WASTE CONNECTIONS, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
MASTER PLAN DOCUMENT
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WASTE CONNECTIONS, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
EFFECTIVE JULY 1, 2004
COPYRIGHT (C) 2004
BY CLARK CONSULTING, INC.
EXECUTIVE BENEFITS PRACTICE
ALL RIGHTS RESERVED
WASTE CONNECTIONS, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
MASTER PLAN DOCUMENT
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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 AND ELIGIBILITY REQUIREMENTS; COMMENCEMENT
OF PARTICIPATION................................................6
2.3 TERMINATION OF A PARTICIPANT'S ELIGIBILITY......................7
ARTICLE 3 DEFERRAL COMMITMENTS/COMPANY CONTRIBUTION AMOUNTS/COMPANY
RESTORATION MATCHING AMOUNTS/VESTING/CREDITING/TAXES............7
3.1 MINIMUM DEFERRALS...............................................7
3.2 MAXIMUM DEFERRAL................................................8
3.3 ELECTION TO DEFER; EFFECT OF ELECTION FORM......................8
3.4 WITHHOLDING AND CREDITING OF ANNUAL DEFERRAL AMOUNTS............8
3.5 COMPANY CONTRIBUTION AMOUNT.....................................9
3.6 COMPANY RESTORATION MATCHING AMOUNT.............................9
3.7 CREDITING OF AMOUNTS AFTER BENEFIT DISTRIBUTION.................9
3.8 VESTING.........................................................9
3.9 CREDITING/DEBITING OF ACCOUNT BALANCES..........................9
3.10 FICA AND OTHER TAXES...........................................11
ARTICLE 4 SCHEDULED DISTRIBUTION; UNFORESEEABLE FINANCIAL EMERGENCIES;...11
4.1 SCHEDULED DISTRIBUTION.........................................11
4.2 POSTPONING SCHEDULED DISTRIBUTIONS.............................12
4.3 OTHER BENEFITS TAKE PRECEDENCE OVER SCHEDULED DISTRIBUTIONS....12
4.4 WITHDRAWAL PAYOUT/SUSPENSIONS FOR UNFORESEEABLE FINANCIAL
EMERGENCIES....................................................12
ARTICLE 5 CHANGE IN CONTROL BENEFIT......................................13
5.1 CHANGE IN CONTROL BENEFIT......................................13
5.2 PAYMENT OF CHANGE IN CONTROL BENEFIT...........................13
ARTICLE 6 RETIREMENT BENEFIT.............................................14
6.1 RETIREMENT BENEFIT.............................................14
6.2 PAYMENT OF RETIREMENT BENEFIT..................................14
ARTICLE 7 TERMINATION BENEFIT............................................14
7.1 TERMINATION BENEFIT............................................14
7.2 PAYMENT OF TERMINATION BENEFIT.................................14
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MASTER PLAN DOCUMENT
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ARTICLE 8 DISABILITY BENEFIT.............................................14
8.1 DISABILITY BENEFIT.............................................14
8.1 PAYMENT OF DISABILITY BENEFIT..................................14
ARTICLE 9 DEATH BENEFIT..................................................14
9.1 DEATH BENEFIT..................................................14
9.2 PAYMENT OF DEATH BENEFIT.......................................15
ARTICLE 10 BENEFICIARY DESIGNATION........................................15
10.1 BENEFICIARY....................................................15
10.2 BENEFICIARY DESIGNATION; CHANGE; SPOUSAL CONSENT...............15
10.3 ACKNOWLEDGEMENT................................................15
10.4 NO BENEFICIARY DESIGNATION.....................................15
10.5 DOUBT AS TO BENEFICIARY........................................15
10.6 DISCHARGE OF OBLIGATIONS.......................................15
ARTICLE 11 TERMINATION OF PLAN, AMENDMENT OR MODIFICATION.................16
11.1 TERMINATION OF PLAN............................................16
11.2 AMENDMENT......................................................16
11.3 PLAN AGREEMENT.................................................16
11.4 EFFECT OF PAYMENT..............................................16
ARTICLE 12 ADMINISTRATION.................................................16
12.1 COMMITTEE DUTIES...............................................16
12.2 ADMINISTRATION UPON CHANGE IN CONTROL..........................16
12.3 AGENTS.........................................................17
12.4 BINDING EFFECT OF DECISIONS....................................17
12.5 INDEMNITY OF COMMITTEE.........................................17
12.6 EMPLOYER INFORMATION...........................................17
ARTICLE 13 OTHER BENEFITS AND AGREEMENTS..................................18
13.1 COORDINATION WITH OTHER BENEFITS...............................18
ARTICLE 14 CLAIMS PROCEDURES..............................................18
14.1 PRESENTATION OF CLAIM..........................................18
14.2 NOTIFICATION OF DECISION.......................................18
14.3 REVIEW OF A DENIED CLAIM.......................................19
14.4 DECISION ON REVIEW.............................................19
14.5 LEGAL ACTION...................................................19
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MASTER PLAN DOCUMENT
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ARTICLE 15 TRUST..........................................................20
15.1 ESTABLISHMENT OF THE TRUST.....................................20
15.2 INTERRELATIONSHIP OF THE PLAN AND THE TRUST....................20
15.3 DISTRIBUTIONS FROM THE TRUST...................................20
ARTICLE 16 MISCELLANEOUS..................................................20
16.1 STATUS OF PLAN.................................................20
16.2 UNSECURED GENERAL CREDITOR.....................................20
16.3 EMPLOYER'S LIABILITY...........................................20
16.4 NONASSIGNABILITY...............................................20
16.5 NOT A CONTRACT OF EMPLOYMENT...................................21
16.6 FURNISHING INFORMATION.........................................21
16.7 TERMS..........................................................21
16.8 CAPTIONS.......................................................21
16.9 GOVERNING LAW..................................................21
16.10 NOTICE.........................................................21
16.11 SUCCESSORS.....................................................22
16.12 SPOUSE'S INTEREST..............................................22
16.13 VALIDITY.......................................................22
16.14 INCOMPETENT....................................................22
16.15 COURT ORDER....................................................22
16.16 DEDUCTION LIMITATION ON BENEFIT PAYMENTS.......................22
16.17 INSURANCE......................................................23
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WASTE CONNECTIONS, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
MASTER PLAN DOCUMENT
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WASTE CONNECTIONS, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
Effective July 1, 2004
PURPOSE
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The purpose of this Plan is to provide specified benefits to a select
group of management or highly compensated Employees and Directors who contribute
materially to the continued growth, development and future business success of
Waste Connections, Inc., 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, an entry
on the records of the Employer equal to the sum of (i) the Deferral
Account balance, (ii) the Company Contribution Account balance, and
(iii) the Company Restoration Matching Account balance. The Account
Balance shall be a bookkeeping entry only and shall be utilized solely
as a device for the measurement and determination of the amounts to be
paid to a Participant, or his or her designated Beneficiary, pursuant
to this Plan.
