Exhibit 5.1
FIRST BANKS, INC.
NON-QUALIFIED DEFERRED COMPENSATION PLAN
(Originally Effective as of September 1, 1999 and Restated herein to be
Effective as of September 1, 2006)
TABLE OF CONTENTS
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ARTICLE I -- Purpose and Effective Date
1.1. Purpose..........................................................................................1
1.2. Effective Date...................................................................................1
ARTICLE II -- Definitions
2.1. Account..........................................................................................1
2.2. Affiliate........................................................................................1
2.3. Beneficiary......................................................................................1
2.4. Board of Directors...............................................................................1
2.5. Bonus Deferral Commitment........................................................................1
2.6. Cause............................................................................................2
2.7. Code.............................................................................................2
2.8. Company..........................................................................................2
2.9. Company Contribution Account.....................................................................2
2.10. Compensation.....................................................................................2
2.11. Compensation Deferral............................................................................3
2.12. Compensation Deferral Agreement..................................................................3
2.13. Director.........................................................................................3
2.14. Disability.......................................................................................3
2.15. Discretionary Contribution.......................................................................3
2.16. Distribution Date................................................................................3
2.17. Early Retirement Date............................................................................3
2.18. Elective Deferral Account........................................................................3
2.19. Employee.........................................................................................3
2.20. Employer.........................................................................................4
2.21. Measurement Funds................................................................................4
2.22. Normal Retirement Age............................................................................4
2.23. Participant......................................................................................4
2.24. Plan.............................................................................................4
2.25. Plan Administrator...............................................................................4
2.26. Plan Year........................................................................................4
2.27. Separation from Service..........................................................................4
2.28. Unforeseeable Emergency..........................................................................4
2.29. Valuation Date...................................................................................5
2.30. Year of Service..................................................................................5
ARTICLE III -- Eligibility and Participation
3.1. Eligibility......................................................................................5
3.2. Participation....................................................................................5
3.3. Partial Year Participation.......................................................................6
ARTICLE IV -- Elective Deferrals
4.1. Compensation Deferrals and Deferral Election.....................................................6
4.2. Deferral Limits and Procedures...................................................................6
4.3. Performance Based Compensation...................................................................7
4.4. Change of Status.................................................................................7
4.5. Election of Form of Payment......................................................................7
ARTICLE V -- Participant Accounts, Credit of Contributions, Investment Returns and Vesting
5.1. Establishment of Accounts........................................................................8
5.2. Crediting Compensation Deferrals to Elective Deferral Accounts and Tax Withholding...............8
5.3. Crediting Discretionary Contributions to Company Contribution Accounts...........................8
5.4. Earnings (or Losses) on Account: Self-Discretion of Account Investment..........................8
5.5. Risk of Loss.....................................................................................9
5.6. Valuation of Accounts...........................................................................10
5.7. Vesting of Accounts.............................................................................10
5.8. Statement of Account............................................................................11
ARTICLE VI -- Allocation of September 1, 2006 Account Balances
ARTICLE VII -- Payments to Participants
7.1. Distributions...................................................................................11
7.2. Unforeseeable Emergency.........................................................................11
7.3. Distributions Upon Death........................................................................12
7.4. Distribution Upon Disability....................................................................12
7.5. Election of Distribution Date and Form of Payment for Commencement of Distributions.............12
7.6. Uniform Time for Commencement of Distributions..................................................13
7.7. Effect of Reemployment Upon Distributions.......................................................14
7.8. Installment Payments............................................................................14
7.9. Change in Election..............................................................................14
7.10. Small Accounts..................................................................................15
7.11. Valuation of Payments...........................................................................15
7.12. Delay of Payment for Specified Employees - Public Employer Deferral.............................15
7.13. Effect of Code Section 4999.....................................................................15
7.14. Withholding Taxes...............................................................................15
7.15. Distribution from Account.......................................................................16
7.16. Form of Payment.................................................................................16
ARTICLE VIII -- Beneficiary Designation
8.1. Beneficiary Designation.........................................................................16
8.2. Changing Beneficiary............................................................................16
8.3. Effect of Payment...............................................................................17
ARTICLE IX -- Administration
9.1. Plan Administrator..............................................................................17
9.2. Agents..........................................................................................17
9.3. Binding Effect of Decisions.....................................................................17
9.4. Indemnification of Plan Administrator and Others................................................17
ARTICLE X -- Claims Procedures
10.1. Claims..........................................................................................17
10.2. Claim Decision..................................................................................18
10.3. Review of Claim Denial..........................................................................18
10.4. Effect of Claim and Appeal Process..............................................................18
10.5. Time for Filing Suit............................................................................19
ARTICLE XI -- Miscellaneous
11.1. Unfunded Plan...................................................................................19
11.2. Unsecured General Creditor......................................................................19
11.3. Payment Responsibility and Trust Fund...........................................................19
11.4. Expenses of Administration......................................................................20
11.5. Inability to Locate Participant or Beneficiary..................................................20
11.6. No Contract of Employment.......................................................................20
11.7. Obligations to Company..........................................................................20
11.8. No Liability for Action or Omission.............................................................20
11.9. Non-Alienation of Benefits......................................................................20
11.10. Payment to Incompetents or Minors...............................................................21
11.11. Liability for Benefit Payments and Successorship................................................21
11.12. Governing Law and Venue for Disputes............................................................21
11.13. Correction of Defects...........................................................................21
11.14. Severability of Provisions......................................................................21
11.15. Acceptance of Terms.............................................................................21
11.16. Action by the Company...........................................................................21
11.17. No Fiduciary Relationship.......................................................................22
ARTICLE XII -- Employer Participation
12.1. Adoption of Plan................................................................................22
12.2. Withdrawal from the Plan by an Employer.........................................................22
ARTICLE XIII -- Change of Control
13.1. Overriding Provisions Applicable During a Restricted Period.....................................22
13.2. Suspension of Part of All of the Overriding Provisions..........................................22
13.3. Definitions.....................................................................................23
13.4. Benefits Vested on Restricted Date..............................................................24
13.5. Prohibition Against Amendment...................................................................24
ARTICLE XIV -- Amendment, Termination and Vesting
14.1. Amendment.......................................................................................24
14.2. Termination.....................................................................................24
14.3. Vesting.........................................................................................24
14.4. Acceleration of Payments........................................................................25
14.5. Notice..........................................................................................25
FIRST BANKS, INC.
NON-QUALIFIED DEFERRED COMPENSATION PLAN
ARTICLE I
Purpose and Effective Date
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1.1 Purpose. The Company has established this Plan primarily for the
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purposes of providing deferred compensation, incentive pay and supplemental
retirement benefits for a select group of management or highly compensated
employees of the Company and other Employers.
The terms of this Plan are intended to and shall be interpreted to
comply with the provisions of Code Section 409A and regulations thereunder. The
Plan Administrator is authorized to take any actions or make any amendments to
ensure compliance.
1.2 Effective Date. This Plan was originally effective as of
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September 1, 1999. This Restatement shall be effective as of September 1, 2006.
This Plan shall apply to Compensation which is earned thereafter and to the
interests of Participants and their accrued benefits under the Plan as it
existed prior to the date of this Restatement.
ARTICLE II
Definitions
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The following definitions will be used in the Plan:
2.1 Account. "Account" means the account(s) maintained on the books
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of the Company used solely to calculate the amount payable to each Participant
who defers Compensation or receives an allocation of Company Contributions
hereunder The balance of each Participant's Account(s) shall equal the total
value of the Participant's Plan benefit.
2.2 Affiliate. "Affiliate" means (1) a corporation that is a member
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of the same controlled group of corporations (within the meaning of Section
414(b) of the Code) as the Company, (2) a trade or business (whether or not
incorporated) under common control (within the meaning of Section 414(c) of the
Code) with the Company, (3) any organization (whether or not incorporated) that
is a member of an affiliated service group (within the meaning of Section 414(m)
of the Code) that includes the Company, a corporation described in clause (1) of
this subdivision or a trade or business described in clause (2) of this
subdivision, or (d) any other entity that is required to be aggregated with the
Company pursuant to Regulations promulgated under Section 414(o) of the Code.
2.3 Beneficiary. "Beneficiary" means the person(s) or entity(ies)
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designated under Article VIII to receive Plan payments in the event of a
Participant's death.
