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Exhibit 4
ROBINSON COMPANIES
NONQUALIFIED DEFERRED COMPENSATION PLAN
(2000 Statement)
Adopted July 18, 2000
by the Board of Directors of C.H. Robinson Worldwide, Inc.
But First Effective January 1, 2001
ROBINSON COMPANIES
NONQUALIFIED DEFERRED COMPENSATION PLAN
(2000 Statement)
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TABLE OF CONTENTS
Page
SECTION 1. INTRODUCTION AND DEFINITIONS.............................. 1
1.1. Statement of Plan................................... 1
1.2. Definitions......................................... 1
1.2.1. Account................................. 1
1.2.2. Affiliate............................... 1
1.2.3. Annual Valuation Date................... 1
1.2.4. Beneficiary............................. 1
1.2.5. Change-in-Control....................... 1
1.2.6. Compensation Committee.................. 2
1.2.7. Effective Date.......................... 2
1.2.8. Employers............................... 2
1.2.9. Event of Maturity....................... 2
1.2.10. Index Fund.............................. 2
1.2.11. Normal Retirement Date.................. 3
1.2.12. Participant............................. 3
1.2.13. Plan.................................... 3
1.2.14. Plan Administrator...................... 3
1.2.15. Plan Statement.......................... 3
1.2.16. Plan Year............................... 3
1.2.17. Principal Sponsor....................... 3
1.2.18. Termination of Employment............... 3
1.2.19. Valuation Date.......................... 3
1.2.20. Retirement Plan......................... 4
SECTION 2. PARTICIPATION............................................. 5
2.1. Participation....................................... 5
2.1.1. General Participation................... 5
2.1.2. Participation by Selection.............. 5
2.1.3. Initial Enrollment...................... 5
2.2. Specific Exclusion.................................. 6
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SECTION 3. CREDITS TO ACCOUNTS........................................ 7
3.1. Deferral Credits..................................... 7
3.1.1. Amount of Credits........................ 7
3.1.2. Crediting to Accounts.................... 7
3.2. Discretionary Employer Credits....................... 7
3.2.1. Amount of Credits........................ 7
3.2.2. Crediting to Accounts.................... 8
3.3. Option Deferral Credits.............................. 8
3.3.1. Amount of Deferral....................... 8
3.3.2. Crediting to Accounts.................... 9
SECTION 4. ADJUSTMENT OF ACCOUNTS..................................... 10
4.1. Operation of Index Funds............................. 10
4.2. Establishment of Accounts............................ 10
4.3. Adjustments of Accounts.............................. 10
SECTION 5. VESTING OF ACCOUNT......................................... 11
5.1. General Rule......................................... 11
5.2. Conduct Forfeiture................................... 11
SECTION 6. MATURITY................................................... 13
SECTION 7. PAYMENTS................................................... 14
7.1. Termination Payments................................. 14
7.1.1. Form of Payment.......................... 14
7.1.2. Time of Payment.......................... 14
7.1.3. Installment Amounts...................... 15
7.1.4. New Designation.......................... 15
7.1.5. Default.................................. 16
7.1.6. No Spousal Rights........................ 16
7.2. In-Service Payment................................... 16
7.2.1. When Available........................... 16
7.2.2. Payment.................................. 16
7.2.3. Forfeiture............................... 16
7.3. Accelerated Lump Sum Payment......................... 16
7.3.1. When Available........................... 16
7.3.2. Payment.................................. 16
7.3.3. Forfeiture............................... 17
7.4. Scheduled Payments................................... 17
7.4.1. When Available........................... 17
7.4.2. Payment.................................. 17
7.5. Designation of Beneficiaries......................... 17
7.5.1. Right to Designate....................... 17
7.5.2. Failure of Designation................... 17
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7.5.3. Disclaimers by Beneficiaries............... 18
7.5.4. Definitions................................ 18
7.5.5. Special Rules.............................. 19
7.5.6. No Spousal Rights.......................... 20
7.6. Death Prior to Full Payment........................... 20
7.7. Facility of Payment................................... 20
7.8. Payments in Kind...................................... 20
7.9. Disqualification...................................... 21
7.10. Tax Withholding....................................... 21
SECTION 8. FUNDING OF PLAN.............................................. 22
8.1. Unfunded Obligation................................... 22
8.2. Life Insurance........................................ 22
8.3. Spendthrift Provision................................. 22
SECTION 9. AMENDMENT AND TERMINATION.................................... 23
9.1. Before a Change-in-Control............................ 23
9.1.1. Terminated Participants.................... 23
9.1.2. Other Participants......................... 23
9.2. After a Change-in-Control............................. 23
9.2.1. Existing Participants...................... 23
9.2.2. New Participants........................... 23
9.3. No Oral Amendments.................................... 24
9.4. Plan Binding on Successors............................ 24
SECTION 10. DETERMINATIONS -- RULES AND REGULATIONS...................... 25
10.1. Determinations........................................ 25
10.2. Rules and Regulations................................. 25
10.3. Certifications........................................ 25
10.4. Claims Procedure...................................... 25
10.4.1. Original Claim............................ 25
10.4.2. Review of Denied Claim.................... 26
10.4.3. General Rules............................. 26
10.4.4. Deadline to File Claim.................... 27
10.4.5. Limitations and Exhaustion................ 27
10.5. Information Furnished by Participants................. 28
SECTION 11. PLAN ADMINISTRATION.......................................... 29
11.1. Plan Administrator.................................... 29
11.1.1. Officers.................................. 29
11.1.2. Chief Executive Officer................... 29
11.1.3. Compensation Committee.................... 29
11.2. Conflict of Interest.................................. 29
11.3. Administrator......................................... 29
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11.4. Service of Process....................... 29
11.5. Expenses 29
SECTION 12. DISCLAIMERS............................................ 30
12.1. Term of Employment....................... 30
12.2. Source of Payment........................ 30
12.3. Delegation............................... 30
SECTION 13. CONSTRUCTION........................................... 31
13.1. ERISA Status............................. 31
13.2. IRC Status............................... 31
13.3. Rules of Document Construction........... 31
13.4. References to Laws....................... 31
13.5. Choice of Law............................ 31
13.6. Effect on Other Plans.................... 32
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ROBINSON COMPANIES
NONQUALIFIED DEFERRED COMPENSATION PLAN
(2000 Statement)
SECTION 1
INTRODUCTION AND DEFINITIONS
1.1. Statement of Plan. Effective January 1, 2001, C.H. ROBINSON WORLDWIDE,
INC., a Delaware corporation (the "Principal Sponsor") and certain affiliated
corporations (hereinafter together with the Principal Sponsor sometimes
collectively referred to as the "Employers") hereby create and establish a
nonqualified, unfunded, deferred compensation plan for the purpose of allowing a
select group of management and highly compensated employees of the Employers to
defer the receipt of compensation which would otherwise be paid to those
employees.
1.2. Definitions. When the following terms are used in this Plan Statement with
initial capital letters, they shall have the following meanings:
1.2.1. Account -- the separate bookkeeping account representing the
separate unfunded and unsecured general obligation of the Employers established
with respect to each person who is a Participant in this Plan in accordance with
Section 2 and to which are credited amounts pursuant to Section 3 and Section 4
and from which are subtracted forfeitures and payments made pursuant to Section
5 and Section 7. To the extent necessary or useful to the administration of the
Plan, the Plan Administrator may cause the Account to be divided into any number
of subaccounts all of which, taken together, shall be the Account.
1.2.2. Affiliate -- a business entity which is affiliated in ownership
with the Principal Sponsor or an Employer and is recognized as an Affiliate by
the Principal Sponsor for the purposes of this Plan.