1.2 "Annual Deferral Amount" shall mean that portion of a Participant's
Base Salary, Bonus, Commissions, Director Fees and LTIP Amounts that a
Participant defers in accordance with Article 3 for any one Plan Year,
without regard to whether such amounts are withheld and credited during
such Plan Year. In the event of a Participant's Retirement, Disability,
death or Termination of Employment prior to the end of a Plan Year,
such year's Annual Deferral Amount shall be the actual amount withheld
prior to such event.
1.3 "Annual Installment Method" shall be an annual installment payment over
the number of years selected by the Participant in accordance with this
Plan, calculated as follows: (i) for the first annual installment, the
Participant's vested Account Balance shall be calculated as of the
close of business on or around the last day of the six-month period
immediately following the date on which the Participant Retires, as
determined by the Committee in its sole discretion, and (ii) for
remaining annual installments, the Participant's vested Account Balance
shall be calculated on every anniversary of such calculation date, as
applicable. Each annual 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 annual payments due the
Participant. By way of example, if the Participant elects a ten (10)
year Annual Installment Method for the Retirement Benefit, the first
payment shall be 1/10 of the vested Account Balance, calculated as
described in this definition. The following year, the payment shall be
1/9 of the vested Account Balance, calculated as described in this
definition.
1.4 "Base Salary" shall mean the annual cash compensation relating to
services performed during any calendar year, excluding distributions
from nonqualified deferred compensation plans, bonuses, commissions,
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NONQUALIFIED DEFERRED COMPENSATION PLAN
MASTER PLAN DOCUMENT
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overtime, fringe benefits, stock options, relocation expenses,
incentive payments, non-monetary awards, director fees and other fees,
and automobile and other allowances paid to a Participant for
employment services rendered (whether or not such allowances are
included in the Employee's gross income). Base Salary shall be
calculated before reduction for compensation voluntarily deferred or
contributed by the Participant pursuant to all qualified or
nonqualified plans of any Employer and shall be calculated to include
amounts not otherwise included in the Participant's gross income under
Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans
established by any Employer; provided, however, that all such amounts
will be included in compensation only to the extent that had there been
no such plan, the amount would have been payable in cash to the
Employee.
1.5 "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.
1.6 "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.
1.7 "Benefit Distribution Date" shall mean the date that triggers
distribution of a Participant's vested Account Balance. A Participant's
Benefit Distribution Date shall be determined upon the occurrence of
any one of the following:
(a) If the Participant Retires, his or her Benefit Distribution Date
shall be the last day of the six-month period immediately
following the date on which the Participant Retires; or
(b) If the Participant experiences a Termination of Employment, his
or her Benefit Distribution Date shall be the last day of the
six-month period immediately following the date on which the
Participant experiences a Termination of Employment; or
(c) The date on which the Committee is provided with proof that is
satisfactory to the Committee of the Participant's death, if the
Participant dies prior to the complete distribution of his or her
vested Account Balance; or
(d) The date on which the Participant becomes Disabled; or
(e) The date on which the Company experiences a Change in Control, as
determined by the Committee in its sole discretion, if (i) the
Participant has elected to receive a Change in Control Benefit,
as set forth in Section 5.2 below, and (ii) if a Change in
Control occurs prior to the Participant's Termination of
Employment, Retirement, death or Disability.
1.8 "Board" shall mean the board of directors of the Company.
1.9 "Bonus" shall mean any compensation, in addition to Base Salary,
Commissions and LTIP Amounts, earned by a Participant for services
rendered during a Plan Year, under any Employer's annual bonus and cash
incentive plans.
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NONQUALIFIED DEFERRED COMPENSATION PLAN
MASTER PLAN DOCUMENT
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1.10 "Change in Control" shall mean:
(a) Any reorganization, liquidation or consolidation of the Company,
or any merger or other business combination of the Company with
any other corporation, other than any such merger or other
combination that would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least fifty
percent (50%) of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding
immediately after such transaction;
(b) During any period of not more than two consecutive years, not
including any period prior to the adoption of this Plan,
individuals who, at the beginning of such period constitute the
board of directors of the Company, and any new director (other
than a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in
clause (a), (c) or (d) of this Section 1.10) whose election by
the board of directors or nomination for election by the
Company's stockholders was approved by a vote of at least a
majority of the directors then still in office, who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute at least a majority thereof;
(c) Any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially
all, of the assets of the Company; or
(d) Any "person" (as defined in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934 ("Exchange Act")) shall become
the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of fifty percent (50%) or
more of the Company's outstanding voting securities (except that
for purposes of this definition, "person" shall not include any
person (or any person that controls, is controlled by or is under
common control with such person) who is a trustee or other
fiduciary holding securities under any employee benefit plan of
the Company, or a corporation that is owned directly or
indirectly by the stockholders of the Company in substantially
the same percentage as their ownership of the Company).
A transaction shall not constitute a Change in Control if its sole
purpose is to change the state of the Company's incorporation or to
create a holding company that will be owned in substantially the same
proportions by the persons who held the Company's securities
immediately before such transaction.
1.11 "Change in Control Benefit" shall have the meaning set forth in
Article 5.
1.12 "Claimant" shall have the meaning set forth in Section 14.1.
1.13 "Code" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time.
1.14 "Commissions" shall mean the cash commissions earned by a Participant
from any Employer for services rendered during a Plan Year, excluding
Bonus, LTIP Amounts or other additional incentives or awards earned by
the Participant.
1.15 "Committee" shall mean the committee described in Article 12.
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NONQUALIFIED DEFERRED COMPENSATION PLAN
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1.16 "Company" shall mean Waste Connections, Inc., a Delaware corporation,
and any successor to all or substantially all of the Company's assets
or business.