2.4 Board of Directors. "Board of Directors" means the Board of
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Directors of First Banks, Inc.
2.5 Bonus Deferral Commitment. "Bonus Deferral Commitment" means
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that portion of an Employee Participant's annual, quarterly incentive or other
bonus compensation which a Participant may be entitled to receive whose receipt
the Participant has elected to defer pursuant to Article IV.
2.6 Cause. "Cause" means Separation from Service of a Participant
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for any of the following actions committed by a Participant in connection with a
Participant's employment by or association with the Company or any Affiliate:
(1) the Participant's gross negligence, fraud or dishonesty, (2) the
Participant's conviction of, or entering a plea of guilty or nolo contendere to
a crime, or (3) the Participant's willful violation of any significant policy of
the Company or any of its Affiliates. Whether the Separation of Service is for
Cause shall be determined by the Plan Administrator in its judgment and
discretion.
2.7. Code. "Code" means the Internal Revenue Code of 1986, as amended
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(and any regulations thereunder).
2.8 Company. "Company" means First Banks, Inc., a Missouri
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corporation.
2.9 Company Contribution Account. "Company Contribution Account"
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means the Account maintained in accordance with Section 5.3 to which all Company
Contributions are to be credited for the benefit of a Participant plus all
deemed investment earnings (or loss) thereon.
2.10 Compensation.
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(a) "Compensation" means compensation payable to a Participant by
the Company or an Employer for services rendered. This includes a Participant's
(i) base salary as in effect from time to time during a Plan Year, (ii)
commissions earned during a Plan Year, (iii) fees paid to directors of the
Company and Employers and (iv) annual, quarterly incentive or other bonuses
whose receipt is determined to be eligible to be deferred under this Plan earned
during a Plan Year.
(b) None the following shall be treated as Compensation hereunder:
(i) payments from this Plan or any other Company nonqualified deferred
compensation plan; (ii) payments from any Company tax qualified retirement plan
or other retirement plan, (iii) any payments of severance, severance or
termination compensation, (iv) any form of non-cash compensation or employee
benefits, including disability payments, group life insurance premiums, income
from the exercise of non-qualified stock options or disqualifying disposition of
incentive stock options, or realized upon vesting of restricted stock or the
delivery of shares in respect of restricted stock units (or other similar items
of equity compensation); (v) expense reimbursements; or (vi) any other payments,
imputed income (such as for personal use of Company autos, clubs, etc.) or
benefits other than normal Compensation as determined by the Plan Administrator.
(c) Compensation shall be limited exclusively to pay and earnings
for services rendered prior to the time an Employee or Director Participant
separates from the services of the Company and its Affiliates.
(d) Notwithstanding the foregoing, the Plan Administrator retains
complete discretion to determine whether to include or exclude any items of
compensation or earnings as Compensation.
2.11 Compensation Deferral. "Compensation Deferral" means that
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portion of a Participant's Compensation whose receipt the Participant has
elected to defer in accordance with an annual irrevocable election made pursuant
to Articles III and IV.
2.12 Compensation Deferral Agreement. "Compensation Deferral
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Agreement," "Deferral Agreement" or "Deferral Election" means an authorization
filed with the Plan Administrator by an Employee or Director Participant to
elect a Compensation Deferral for a Plan Year and provide the time and manner of
distribution and investment of Account balances.
2.13 Director. "Director" means a member of the board of directors of
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the Company.
2.14 Disability. "Disability" means that a Participant either is:
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(a) unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less
than twelve (12) months, or (b) by reason of any medically determinable physical
or mental impairment which can be expected to result in death or can be expected
to last for a continuous period of not less than twelve (12) months and is
receiving income replacement benefits for a period of not less than three (3)
months under an accident or health plan covering employees of the Participant's
Employer. A Participant who has been determined to be eligible for Social
Security disability benefits shall be presumed to be disabled. Whether a
Participant is Disabled shall be determined by the Plan Administrator who may
rely on the opinion of a physician selected by the Plan Administrator for such
purpose.
2.15 Discretionary Contribution. "Discretionary Contribution" means
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any amount credited to a Participant's Company Contribution Account under
Article V.
2.16 Distribution Date. "Distribution Date" means the date on which
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the Participant becomes entitled to receive a distribution as specified in
Article VII.
2.17 Early Retirement Date. "Early Retirement Date" means the date on
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which an Employee or Director Participant separates from service with at least
10 years of service and has attained age 55.
2.18 Elective Deferral Account. "Elective Deferral Account" means the
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Account maintained in accordance with Section 4.1 to which all of a
Participant's elective Compensation Deferrals shall be credited plus all deemed
investment earnings (or loss) thereon.
2.19 Employee. "Employee" means a common law employee of the Company
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or an Employer. Any person whom the Plan Administrator determines to be an
independent contractor, leased employee or consultant, pursuant to contract or
otherwise, shall not be under any circumstances be eligible to be a Participant
regardless of whether such person otherwise has been determined to be a common
law employee pursuant to decision of an administrative agency or judicial body.
2.20 Employer. "Employer" means the Company and any Affiliate
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designated by the Plan Administrator as eligible to participate in this Plan and
whose Employees, as designated by the Plan Administrator, are eligible to
participate under this Plan.
2.21 Measurement Funds. "Measurement Funds" means one or more
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independently established funds, indices or measurement devices identified by
the Plan Administrator. These are used solely to calculate the investment return
(or loss) that is credited to each Participant's Account(s) pursuant to Article
V and do not represent any beneficial interest of any Participant in any asset
or other property of the Company or an Affiliate. A Measurement Fund may be a
hypothetical measurement or be associated with a publicly traded or actual
measure of investment performance. The determination of the increase or decrease
in the performance of each Measurement Fund shall be made by the Plan
Administrator in its discretion.
2.22 Normal Retirement Age. "Retirement Age" means the date on which
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a Employee or Director Participant has Separated from Service after having
attained age 65.
2.23 Participant. "Participant" means any Employee who satisfies the
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eligibility requirements of Article III and elects to participate including (a)
former Employees who have Account balances until such time as those Account
balances have been completely distributed and (b) Employees who do not have
Account balances but who are eligible to participate and make Compensation
Deferrals. In the event of the death or incompetence of a Participant, the term
means his or her Beneficiary or personal representative.
2.24 Plan. "Plan" means this Plan, the First Banks, Inc. Non-
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Qualified Deferred Compensation Plan, as amended from time to time.
2.25 Plan Administrator. "Plan Administrator" means the committee or
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the individual appointed by the Company's Board of Directors to administer this
Plan pursuant to Article IX. In the absence of a direction by the Board of
Directors to the contrary, the Plan Administrator shall be the Senior Vice
President of Human Resources.
2.26 Plan Year. "Plan Year" means the consecutive twelve (12) month
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period beginning on each January 1st and ending on each immediately following
December 31st.
2.27 Separation from Service. "Separation from Service," "Separates
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from Service," or "Separated from Service" means termination of an Employee
Participant's employment with the Company and all of its Affiliates for any
reason. In case of a Participant who is a Director, Separation from Service
means the person ceases to be a Director of the Company has no reasonable
expectation of the person immediately resuming such position.
2.28 Unforeseeable Emergency. "Unforeseeable Emergency" means a
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severe financial hardship to a Participant resulting from (a) an illness or
accident to the Participant, the Participant's spouse or dependents (as defined
in Section 152(a) of the Code), (b) a Participant's loss of property due to
casualty or (c) other similar and extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant and (d) each
of which constitutes an Unforeseeable Emergency as defined in regulations issued
under Code Section 409A.
Whether a Participant has an Unforeseeable Emergency shall be
determined in the sole discretion of the Plan Administrator.
2.29 Valuation Date. "Valuation Date" means each business day which
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is considered to be any day the New York Stock Exchange is open for trading.
2.30 Year of Service. "Year of Service" means each continuous twelve-
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month period of employment with the Company or any Affiliate.