1.2.3. Annual Valuation Date -- each December 31.
1.2.4. Beneficiary -- a person designated by a Participant (or
automatically by operation of the Plan Statement) to receive all or a part of
the Participant's Account in the event of the Participant's death prior to full
payment thereof. A person so designated shall not be considered a Beneficiary
until the death of the Participant.
1.2.5. Change-in-Control -- any of the following events:
(a) A sale of all or substantially all of the assets of the
Principal Sponsor.
(b) The acquisition of securities of the Principal Sponsor
representing more than fifty percent (50%) of the combined
voting power of the Principal Sponsor's
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then outstanding securities by any person or group of persons
acting in concert.
(c) A consolidation or merger of the Principal Sponsor in which
the Principal Sponsor is not the continuing or surviving
corporation or pursuant to which shares of the Principal
Sponsor's outstanding capital stock are converted into cash,
securities or other property, other than a consolidation or
merger of the Principal Sponsor in which the Principal
Sponsor's stockholders immediately prior to the consolidation
or merger have the same proportionate ownership of voting
capital stock of the surviving corporation immediately after
the consolidation or merger.
(d) If the shares of voting capital stock of the Principal Sponsor
are traded on an established securities market: a public
announcement that any person has acquired or has the right to
acquire beneficial ownership of securities of the Principal
Sponsor representing more than fifty percent (50%) of the
combined voting power of the Principal Sponsor's then
outstanding securities, and for this purpose the terms
"person" and "beneficial ownership" shall have the meanings
provided in Section 13(d) of the Securities Exchange Act of
1934, as amended, or related rules promulgated by the
Securities and Exchange Commission or the commencement of or
public announcement of an intention to make a tender offer or
exchange offer for securities of the Principal Sponsor
representing more than fifty percent (50%) of the combined
voting power of the Principal Sponsor's then outstanding
securities.
(e) The Compensation Committee, in its sole and absolute
discretion, determines that there has been a sufficient change
in the share ownership of the Principal Sponsor to constitute
a change of effective ownership or control of the Principal
Sponsor.
1.2.6. Compensation Committee -- the Compensation Committee of the
Board of Directors of the Principal Sponsor (or any successor committee).
1.2.7. Effective Date -- January 1, 2001.
1.2.8. Employers -- the Principal Sponsor and any business entity
affiliated with the Principal Sponsor that employs persons who are designated
for participation in this Plan.
1.2.9. Event of Maturity -- any of the occurrences described in Section
6 by reason of which a Participant or Beneficiary may become entitled to a
payment from this Plan.
1.2.10. Index Fund -- any of the hypothetical investment portfolios
used for the purpose of measuring income, gains and losses to the Accounts of
Participants (as if the Accounts had in fact been so invested) as selected by
the Compensation Committee from time to time.
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1.2.11. Normal Retirement Date -- the last day of the calendar month in
which a Participant attains age sixty-five (65) years.
1.2.12. Participant -- an employee of an Employer who is designated as
eligible to participate in this Plan and becomes a Participant in this Plan in
accordance with the provisions of Section 2. An employee who has become a
Participant shall be considered to continue as a Participant in this Plan until
the date of the Participant's death or, if earlier, the date when the
Participant is no longer employed by an Employer or an Affiliate and upon which
the Participant no longer has any Account under this Plan (that is, the
Participant has received a payment of all of the Participant's Account).
1.2.13. Plan -- the nonqualified and unfunded income deferral program
established and maintained by the Principal Sponsor for the benefit of
Participants eligible to participate therein, as set forth in the Plan
Statement. (As used in this document, "Plan" does not refer to the document
pursuant to which this Plan is maintained. That document is referred to in this
document as the "Plan Statement"). The Plan shall be referred to as the "C.H.
ROBINSON WORLDWIDE, INC. NONQUALIFIED DEFERRED COMPENSATION PLAN."
1.2.14. Plan Administrator -- C.H. ROBINSON WORLDWIDE, INC., a Delaware
corporation.
1.2.15. Plan Statement -- this document entitled "Robinson Companies
Nonqualified Deferred Compensation Plan (2000 Statement)" as adopted by the
Board of Directors of C.H. ROBINSON WORLDWIDE, INC. effective as of September 1,
2000, as the same may be amended from time to time thereafter.
1.2.16. Plan Year -- the twelve (12) consecutive month period ending on
December 31, the Annual Valuation Date.
1.2.17. Principal Sponsor -- C.H. ROBINSON WORLDWIDE, INC., a Delaware
corporation.
1.2.18. Termination of Employment -- a complete severance of an
employee's employment relationship with the Employers and all Affiliates, if
any, for any reason other than the employee's death. A transfer from employment
with an Employer to employment with an Affiliate of an Employer shall not
constitute a Termination of Employment. A decision by the Compensation Committee
to not select a Participant for participation for a subsequent Plan Year shall
not constitute a Termination of Employment. If an Employer who is an Affiliate
ceases to be an Affiliate because of a sale of substantially all the stock or
assets of the Employer, then Participants who are employed by that Employer and
who cease to be employed by the Plan Administrator or an Employer on account of
the sale of substantially all the stock or assets of the Employer shall be
deemed to have thereby had a Termination of Employment for the purpose of
commencing payments from this Plan.
1.2.19. Valuation Date -- each date that the U.S. securities markets
are open and conducting business.
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1.2.20. Retirement Plan -- the tax-qualified, defined contribution,
profit sharing plan of C.H. ROBINSON WORLDWIDE, INC. established for the benefit
of employees eligible to participate therein, and known as the "ROBINSON
COMPANIES RETIREMENT PLAN."
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SECTION 2
PARTICIPATION
2.1. Participation.
2.1.1. General Participation. Each employee of the Principal Sponsor
shall be eligible for participation in this Plan for each Plan Year that
employee is, on the first day of that Plan Year, an officer of the Principal
Sponsor elected to such officer position by the Board of Directors.
2.1.2. Participation by Selection. In addition, the Compensation
Committee may select other employees of an Employer for participation in this
Plan. Each employee of an Employer selected for participation in this Plan for a
particular Plan Year by the Compensation Committee shall become a Participant in
this Plan as of the first day of that Plan Year.
(a) The Compensation Committee may, in its discretion, allow an
employee of an Employer selected for participation in this
Plan to initially enroll on other than the first day of the
Plan Year if, and only if, the selected employee is selected
for participation and enrolls within the first thirty (30)
days after first becoming an employee of an Employer.
(b) The Compensation Committee shall not select any employee for
participation unless the Compensation Committee determines
that such employee will be for that Plan Year a member of a
select group of management or highly compensated employees (as
that expression is used in ERISA).
(c) The Compensation Committee shall select such employees for
participation in this Plan on a Plan Year by Plan Year basis.
Selection for one Plan Year does not entitle the employee to
be selected the next Plan Year. An employee who has been
selected by the Compensation Committee shall, however, be
presumed to be selected for subsequent Plan Years unless and
until the Compensation Committee evidences a contrary
intention.
2.1.3. Initial Enrollment. Prior to the date that an employee eligible
for participation first becomes a Participant, such employee shall as a
condition of participation in this Plan complete such forms and make such
elections as the Plan Administrator may require for the effective administration
of this Plan. At a minimum, the initial enrollment shall include the following:
(a) Such initial enrollment shall designate the amount of
compensation the Participant elects to defer under the terms
of the Plan in accordance with Section 3.
(b) Such initial enrollment shall designate the form and the time
for the payment of the Participant's Account following an
Event of Maturity pursuant to Section 7 (and if such
designation is not clearly made to the contrary shall be
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deemed to have been a designation of a single lump sum payment
to be made as soon as practicable after the Annual Valuation
Date for the Plan Year in which the Event of Maturity
occurred).
(c) Such initial enrollment shall specify a scheduled payment or
payments to be made from the Plan pursuant to Section 7.4 if
any such scheduled payments are to be made.