1.17 "Company Contribution Account" shall mean (i) the sum of the
Participant's Company Contribution Amounts, plus (ii) amounts credited
or debited to the Participant's Company Contribution Account in
accordance with this Plan, less (iii) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate
to the Participant's Company Contribution Account.
1.18 "Company Contribution Amount" shall mean, for any one Plan Year, the
amount determined in accordance with Section 3.5.
1.19 "Company Restoration Matching Account" shall mean (i) the sum of all of
a Participant's Company Restoration Matching Amounts, plus (ii) amounts
credited or debited to the Participant's Company Restoration Matching
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 Restoration Matching Account.
1.20 "Company Restoration Matching Amount" shall mean, for any one Plan
Year, the amount determined in accordance with Section 3.6.
1.21 "Death Benefit" shall mean the benefit set forth in Article 9.
1.22 "Deduction Limitation" shall mean the limitation on a benefit that may
otherwise be distributable pursuant to the provisions of this Plan, as
set forth in Section 16.16.
1.23 "Deferral Account" shall mean (i) the sum of all of a Participant's
Annual Deferral Amounts, plus (ii) amounts credited or debited to the
Participant's Deferral Account in accordance with this Plan, less (iii)
all distributions made to the Participant or his or her Beneficiary
pursuant to this Plan that relate to his or her Deferral Account.
1.24 "Director" shall mean any member of the board of directors of any
Employer.
1.25 "Director Fees" shall mean the annual fees earned by a Director from
any Employer, including retainer fees and meetings fees, as
compensation for serving on the board of directors.
1.26 "Disability" or "Disabled" shall mean that a Participant is disabled,
in accordance with (i) the requirements of Section 223(d) of the Social
Security Act, or (ii) the Waste Connections, Inc. Long-Term Disability
Plan.
1.27 "Disability Benefit" shall mean the benefit set forth in Article 8.
1.28 "Election Form" shall mean the form established from time to time by
the Committee that a Participant completes, signs and returns to the
Committee to make an election under the Plan.
1.29 "Employee" shall mean a person who is an employee of any Employer.
1.30 "Employer(s)" shall mean the Company and/or any of its subsidiaries
(now in existence or hereafter formed or acquired) that have been
selected by the Board to participate in the Plan and have adopted the
Plan as a sponsor.
1.31 "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as it may be amended from time to time.
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NONQUALIFIED DEFERRED COMPENSATION PLAN
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1.32 "First Plan Year" shall mean the period beginning July 1, 2004 and
ending December 31, 2004.
1.33 "LTIP Amounts" shall mean any portion of the compensation attributable
to a Plan Year that is earned by a Participant as an Employee under any
Employer's long-term incentive plan or any other long-term incentive
arrangement designated by the Committee.
1.34 "Participant" shall mean any Employee or Director (i) who is selected
to participate in the Plan, (ii) who submits an executed Plan
Agreement, Election Form and Beneficiary Designation Form, which are
accepted by the Committee, and (iii) whose Plan Agreement has not
terminated.
1.35 "Plan" shall mean the Waste Connections, Inc. Nonqualified Deferred
Compensation Plan, which shall be evidenced by this instrument and by
each Plan Agreement, as they may be amended from time to time.
1.36 "Plan 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 Plan 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 Plan Agreement, the Plan Agreement bearing the latest date of
acceptance by the Employer shall supersede all previous Plan Agreements
in their entirety and shall govern such entitlement. The terms of any
Plan Agreement may be different for any Participant, and any Plan
Agreement may provide additional benefits not set forth in the Plan or
limit the benefits otherwise provided under the Plan; provided,
however, that any such additional benefits or benefit limitations must
be agreed to by both the Employer and the Participant.
1.37 "Plan Year" shall, except for the First Plan Year, mean a period
beginning on January 1 of each calendar year and continuing through
December 31 of such calendar year.
1.38 "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 absence, death or Disability on or after the
Employee's attainment of age fifty-five (55) with five (5) Years of
Service; and shall mean with respect to a Director who is not an
Employee, severance of his or her directorships with all Employers on
or after the Director's attainment of age fifty-five (55). If a
Participant is both an Employee and a Director, Retirement shall not
occur until he or she Retires as both an Employee and a Director.
1.39 "Retirement Benefit" shall mean the benefit set forth in Article 6.
1.40 "Scheduled Distribution" shall mean the distribution set forth in
Section 4.1.
1.41 "Terminate the Plan", "Termination of the Plan" shall mean a
determination by an Employer's board of directors that (i) all of its
Participants shall no longer be eligible to participate in the Plan,
(ii) all deferral elections for such Participants shall terminate, and
(iii) such Participants shall no longer be eligible to receive company
contributions under this Plan.
1.42 "Termination Benefit" shall mean the benefit set forth in Article 7.
1.43 "Termination of Employment" shall mean the severing of employment with
all Employers, or service as a Director of all Employers, voluntarily
or involuntarily, for any reason other than Retirement, Disability,
death or an authorized leave of absence. If a Participant is both an
Employee and a Director, a Termination of Employment shall occur only
upon the termination of the last position held; provided, however, that
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NONQUALIFIED DEFERRED COMPENSATION PLAN
MASTER PLAN DOCUMENT
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such a Participant may elect, at least three years before Termination
of Employment and in accordance with the policies and procedures
established by the Committee, to be treated for purposes of this Plan
as having experienced a Termination of Employment at the time he or she
ceases employment with an Employer as an Employee.
1.44 "Trust" shall mean one or more trusts established by the Company in
accordance with Article 15.
1.45 "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, the Participant's spouse, or a dependent
of the Participant, (ii) a loss of the Participant's property due to
casualty, or (iii) such other similar 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.
1.46 "Years of Service" shall mean for an Employee, 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, commences on the Employee's date of hiring
and that, for any subsequent year, commences on an anniversary of that
date. The Committee shall make a determination as to whether any
partial year of employment shall be counted as a Year of Service.
ARTICLE 2
SELECTION, ENROLLMENT, ELIGIBILITY
----------------------------------
2.1 SELECTION BY COMMITTEE. Participation in the Plan shall be limited to a
select group of management and highly compensated Employees and
Directors of the Employer, as determined by the Committee in its sole
discretion. From that group, the Committee shall select, in its sole
discretion, Employees and Directors to participate in the Plan.