ARTICLE III
Eligibility and Participation
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3.1 Eligibility. Subject to such additional conditions or
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considerations which the Plan Administrator may establish from time to time, a
person is eligible to participate in this Plan only if the person: (a) is an
Employee or Director, (b) is a Vice President or above of the Company or an
Employer, and for Plan Years commencing on or after January 1, 2008 is a Senior
Vice President of the Company or its equivalent, (c) has an annual base salary
or expected level of recurring commissions, or a combination of both, of at
least $100,000 per Plan Year for Plan Years ending prior to January 1, 2008 and
$125,000 for Plan Years commencing on and after January 1, 2008, (d) would be
considered a member of the Company's or an Employer's management or highly
compensated and (e) is affirmatively designated as by the Plan Administrator to
be a Participant. After an Employee has been designated a Participate, he or she
may continue to make Compensation Deferrals in subsequent Plan Years, even if
the Participant no longer satisfies the foregoing criteria, as the Plan
Administrator determines appropriate.
A Participant who is not an Employee or Director shall not be eligible
to (i) make Compensation Deferrals or (ii) receive allocations of Discretionary
Contributions.
3.2 Participation.
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(a) Deferral Election. Except for Discretionary Contributions
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made by the Company, participation in the Plan is voluntary. An Employee or
Director who is eligible to become a Participant becomes an actual Participant
by completing a Compensation Deferral Agreement in such form and manner as the
Plan Administrator may prescribe.
(b) Time for Completion of Election. An Employee or Director
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Participant shall make Compensation Deferrals hereunder only by submitting a
properly completed election to defer receipt of Compensation, i.e. a Deferral
Election, to the Plan Administrator by December 31 (or such earlier date
established by the Administrator) of the calendar year immediately preceding the
Plan Year to which the Agreement applies.
(c) Effective Period and Irrevocability of Compensation
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Deferral Commitment.
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(i) All Deferral Agreements shall be effective only for
Compensation payable and for services to be performed subsequent to the
effective date of the Election and with respect to the following Plan Year to
which it pertains. Compensation Deferral Agreements shall be in effect for the
Plan Year immediately succeeding the date upon which it is executed (or the
remainder of the Plan Year to which the Agreement is to be applicable) and shall
cease to be effective at the close of that Plan Year.
(ii) After a Plan Year has started, Compensation Deferral
Agreements made for such Plan Year shall be irrevocable for the remainder of
that Plan Year and may not be modified during such Year except as specified in
(d) below.
(d) Notwithstanding the foregoing, a Compensation Deferral
Agreement shall be terminated if (i) required for the Participant to obtain a
hardship distribution under a qualified plan with a cash or deferred arrangement
under Code section 401(k) or (ii) requested by the Participant because of an
Unforeseeable Emergency. Any resumption of Compensation Deferrals under this
Plan shall be made only at the election of the Participant under Article III and
in accordance with regulations under Code Section 409A.
(e) Minimum Deferral Period. Unless earlier distribution is
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permitted hereunder, receipt of all Compensation Deferrals and Discretionary
Contributions credited hereunder shall be deferred for a minimum of two (2) full
Plan Years after the Plan Year during which such Deferrals or Contributions
would have been payable to Participant and are then actually credited to a
Participant's Accounts.
3.3 Partial Year Participation. If an Employee or Director first
--------------------------
becomes eligible to participate during a Plan Year and wishes to make
Compensation Deferrals for that Plan Year, the Employee or Director must submit
a Compensation Deferral Agreement to the Plan Administrator no later than thirty
(30) days following the date the Employee or Director first becomes eligible to
participate.
ARTICLE IV
Elective Deferrals
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4.1 Compensation Deferrals and Deferral Elections. Each Employee or
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Director Participant who wishes to defer receipt of compensation hereunder
during a Plan Year must complete a Compensation Deferral Election prior to the
start of such Plan Year as follows.
(a) Salary Deferral Commitment. An Employee or Director
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Participant may elect to defer receipt of Compensation to be earned and payable
as base salary or commissions during a subsequent Plan Year in increments of one
percent (1%). Amounts whose receipt is to be deferred will be credited to the
Participant's Elective Deferral Account in a ratable manner over the entire Plan
Year commencing with the later of the first pay period of the Plan Year to which
the Deferral Agreement applies.
(b) Bonus Deferral Commitment. An Employee Participant may
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elect to defer receipt of Compensation to be earned and payable during a
subsequent Plan Year or Service Period (or portion thereof) within a Plan Year
as an annual or quarterly incentive bonus Compensation in increments of one
percent (1%).
4.2 Deferral Limits and Procedures. The following limitations shall
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apply to Compensation Deferrals.
(a) Minimum Amount. The minimum aggregate deferral amount for
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combined Salary and Bonus Deferral Commitments shall be 1% of Compensation per
Plan Year.
(b) Maximum Amount. The maximum Salary Deferral Commitment
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shall be twenty-five percent (25%) of base salary and/or commissions to be
earned per Plan Year or Service Period. The maximum Bonus Deferral Commitment,
shall be one hundred percent (100%) of any incentive bonus to be earned during
the Plan Year. A Director Participant may defer receipt of up to 100% of
Director fees to be earned during a Plan Year.
(c) Method of Compensation Deferral Election. The Plan
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Administrator shall designate such forms and processes for electing Compensation
Deferrals as it determines appropriate.
4.3 Performance-Based Compensation. Employee Participants may
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elect to enter into a Bonus Deferral Commitment after the commencement of a Plan
Year for bonus Compensation determined by the Plan Administrator to be
"performance-based compensation" by submitting a Deferral Agreement no later
than six (6) months prior to the end of the period for which the "performance
based compensation" is earned (or such earlier date established by the Plan
Administrator). Such Agreement shall only be effective (a) for
"performance-based compensation" as defined pursuant to Code section 409A and
(b) as permitted by the Plan Administrator.
4.4 Change of Status. If a Participant no longer meets the
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eligibility criteria set forth in Articles I and III or if the Board of Director
determines that a Participant's performance no longer merits Plan participation,
the Participant's most recent Compensation Deferral Agreement shall terminate at
the conclusion of the Plan Year in which such determination occurs, and the
Employee shall be prohibited from making further Compensation Deferrals.
4.5 Election of Form of Payment.
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(a) Prior to the start of a Plan Year for which an Employee
or Director Participant makes a Compensation Deferral Election or may receive
Discretionary Contributions, the Participant shall elect, as prescribed the Plan
Administrator, a Distribution Date and form of payment from among the payment
methods and Distribution Dates prescribed at Article VII for Compensation
Deferrals and Discretionary Contributions to be credited to his or her Account
for such Plan Year. A payment method and Distribution Date must be selected for
all Compensation Deferrals; however, a Participant may select a different
payment method and Distribution Date for his or her Salary Deferral Commitment
for a Plan Year and another payment method and Distribution Date for Bonus
Deferral Commitments for such Plan Year.
(b) After a Plan Year has started, elections of Distribution
Dates and forms of payment made for Compensation Deferrals and Discretionary
Contributions, and earnings (or loss) thereon, credited for such Plan Year shall
be irrevocable except as specified in Article VII. Such election shall be
effective only for Compensation Deferrals and Discretionary Contributions
credited during that Plan Year, plus investment earnings (or loss) thereon.
(c) If a Participant makes no election of Distribution Date or
form of payment, for any Compensation Deferral or Discretionary Contributions,
then they, plus earnings (or loss) credited thereon, will become payable upon
Separation from Service in a lump sum.
ARTICLE V
Participant Accounts, Crediting of Contributions, Investment Returns, and
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Vesting
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5.1 Establishment of Accounts. An Elective Deferral and Company
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Contribution Account shall be established for each Participant and additional
sub-accounts shall be maintained as the Plan Administrator determines necessary.
5.2 Crediting Compensation Deferrals to Elective Deferral Accounts
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and Tax Withholding.
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(a) The Plan Administrator shall credit to each Participant's
Elective Deferral Account a Participant's Compensation Deferrals for such Year
and Service Periods contained therein. Such amounts shall be credited as soon as
practicable after the date on which such Compensation would otherwise have been
paid or when determined appropriate by the Plan Administrator.
(b) Any taxes the Administrator determines should be withheld
with respect to Compensation Deferrals shall be withheld from the Participant's
non-deferred Compensation to the maximum extent possible with any excess
reducing Compensation Deferrals.
5.3 Crediting Discretionary Contributions to Company Contribution
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Accounts.
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(a) For any Plan Year, an Employer may, in its sole
discretion, elect to credit to an Employee Participant's Company Contribution
Account Discretionary Contributions such amounts at such times and in such
manner as it determines appropriate in its sole discretion.
(b) Following the close of each Plan Year, the Plan
Administrator shall notify Participants of Discretionary Contributions to their
Company Contribution Account.