The initial enrollment shall be made in writing upon forms furnished by the Plan
Administrator, shall be made at such time as the Plan Administrator shall
determine and shall conform to such other procedural rules as the Plan
Administrator shall establish.
2.2. Specific Exclusion. Notwithstanding anything apparently to the contrary in
the Plan Statement or in any written communication, summary, resolution or
document or oral communication, no individual shall be a Participant in this
Plan, develop benefits under this Plan or be entitled to receive benefits under
this Plan (either for himself or herself or his or her survivors) unless such
individual is a member of a select group of management or highly compensated
employees (as that expression is used in ERISA). If a court of competent
jurisdiction, any representative of the U.S. Department of Labor or any other
governmental, regulatory or similar body makes any direct or indirect, formal or
informal, determination that an individual is not a member of a select group of
management or highly compensated employees (as that expression is used in
ERISA), such individual shall not be (and shall not have ever been) a
Participant in this Plan at any time. If any person not so defined has been
erroneously treated as a Participant in this Plan, upon discovery of such error
such person's erroneous participation shall immediately terminate ab initio and
the individual's Account shall be forfeited immediately and such person shall be
obligated to reimburse the Plan Administrator for all amounts erroneously paid
to him or her.
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SECTION 3
CREDITS TO ACCOUNTS
3.1. Deferral Credits.
3.1.1. Amount of Credits. Prior to the first day of any Plan Year, an
employee who has been selected for participation for that Plan Year may elect to
defer compensation for that Plan Year. An election made by a Participant for a
Plan Year shall remain in effect for subsequent Plan Years unless, prior to a
subsequent Plan Year, the election is changed or terminated by the Participant
or the Participant is not selected for participation for that subsequent Plan
Year. Each such election:
(a) Shall be irrevocable for the Plan Year with respect to which
it is made once it has been accepted by the Plan
Administrator.
(b) Shall designate the amount or portion of the Participant's
base compensation or bonus compensation or both which is
earned during that Plan Year (without regard to whether it
would be paid during that or a subsequent Plan Year) which
shall not be paid to the Participant but instead shall be
credited under this Plan under Section 3 and paid from this
Plan under Section 7. The amount or portion may be designed as
a dollar amount or a percentage. The amount or portion of the
base compensation that can be designated shall not exceed one
hundred percent (100%) of the Participant's base compensation
nor more than one hundred percent (100%) of the Participant's
bonus compensation. No deferral election shall be accepted
unless, based on facts as then known, the anticipated annual
deferral is at least Three Thousand Dollars ($3,000).
(c) Shall be made in writing upon forms furnished by the Plan
Administrator, shall be made at such time as the Plan
Administrator shall determine, shall be made before the
beginning of the Plan Year with respect to which it is made
and shall conform to such other procedural rules as the Plan
Administrator shall establish.
3.1.2. Crediting to Accounts. The Plan Administrator shall credit to
the Account of each Participant the amount, if any, of compensation the
Participant elected to defer. Such amount shall be credited in cash and
thereafter recorded as if invested in an Index Fund or Index Funds as provided
in Section 4. Such amount shall be credited as nearly as practicable as of the
time or times when the compensation would have been paid to the Participant but
for the election to defer.
3.2. Discretionary Employer Credits.
3.2.1. Amount of Credits. At any time and from time to time, an
Employer may, in its sole and absolute discretion, cause a discretionary
Employer credit to be made to the Account of a Participant. No Participant shall
be entitled to a discretionary Employer credit because a credit is
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made for any other Participant. No discretionary Employer credit shall be
considered to have been made under this Plan unless and until the fact, amount
and time of such discretionary Employer credit has been unambiguously
communicated, in writing, to the Participant and to the Plan Administrator by a
person clearly authorized to do so by the Employer.
3.2.2. Crediting to Accounts. The Plan Administrator shall credit to
the Account of each Participant the amount, if any, of such discretionary
Employer credit. Such amount shall be credited in cash and thereafter recorded
as if invested in an Index Fund or Index Funds as provided in Section 4. Such
amount shall be credited as of the date unambiguously communicated by the
Employer to the Plan Administrator.
3.3. Option Gain Deferral .
3.3.1. Amount of Deferral. From time to time, an employee who has been
selected for participation for that Plan Year may elect to defer delivery to the
Participant of all or a portion of the shares representing gain on the exercise
of the option which would otherwise be deliverable to the Participant on the
exercise of options granted to the employee on the common stock of the Principal
Sponsor (excluding options granted under a Code ss.423 plan). Each such
election:
(a) Shall be irrevocable once it has been accepted by the Plan
Administrator.
(b) Shall preclude the Participant from exercising the option on
the designated shares for at least one (1) year after the
election to defer delivery is received by the Plan
Administrator.
(c) Shall obligate the Participant to pay the purchase price on
the exercise of the option on the designated shares to the
issuer in the form of shares of the Principal Sponsor.
(d) Shall designate the amount or portion of the gain on the
exercise of the options on the designated shares that shall
not be delivered to the Participant but instead shall be held
for subsequent delivery from the option plan at the time and
in the form specified under Section 7. The amount or portion
of such gain may be designated as a dollar amount or a
percentage. No such deferral election shall be accepted
unless, based on facts as then known, the anticipated value of
the shares for which delivery is deferred will be at least
Three Thousand Dollars ($3,000).
(e) Shall be made in writing upon forms furnished by the Plan
Administrator, shall be made at such time as the Plan
Administrator shall determine and shall conform to such other
procedural rules as the Plan Administrator shall establish.
(f) Shall, upon acceptance by the Plan Administrator, constitute
an amendment of the award under which the Participant was
granted the option.
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This option gain deferral provision shall not be effective unless and until the
Compensation Committee shall affirmatively act to implement the provision. The
Compensation Committee may limit or withdraw the right to defer delivery to the
Participant of the shares representing gain on the exercise of an option to a
class of elections or an individual election either prospectively or
retroactively.
3.3.2. Crediting to Accounts. The Plan Administrator shall credit to
the Account of each Participant a number of stock units equal to the number of
shares that would have been delivered to the Participant upon exercise of the
option but for the election to defer delivery. Such stock units shall be
credited as nearly as practicable as of the time or times when the delivery of
the shares to the Participant would have occurred but for the election to defer
delivery. In addition, there shall be credited to the Account that number of
stock units equal to the number of shares which could have been purchased if all
dividends payable on the number of shares equal to the number of stock units
credited to the Account after the exercise date had been reinvested in
additional shares.
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SECTION 4
ADJUSTMENT OF ACCOUNTS
4.1. Operation of Index Funds. From time to time and at any time, the
Compensation Committee may designate one or more Index Funds for the purpose of
this Plan. The Compensation Committee shall determine the general
characteristics and objectives of each Index Fund. The Compensation Committee
may, in its discretion, identify common stock of the Principal Sponsor as an
Index Fund. The Compensation Committee shall adopt rules specifying the
circumstances under which a particular Index Fund may be selected, or shall be
automatically selected, limitations or prohibitions on the ability to select
into or out of specific Index Funds, the minimum or maximum amount or percentage
of an Account which may be selected into a particular Index Fund, the procedures
for making or changing selections among Index Funds, the extent (if any) to
which Beneficiaries of deceased Participants may make selections and the effect
of a Participant's or Beneficiary's failure to make an effective selection with
respect to all or any portion of an Account and all similar matters governing
the selection of Index Funds. If the Compensation Committee identifies common
stock of the Principal Sponsor as an Index Fund, each Participant who selects
(or is required by this Plan to utilize) that Index Fund as to all or any
portion of his or her Account shall not be permitted to select out of that Index
Fund at any time (i.e., that selection is permanent and irreversible). The
Compensation Committee shall have the power, from time to time, to eliminate
Index Funds, to direct that additional Index Funds be designated and, under
rules, to withdraw or limit selection of a particular Index Fund.