2.2 ENROLLMENT AND ELIGIBILITY REQUIREMENTS; COMMENCEMENT OF PARTICIPATION.
(a) As a condition to participation, each Employee or Director who is
eligible to participate in the Plan effective as of the first day
of a Plan Year and elects to participate in the Plan, shall
complete, execute and return to the Committee a Plan Agreement,
an Election Form and a Beneficiary Designation Form, prior to the
first day of such Plan Year, or such other earlier deadline as
may be established by the Committee in its sole discretion. In
addition, the Committee shall establish from time to time such
other enrollment requirements as it determines in its sole
discretion are necessary.
(b) As a condition to participation, each Employee or Director who
becomes eligible to participate in the Plan effective after the
first day of a Plan Year and elects to participate in the Plan,
or each Employee or Director who is selected to participate for
the First Plan Year of the Plan itself and elects to participate
in the Plan, shall complete, execute and return to the Committee
a Plan Agreement, an Election Form and a Beneficiary Designation
Form, all within thirty (30) days after such Employee's or
Director's eligibility to participate in the Plan becomes
effective. In addition, the Committee shall establish from time
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to time such other enrollment requirements as it determines in
its sole discretion are necessary.
(c) Each Employee or Director who is eligible to participate in the
Plan shall commence participation in the Plan on the date that
the Committee determines, in its sole discretion, that the
Employee or Director has met all enrollment requirements set
forth in this Plan and required by the Committee, including
returning all required documents to the Committee within the
specified time period. Notwithstanding the foregoing, the
Committee shall process such Participant's deferral election as
soon as administratively practicable after such deferral election
is submitted to and accepted by the Committee.
(d) If an Employee or a Director fails to meet all requirements
contained in this Section 2.2 within the period required, that
Employee or Director shall not be eligible to participate in the
Plan during such Plan Year.
2.3 TERMINATION OF A PARTICIPANT'S ELIGIBILITY. If the Committee determines
that a Participant is no longer eligible to participate in the Plan,
the Committee shall have the right, in its sole discretion, to (i)
terminate any deferral election the Participant has made for the
remainder of the Plan Year in which the Participant's membership status
changes, (ii) prevent the Participant from making future deferral
elections, and/or (iii) take further action that the Committee deems
appropriate. Notwithstanding the foregoing, in the event of a
Termination of the Plan, the termination of the affected Participants'
eligibility for participation in the Plan shall not be governed by this
Section 2.3, but rather shall be governed by Section 1.41 and Section
11.1.
ARTICLE 3
DEFERRAL COMMITMENTS/COMPANY CONTRIBUTION AMOUNTS/
COMPANY RESTORATION MATCHING AMOUNTS/ VESTING/CREDITING/TAXES
-------------------------------------------------------------
3.1 MINIMUM DEFERRALS.
(A) ANNUAL DEFERRAL AMOUNT. For each Plan Year, a Participant may
elect to defer, as his or her Annual Deferral Amount, Base
Salary, Bonus, Commissions, LTIP Amounts and/or Director Fees in
the following minimum amounts for each deferral elected:
------------------------ ------------------------
DEFERRAL MINIMUM AMOUNT
------------------------ ------------------------
Base Salary, Bonus, $2,000 aggregate
Commissions and/or
LTIP Amounts
------------------------ ------------------------
Director Fees $2,000
------------------------ ------------------------
If an election is made for less than the stated minimum amounts,
or if no election is made, the amount deferred shall be zero.
(B) SHORT PLAN YEAR. Notwithstanding the foregoing, if a Participant
first becomes a Participant after the first day of a Plan Year,
or in the case of the First Plan Year of the Plan itself, the
minimum Annual Deferral Amount shall be an amount equal to the
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minimum set forth above, multiplied by a fraction, the numerator
of which is the number of complete months remaining in the Plan
Year and the denominator of which is 12.
3.2 MAXIMUM DEFERRAL.
(A) ANNUAL DEFERRAL AMOUNT. For each Plan Year, a Participant may
elect to defer, as his or her Annual Deferral Amount, Base
Salary, Bonus, Commissions, LTIP Amounts and/or Director Fees up
to the following maximum percentages for each deferral elected:
------------------------------- --------------------------------
DEFERRAL MAXIMUM PERCENTAGE
------------------------------- --------------------------------
Base Salary 80%
------------------------------- --------------------------------
Bonus 100%
------------------------------- --------------------------------
Commissions 100%
------------------------------- --------------------------------
LTIP Amounts 100%
------------------------------- --------------------------------
Director Fees 100%
------------------------------- --------------------------------
(B) SHORT PLAN YEAR. Notwithstanding the foregoing, if a Participant
first becomes a Participant after the first day of a Plan Year,
the maximum Annual Deferral Amount shall be limited to the amount
of compensation not yet earned by the Participant as of the date
the Participant submits a Plan Agreement and Election Form to the
Committee for acceptance.
3.3 ELECTION TO DEFER; EFFECT OF ELECTION FORM.
(A) FIRST PLAN YEAR. In connection with a Participant's commencement
of participation in the Plan, the Participant shall make an
irrevocable deferral election for the Plan Year in which the
Participant commences participation in the Plan, along with such
other elections as the Committee deems necessary or desirable
under the Plan. For these elections to be valid, the Election
Form must be completed and signed by the Participant, timely
delivered to the Committee (in accordance with Section 2.2 above)
and accepted by the Committee.
(B) SUBSEQUENT PLAN YEARS. For each succeeding Plan Year, an
irrevocable deferral election for that Plan Year, and such other
elections as the Committee deems necessary or desirable under the
Plan, shall be made by timely delivering a new Election Form to
the Committee, in accordance with its rules and procedures,
before the end of the Plan Year preceding the Plan Year for which
the election is made. If no such Election Form is timely
delivered for a Plan Year, the Annual Deferral Amount shall be
zero for that Plan Year.