(c) Any taxes which the Administrator determines should be
withheld with respect to any Discretionary Contribution shall be withheld from
the Participant's non-deferred Contribution to the maximum extent possible with
any excess reducing the Discretionary Contribution.
5.4 Earnings (or Losses) on Accounts; Self-Direction of Account
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Investment.
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(a) As it determines appropriate, the Plan Administrator
shall establish one or more Measurement Funds to calculate the investment return
(or loss) credited to each Participant's Account(s). As of each Valuation Date,
the Plan Administrator shall adjust the value of each Participant's Accounts to
reflect earnings (or losses) realized by each Participant's Accounts based upon
the Measurement Funds in which the Participant has chosen to have his or her
Accounts hypothetically invested. Earnings (or losses) on amounts credited to a
Participant's Accounts shall accrue commencing on the first Valuation Date
following the date on which Deferred Compensation or Discretionary Contributions
are credited to a Participant's Accounts and shall continue to accrue until the
balance to the credit of a Participant in his or her Accounts has been
distributed. Earnings (or losses) shall be credited to a Participant's Accounts
based upon the rates of return (net of allocable expenses and taxes)
attributable to the Measurement Fund(s) in which the Participant's Accounts are
hypothetically invested and will be reinvested in the Measurement Funds that
generated the investment performance.
(b) Each Employee and Director Participant must designate,
prior to the date on which amounts are credited to a Participant's Accounts, the
Measurement Funds to which the Participant's Compensation Deferrals and Account
balances shall be allocated.
(i) Measurement Fund designations shall be made on a
Compensation Deferral Agreement or by such means and at other times as
established by the Plan Administrator.
(ii) Participant Account balances shall be allocated
among Measurement Funds in multiples of one percent (1%) or in specific dollar
amounts as the Plan Administrator may prescribe.
(iii) Absent a designation, amounts credited to a
Participant's Accounts shall be allocated to one or more default Measurement
Funds as determined by the Plan Administrator.
(c) Upon notice to the Plan Administrator, in such manner and
times as it may prescribe, a Participant may (i) reallocate amounts credited to
his or her Accounts among the Measurement Funds as of such Valuation Dates as
the Plan Administrator determines appropriate or (ii) change the Measurement
Fund investment selection for subsequent Compensation Deferrals and
Discretionary Contributions.
(d) A Participant's Elective Deferral and Company
Contribution Accounts shall be credited with earnings (or losses) generated by
the Measurement Funds in which those Accounts (and their sub-accounts) are
deemed invested on such Valuation Dates as specified by the Plan Administrator.
(e) Notwithstanding that rates of return credited to
Participant Accounts are based upon performance of a corresponding Measurement
Fund, the Company shall not be obligated to invest any amount credited to a
Participant's Account in any Measurement Funds or investment. Measurement Funds
are hypothetical funds unless the Company determines to otherwise create such
Funds under the Trust.
(f) The Plan Administrator may establish procedures governing
the ability of Participants to give investment directions as is determines
appropriate.
(g) Measurement Funds may be changed, deleted or added at the
discretion of the Plan Administrator. If Measurement Funds are changed, added or
deleted, Account balances which are hypothetically invested in such Funds may be
transferred among other Funds.
5.5 Risk of Loss. Each Participant assumes the risk of gain or loss
------------
for any change in value of his or her Account which is deemed to be invested in
one of the Measurement Funds. Neither the Company, any Employer, the Plan
Administrator, Board of Directors nor any employee of the Company or any of its
Affiliates shall bear any responsibility or liability for any gain or loss or
fluctuation in value in any Measurement Fund or for any investment direction.
5.6 Valuation of Accounts. The value of a Participant's Account as
---------------------
of any Valuation Date shall equal the sum of (a) Discretionary Contributions and
Compensation Deferrals credited to such Account, (b) any earnings (or loss)
deemed to be earned on amounts credited to the Participant's Accounts, less (c)
any distributions paid with respect to the Participant, less (d) any forfeitures
and less (e) any administrative or other expenses allocated to the Participant's
Account.
5.7 Vesting of Accounts. Participants shall become vested in their
-------------------
Accounts as follows:
(a) Compensation Deferrals. The balance of a Participant's
-----------------------
Elective Deferral Account (i.e. Compensation Deferrals, plus all investment
earnings (or loss) credited thereon), shall be fully vested and non-forfeitable
at all times.
(b) Discretionary Company Contributions. Subject to the
------------------------------------
provisions of Section 5.7(d) below:
(i) Years of Service. All Discretionary Company
------------------
Contributions credited to an Employee or Director Participant's Company
Contribution Account, plus all investment earnings (or loss) credited thereon,
shall become fully vested and non-forfeitable whenever the Participant obtains
five (5) or more Years of Service with the Company and its Affiliates.
(ii) Other Vesting Events. Notwithstanding the
------------------------
foregoing, an Employee Participant's entire Company Contribution Account shall
become fully vested and non-forfeitable upon the occurrence of any of the
following events, but only to the extent permitted under Code Section 409A:
(A) The Participant attains Normal Retirement Age;
(B) The Participant's Disability;
(C) The Participant's Death;
(D) Following the occurrence of a Change in
Control of the Company as described in Article
XIII; or
(E) Upon the occurrence of such other events and
conditions as the Company may specify from
time to time with respect to all or any
particular Participant.
(c) Forfeiture of Non-vested and Vested Account Balances.
--------------------------------------------------------
If a Participant Separates from Service for any reason, except for the reasons
specified in Section 5.7(b)(ii), while any portion of the Participant's Company
Contribution Accounts remain non-vested and forfeitable, all such non-vested
balances will be forfeited and reduced to zero. The Company and its Affiliates
will have no payment or other obligations regarding such balances.
(d) Separation From Service For Cause. Notwithstanding any
----------------------------------
other provision hereof, the entire, unpaid Company Contribution Account of any
Employee Participant, including any portions thereof which have become vested
and non-forfeitable, shall be forfeited and no benefit shall be paid from that
Account with respect to such amounts if the Employee Participant Separates from
Service for Cause.
(e) Cause and the occurrence of any of the foregoing shall be
determined in the sole discretion of the Plan Administrator and its conclusions
shall be final and binding.
(f) Forfeitures shall be and remain the unrestricted property
of the Company.
5.8 Statement of Account. The Plan Administrator shall provide, or
--------------------
make available, to each Participant, at least annually, a statement setting
forth the balances of the Participant's Account and sub-accounts.
ARTICLE VI
Allocation of September 1, 2006 Account Balances
------------------------------------------------
As of September 1, 2006, the Plan Administrator revised and
restructured all Plan Measurement Funds. Pursuant to procedures established by
the Plan Administrator, all Participants are required to reallocate all of their
Account balances within the revised Measurement Funds. To the extent that a
Participant does not make an election to reallocate Account balances, then all
of the Participant's Account balances will be allocated to a default fund(s)
established by the Plan Administrator.
ARTICLE VII
Payments to Participants
------------------------
7.1 Distributions. Distributions under this Plan may only be made
-------------
in accordance with the requirements of Code Section 409A. The Plan Administrator
is authorized to alter any Participant distribution election as necessary to so
comply.
7.2 Unforeseeable Emergency.
-----------------------
(a) If a Participant has an Unforeseeable Emergency, the
Participant may apply to the Plan Administrator for a withdrawal from the
Participant's vested Account balances in such manner as the Plan Administrator
may determine.
(b) If the Plan Administrator has determined that the
Participant has incurred an Unforeseeable Emergency, the Participant may receive
a distribution in cash from the Participant's vested Account balances in such
amount as may be needed to satisfy the Unforeseeable Emergency and income taxes
on the distribution. Such amount shall be sourced from the Participant's
Accounts as the Plan Administrator determines appropriate.
(c) Amounts may be payable because of such Emergency only to
the extent that associated financial difficulties cannot be relieved (a) through
reimbursement or compensation by insurance or otherwise and (b) by liquidation
of the Participant's assets to the extent that the liquidation itself would not
cause a hardship.
(d) Any such distribution shall be made as soon as
administratively feasible after approval is given.
(e) All Compensation Deferral elections made by such
Participant shall be terminated for the remainder of the Plan Year and the
Participant, if otherwise eligible to participate, may make Compensation
Deferral elections for the following Plan Year.