4.2. Establishment of Accounts. There shall be established for each Participant
an unfunded, bookkeeping Account which shall be adjusted each Valuation Date.
4.3. Adjustments of Accounts. In accordance with rules and procedures approved
by the Plan Administrator, the Plan Administrator shall cause the value of each
Account or portion of an Account hypothetically invested in a particular Index
Fund (including unpaid Accounts) to be increased (or decreased) from time to
time for payments, forfeitures, contributions, investment gains (or losses) and
expenses charged to the Account as if the Account had been invested in (and
re-invested in) the Index Fund or Index Funds. However, any portion of an
Account for which the Index Fund is common stock of the Principal Sponsor shall
be recorded in stock units and any dividends deemed to have been payable on
stock units shall be deemed immediately reinvested in that same Index Fund.
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SECTION 5
VESTING OF ACCOUNT
5.1. General Rule. Except as elsewhere specifically provided, the account of
each Participant shall be fully (100%) vested and nonforfeitable at all times
unless stated otherwise in an Employer award.
5.2. Conduct Forfeiture. Notwithstanding any other provision of this Plan
Statement, a Participant shall forfeit all entitlement to the Account in excess
of the aggregate amount of deferral credits made by the Participant (i.e., shall
forfeit all earnings and gains on deferral credits and shall forfeit all
discretionary Employer credits and all earnings and gains thereon) upon the
determination by the Plan Administrator (or, if the Participant is the Chief
Executive Officer of the Principal Sponsor, the Compensation Committee) that the
Participant, either before or after termination of employment:
(a) has engaged in a criminal or fraudulent activity resulting in
harm to an Employer or an Affiliate; or
(b) has divulged to a competitor any material confidential
information or trade secrets of an Employer or an Affiliate;
or
(c) has provided an Employer or Affiliate with materially false
reports concerning such Participant's business interests or
employment; or
(d) has made materially false representations which are relied
upon by an Employer or an Affiliate in furnishing information
to a shareholder, auditors or any regulatory or governmental
agency; or
(e) has maintained an undisclosed, unauthorized and material
conflict of interest in the discharge of the duties owed by
such Participant to an Employer or an Affiliate; or
(f) has engaged in conduct causing a serious violation of state or
federal law by an Employer or an Affiliate; or
(g) has engaged in reckless or grossly negligent activity toward
an Employer or an Affiliate which is admitted or judicially
proven and which results in significant harm to an Employer or
an Affiliate; or
(h) has engaged in the theft of assets or funds of an Employer or
an Affiliate; or
(i) has engaged in fraud or dishonesty toward an Employer or an
Affiliate which is admitted or judicially proven; or
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(j) has been convicted of any crime which directly or indirectly
arose out of such Participant's employment relationship with
an Employer or an Affiliate or materially affected such
Participant's ability to discharge the duties of employment
with an Employer or an Affiliate; or
(k) shall fail at or after the time of such Participant's
termination of employment to execute a form of release and
waiver prepared by and acceptable to the Principal Sponsor
releasing all Employers (and their officers, directors,
employees and agents) from all direct or indirect claims for
workers' compensation benefits, unemployment compensation
benefits, claims arising as a result of employment
discrimination, employment related claims arising under tort,
breach of contract (express or implied) or any other law or
theory and all other similar types of claims (whether known or
unknown) as the Principal Sponsor may specify or, after
executing such a release or waiver, shall fail to abide by its
terms.
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SECTION 6
MATURITY
A Participant's Account shall mature and shall become payable in accordance with
Section 7 upon the earliest occurrence of any of the following events while in
the employment of an Employer or an Affiliate:
(a) the Participant's death, or
(b) the Participant's Termination of Employment, or
(c) termination of this Plan.
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SECTION 7
PAYMENTS
7.1. Termination Payments. Upon the occurrence of an Event of Maturity effective
as to a Participant, the Plan Administrator shall cause the Employer to commence
payment of such Participant's Account (reduced by the amount of any applicable
payroll, withholding and other taxes) in the form and at the time designated by
the Participant in his or her initial enrollment under Section 2.1.3, new
designation under Section 7.1.4, or under the default designation under Section
7.1.5. A Participant shall not be required to make application to receive
payment. Payment shall not be made to any Beneficiary, however, until such
Beneficiary shall have filed a written application for benefits in a form
acceptable to the Plan Administrator and such application shall have been
approved by the Plan Administrator.
7.1.1. Form of Payment. Payment shall be made in whichever of the following
forms as the Participant shall have designated in writing at the time of his or
her initial enrollment (to the extent that such designation is consistent with
the rules of the Plan Statement):
(a) Term Certain Installments to Participant. If the Distributee
is a Participant and the Account at the Event of Maturity is
at least Twenty-five Thousand Dollars ($25,000) in a series of
annual installments payable over five (5) years, ten (10)
years or fifteen (15) years.
(b) Continued Term Certain Installments to Beneficiary. If the
Distributee is a Beneficiary of a deceased Participant and
payment had commenced to the deceased Participant before his
or her death over a five (5) year, ten (10) year or fifteen
(15) year period as specified in paragraph (a) above, in a
series of annual installments payable over the remainder of
the period.
(c) Lump Sum to Participant or Beneficiary. If the Distributee is
a Participant, in a single lump sum. If the Distributee is a
Beneficiary of a deceased Participant and payment had not
commenced to the deceased Participant before the Participant's
death, in a single lump sum payment.
7.1.2. Time of Payment. Payment shall be made or commenced at whichever
of the following times as the Participant shall have designated in writing at
the time of his or her initial enrollment (to the extent that such designation
is consistent with the rules of the Plan Statement):
(a) Termination of Employment. If the payment is made or commenced
on account of the Participant's Termination of Employment
payment shall be made or commenced:
(i) Within Sixty (60) days immediately following
Termination of Employment.
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(ii) If the Account at the Event of Maturity is at least
Twenty-five Thousand Dollars ($25,000), as of the
Annual Valuation Date coincident with or immediately
following the Participant's Termination of Employment
and shall be made or commenced as soon as practicable
after such Annual Valuation Date.
(iii) If the Account at the Event of Maturity is at least
Twenty-five Thousand Dollars ($25,000), within Sixty
(60) days immediately following the later of
Termination of Employment or the attainment of the
age elected by the Participant as set forth on the
Participant's designation form then in effect.
(b) Death. If the payment is made on account of the Participant's
death, payment shall be made within sixty (60) days following
the Participant's death.
(c) Other. In all other cases, payment to the Participant shall be
made within sixty (60) days following the Participant's
Termination of Employment.
(d) Code ss.162(m) Delay. If the Plan Administrator determines
that delaying the time of the initial payments are made or
commenced would increase the probability that such payments
would be fully deductible for federal or state income tax
purposes, the Plan Administrator may unilaterally delay the
time of the making or commencement of payments for up to
twenty-four (24) months after the date such payments would
otherwise be payable.
7.1.3. Installment Amounts. The amount of the annual installments shall
be determined by dividing the amount of the Account as of the Annual Valuation
Date as of which the installment is being paid by the number of remaining
installment payments to be made (including the payment being determined).
7.1.4. New Designation. At any time and from time to time, each
Participant may file with the Plan Administrator a new designation of a form and
time of payment. Each such subsequent designation shall supercede all prior
designations and shall be effective as to the Participant's entire Account
(including the portions of the Account attributable to periods before the new
designation is filed) as if the new designation had been made in writing at the
time of his or her initial enrollment. Notwithstanding the foregoing, however,
any new designation shall be disregarded as if it had never been filed (and the
prior effective designation shall be given effect) unless the designation:
(a) was filed with the Plan Administrator at least one (1) year
before the Event of Maturity, and
(b) was filed at least one (1) year after any other prior
designation (including the designation made as part of the
initial enrollment).