3.4 WITHHOLDING AND CREDITING OF ANNUAL DEFERRAL AMOUNTS. For each Plan
Year, the Base Salary portion of the Annual Deferral Amount shall be
withheld from each regularly scheduled Base Salary payroll in equal
amounts, as adjusted from time to time for increases and decreases in
Base Salary. The Bonus, Commissions, LTIP Amounts and/or Director Fees
portion of the Annual Deferral Amount shall be withheld at the time the
Bonus, Commissions, LTIP Amounts or Director Fees are or otherwise
would be paid to the Participant, whether or not this occurs during the
Plan Year itself. Annual Deferral Amounts shall be credited to a
Participant's Deferral Account at the time such amounts would otherwise
have been paid to the Participant.
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3.5 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.
(b) For each Plan Year, an Employer, in its sole discretion, may, but
is not required to, credit any amount it desires to any
Participant's Company Contribution Account under this Plan, which
amount shall be for that Participant the Company Contribution
Amount for that Plan Year. The amount so credited to a
Participant may be smaller or larger than the amount credited to
any other Participant, and the amount credited to any Participant
for a Plan Year may be zero, even though one or more other
Participants receive a Company Contribution Amount for that Plan
Year. The Company Contribution Amount described in this Section
3.5(b), if any, shall be credited on a date or dates to be
determined by the Committee, in its sole discretion.
3.6 COMPANY RESTORATION MATCHING AMOUNT. A Participant's Company
Restoration Matching Amount for any Plan Year shall be an amount
determined by the Committee, in its sole discretion, to make up for
certain limits applicable to the 401(k) Plan or other qualified plan
for such Plan Year, as identified by the Committee, or for such other
purposes as determined by the Committee in its sole discretion. The
amount so credited to a Participant under this Plan for any Plan Year
(i) may be smaller or larger than the amount credited to any other
Participant, and (ii) may differ from the amount credited to such
Participant in the preceding Plan Year. The Participant's Company
Restoration Matching Account, if any, shall be credited on a date or
dates to be determined by the Committee, in its sole discretion.
3.7 CREDITING OF AMOUNTS AFTER BENEFIT DISTRIBUTION. Notwithstanding any
provision in this Plan to the contrary, should the complete
distribution of a Participant's vested Account Balance occur prior to
the date on which any portion of (i) the Annual Deferral Amount that a
Participant has elected to defer in accordance with Section 3.3, (ii)
the Company Contribution Amount, or (iii) the Company Restoration
Matching Amount, would otherwise be credited to the Participant's
Account Balance, such amounts shall not be credited to the
Participant's Account Balance, but shall be paid to the Participant in
a manner determined by the Committee, in its sole discretion.
3.8 VESTING. A Participant shall at all times be 100% vested in his or her
Deferral Account, Company Contribution Account and Company Restoration
Matching Account.
3.9 CREDITING/DEBITING OF ACCOUNT BALANCES. In accordance with, and subject
to, the rules and procedures that are established from time to time by
the Committee, in its sole discretion, amounts shall be credited or
debited to a Participant's Account Balance in accordance with the
following rules:
(a) MEASUREMENT FUNDS. 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,
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
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Committee gives Participants advance written notice of such
change, or if necessary to comply with applicable tax law,
including but not limited to guidance issued after the effective
date of this Plan, such other date designated by the Committee,
in its sole discretion.
(b) ELECTION OF MEASUREMENT FUNDS. A Participant, in connection with
his or her initial deferral election in accordance with Section
3.3(a) above, shall elect, on the Election Form, one or more
Measurement Fund(s) (as described in Section 3.9(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. The Participant may (but is
not required to) elect, by submitting an Election Form to the
Committee that is accepted by the Committee, to add or delete one
or more Measurement Fund(s) to be used to determine the amounts
to be credited or debited to his or her Account Balance, or to
change the portion of his or her Account Balance allocated to
each previously or newly elected Measurement Fund. If an election
is made in accordance with the previous sentence, it shall apply
as of the first business day deemed reasonably practicable by the
Committee, in its sole discretion, and shall continue thereafter
for each subsequent day in which the Participant participates in
the Plan, unless changed in accordance with the previous
sentence.
(c) PROPORTIONATE ALLOCATION. In making any election described in
Section 3.9(b) above, the Participant shall specify on the
Election Form, in increments of one percent (1%), the percentage
of his or her Account Balance or Measurement Fund, as applicable,
to be allocated/reallocated.
(d) 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.
(e) 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.
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3.10 FICA AND OTHER TAXES.
(a) ANNUAL DEFERRAL AMOUNTS. For each Plan Year in which an Annual
Deferral Amount is being withheld from a Participant, the
Participant's Employer(s) shall withhold from that portion of the
Participant's Base Salary, Bonus, Commissions and/or LTIP Amounts
that is not being deferred, in a manner determined by the
Employer(s), the Participant's share of FICA and other employment
taxes on such Annual Deferral Amount. If necessary, the Committee
may reduce the Annual Deferral Amount in order to comply with
this Section 3.10.
(b) COMPANY RESTORATION MATCHING ACCOUNT AND COMPANY CONTRIBUTION
ACCOUNT. When a Participant becomes vested in a portion of his or
her Company Restoration Matching Account and/or Company
Contribution Account, the Participant's Employer(s) shall
withhold from that portion of the Participant's Base Salary,
Bonus, Commissions and/or LTIP Amounts that is not deferred, in a
manner determined by the Employer(s), the Participant's share of
FICA and other employment taxes on such Company Restoration
Matching Amount and/or Company Contribution Amount. If necessary,
the Committee may reduce the vested portion of the Participant's
Company Restoration Matching Account or Company Contribution
Account, as applicable, in order to comply with this Section
3.10.
(c) 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
SCHEDULED DISTRIBUTION; UNFORESEEABLE FINANCIAL EMERGENCIES
-----------------------------------------------------------
4.1 SCHEDULED DISTRIBUTION. In connection with each election to defer an
Annual Deferral Amount, a Participant may irrevocably elect to receive
a Scheduled Distribution, in the form of a lump sum payment, from the
Plan with respect to all or a portion of (i) the Annual Deferral
Amount, (ii) the Company Contribution Amount, and (iii) the Company
Restoration Matching Amount. The Scheduled Distribution shall be a lump
sum payment in an amount that is equal to the portion of the Annual
Deferral Amount, the vested portion of the Company Contribution Amount
and the vested portion of the Company Restoration Matching Amount that
the Participant elected to have distributed as a Scheduled
Distribution, plus amounts credited or debited in the manner provided
in Section 3.9 above on that amount, calculated as of the close of
business on or around the date on which the Scheduled Distribution
becomes payable, as determined by the Committee in its sole discretion.