7.3 Distributions Upon Death.
------------------------
(a) Upon an Employee or Director Participant's Separation from
Service by reason of Death, the entire balance credited to the Participant's
Accounts in the Plan will be payable to his or her Beneficiary in a lump sum at
the time specified in Section 7.6 which immediately follows Death.
(b) Upon a Participant's Death after Separation from Service,
the entire balance credited to the Participant's Accounts in the Plan will be
payable to his or her Beneficiary in a lump sum at the time specified in Section
7.6 which immediately follows Death except for the portion of his or her Account
balance which is due to be paid in installments as specified in Section 7.8.
Installment distributions shall continue to the Participant's designated
Beneficiary(ies) pursuant to the installment payment schedule previously
elected.
7.4 Distribution Upon Disability. If an Employee or Director
------------------------------
Participant becomes Disabled, the Participant shall receive payment of the
entire vested balance of the Participant's Plan Accounts in the form of a lump
sum at the time specified in Section 7.6 which immediately follows the
determination of a disability.
7.5 Election of Distribution Date and Form of Payment for
----------------------------------------------------------------
Commencement of Distributions. Prior to the start of each Plan Year, each
- -------------------------------
Employee and Director Participant shall elect a Distribution Date and manner in
which Compensation Deferrals made, and Discretionary Contributions credited, for
such Plan Year shall be distributed. All amounts credited to a Participant's
Accounts during a Plan Year shall be subject to the same payment method and
Distribution Date election. Participants shall select from among the following
possible Distribution Dates.
(a) Elected Year Account Distributions. Each Employee and
-------------------------------------
Director Participant may elect to receive distribution of Compensation Deferrals
made, or Company Contributions credited, during any Plan Year, as well as
investment earnings (or loss) credited thereon, upon any specific date, i.e.
"Elected Year Account Distribution Date." Compensation Deferrals and Company
----------------------------------------
Contributions, as well as investment earnings (or loss) thereon may not be
distributed prior to a Plan Year which is at least two (2) full Plan Years after
the Plan Year during which such Deferrals or Contributions would have been
payable to Participant and were then actually credited to a Participant's
Accounts.
(i) All Compensation Deferrals and Discretionary
Contributions, as well as investment earnings (or loss) credited thereon, which
are payable on a specific Elected Year Account Distribution Date shall be
credited to an Elective Deferral or Company Contribution sub-account for each
such Date, i.e. a "Elected Year Distribution Account."
---------------------------------
(ii) An Employee or Director Participant may select as
many as five (5) separate Elected Year Account Distribution Dates.
(iii) All amounts to be paid at a specific Elected Year
Account Distribution Date shall be payable in a lump sum at the date specified
in Section 7.6 immediately following the Distribution Date selected.
(iv) If an Employee or Director Participant Separates
from Service Prior to a Elected Year Account Distribution Date and prior to his
or her Early or Normal Retirement Date, then all vested Account balances which
would otherwise have been payable at such Elected Year Account Distribution
Dates shall be distributed in a lump sum on the date specified in Section 7.6
which immediately follows such Separation from Service.
(b) Retirement Distribution Date. Each Employee and Director
----------------------------
Participant may elect to receive distribution of Compensation Deferrals made, or
Company Contributions credited, for any Plan Year as well as investment earnings
(or loss) credited thereon, upon his or her Separation from Service after his or
her Early or Normal Retirement, i.e. "Retirement Distribution Date."
----------------------------
(i) All Compensation Deferrals and Discretionary
Contributions as well as investment earnings (or loss) credited thereon, which
are to be paid upon Separation from Service on or after a Participant's Normal
or Early Retirement Date shall be credited to a separate Elective Deferral or
Company Contribution sub-account, i.e. a "Retirement Distribution Account."
-------------------------------
(ii) Subject to Section 7.5(b)(iii) below, all amounts
to be paid at retirement shall be payable pursuant to prior Participant election
in either (A) a lump sum or (B) in annual installments as described in Section
7.8 commencing and continuing on the dates specified in Section 7.6
(iii) If a Participant Separates from Service prior to
his or her Early or Normal Retirement Date, the all Account balances which would
otherwise have been payable in a single sum after retirement or in annual
installments commencing at such a date shall instead be payable in a lump sum on
the date specified in Section 7.6 immediately following separation from service.
7.6 Uniform Time for Commencement of Distributions. All
---------------------------------------------------------
distributions, except for amounts payable in installment, shall be paid within
ninety (90) days after specified Distribution Date and/or event (e.g.,
Separation from Service, Retirement, Death, Disability) upon which the
Distribution is to be made or which causes the Distribution.
In case of installment payments, a Participant's first installment in
any series of installments shall be paid within the period specified in the
foregoing paragraph. Each installment which is due thereafter shall be paid
within forty-five (45) days of the first day of each subsequent calendar year.
7.7 Effect of Reemployment Upon Distributions
-----------------------------------------
(a) If a Participant commences receipt of a distribution and
reemploys thereafter, reemployment shall not disturb the time and manner of
distribution.
(b) Notwithstanding the above, if the Participant is
re-employed by the Company or an Affiliate before the last day of the Plan Year
in which a Separation from Service occurred, he or she shall be treated as if
the termination never occurred and distributions scheduled to commence upon
Separation from Service shall not commence.
7.8 Installment Payments. For distributions which a Participant has
--------------------
elected to be payable upon Separation from Service after or upon a Retirement
Distribution Date, a Participant may elect to receive distribution of his or her
Account balance in annual installments payable over a period of five (5) or ten
(10) years. The Participant's unpaid Account and amounts subject to installment
payments shall continue to accrue earnings (or losses) based upon the value of
the Measurement Funds in which the Participant's Accounts are hypothetically
invested during the payment period.
(a) The first annual installment payment in a series shall be
equal to (A) the value of the Participant's Accounts (or relevant portion
subject to installment payment) as of the Valuation Date specified in Section
7.11 immediately preceding the date of payment, divided by (B) the number of
installment payments elected by the Participant.
(b) The remaining installments shall be paid in an amount
equal to the value of such Accounts (or the applicable portion subject to the
installment payment election) as determined under Section 7.11 immediately
preceding the payment, divided by the number of remaining unpaid installments
applicable.
7.9 Change in Election. A Participant may change a Distribution
------------------
Date(s) and payment method originally elected for Account balances by filing a
new payment election as specified by the Plan Administrator subject to the
following limitations and minimum requirements.
(a) A Participant may not change the Distribution Date for
amounts payable at a Retirement Distribution Date. Installment payments are not
available for Elected Year Account distributions.
(b) The Distribution Date for amounts payable as Elected Year
Account Distributions from any Elected Year Distribution Account may be deferred
any number of times while the Participant is an Employee or Director but may not
be deferred following the Participant's Separation from Service.
(c) Any request for re-deferral of a Elected Year
Distribution Account balance must be submitted at least twelve (12) months prior
to the Distribution Date on which the Elected Year Account Distribution was
originally scheduled to commence.
(d) Any request for a deferral of a Elected Year Distribution
Account must result in a delay in the actual Distribution Date of at least five
(5) years from the original, or most recent, Distribution Date for a specific
Elected Year Distribution Account balance.
(e) Any request for referral or change must be made at least
twelve (12) months after the date on which the original, or most recent,
election was made.
Except as provided above, no other changes in Distribution Dates or
methods of distribution are permitted and no changes may be made to Accounts
which are in payment status through installment payments or whose Distribution
Date has occurred.
7.10 Small Accounts. Notwithstanding any election made under this
--------------
Plan, if the total vested value of the Participant's Account(s) on the date of
the Participant's Separation from Service is less than Fifteen Thousand Dollars
($15,000.00), then the balance to the credit of Participant in all of his or her
Account(s) shall be paid to the Participant in one lump sum. This dollar amount
shall automatically escalate in accordance with changes in Code Section
402(g)(1)(B) limit on elective deferrals.
7.11 Valuation of Payments. The amount of any distribution due shall
---------------------
be determined as of the close of business on the Valuation Date which the Plan
Administrator shall fix in its judgment and discretion for each distribution
made from this Plan; provided, however, such date shall not precede the date
upon which all of the following have occurred: (a) the date or event specified
in Sections 7.2, 7.3, 7.4 or 7.5 has arrived and (b) the Plan Administrator has
performed all calculations and all tasks necessary to determine the amount due
and make payment. The Plan Administrator shall then fix the Valuation Date prior
to making such distribution and the Plan Administrator have complete discretion
to make any valuation adjustments as it determines appropriate; however, in any
event, distribution in issue shall be made within the time specified in Section
7.6.