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A new designation shall be made in writing upon forms furnished by the Plan
Administrator and shall conform to such other procedural rules as the Plan
Administrator shall establish.
7.1.5. Default. If for any reason a Participant shall have failed to
make a timely written designation of form and time for payment (including
reasons entirely beyond the control of the Participant), the payment shall be
made in a single lump sum within sixty (60) days immediately following the
Participant's Termination of Employment.
7.1.6. No Spousal Rights. No spouse, former spouse, Beneficiary or
other person shall have any right to participate in the Participant's
designation of a form or time of payment.
7.2. In-Service Payment.
7.2.1. When Available. A Participant who is not receiving annual
installments may request payment of amounts from his or her Account at any time
and from time to time. To receive such an in-service payment, the Participant
must file a written application with the Plan Administrator. The Plan
Administrator shall approve the in-service payment application if the required
procedural requirements have been satisfied and the amount of the requested
in-service payment and forfeitures required under Section 7.2.3 do not exceed
the value of the Account.
7.2.2. Payment. Payment of the in-service payment (and imposition of
the forfeiture described in Section 7.2.3) shall be made form the Account to the
Participant in a lump sum payment as soon as administratively feasible and in
all events within sixty (60) days following the approval of a completed
application by the Plan Administrator.
7.2.3. Forfeiture. Upon the approval of an in-service payment
application, there shall be irrevocably forfeited from the Account of the
Participant an amount equal to ten percent (10%) of the amount approved for
payment.
7.3. Accelerated Lump Sum Payment.
7.3.1. When Available. A Participant or Beneficiary who is receiving
annual installments may request an accelerated lump sum payment of the balance
remaining in his or her entire Account (after reduction for the forfeiture
described in Section 7.3.3). To receive such an accelerated lump sum payment,
the Participant or Beneficiary must file a written application with the Plan
Administrator. The Plan Administrator shall approve the accelerated lump sum
payment application if the required procedural requirements have been satisfied.
7.3.2. Payment. Payment of the accelerated lump sum payment (after
reduction for the forfeiture described in Section 7.3.3) shall be made from the
Account to the Participant or Beneficiary in a lump sum payment as soon as
administratively feasible and in all events within sixty (60) days following the
approval of a completed application by the Plan Administrator. The amount of the
accelerated lump sum payment shall be equal to the value of the Account as of
date of payment (after reduction for the forfeiture described below).
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7.3.3. Forfeiture. Upon the approval of an accelerated lump sum payment
application, there shall be irrevocably forfeited from the Account of the
Participant or Beneficiary an amount equal to ten percent (10%) of the Account.
7.4. Scheduled Payments.
7.4.1. When Available. At the time of initial enrollment under Section
2.1.3, each enrolling Participant shall have the opportunity to elect to cause
this Plan to make one (1) or more scheduled payments to the Participant from the
Account as of the Annual Valuation Dates designated by the Participant in the
initial enrollment. At the time of initial enrollment the Participant may
designate either a fixed dollar amount (not less than Two Thousand Dollars) or a
percentage of the Account value (also not less than Two Thousand Dollars) as the
amount of the scheduled payment. If the Participant shall give at least twelve
(12) months' prior written notice to the Plan Administrator, a scheduled payment
may be delayed one (1) time until the following Annual Valuation Date or may be
cancelled (in which event distribution shall be made pursuant to such other
rules and provisions of this Plan Statement).
7.4.2. Payment. Each scheduled payment elected by the Participant shall
be paid from the Account to the Participant in a lump sum as soon as may be
practicable after the Annual Valuation Dates designated by the Participant in
his or her initial enrollment. Notwithstanding the dollar amount of the
scheduled payment elected by the Participant in the initial enrollment, if the
value of the Account that would remain after such scheduled payment is made
would be less than Five Thousand Dollars ($5,000) the entire Account shall be
paid. In no event shall any scheduled payment occur after the death of the
Participant or after any other Event of Maturity with respect to the
Participant. In no event shall such scheduled payments exceed the value of the
Account when made. If the amount of the scheduled payment elected by the
Participant exceeds the value of the Account, the entire Account shall be paid
in lieu of the amount designated.
7.5. Designation of Beneficiaries.
7.5.1. Right to Designate. Each Participant may designate, in writing
upon forms to be furnished by and filed with the Plan Administrator, one or more
primary Beneficiaries or alternative Beneficiaries to receive all or a specified
part of such Participant's Account in the event of such Participant's death. The
Participant may change or revoke any such designation from time to time without
notice to or consent from any Beneficiary. No such designation, change or
revocation shall be effective unless executed by the Participant and received by
the Plan Administrator during the Participant's lifetime.
7.5.2. Failure of Designation. If a Participant:
(a) fails to designate a Beneficiary,
(b) designates a Beneficiary and thereafter revokes such
designation without naming another Beneficiary, or
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(c) designates one or more Beneficiaries and all such
Beneficiaries so designated fail to survive the Participant,
such Participant's Account, or the part thereof as to which such Participant's
designation fails, as the case may be, shall be payable to the first class of
the following classes of automatic Beneficiaries with a member surviving the
Participant and (except in the case of surviving issue) in equal shares if there
is more than one member in such class surviving the Participant:
Participant's surviving spouse
Participant's surviving issue per stirpes and not per capita
Participant's surviving parents Participant's surviving brothers and
sisters Representative of Participant's estate.
7.5.3. Disclaimers by Beneficiaries. A Beneficiary entitled to a
payment of all or a portion of a deceased Participant's Account may disclaim an
interest therein subject to the following requirements. To be eligible to
disclaim, a Beneficiary must not have received a payment of all or any portion
of the Account at the time such disclaimer is executed and delivered, and, if a
natural person, must have attained must have attained legal age as of the date
of the disclaimer. Any disclaimer must be in writing and must be executed
personally by the Beneficiary before a notary public. A disclaimer shall state
that the Beneficiary's entire interest in the unpaid Account is disclaimed or
shall specify what portion thereof is disclaimed. To be effective, an original
executed copy of the disclaimer must be both executed and actually delivered to
the Plan Administrator after the date of the Participant's death but not later
than one hundred nine (9) months after the date of the Participant's death. A
disclaimer shall be irrevocable when delivered to the Plan Administrator. A
disclaimer shall be considered to be delivered to the Plan Administrator only
when actually received by an officer of the Plan Administrator who is familiar
with the affairs of the Plan. The Plan Administrator shall be the sole judge of
the content, interpretation and validity of a purported disclaimer. Upon the
filing of a valid disclaimer, the Beneficiary shall be considered not to have
survived the Participant as to the interest disclaimed. A disclaimer by a
Beneficiary shall not be considered to be a transfer of an interest in violation
of the provisions of Section 8.3. No other form of attempted disclaimer shall be
recognized by the Plan Administrator. The foregoing requirements are solely for
the purpose of disclaiming benefits under the Plan and compliance with these
requirements does not assure that the disclaimer will be valid for tax purposes
or any other purposes. It is the responsibility of the person disclaiming to
assure compliance with any and all requirements to assure proper tax treatment
of the disclaimer if that is intended.
7.5.4. Definitions. When used herein and, unless the Participant has
otherwise specified in the Participant's Beneficiary designation, when used in a
Beneficiary designation, "issue" means all persons who are lineal descendants of
the person whose issue are referred to, subject to the following:
(a) a legally adopted child and the adopted child's lineal
descendants always shall be lineal descendants of each
adoptive parent (and of each adoptive parent's lineal
ancestors);
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(b) a legally adopted child and the adopted child's lineal
descendants never shall be lineal descendants of any former
parent whose parental rights were terminated by the adoption
(or of that former parent's lineal ancestors); except that if,
after a child's parent has died, the child is legally adopted
by a stepparent who is the spouse of the child's surviving
parent, the child and the child's lineal descendants shall
remain lineal descendants of the deceased parent (and the
deceased parent's lineal ancestors);
(c) if the person (or a lineal descendant of the person) whose
issue are referred to is the parent of a child (or is treated
as such under applicable law) but never received the child
into that parent's home and never openly held out the child as
that parent's child (unless doing so was precluded solely by
death), then neither the child nor the child's lineal
descendants shall be issue of the person.