Subject to the other terms and conditions of this Plan, each Scheduled
Distribution elected shall be paid out during a sixty (60) day period
commencing immediately after the first day of any Plan Year designated
by the Participant. The Plan Year designated by the Participant must be
at least three (3) Plan Years after the end of the Plan Year to which
the Participant's deferral election described in Section 3.3 relates.
By way of example, if a Scheduled Distribution is elected for Annual
Deferral Amounts, Company Contribution Amounts, and Company Restoration
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Matching Amounts that are earned and/or contributed in the Plan Year
commencing January 1, 2004, the Scheduled Distribution would become
payable during a sixty (60) day period commencing January 1, 2008.
Notwithstanding the language set forth above, the Committee shall, in
its sole discretion, adjust the amount distributable as a Scheduled
Distribution if any portion of the Company Contribution Amount or
Company Restoration Matching Amount is unvested on the Scheduled
Distribution Date.
4.2 POSTPONING SCHEDULED DISTRIBUTIONS. A Participant may elect to postpone
any lump sum distribution described in Section 4.1 above, and have such
amount paid out during a sixty (60) day period commencing immediately
after an allowable alternative distribution date designated by the
Participant in accordance with this Section 4.2. In order to make this
election, the Participant must submit a new Scheduled Distribution
Election Form to the Committee in accordance with the following
criteria:
(a) Such Scheduled Distribution Election Form must be submitted to
and accepted by the Committee at least twelve (12) months prior
to the Participant's previously designated Scheduled Distribution
Date; and
(b) The new Scheduled Distribution Date selected by the Participant
must be the first day of a Plan Year, and must be at least five
(5) years after the previously designated Scheduled Distribution
Date.
(c) The election of the new Scheduled Distribution Date shall have no
effect until at least twelve (12) months after the date on which
the election is made.
4.3 OTHER BENEFITS TAKE PRECEDENCE OVER SCHEDULED DISTRIBUTIONS. Should a
Benefit Distribution Date occur that triggers a benefit under Articles
5, 6, 7, 8, or 9, any Annual Deferral Amount, Company Contribution
Amount and/or Company Restoration Matching Amount, plus amounts
credited or debited thereon, that are subject to a Scheduled
Distribution election under Section 4.1 shall not be paid in accordance
with Section 4.1, but shall be paid in accordance with the other
applicable Article.
4.4 WITHDRAWAL PAYOUT/SUSPENSIONS FOR UNFORESEEABLE FINANCIAL EMERGENCIES.
(a) If the Participant experiences an Unforeseeable Financial
Emergency, the Participant may petition the Committee to suspend
deferrals of Base Salary, Bonus, Commissions, Director Fees, and
LTIP Amounts to the extent deemed necessary by the Committee to
satisfy the Unforeseeable Financial Emergency, plus amounts
reasonably necessary to pay taxes reasonably anticipated as a
result of the distribution. If suspension of deferrals is not
sufficient to satisfy the Participant's Unforeseeable Financial
Emergency, or if suspension of deferrals is not required under
applicable tax law, the Participant may further petition the
Committee to receive a partial or full payout from the Plan. The
Participant shall only receive a payout from the Plan to the
extent such payout is deemed necessary by the Committee to
satisfy the Participant's Unforeseeable Financial Emergency.
(b) The payout shall not exceed the lesser of (i) the Participant's
vested Account Balance, calculated as of the close of business on
or around the date on which the amount becomes payable, as
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determined by the Committee in its sole discretion, or (ii) the
amount necessary to satisfy the Unforeseeable Financial
Emergency, plus amounts reasonably necessary to pay taxes
reasonably anticipated as a result of the distribution.
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, (B) by
liquidation of the Participant's assets, to the extent the
liquidation of such assets would not itself cause severe
financial hardship or (C) by suspension of deferrals under this
Plan, if the Committee, in its sole discretion, determines that
suspension is required by applicable tax law.
(c) If the Committee, in its sole discretion, approves a
Participant's petition for suspension, the Participant's
deferrals under this Plan shall be suspended as of the date of
such approval. If the Committee, in its sole discretion, approves
a Participant's petition for suspension and payout, the
Participant's deferrals under this Plan shall be suspended as of
the date of such approval and the Participant shall receive a
payout from the Plan within sixty (60) days of the date of such
approval.
(d) Notwithstanding the foregoing, the Committee shall interpret all
provisions relating to suspension and/or payout under this
Section 4.4 in a manner that is consistent with applicable tax
law, including but not limited to guidance issued after the
effective date of this Plan.
ARTICLE 5
CHANGE IN CONTROL BENEFIT
-------------------------
5.1 CHANGE IN CONTROL BENEFIT. The Participant will receive a Change in
Control Benefit, which shall be equal to the Participant's vested
Account Balance, calculated as of the close of business on or around
the Participant's Benefit Distribution Date, as selected 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, shall irrevocably
elect on an Election Form whether to (i) receive a Change in Control
Benefit, or (ii) have his or her Account Balance remain in the Plan
upon the occurrence of a Change in Control and to have his or her
Account Balance remain subject to the terms and conditions of the Plan.
If a Participant does not make any election with respect to the payment
of the Change in Control Benefit, then such Participant shall be deemed
to have elected to receive a Change in Control Benefit upon the
occurrence of a Change in Control. The Change in Control Benefit, if
any, shall be paid to the Participant in a lump sum no later than sixty
(60) days after the Participant's Benefit Distribution Date.
Notwithstanding the foregoing, the Committee shall interpret all
provisions in this Plan relating to a Change in Control Benefit in a
manner that is consistent with applicable tax law, including but not
limited to guidance issued after the effective date of this Plan.
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ARTICLE 6
RETIREMENT BENEFIT
------------------
6.1 RETIREMENT BENEFIT. A Participant who Retires shall receive, as a
Retirement Benefit, his or her vested Account Balance, calculated as of
the close of business on or around the Participant's Benefit
Distribution Date, 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 an
Election Form to receive the Retirement Benefit in a lump sum or
pursuant to an Annual Installment Method of up to 15 years. If a
Participant does not make any election with respect to the payment of
the Retirement Benefit in connection with his or her commencement of
participation in the Plan, then such Participant shall be deemed to
have elected to receive the Retirement Benefit in a lump sum. The lump
sum payment shall be made, or installment payments shall commence, no
later than sixty (60) days after the Participant's Benefit Distribution
Date. Remaining installments, if any, shall be paid no later than sixty
(60) days after each anniversary of the Participant's Benefit
Distribution Date.