7.12 Delay of Payment for Specified Employees - Public Employer
----------------------------------------------------------------
Deferral. Notwithstanding any provision, in the case of any Participant who is a
- --------
"specified employee" within the meaning of Code Section 409A(a)(2)(B)(i), no
distribution under this Plan may be made, or may commence, before the date which
is 6 months after the date of such Participant's "separation from service"
within the meaning of Code Section 409A(a)(2)(A)(i).
7.13 Effect of Code Section 4999. Notwithstanding any other
---------------------------------
provision, if any distribution to a Participant from his Company Contribution
Account, alone or together with any other compensation or benefit a Participant
has received or may receive, would result in the Participant's being subject to
an excise tax under Section 4999 of the Code, the amount payable hereunder may
be reduced or deferred to the extent necessary to ensure that no payment or
distribution by the Company or any other person to or for the benefit of the
Participant will be subject to the excise tax imposed by Section 4999. Such
reduction or deferral shall only be made in compliance with Code Section 409A.
7.14 Withholding Taxes. The Company may take such action as it deems
-----------------
necessary for the withholding of any taxes which it determines are due from any
Plan Distribution.
7.15 Distribution from Accounts. Distributions from a Participant's
--------------------------
Account in an amount which is less than the Participant's entire Account balance
shall be made on a pro rata basis from the Participant's Accounts and
Measurement Funds to which such Account is then allocated and are being
distributed.
7.16 Form of Payment. Unless the Plan Administrator determines
----------------
otherwise, all distributions shall be made in cash. The Plan Administrator may
distribute actual interests in the Measurement Funds if (a) requested by a
Participant, (b) the Company or Trust established under this Plan has acquired
amounts of the Measurement Fund(s) to satisfy the request, (c) the Plan
Administrator determines, in its discretion, to do so and (d) the Participant
makes arrangements to satisfy all applicable withholding tax obligations in a
manner deemed satisfactory to the Plan Administrator.
ARTICLE VIII
Beneficiary Designation
-----------------------
8.1 Beneficiary Designation. Subject to Section 8.2, each
-------------------------
Participant may designate one (1) or more person(s) or an entity(ies) as
Beneficiary (both primary as well as contingent) to whom Plan benefits shall be
paid in the event of such Participant's Death prior to complete distribution of
the Participant's Accounts. Each Beneficiary designation shall be in a writing
as prescribed by the Plan Administrator and shall be effective only when filed
with the Plan Administrator during the Participant's lifetime as the
Administrator may establish.
8.2 Changing Beneficiary. Any Beneficiary designation may be changed
--------------------
by a Participant without the consent of the previously named Beneficiary by
filing of a new Beneficiary designation with the Plan Administrator. Filing of a
properly completed Beneficiary designation shall cancel all Beneficiary
designations previously filed.
(a) No Beneficiary Designation. If any Participant fails to
--------------------------
properly designate a Beneficiary or if the Beneficiary(ies)designated predecease
the Participant or if no Beneficiary is designated, the Participant's
Beneficiary shall be the Participant's surviving spouse, if any. If the
Participant is not survived by a spouse, then the entire remaining undistributed
balance to the credit of the Participant in his or her Accounts shall be paid:
(i) first, to the Participant's children (including adopted children) per
stirpes and (ii) second, if no spouse or children survive the Participant, to
the Participant's estate.
(b) Beneficiary of a Beneficiary. If a Participant dies and
----------------------------
has left a valid Beneficiary designation or has a surviving spouse who becomes
the Beneficiary at death, and the Beneficiary dies after the Participant before
all balances due have been paid, then the Participant's Account balances shall
be distributed to the estate or personal representative of the deceased
Beneficiary.
(c) Automatic Beneficiary Change. If a Participant
--------------------------------
designates as Beneficiary his or her spouse and the Participant later becomes
divorced from that spouse, the former spousal beneficiary designation
automatically shall become null and void; provided, however, the Participant may
reactivate such designation by naming the former spouse as Beneficiary after the
date upon which the divorce became final.
8.3 Effect of Payment. Payment to a specified or deemed Beneficiary
-----------------
shall completely discharge the Company's obligations under this plan.
ARTICLE IX
Administration
--------------
9.1 Plan Administrator. The Plan Administrator shall be a committee
------------------
or an individual appointed by the Board of Directors to administer the Plan. The
Plan Administrator shall have the powers, rights and duties set forth in the
Plan and shall full discretionary authority to interpret the Plan and resolve
all questions under it. The Plan Administrator shall also be authorized to
prescribe and rescind any rules as it deems appropriate for proper Plan
administration and to make all determinations and take all actions as it deems
advisable. If a Participant is assisting the Plan Administrator (either
individually or as a member of a committee), the Participant may not decide or
participate in the decision, on any matter concerning such Participant's
benefits.
9.2 Agents. The Plan Administrator may employ agents and delegate to
------
them such duties as it sees fit, and may consult with counsel who may be counsel
to the Company.
9.3 Binding Effect of Decisions. All decisions and determinations by
---------------------------
the Plan Administrator shall be final, conclusive and binding on the Company,
Participants, Beneficiaries and any other persons having or claiming an interest
hereunder.
9.4 Indemnification of Plan Administrator and Others. To the extent
-------------------------------------------------
permitted by law, the Company shall indemnify and hold harmless its employees,
officers, directors and the Plan Administrator from all loss, damage or
liability, including payment of expenses in connection with defense against any
such claim, for their acts, omissions and conduct (and for the acts, omissions
and conduct of their duly appointed agents and consultants) performed or omitted
in connection with the operation, administration or performance of any duties or
actions with respect to this Plan except for those acts, omissions or conduct
resulting from the willful misconduct, willful failure to act, gross negligence
or breach of any service contract which any may have for or with respect to the
Plan. Provided, however, that if any party would otherwise be entitled to
indemnification hereunder in respect of any liability and such party shall be
insured against loss as a result of such liability by any insurance contact or
contracts, such party shall be entitled to indemnification hereunder only to the
extent by which the amount of such liability shall exceed the amount thereof
payable under such insurance contact or contracts.
ARTICLE X
Claims Procedures
-----------------
10.1 Claims. A Participant who believes that he or she is being
------
denied a benefit to which he or she is entitled or has any other grievance or
issue concerning Plan operation, may filed a written request for such benefit or
resolution of the issue with the Company's Senior Human Resource Officer stating
the claim or issue. Such claim or request for determination must be submitted
within ninety (90) days of the events which gave rise to the claim or dispute
occurred.
10.2 Claim Decision. The Plan Administrator shall reply to any such
--------------
claim within 90 days of receipt, unless it determines to extend such reply
period for an additional 90 days for reasonable cause. If the claim is denied in
whole or in part, such reply shall include a written explanation stating:
(a) the specific reason(s) for such denial;
(b) the reference to relevant provisions of this Plan on which such
denial is based;
(c) a description of any additional information necessary for the
Participant to perfect the claim;
(d) the process if the Participant wishes to submit the claim for
review and time limits for requesting a review; and
(e) if applicable, the Participant's right to bring an action for
benefits under Section 502 of ERISA.
10.3 Review of Claim Denial. Within sixty (60) days after written
-----------------------
notice of denial of the claim is issued, the Participant may file a written
request, through the Plan Administrator, requesting that it conduct a review of
the denial.
(a) The Participant may review pertinent documents considered
in the claim denial and must submit all arguments and evidence supporting his or
her position in writing. Any material, evidence or arguments not submitted
during the initial claim determination or appeal process may not be used or
introduced as evidence in any subsequent legal or other action challenging the
final decision.
(b) The Plan Administrator shall issue the Participant a
written decision on the claim within sixty days after the receipt of the
Participant's request for review. Such decision shall (i) be in writing, (ii)
include the specific reasons for the decision and (iii) refer to the pertinent
Plan provisions upon which the decision is based.
10.4 Effect of Claim and Appeal Process. This claim and appeal
-------------------------------------
procedure is the exclusive method of contesting denials of benefits,
interpretations and actions made or taken under the Plan.
