust, with such
trustees as the Committee may approve, for the purpose of assisting
in the payment of such benefits. Although such a trust shall be
irrevocable, its assets shall be held for payment of the Company's
general creditors in the event of insolvency. To the extent any
benefits provided under the Plan are paid from any such trust, the
Company shall have no further obligation to pay them. If not paid
from the trust, such benefits shall remain the obligation of the
Company.
9.4 PROTECTIVE PROVISIONS. Each Participant shall cooperate with the
Company by furnishing any and all information requested by the
Committee in order to facilitate the payment of benefits hereunder,
assisting in the purchase of life insurance on a Participant's life,
taking such physical examinations as the Committee may deem
necessary, and taking such other actions as may be requested by the
Committee. If the Participant refuses to cooperate or makes any
material misstatement or nondisclosure of information, then no
benefits will be payable hereunder to such Participant or his
Beneficiary.
9.5 WITHHOLDING. The Participant or the Beneficiary shall make
appropriate arrangements with the Company for satisfaction of any
federal, state or local income tax withholding requirements and
Social Security or other employee tax requirements applicable to the
payment of benefits under the Plan. If no such arrangements are
made, the Company may provide, at its discretion, for such
withholding and tax payments as may be required.
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9.6 FORFEITURES. Any Employer Matching Contributions or Employer
Nonelective Contributions and the earnings attributed thereto that
are credited to the Participant's Deferral Account, whether or not
vested, shall be forfeited in the event that the Participant is
convicted of a crime involving the theft, fraud, embezzlement or
other act of dishonesty against or otherwise adversely affecting the
Company.
ARTICLE 10 - ADMINISTRATION AND CLAIMS PROCEDURES
10.1 ADMINISTRATION. The Committee shall administer the Plan and, except
as otherwise expressly provided herein, shall have the exclusive
right to interpret, construe and apply its provisions in accordance
with its terms. The Committee shall determine in its sole discretion
those who are eligible to participate in the Plan and shall have the
right to set guidelines for participation under the Plan including,
but not limited to, the type, manner and level of Deferral
Commitments. The Committee shall further establish, adopt or revise
such other rules and regulations as it may deem necessary or
advisable for the administration of the Plan. All decisions of the
Committee shall be final and binding. The individuals serving on the
Committee shall, except as prohibited by law, be indemnified and
held harmless by the Company from any and all liabilities, costs,
and expenses (including legal fees), to the extent not covered by
liability insurance, arising out of any action taken by any member
of the Committee with respect to the Plan, unless such liability
arises from the individual's own gross negligence or willful
misconduct. The expenses of administering the Plan shall be borne by
the Company, except that each Participant may be charged a
reasonable administrative fee as determined by the Committee.
10.2 WRITTEN CLAIMS. Benefits shall be paid in accordance with the
provisions of this Plan. The Participant, or a designated recipient
or any other person claiming through the Participant shall make a
written request for benefits under this Plan. This written claim
shall be mailed or delivered to the Committee. Such claim shall be
reviewed by the Committee or a delegate.
10.3 DENIED CLAIM. If the claim is denied, in full or in part, the
Committee shall provide a written notice within ninety (90) days
setting forth the specific reasons for denial, and any additional
material or information necessary to perfect the claim, and an
explanation of why such material or information is necessary, and
appropriate information and explanation of the steps to be taken if
a review of the denial is desired.
10.4 REVIEW PROCEDURE. If the claim is denied and a review is desired,
the Participant (or Beneficiary) shall notify the Committee in
writing within sixty (60) days after receipt of the written notice
of denial. In requesting a review, the Participant or Beneficiary
may request a review of pertinent documents with regard to the
benefits created under this agreement, may submit any written issues
and comments, may request an extension of time for such written
submission of issues and comments, and may request that a hearing be
held, but the decision to hold a hearing
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shall be within the sole discretion of the Committee.
10.5 COMMITTEE REVIEW. The decision on the review of the denied claim
shall be rendered by the Committee within sixty (60) days after the
receipt of the request for review (if no hearing is held) or within
sixty (60) days after the hearing if one is held. The decision shall
be written and shall state the specific reasons for the decision
including reference to specific provisions of this Plan on which the
decision is based.
ARTICLE 11 - BENEFICIARY DESIGNATION
11.1 BENEFICIARY DESIGNATION. The Participant shall have the right, at
any time, to designate any person or persons as a Beneficiary (both
primary and contingent) to whom payment under the Plan shall be made
in the event of the Participant's death. The Beneficiary designation
shall be effective when it is submitted in writing and delivered to
the Committee during the Participant's lifetime on a form prescribed
by the Committee.
11.2 NEW BENEFICIARY DESIGNATION. The Participant shall have the right to
change or revoke any such designation from time to time by filing a
new designation or notice of revocation with the Company, and no
notice to any Beneficiary nor consent by any Beneficiary shall be
required to effect any such change or revocation.