ARTICLE 7
TERMINATION BENEFIT
-------------------
7.1 TERMINATION BENEFIT. A Participant who experiences a Termination of
Employment shall receive, as a Termination Benefit, his or her vested
Account Balance, calculated as of the close of business on or around
the Participant's Benefit Distribution Date, as determined by the
Committee in its sole discretion.
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 Participant's Benefit Distribution Date.
ARTICLE 8
DISABILITY BENEFIT
------------------
8.1 DISABILITY BENEFIT. Upon a Participant's Disability, the Participant
shall receive a Disability Benefit, which shall be equal to the
Participant's vested Account Balance, calculated as of the close of
business on or around the Participant's Benefit Distribution Date, as
selected by the Committee in its sole discretion.
8.2 PAYMENT OF DISABILITY BENEFIT. The Disability Benefit shall be paid to
the Participant in a lump sum payment no later than sixty (60) days
after the Participant's Benefit Distribution Date.
ARTICLE 9
DEATH BENEFIT
-------------
9.1 DEATH BENEFIT. The Participant's Beneficiary(ies) shall receive a Death
Benefit upon the Participant's death which will be equal to the
Participant's vested Account Balance, calculated as of the close of
business on or around the Participant's Benefit Distribution Date, as
selected by the Committee in its sole discretion.
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9.2 PAYMENT OF DEATH BENEFIT. The Death Benefit shall be paid to the
Participant's Beneficiary(ies) in a lump sum payment no later than
sixty (60) days after the Participant's Benefit Distribution Date.
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 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.
10.2 BENEFICIARY DESIGNATION; CHANGE; SPOUSAL CONSENT. 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. If the Participant names
someone other than his or her spouse as a Beneficiary, the Committee
may, in its sole discretion, determine that spousal consent is required
to be provided in a form designated by the Committee, executed by such
Participant's spouse and returned to the Committee. 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, 10.2 and 10.3 above or, if
all designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the
Participant's designated Beneficiary shall be deemed to be his or her
surviving spouse. If the Participant has no surviving spouse, the
benefits remaining under the Plan to be paid to a Beneficiary shall be
payable to the executor or personal representative of the Participant's
estate.
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.
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 Plan Agreement shall terminate
upon such full payment of benefits.
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ARTICLE 11
TERMINATION OF PLAN, AMENDMENT OR MODIFICATION
----------------------------------------------
11.1 TERMINATION OF PLAN. 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 Terminate the Plan (as defined in
Section 1.41). Following a Termination of the Plan, Participant Account
Balances shall remain in the Plan until the Participant becomes
eligible for the benefits provided in Articles 4, 5, 6, 7, 8 or 9 in
accordance with the provisions of those Articles. The termination of
the Plan shall not adversely affect any Participant or Beneficiary who
has become entitled to the payment of any benefits under the Plan as of
the date of termination.
11.2 AMENDMENT. Any Employer may, at any time, amend or modify the Plan in
whole or in part with respect to that Employer. Notwithstanding the
foregoing, (i) no amendment or modification shall be effective to
decrease the value of a Participant's vested Account Balance in
existence at the time the amendment or modification is made, (ii) no
amendment or modification shall be effective to change a deferral
election or distribution election of a Participant that has been
submitted to, and accepted by the Committee, prior to the time the
amendment or modification is made without the consent of the
Participant, and (iii) no amendment or modification of this Section
11.2 or Section 12.2 of the Plan shall be effective.
11.3 PLAN AGREEMENT. Despite the provisions of Sections 11.1 and 11.2 above,
if a Participant's Plan Agreement contains benefits or limitations that
are not in this Plan document, the Employer may only amend or terminate
such provisions with the written consent of the Participant.
11.4 EFFECT OF PAYMENT. The full payment of the Participant's vested 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 Plan Agreement
shall terminate.
ARTICLE 12
ADMINISTRATION
--------------
12.1 COMMITTEE DUTIES. Except as otherwise provided in this Article 12, this
Plan shall be administered by a Committee, which shall consist of the
Board, or such committee as the Board shall appoint. Members of the
Committee may be Participants under this Plan. The Committee shall also
have the discretion and authority to (i) make, amend, interpret, and
enforce all appropriate rules and regulations for the administration of
this Plan and (ii) decide or resolve any and all questions including
interpretations of this Plan, as may arise in connection with the Plan.
Any individual serving on the Committee who is a Participant shall not
vote or act on any matter relating solely to himself or herself, but
shall not be prohibited from voting or acting on any matter in which
such individual's interest is affected in the same manner as other
Participants generally. When making a determination or calculation, the
Committee shall be entitled to rely on information furnished by a
Participant or the Company.
12.2 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)
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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 12.1 above, shall be the
Administrator. The Administrator shall have the discretionary power to
determine all questions arising in connection with the administration
of the Plan and the interpretation of the Plan and Trust including, but
not limited to benefit entitlement determinations; provided, however,
upon and after the occurrence of a Change in Control, the Administrator
shall have no power to direct 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,
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.
12.3 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.
12.4 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.
12.5 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.
12.6 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
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Participants, the date and circumstances of the Retirement, Disability,
death or Termination of Employment of its Participants, and such other
pertinent information as the Committee or Administrator may reasonably
require.
ARTICLE 13
OTHER BENEFITS AND AGREEMENTS
-----------------------------
13.1 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.
ARTICLE 14
CLAIMS PROCEDURES
-----------------
14.1 PRESENTATION OF CLAIM. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as
a "Claimant") may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such
Claimant from the Plan. If such a claim relates to the contents of a
notice received by the Claimant, the claim must be made within sixty
(60) days after such notice was received by the Claimant. All other
claims must be made within 180 days of the date on which the event that
caused the claim to arise occurred. The claim must state with
particularity the determination desired by the Claimant.