(a) If this claim and appeal procedure is not exhausted as
specified, a Participant or anyone claiming through such Participant shall be
foreclosed from further contesting any determination through legal process or
otherwise.
(b) Any action brought by a Participant to contest an adverse
Plan decision or action will be heard by a court as a review of an
administrative decision.
(c) A reviewing court will render a decision based
exclusively upon the materials and evidence assembled, received and considered
by the Company in the claim and appeal process.
(d) A reviewing court will give maximum deference to the
final decision of the Plan Administrator and will not overturn that decision
unless it is found to be arbitrary and capricious and without any reasonable
basis.
(e) Participants and any persons claiming through them agree
to waive their rights to a trial by jury of any claims they may have with
respect to this Plan.
10.5 Time for Filing Suit. No lawsuit may be initiated under this
--------------------
Plan, to obtain benefits under it or to challenge any Plan decision after more
than eighteen (18) months after a final decision the Appeals Committee
hereunder.
ARTICLE XI
Miscellaneous
-------------
11.1 Unfunded Plan. This Plan is intended to be an unfunded plan
-------------
maintained primarily to provide deferred compensation for a select group of
management or highly compensated employees within the meaning of Sections 201,
301, and 401 of the Employee Retirement Income Security act of 1974, as amended
("ERISA"), and is intended to be exempt from the provisions of Parts 2, 3, and 4
of Title I of ERISA. The Plan Administrator may terminate this Plan or otherwise
amend it to provide that no further benefits shall be offered or paid if it is
determined by a court of competent jurisdiction or by an opinion of counsel that
the Plan constitutes an employee pension benefit plan within the meaning of
Section 3(2) of ERISA which is not so exempt.
11.2 Unsecured General Creditor. Participants, their Beneficiaries,
--------------------------
and all others have no rights or interests in any property of the Company or its
Affiliates, including any life insurance policies, annuity contracts, or
proceeds therefrom. Except as may be provided in Section 11.3, assets of the
Company shall not be held under any trust for the benefit of Participants, their
Beneficiaries, or others or as collateral security for fulfilling obligations of
the Company under this Plan. All Company assets shall be unpledged and
unrestricted assets of the Company. The Company's obligation under the Plan
shall be that of an unfunded and unsecured promise to pay money in the future
and each Participant or Beneficiary shall be treated as a general unsecured
creditor of the Company and shall have no greater right to any assets other than
an unsecured creditor.
11.3 Payment Responsibility and Trust Fund. The obligation to pay or
-------------------------------------
provide for payment of a benefit hereunder to any Participant or his or her
Beneficiary shall, at all times, be the sole and exclusive liability and
responsibility of the Company and unless a Trust is provided hereunder, all
benefits will be paid from the assets of the Company. At its discretion, the
Company may establish and maintain one or more grantor trusts, with trustees as
it may approve (individually, a "Trust"), to hold assets to be used for payment
of benefits under the Plan. Such Trust may be irrevocable but the assets of the
Trust shall remain the assets of the Company ultimately subject to the claims of
its general creditors.
If any Plan benefits are paid from any such Trust, then the Company
shall have no further obligation for them, but to the extent not so paid, such
benefits shall be paid by, the Company.
11.4 Expenses of Administration. The Plan Administrator may, in its
--------------------------
discretion, allocate to Participant Accounts or any Trust created for the Plan
or submit for reimbursement from the Plan and any Trust, and recover from
Participant Accounts, all expenses of operating and administering this Plan, and
any Trust created it.
11.5 Inability to Locate Participant or Beneficiary. If the Plan
--------------------------------------------------
Administrator is unable to locate a Participant or Beneficiary within two years
following the date the Participant was to commence receiving a distribution
hereunder, the entire amount allocated to the Participant's Account shall be
forfeited. If, after such forfeiture, the Participant or Beneficiary later
claims such benefit, such benefit shall be reinstated without interest or
earnings from the date payment was to have commenced.
11.6 No Contract of Employment. Nothing in this Plan or any fund or
--------------------------
Trust created under it shall be construed as giving any Participant the right to
be retained in the service of the Company or an Affiliate or as being a contract
of employment for any term whatsoever.
11.7 Obligations to Company. Notwithstanding the provisions of
------------------------
Section 11.9, if a Participant becomes entitled to a distribution hereunder, and
if at such time the Participant has outstanding any debt, or other liability to
the Company or an Affiliate, the Company may offset such amount owed against the
amount distributable.
11.8 No Liability for Action or Omission. Neither the Company nor
-----------------------------------
any director, officer or employee of the Company shall be liable in any manner
to any Participant, Beneficiary or any other person claiming through them for
any benefit or action taken or omitted in connection with interpretation and
administration of this Plan.
11.9 Non-Alienation of Benefits. Except for withholding of taxes and
--------------------------
as otherwise provided herein and at Section 11.7, all amounts payable hereunder
shall be paid only to the person or persons designated by the Plan and to no one
else. No part of a Participant's Account or any benefit hereunder shall be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, or any other encumbrance of any kind or to any attachment, garnishment,
or other legal process of any kind. Any attempt by a person (including a
Participant or a Participant's Beneficiary) to anticipate, alienate, sell,
transfer, assign, pledge, or otherwise encumber any benefits under the Plan,
shall be void.
If any person shall attempt to, or shall alienate, sell, transfer,
assign, pledge or otherwise encumber such person's benefits under the Plan, or
if by any reason of such person's bankruptcy or other event happening at any
time, such benefits would devolve upon any other person or would not be enjoyed
by the person entitled thereto under the Plan, then the Plan Administrator may
terminate the interest in any such benefits of the person otherwise entitled
thereto under the Plan and may hold or apply such benefits in such manner as the
Plan Administrator may deem proper.
Notwithstanding the foregoing, all or a portion of a Participant's
Account may be awarded to an "alternate payee" (within the meaning of Section
206(d)(3)(K) of ERISA) if and to the extent so provided in a judgment, decree or
order that, in the Plan Administrator's sole discretion, would meet the
applicable requirements for qualification as a "qualified domestic relations
order" (within the meaning of Section 206(d)(3)(B)(i) of ERISA) if the Plan were
subject to the provisions of Section 206(d) of ERISA.
11.10 Payments to Incompetents or Minors. If the Plan Administrator
------------------------------------
receives evidence satisfactory to it that any person entitled to receive a
benefit is, at any time when such benefit becomes payable, either a minor or
physically or mentally incompetent to receive such benefit and to give a valid
release therefore, and that another person or an institution is then maintaining
or has custody of said person, such as a guardian, committee or other
representative of the estate of such person, the Plan Administrator may
authorize the payment of the benefit, otherwise payable to such person to such
other person or institution, and the release of such other person or institution
shall constitute a valid and complete discharge for the payment of such benefit.
11.11 Liability for Benefit Payments and Successorship. The Plan shall
------------------------------------------------
not be automatically terminated by the Company's acquisition by or merger into
any other entity, but the Plan shall be continued after such acquisition or
merger if the successor employer elects and agrees to continue the Plan. All
rights to amend, modify, suspend or terminate the Plan shall be transferred to
the successor as of the effective date of the merger or acquisition. This Plan
and all of its terms shall be binding upon such successors and the Company's
assigns.
11.12 Governing Law and Venue for Disputes. This Plan shall be
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construed in accordance with and governed by the laws of the State of Missouri
to the extent not superseded by federal law, without reference to Missouri's
conflict of laws provisions. Any action, dispute or challenge regarding the
interpretation or enforcement of this Agreement must be brought and litigated in
the United States District Court for the Eastern District of Missouri, if it
otherwise has subject matter jurisdiction, or otherwise in the Circuit Court for
the County of St. Louis, Missouri, Twenty-First Judicial Circuit.
11.13 Correction of Defects. The Company and Plan Administrator may
---------------------
correct any defect, supply any omission, or reconcile any inconsistency in the
Plan or any payment as it deems appropriate. If a Participant is overpaid or
receives amounts which the Company determines have been incorrectly paid to the
Participant, the Participant shall return such payments to the Company upon
demand.
11.14 Severability of Provisions. If any provision of this Plan shall
--------------------------
be held invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions hereof, and this Plan shall be construed and
enforced as if such provisions had not been included.
11.15 Acceptance of Terms. As a condition to receipt of benefits under
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the Plan, each Participant agrees to accept the terms of this Plan.