"Child" means an issue of the first generation; "per stirpes" means in equal
shares among living children of the person whose issue are referred to and the
issue (taken collectively) of each deceased child of such person, with such
issue taking by right of representation of such deceased child; and "survive"
and "surviving" mean living after the death of the Participant.
7.5.5. Special Rules. Unless the Participant has otherwise specified in
the Participant's Beneficiary designation, the following rules shall apply:
(a) If there is not sufficient evidence that a Beneficiary was
living at the time of the death of the Participant, it shall
be deemed that the Beneficiary was not living at the time of
the death of the Participant.
(b) The automatic Beneficiaries specified in Section 7.4.2 and the
Beneficiaries designated by the Participant shall become fixed
at the time of the Participant's death so that, if a
Beneficiary survives the Participant but dies before the
receipt of all payments due such Beneficiary hereunder, such
remaining payments shall be payable to the representative of
such Beneficiary's estate.
(c) If the Participant designates as a Beneficiary the person who
is the Participant's spouse on the date of the designation,
either by name or by relationship, or both, the dissolution,
annulment or other legal termination of the marriage between
the Participant and such person shall automatically revoke
such designation. (The foregoing shall not prevent the
Participant from designating a former spouse as a Beneficiary
on a form executed by the Participant and received by the Plan
Administrator after the date of the legal termination of the
marriage between the Participant and such former spouse, and
during the Participant's lifetime.)
(d) Any designation of a nonspouse Beneficiary by name that is
accompanied by a description of relationship to the
Participant shall be given effect without
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regard to whether the relationship to the Participant exists
either then or at the Participant's death.
(e) Any designation of a Beneficiary only by statement of
relationship to the Participant shall be effective only to
designate the person or persons standing in such relationship
to the Participant at the Participant's death.
A Beneficiary designation is permanently void if it either is executed or is
filed by a Participant who, at the time of such execution or filing, is then a
minor under the law of the state of the Participant's legal residence. The Plan
Administrator shall be the sole judge of the content, interpretation and
validity of a purported Beneficiary designation.
7.5.6. No Spousal Rights. Prior to the death of the Participant, no
spouse or surviving spouse of a Participant and no person designated to be a
Beneficiary shall have any rights or interest in the benefits credited under
this Plan including, but not limited to, the right to be the sole Beneficiary or
to consent to the designation of Beneficiaries (or the changing of designated
Beneficiaries) by the Participant.
7.6. Death Prior to Full Payment. If, at the death of the Participant, any
payment to the Participant was due or otherwise pending but not actually paid,
the amount of such payment shall be included in the Account which is payable to
the Beneficiary (and shall not be paid to the Participant's estate).
7.7. Facility of Payment. In case of the legal disability, including minority,
of a Participant or Beneficiary entitled to receive any payment under this Plan,
payment shall be made, if the Plan Administrator shall be advised of the
existence of such condition:
(a) to the duly appointed guardian, conservator or other legal
representative of such Participant or Beneficiary, or
(b) to a person or institution entrusted with the care or
maintenance of the incompetent or disabled Participant or
Beneficiary, provided such person or institution has satisfied
the Plan Administrator that the payment will be used for the
best interest and assist in the care of such Participant or
Beneficiary, and provided further, that no prior claim for
said payment has been made by a duly appointed guardian,
conservator or other legal representative of such Participant
or Beneficiary.
Any payment made in accordance with the foregoing provisions of this section
shall constitute a complete discharge of any liability or obligation of the Plan
Administrator therefore.
7.8. Payments in Kind. All payments from this Plan shall be made only in cash
and not in kind; provided, however, that (subject to Section 7.10) to the extent
a Participant has selected (or is required by this Plan to utilize) an Index
Fund that consists primarily of common stock of the Principal Sponsor as the
hypothetical investment for all or a portion of his or her Account, payment (or
delivery from the option plan) shall be made in kind in common stock and not in
cash. The term
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"Payment" as used in this Section 7 shall refer to and include "delivery" as
applied to the deferred option gains.
7.9. Disqualification. Notwithstanding any other provision of the Plan Statement
or any election or designation made under this Plan, any individual who
feloniously and intentionally kills a Participant shall be deemed for all
purposes of this Plan and all elections and designations made under this Plan to
have died before such Participant. A final judgment of conviction of felonious
and intentional killing is conclusive for this purpose. In the absence of a
conviction of felonious and intentional killing, the Plan Administrator shall
determine whether the killing was felonious and intentional for this purpose.
7.10. Tax Withholding. The Employer shall withhold the amount of any federal,
state or local income tax or other tax required to be withheld by the Employer
under applicable law with respect to any amount payable under this Plan. The
Participant shall not be liable for any tax withholding. Prior to any delivery
or payment and pursuant to any rules the Compensation Committee may adopt, a
Participant may authorize the Employer to withhold a portion of the shares of
common stock to be delivered or paid for the payment of all federal, state or
local or other tax required to be withheld by the Employer.
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SECTION 8
FUNDING OF PLAN
8.1. Unfunded Obligation. The obligation of the Employers to make payments under
this Plan constitutes only the unsecured (but legally enforceable) promise of
the Employers to make such payments. The Participant shall have no lien, prior
claim or other security interest in any property of the Employers. The Employers
are not required to establish or maintain any fund, trust or account (other than
a bookkeeping account or reserve) for the purpose of funding or paying the
benefits promised under this Plan. If such a fund is established, the property
therein shall remain the sole and exclusive property of the Employers. The
Employers will pay the cost of this Plan out of its general assets. All
references to accounts, accruals, gains, losses, income, expenses, payments,
custodial funds and the like are included merely for the purpose of measuring
the Employers' obligation to Participants in this Plan and shall not be
construed to impose on the Employers the obligation to create any separate fund
for purposes of this Plan.
8.2. Life Insurance. If the Employers elect to finance all or a portion of the
costs in connection with this Plan through the purchase of life insurance or
other similar investments, the Participant agrees, as a condition of
participation in this Plan, to cooperate with the Employers in the purchase of
such investment to any extent reasonably required by the Employers and
relinquishes any claim he or she may have either for himself or herself or any
beneficiary to the proceeds of any such investment or any other rights or
interests in such investment. If a Participant fails or refuses to cooperate,
then notwithstanding any other provision of the Plan Statement (including,
without limiting the generality of the foregoing, Section 4) the Employers shall
pay the individual's Account immediately and the Participant shall not be
eligible to enroll in this Plan again.
8.3. Spendthrift Provision. No Participant or Beneficiary shall have any
interest in any Account which can be transferred nor shall any Participant or
Beneficiary have any power to anticipate, alienate, dispose of, pledge or
encumber the same while in the possession or control of the Employers, nor shall
the Employers recognize any assignment thereof, either in whole or in part, nor
shall any Account be subject to attachment, garnishment, execution following
judgment or other legal process while in the possession or control of the
Employers.
The power to designate Beneficiaries to receive the Account of a Participant in
the event of such Participant's death shall not permit or be construed to permit
such power or right to be exercised by the Participant so as thereby to
anticipate, pledge, mortgage or encumber such Participant's Account or any part
thereof, and any attempt of a Participant so to exercise said power in violation
of this provision shall be of no force and effect and shall be disregarded by
the Employers.
This section shall not prevent the Plan Administrator from exercising, in its
discretion, any of the applicable powers and options granted to it upon the
occurrence of an Event of Maturity, as such powers may be conferred upon it by
any applicable provision hereof.