11.3 FAILURE TO DESIGNATE BENEFICIARY. If a Participant fails to
designate a Beneficiary before his death, or if no designated
Beneficiary survives the Participant, the Committee shall direct the
Company to pay the balance of the Participant's Deferral Account in
a lump sum to the executor or administrator for his estate;
provided, however, if no executor or administrator shall have been
appointed, and actual notice of the death was given to the Committee
within sixty (60) days after the Participant's death, and if his
Deferral Account balance does not exceed ten thousand dollars
($10,000), the Committee may direct the Company to pay the Deferral
Account balance to such person or persons as the Committee
determines may be entitled to it, and the Committee may require such
proof of right and/or identity of such person or persons as the
Committee may deem appropriate and necessary.
ARTICLE 12 - AMENDMENT AND TERMINATION OF THE PLAN
12.1 AMENDMENT OF THE PLAN. The Company may at any time amend the Plan in
whole or in part, provided however, that such amendment (i) shall
not decrease the vested balance of the Participant's Deferral
Account at the time of such amendment, (ii) shall not retroactively
decrease the applicable Crediting Rates of the Plan prior to the
time of such amendment, and (iii) shall not otherwise, without the
written consent of a Participant, retroactively make any changes
that would materially and adversely affect a Participant's account
or rights under the Plan. The Company or Committee may amend the
Crediting Rates of the Plan prospectively. If the Company and/or the
Committee changes the
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formula for determining the Crediting Rate under the Plan, the
Company or the Committee shall notify the Participant of such
amendment in writing within thirty (30) days of such amendment.
Within thirty (30) days of receipt of the notice of an amendment to
the formula for determining the applicable Crediting Rate, the
Participant may elect by written notice to the Committee to
terminate an incomplete Deferral Commitment.
12.2 TERMINATION OF THE PLAN. The Company may at any time terminate the
Plan as to all or any group of Participants. If the Company
terminates the Plan as to all or any group of Participants, the date
of such termination shall be treated as the date of Retirement for
the purpose of calculating Plan benefits. The Company shall pay to
the Participant the benefits the Participant is entitled to receive
under the Plan in a lump sum after termination of the Plan. Interest
at the Crediting Rate will be credited to the Participant's Deferral
Account until distribution under this paragraph is completed, in
accordance with the rules established under paragraph 6.2(b).
ARTICLE 13 - MISCELLANEOUS
13.1 SUCCESSORS OF THE COMPANY. The rights and obligations of the Company
under the Plan shall inure to the benefit of, and shall be binding
upon, the successors and assigns of the Company.
13.2 ERISA PLAN. The Plan is intended to be an unfunded plan maintained
primarily to provide deferred compensation benefits for "a select
group of management or highly compensated employees" within the
meaning of Sections 201, 301, and 401 of ERISA and therefore to be
exempt from Parts 2, 3, and 4 of Title I of ERISA. Notwithstanding
any provisions of this Plan to the contrary, if any Participant is
determined not to be a "management or highly compensated employee"
within the meaning of ERISA or applicable regulations thereunder at
the time a Deferral Commitment is elected, such Participant will not
be eligible to complete such Deferral Commitment and shall receive
an immediate lump sum payment equal to the unpaid balance of the
Deferral Account as of the most recent Valuation Date. Upon such
payment, no benefit shall thereafter be payable under this Plan
either to the Participant or any Beneficiary of the Participant,
with respect to said Deferral Account.
13.3 EMPLOYMENT NOT GUARANTEED. Nothing contained in the Plan nor any
action taken hereunder shall be construed as a contract of
employment or as giving any Participant any right to continued
employment with the Company.
13.4 GENDER, SINGULAR AND PLURAL. All pronouns and variations thereof
shall be deemed to refer to the masculine or feminine, as the
identity of the person or persons may require. As the context may
require, the singular may be read as the plural and the plural as
the singular.
13.5 CAPTIONS. The captions of the articles and paragraphs of the Plan
are for convenience only and shall not control or affect the meaning
or construction of any of its provisions.
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13.6 VALIDITY. In the event any provision of the Plan is held invalid,
void or unenforceable, the same shall not affect, in any respect
whatsoever, the validity of any other provisions of the Plan.
13.7 WAIVER OF BREACH. The waiver by the Company of any breach of any
provision of the Plan by the Participant shall not operate or be
construed as a waiver of any subsequent breach by the Participant.
13.8 APPLICABLE LAW. The Plan shall be governed and construed in
accordance with the laws of the State of Florida except where the
laws of the State of Florida are preempted by ERISA.
13.9 NOTICE. Any notice or filing required or permitted to be given to
the Company under the Plan shall be sufficient if in writing or
hand-delivered, or sent by registered or certified mail, return
receipt requested, to the principal office of the Company, directed
to the attention of the Committee. 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.
13.10 CHANGE OF ADDRESS. Any Participant may, from time to time, change
the address to which notices shall be mailed by giving written
notice of such new address.
13.11 ARBITRATION. Any claim, dispute or other matter in question of any
kind relating to this Plan shall be settled by arbitration in Miami,
Florida in accordance with the Rules of the American Arbitration
Association. Notice of demand for arbitration shall be made in
writing to the opposing party and to the American Arbitration
Association within a reasonable time after the claim, dispute or
other matter in question has arisen. In no event shall a demand for
arbitration be made after the date when the applicable statute of
limitations would bar the institution of a legal or equitable
proceeding based on such claim, dispute or other matter in question.
The decision of the arbitrators shall be final and may be enforced
in any court of competent jurisdiction.
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