11.16 Action by the Company. Except as otherwise specifically provided
---------------------
herein, any action required of or permitted to be taken by the Company under the
Plan shall be by resolution of its Board of Directors, by duly authorized
committee of its Board of Directors, by the Plan Administrator or by such other
person or committee to whom such power of action is properly delegated by the
Company's Board of Directors.
11.17 No Fiduciary Relationship. Nothing contained in this Plan, and
-------------------------
no action taken pursuant to its provisions by either the Company, the Employers
or the Participants shall create, or be construed to create a fiduciary
relationship between the Company or the Employers and any Participant or
Beneficiary.
ARTICLE XII
Employer Participation
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12.1 Adoption of Plan. Any Affiliate of the Company may, with the
----------------
approval of the Company, adopt the Plan by filing with the Company a resolution
of its board of directors to that effect or by unilateral action of the Board of
Directors of the Company with consent of the Employer. To the extent required by
the Company, such Employers and their acquirers and successors shall be required
to satisfy all obligations and benefits created under this Plan for
Participants, and their Beneficiaries, whose participation and benefits accrued
under this Plan are associated with those Employers and the employment of those
Participants by those Employers.
12.2 Withdrawal From the Plan by an Employer. Any Employer may
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withdraw from the Plan upon approval of the Company by delivering to the Plan
Administrator written notice of its election to withdraw. Withdrawal of an
Employer shall have no effect upon the manner, method and timing of distribution
of interests and benefits of Participants hereunder. To the extent that the
amounts held in the Trust for the benefit of Participants and Beneficiaries
associated with that Employer are determined by the Plan Administrator, in its
judgment, to be insufficient to satisfy the obligations of the Plan to those
Participants and Beneficiaries, the remaining amount necessary to satisfy such
obligation shall be an obligation of that Employer and its acquirers and
successors.
ARTICLE XIII
Change of Control
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13.1 Overriding Provisions Applicable During a Restricted Period. The
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following provisions of this Section will become effective on a Restricted Date
as the result of a Change of Control and will remain in effect during the
Restricted Period beginning on that date until the following related
Unrestricted Date, and during the Restricted Period, will supersede any of the
provisions of the Plan to the extent necessary to eliminate any inconsistencies
between the provisions of this Section and any other provisions of the Plan,
including any supplements thereto.
13.2 Suspension of Part of All of the Overriding Provisions. If a
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majority of the members of the Entire Board are Continuing Directors (provided
such majority is equal to the same number as constituted a majority of the
Entire Board immediately prior to the Change of Control), by the affirmative
vote of a majority of the Entire Board and a majority of those members of the
Entire Board who are Continuing Directors, all or a designated portion or
portions of the following provisions of this Section may be declared not
applicable as to the specified transaction or event. No portion of the
provisions of this Section 13 will apply to any transaction or event to the
extent such portion is inconsistent with the requirements of applicable law.
13.3 Definitions. For purposes of this Section 13, the definitions
-----------
set forth in Paragraphs (a) through (k) below will apply. Definitions set forth
elsewhere in the Plan also will apply to the provisions set forth in this
Section 9, except that where a definition set forth elsewhere in the Plan and a
definition set forth in this Subsection conflict, the definition set forth in
this subsection will govern.
(a) "Acquiring Person" will mean any Person, who or which,
together with all and associates of such Person, is the Beneficial Owner of
shares of common stock of the Company constituting more than 20 percent of the
common stock then outstanding.
(b) "Affiliate" and "Associate" will have the meaning
described to such terms in Rule b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934 (the "Act").
(c) "Beneficial Owner" will have the meaning ascribed to such
term in Rule 1 3d-3 of the Act.
(d) "Board of Directors" will mean the Board of Directors of
the Company.
(e) A "Change of Control" will be deemed to occur (i) upon
any Person becoming an Acquiring Person if the Board of Directors has not
recommended that stockholders of the Company tender or otherwise sell their
common stock to such Acquiring Person; (ii) upon the approval by the
stockholders of the Company of a reorganization, merger or consolidation, in
each case, with respect to which persons who were stockholders of the Company
immediately prior to such reorganization, merger or consolidation, do not,
immediately thereafter, own more than 50 percent of the combined voting power
entitled to vote generally in the election of directors of the reorganized,
consolidated or merged Company's then outstanding securities; or (iii) upon a
liquidation or dissolution of the Company or the sale of all or substantially
all of the Company's assets.
(f) "Continuing Director" will mean;
(i) any member of the Board of Directors immediately
prior to a Change of Control, or
(ii) any successor of a Continuing Director who is
recommended or elected to such continuing Director by a majority of the
Continuing Directors then in office and is neither an Acquiring Person, an
Affiliate of an Acquiring Person, nor a representative or nominee of an
Acquiring Person or of any such Affiliate while such person is a member of the
Board of Directors.
Notwithstanding the foregoing, a successor will not be deemed to be a
Continuing Director unless, immediately prior to his or her appointment or
election, a majority of the members of the Entire Board were Continuing
Directors (and unless such majority is equal to the same number as constituted a
majority of the Entire Board immediately prior to the Change of Control).
(g) "Person" will mean any individual, firm, corporation or
other entity, and will any "group" as that term is used in Rule 13d-5(b) of the
Act.
(h) "Restricted Date" will mean the date on which a Change of
Control occurs.
(i) "Restricted Period" will mean the period beginning on a
Restricted Date and ending on the fifth anniversary of such Restricted Date.
(j) "Unrestricted Date" will mean the last day of a
Restricted Period.
(k) "Entire Board" will mean the total number of members of
the Board of Directors that there would be it there were no vacancies on such
Board.
13.4 Benefits Vested on Restricted Date. Effective on a Restricted
------------------------------------
Date, the balances in the Company Contribution Accounts (including any
contributions and investment earnings (or loss) of each Participant who is a
Participant in the Plan and an Employee or Director on that date will become
fully vested and nonforfeitable.
13.5 Prohibition Against Amendment. During the Restricted Period, the
-----------------------------
provisions of the Section 13 may not be amended or deleted and may not be
superseded by any other provision of the Plan (including the provisions of any
exhibit or supplement thereto).
ARTICLE XIV
Amendment, Termination and Vesting
----------------------------------
14.1 Amendment. The Plan may be amended, suspended, or terminated at
---------
any time by Company or the Plan Administrator in their sole discretion;
provided, however, that no such amendment, suspension or termination shall
result in any reduction in the value of the vested and non-forfeitable portion
of a Participant's Account balance determined as of the effective date of such
amendment. In addition, the Plan, and/or the terms of any election made
hereunder, may be amended at any time and in any respect by Company or by the
Plan Administrator if and to the extent recommended by counsel in order to
conform to the requirements of Code Section 409A and regulations thereunder.
14.2 Termination. In the event of any suspension or termination of
-----------
the Plan, payment of Participants' Accounts shall be made under and in
accordance with the terms of the Plan and the applicable elections; provided,
however, that the Plan Administrator may determine, in its sole discretion, to
accelerate payments to all Participants if and to the extent that such
acceleration is permitted under Code Section 409A and regulations thereunder.
14.3 Vesting. In no event shall any Participant hereunder have any
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vested rights or entitlements hereunder except as specifically provided in
Article V. No Participant shall have any right to future deferrals, tax benefits
or any specific Measurement Fund or continuation of any deferral, Measurement
Fund or economic or tax advantage associated with this Plan.
The Company and Plan Administrator's rights of amendment and
termination under this Article are reserved and are enforceable regardless of
performance rendered by any Participant, election made by any Participant or any
other Plan term, except that no such amendment, suspension or termination shall
result in any reduction in the value of the vested and non-forfeitable portion
of a Participant's Accounts determined as of the effective date of such
amendment.
14.4 Acceleration of Payments. To the extent consistent with
--------------------------
regulations under Code Section 409A, the Company reserves the right in its sole
discretion to accelerate the payment of any benefits payable under the Plan into
a lump sum at any time.
14.5 Notice. Notice of any amendment or termination shall be given
------
to each Participant and Beneficiary of any deceased Participant entitled to
benefits to the extent such amendment or termination would impact their benefit.
FIRST BANKS, INC.
By: /s/ John Kitson
--------------------------------
Title: Senior Vice President
-----------------------------
Date: April 25, 2008
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