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SECTION 9
AMENDMENT AND TERMINATION
9.1. Before a Change-in-Control. Prior to the occurrence of a Change-in-Control,
the Compensation Committee may unilaterally amend the Plan Statement
prospectively, retroactively or both, at any time and for any reason deemed
sufficient by it without notice to any person affected by this Plan and may
likewise terminate this Plan both with regard to persons expecting to receive
benefits in the future subject to the following.
9.1.1. Terminated Participants. The benefit, if any, payable to or with
respect to a Participant who has had a Termination of Employment as of the
effective date of such amendment or the effective date of such termination shall
not be, without the knowing and voluntary written consent of the Participant,
diminished or delayed by such amendment or termination (but the Compensation
Committee may amend the Plan Statement to otherwise modify the payment of any
such benefit including, but not limited to, accelerating the payment of all
remaining payments into a single lump sum payment).
9.1.2. Other Participants. The benefit, if any, payable to or with
respect to each other Participant determined as if such Participant had a
Termination of Employment on the effective date of such amendment or the
effective date of such termination shall not be, without the knowing and
voluntary written consent of the Participant, diminished or delayed by such
amendment or termination (but the Compensation Committee may amend the Plan
Statement to otherwise modify the payment of any such benefit including, but not
limited to, accelerating the payment of all remaining payments into a single
lump sum payment).
9.2. After a Change-in-Control. After the occurrence of a Change-in-Control, the
Compensation Committee may amend the Plan Statement or terminate this Plan as
provided in Section 9.1 but subject to the following limitations.
9.2.1. Existing Participants. After the occurrence of a
Change-in-Control, the Compensation Committee may only amend the Plan Statement
or terminate this Plan as applied to Participants who are Participants
immediately preceding the date of the Change-in-Control if:
(a) all benefits payable to or with respect to persons who were
Participants as of the Change-in-Control (including benefits
earned before and benefits earned after the Change-in-Control)
have been paid in full prior to the adoption of the amendment
or the termination, or
(b) eighty percent (80%) of all the Participants determined as of
the date of the Change-in-Control give knowing and voluntary
written consent to such amendment or termination.
9.2.2. New Participants. After the occurrence of a Change-in-Control,
as applied to Participants who are not Participants immediately preceding the
date of the Change-in-Control, the
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Compensation Committee may unilaterally amend the Plan Statement prospectively,
retroactively or both, at any time and for any reason deemed sufficient by it
without notice to any person affected by this Plan and may likewise terminate
this Plan.
9.3. No Oral Amendments. No modification of the terms of the Plan Statement or
termination of this Plan shall be effective unless it is in writing and signed
on behalf of the Compensation Committee by a person authorized to execute such
writing. No oral representation concerning the interpretation or effect of the
Plan Statement shall be effective to amend the Plan Statement nor binding on any
person charged with the interpretation or application of the Plan Statement.
9.4. Plan Binding on Successors. The Principal Sponsor shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise to all or substantially all of the business and/or assets of the
Employers), by agreement, to expressly assume and agree to perform this Plan in
the same manner and to the same extent that the Employers would be required to
perform it if no such succession had taken place.
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SECTION 10
DETERMINATIONS -- RULES AND REGULATIONS
10.1. Determinations. The Compensation Committee and the Plan Administrator
shall make such determinations as may be required from time to time in the
administration of this Plan. The Compensation Committee and the Plan
Administrator shall have the discretionary authority and responsibility to
interpret and construe the Plan Statement and to determine all factual and legal
questions under this Plan, including but not limited to the entitlement of
Participants and Beneficiaries, and the amounts of their respective interests.
Each interested party may act and rely upon all information reported to them
hereunder and need not inquire into the accuracy thereof, nor be charged with
any notice to the contrary.
10.2. Rules and Regulations. Any rule not in conflict or at variance with the
provisions of this Plan Statement may be adopted by the Plan Administrator.
Without limiting the generality of the foregoing, the Plan Administrator may
from time to time, in its discretion, authorize the use of electronic or other
similar means of communicating elections, designations, other choices and
notifications to and from the Plan Administrator.
10.3. Certifications. Information to be supplied or written notices to be made
or consents to be given by the Plan Administrator, Principal Sponsor, an
Employer or Compensation Committee pursuant to any provision of this Plan may be
signed in the name of the Plan Administrator, Principal Sponsor, an Employer or
Compensation Committee by any individual who has been authorized to make such
certification or to give such notices or consents.
10.4. Claims Procedure. The claims procedure set forth in this Section 10.4
shall be the exclusive procedure for the disposition of claims for benefits
arising under this Plan.
10.4.1. Original Claim. Any employee, former employee or beneficiary of
such employee or former employee may, if he or she so desires, file with the
Plan Administrator a written claim for benefits under this Plan. Within ninety
(90) days after the filing of such a claim, the Plan Administrator shall notify
the claimant in writing whether the claim is upheld or denied in whole or in
part or shall furnish the claimant a written notice describing specific special
circumstances requiring a specified amount of additional time (but not more than
one hundred eighty days from the date the claim was filed) to reach a decision
on the claim. If the claim is denied in whole or in part, the Plan Administrator
shall state in writing:
(a) the specific reasons for the denial;
(b) the specific references to the pertinent provisions of the
Plan Statement on which the denial is based;
(c) 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;
and
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(d) an explanation of the claims review procedure set forth in
this section.
10.4.2. Review of Denied Claim. Within sixty (60) days after receipt of
notice that the claim has been denied in whole or in part, the claimant may file
with the Plan Administrator a written request for a review and may, in
conjunction therewith, submit written issues and comments. Within sixty (60)
days after the filing of such a request for review, the Plan Administrator shall
notify the claimant in writing whether, upon review, the claim was upheld or
denied in whole or in part or shall furnish the claimant a written notice
describing specific special circumstances requiring a specified amount of
additional time (but not more than one hundred twenty days from the date the
request for review was filed) to reach a decision on the request for review.
10.4.3. General Rules.
(a) No inquiry or question shall be deemed to be a claim or a
request for a review of a denied claim unless made in
accordance with the claims procedure. The Plan Administrator
may require that any claim for benefits and any request for a
review of a denied claim be filed on forms to be furnished by
the Plan Administrator upon request.
(b) All decisions on claims and on requests for a review of denied
claims shall be made by the Plan Administrator.
(c) the Plan Administrator may, in its discretion, hold one or
more hearings on a claim or a request for a review of a denied
claim.
(d) A claimant may be represented by a lawyer or other
representative (at the claimant's own expense), but the Plan
Administrator reserves the right to require the claimant to
furnish written authorization. A claimant's representative
shall be entitled, upon request, to copies of all notices
given to the claimant.
(e) The decision of the Plan Administrator on a claim and on a
request for a review of a denied claim shall be served on the
claimant in writing. If a decision or notice is not received
by a claimant within the time specified, the claim or request
for a review of a denied claim shall be deemed to have been
denied.
(f) Prior to filing a claim or a request for a review of a denied
claim, the claimant or his or her representative shall have a
reasonable opportunity to review a copy of the Plan Statement
and all other pertinent documents in the possession of the
Plan Administrator.
(g) The Plan Administrator may permanently or temporarily delegate
its responsibilities under this claims procedure to an
individual or a committee of individuals.
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10.4.4. Deadline to File Claim. To be considered timely under the
Plan's claim and review procedure, a claim must be filed with the Plan
Administrator within one (1) year after the claimant knew or reasonably should
have known of the principal facts upon which the claim is based. If or to the
extent that the claim relates to a failure to effect a Participant's or
Beneficiary's investment directions or a Participant's election regarding
contributions, the one (1) year period shall be thirty (30) days.