14.2 NOTIFICATION OF DECISION. The Committee shall consider a Claimant's
claim within a reasonable time, but no later than ninety (90) days
after receiving the claim. If the Committee determines that special
circumstances require an extension of time for processing the claim,
written notice of the extension shall be furnished to the Claimant
prior to the termination of the initial ninety (90) day period. In no
event shall such extension exceed a period of ninety (90) days from the
end of the initial period. The extension notice shall indicate the
special circumstances requiring an extension of time and the date by
which the Committee expects to render the benefit determination. The
Committee shall notify the Claimant in writing:
(a) that the Claimant's requested determination has been made, and
that the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole or
in part, to the Claimant's requested determination, and such
notice must set forth in a manner calculated to be understood by
the Claimant:
(i) the specific reason(s) for the denial of the claim, or any
part of it;
(ii) specific reference(s) to pertinent provisions of the Plan
upon which such denial was based;
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(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 14.3 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.
14.3 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.
14.4 DECISION ON REVIEW. The Committee shall render its decision on review
promptly, and no later than sixty (60) days after the Committee
receives the Claimant's written request for a review of the denial of
the claim. If the Committee determines that special circumstances
require an extension of time for processing the claim, written notice
of the extension shall be furnished to the Claimant prior to the
termination of the initial sixty (60) day period. In no event shall
such extension exceed a period of sixty (60) days from the end of the
initial period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the
Committee expects to render the benefit determination. In rendering its
decision, the Committee shall take into account all comments,
documents, records and other information submitted by the Claimant
relating to the claim, without regard to whether such information was
submitted or considered in the initial benefit determination. The
decision must be written in a manner calculated to be understood by the
Claimant, and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon which
the decision was based;
(c) a statement that the Claimant is entitled to receive, upon
request and free of charge, reasonable access to and copies of,
all documents, records and other information relevant (as defined
in applicable ERISA regulations) to the Claimant's claim for
benefits; and
(d) a statement of the Claimant's right to bring a civil action under
ERISA Section 502(a).
14.5 LEGAL ACTION. A Claimant's compliance with the foregoing provisions of
this Article 14 is a mandatory prerequisite to a Claimant's right to
commence any legal action with respect to any claim for benefits under
this Plan.
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NONQUALIFIED DEFERRED COMPENSATION PLAN
MASTER PLAN DOCUMENT
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ARTICLE 15
TRUST
-----
15.1 ESTABLISHMENT OF THE TRUST. In order to provide assets from which to
fulfill the obligations of the Participants and their beneficiaries
under the Plan, the Company shall establish a trust by a trust
agreement with a third party, the trustee, to which each Employer may,
in its discretion, contribute cash or other property, including
securities issued by the Company, to provide for the benefit payments
under the Plan, (the "Trust").
15.2 INTERRELATIONSHIP OF THE PLAN AND THE TRUST. The provisions of the Plan
and the Plan Agreement shall govern the rights of a Participant to
receive distributions pursuant to the Plan. The provisions of the Trust
shall govern the rights of the 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.
15.3 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 16
MISCELLANEOUS
-------------
16.1 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.
16.2 UNSECURED GENERAL CREDITOR. Participants and their Beneficiaries,
heirs, successors and assigns shall have no legal or equitable rights,
interests or claims in any specific 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.
16.3 EMPLOYER'S LIABILITY. An Employer's liability for the payment of
benefits shall be defined only by the Plan and the Plan 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 Plan Agreement.
16.4 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
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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.
16.5 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 employment
agreement. Nothing in this Plan shall be deemed to give a Participant
the right to be retained in the service of any Employer, either as an
Employee or a Director, or to interfere with the right of any Employer
to discipline or discharge the Participant at any time.
16.6 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.
16.7 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.
16.8 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.
16.9 GOVERNING LAW. Subject to ERISA, the provisions of this Plan shall be
construed and interpreted according to the internal laws of the State
of Delaware without regard to its conflicts of laws principles. Venue
shall lie in Wilmington, Delaware.
16.10 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:
Waste Connections, Inc.
Attn: Jerri Hunt, Vice President of Human Resources and
Risk Management
35 Iron Point Circle
Suite 200
Folsom, CA 95630
--------------------------------------------------------
--------------------------------------------------------
Copy to: Steven Bouck, Chief Financial Officer and
Executive Vice President
(at same address)
--------------------------------------------------------
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.
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NONQUALIFIED DEFERRED COMPENSATION PLAN
MASTER PLAN DOCUMENT
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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.
16.11 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.
16.12 SPOUSE'S INTEREST. The interest in the benefits hereunder of a spouse
of a Participant who has predeceased the Participant shall
automatically pass to the Participant and shall not be transferable by
such spouse in any manner, including but not limited to such spouse's
will, nor shall such interest pass under the laws of intestate
succession.
16.13 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.
16.14 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.
16.15 COURT ORDER. The Committee is authorized to comply with any court order
in any action in which the Plan or the Committee has been named as a
party, including any action involving a determination of the rights or
interests in a Participant's benefits under the Plan. Notwithstanding
the foregoing, the Committee shall interpret this provision in a manner
that is consistent with applicable tax law, including but not limited
to guidance issued after the effective date of this Plan.
16.16 DEDUCTION LIMITATION ON BENEFIT PAYMENTS. If an Employer determines in
good faith that there is a reasonable likelihood that any compensation
paid to a Participant for a taxable year of the Employer would not be
deductible by the Employer solely by reason of the limitation under
Code Section 162(m), then to the extent deemed necessary by the
Employer to ensure that the entire amount of any distribution to the
Participant pursuant to this Plan is deductible, the Employer may defer
all or any portion of a distribution under this Plan. Any amounts
deferred pursuant to this limitation shall continue to be
credited/debited with additional amounts in accordance with Section 3.9
above, even if such amount is being paid out in installments. The
amounts so deferred and amounts credited thereon shall be distributed
to the Participant or his or her Beneficiary (in the event of the
Participant's death) at the earliest possible date, as determined by
the Employer in good faith, on which the deductibility of compensation
paid or payable to the Participant for the taxable year of the Employer
during which the distribution is made will not be limited by Section
162(m).
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NONQUALIFIED DEFERRED COMPENSATION PLAN
MASTER PLAN DOCUMENT
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16.17 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.
IN WITNESS WHEREOF, the Company has signed this Plan document as of _____, 2004.
"Company"
Waste Connections, Inc., a Delaware corporation
By:
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Title:
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