10.4.5. Limitations and Exhaustion.
(a) No claim shall be considered under these administrative
procedures unless it is filed with the Plan Administrator
within two (2) years after the Participant knew (or reasonably
should have known) of the general nature of the dispute giving
rise to the claim. Every untimely claim shall be denied by the
Plan Administrator without regard to the merits of the claim.
No suit may be brought by or on behalf of any Participant or
Beneficiary on any matter pertaining to this Plan unless the
action is commenced in the proper forum before the earlier of:
(i) three (3) years after the Participant knew (or
reasonably should have known) of the general nature
of the dispute giving rise to the action, or
(ii) sixty (60) days after the Participant has exhausted
these administrative procedures.
(b) These administrative procedures are the exclusive means for
resolving any dispute arising under this Plan insofar as the
dispute pertains to any matter that arose more than one
hundred twenty (120) days before a Change-in-Control. As to
such matters:
(i) no Participant or Beneficiary shall be permitted to
litigate any such matter unless a timely claim has
been filed under these administrative procedures and
these administrative procedures have been exhausted;
and
(ii) determinations by the Compensation Committee and the
Plan Administrator (including determinations as to
whether the claim was timely filed) shall be afforded
the maximum deference permitted by law.
(c) These administrative procedures are not exclusive insofar as
they pertain to any matter that arose after the
Change-in-Control or within the one hundred twenty (120) days
before the Change-in-Control. As to such matters:
(i) a Participant shall not be required to exhaust these
administrative remedies;
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(ii) if there is litigation regarding the benefits payable
to or with respect to a Participant, notwithstanding
Section 10.1, determinations by the Compensation
Committee and the Plan Administrator (including
determinations regarding as to when any matter arose)
shall not be afforded any deference and the matter
shall be heard de novo; and
(iii) if a Participant successfully litigates, in whole or
in part, any claim for benefits under this Plan, the
Participant shall, in addition to any benefits
awarded, be entitled to an award of reasonable
attorney's fees and costs of the action.
10.5. Information Furnished by Participants. The Plan Administrator shall not be
liable or responsible for any error in the computation of the Account of a
Participant resulting from any misstatement of fact made by the Participant,
directly or indirectly, to the Plan Administrator, and used by it in determining
the Participant's Account. The Plan Administrator shall not be obligated or
required to increase the Account of such Participant which, on discovery of the
misstatement, is found to be understated as a result of such misstatement of the
Participant. However, the Account of any Participant which is overstated by
reason of any such misstatement shall be reduced to the amount appropriate in
view of the truth.
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SECTION 11
PLAN ADMINISTRATION
11.1. Plan Administrator.
11.1.1. Officers. Except as hereinafter provided, functions generally
assigned to the Plan Administrator shall be discharged by its officers or
delegated and allocated as provided herein.
11.1.2. Chief Executive Officer. Except as hereinafter provided, the
Chief Executive Officer of the Plan Administrator may delegate or redelegate and
allocate and reallocate to one or more persons or to a committee of persons
jointly or severally, and whether or not such persons are directors, officers or
employees, such functions assigned to the Plan Administrator generally hereunder
as the Chief Executive Officer may from time to time deem advisable.
11.1.3. Compensation Committee. Notwithstanding the foregoing, the
Compensation Committee shall have the exclusive authority, which may not be
delegated, to amend the Plan Statement, to terminate this Plan, and to determine
eligibility to participate in this Plan under Section 2.
11.2. Conflict of Interest. If any individual to whom authority has been
delegated or redelegated hereunder shall also be a Participant in this Plan,
such Participant shall have no authority with respect to any matter specially
affecting such Participant's individual rights hereunder or the rights of a
person superior to him or her in the organization (as distinguished from the
rights of all Participants and Beneficiaries or a broad class of Participants
and Beneficiaries), all such authority being reserved exclusively to other
individuals as the case may be, to the exclusion of such Participant, and such
Participant shall act only in such Participant's individual capacity in
connection with any such matter.
11.3. Administrator. The Plan Administrator shall be the administrator for
purposes of section 3(16)(A) of the Employee Retirement Income Security Act of
1974.
11.4. Service of Process. In the absence of any designation to the contrary by
the Plan Administrator, the Secretary of the Plan Administrator is designated as
the appropriate and exclusive agent for the receipt of service of process
directed to this Plan in any legal proceeding, including arbitration, involving
this Plan.
11.5. Expenses. All expenses of administering this Plan shall be borne by the
Employer.
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SECTION 12
DISCLAIMERS
12.1. Term of Employment. Neither the terms of the Plan Statement nor the
benefits hereunder nor the continuance thereof shall be a term of the employment
of any employee. The terms of the Plan Statement shall not give any employee the
right to be retained in the employment of an Employer or in any way limit or
restrict the Employer's right or power to discharge any employee or other person
at any time and to treat the employee without regard to the effect which such
treatment might have upon the employee as a Participant in this Plan.
12.2. Source of Payment. Neither the Plan Administrator nor any of its officers
nor any member of its Compensation Committee in any way secures or guarantees
the payment of any benefit or amount which may become due and payable hereunder
to any Participant or to any Beneficiary or to any creditor of a Participant or
a Beneficiary. Each Participant, Beneficiary or other person entitled at any
time to payments hereunder shall look solely to the assets of the Employers for
such payments or to the Accounts paid to any Participant or Beneficiary, as the
case may be, for such payments. In each case where Accounts shall have been paid
to a former Participant or a Beneficiary or to the person or any one of a group
of persons entitled jointly to the receipt thereof and which purports to cover
in full the benefit hereunder, such former Participant or Beneficiary, or such
person or persons, as the case may be, shall have no further right or interest
in the other assets of the Plan Administrator. Neither the Plan Administrator
nor any of its officers nor any member of its Compensation Committee shall be
under any liability or responsibility for failure to effect any of the
objectives or purposes of this Plan by reason of the insolvency of the Plan
Administrator.
12.3. Delegation. The Plan Administrator and its officers and the members of its
Compensation Committee shall not be liable for an act or omission of another
person with regard to a responsibility that has been allocated to or delegated
to such other person pursuant to the terms of the Plan Statement or pursuant to
procedures set forth in the Plan Statement.
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<PAGE>
SECTION 13
CONSTRUCTION
13.1. ERISA Status. This Plan is adopted with the understanding that it is an
unfunded plan maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees as
provided in section 201(2), section 301(3) and section 401(a)(1) of ERISA. Each
provision shall be interpreted and administered accordingly.
13.2. IRC Status. This Plan is intended to be a nonqualified deferred
compensation arrangement. The rules of section 401(a) et. seq. of the Code shall
not apply to this Plan. The rules of section 3121(v)(2) and section 3306(r)(2)
of the Code shall apply to this Plan.
13.3. Rules of Document Construction.
(a) Age. An individual shall be considered to have attained a
given age on such individual's birthday for that age (and not
on the day before). Individuals born on February 29 in a leap
year shall be considered to have their birthdays on February
28 in each year that is not a leap year.
(b) Compounds. Whenever appropriate, words used herein in the
singular may be read in the plural, or words used herein in
the plural may be read in the singular; the masculine may
include the feminine; and the words "hereof," "herein" or
"hereunder" or other similar compounds of the word "here"
shall mean and refer to the entire Plan Statement and not to
any particular paragraph or Section of the Plan Statement
unless the context clearly indicates to the contrary.
(c) Titles. The titles given to the various Sections of the Plan
Statement are inserted for convenience of reference only and
are not part of the Plan Statement, and they shall not be
considered in determining the purpose, meaning or intent of
any provision hereof.
(d) Nonduplication. Notwithstanding any thing apparently to the
contrary contained in the Plan Statement, the Plan Statement
shall be construed and administered to prevent the duplication
of benefits provided under this Plan and any other qualified
or nonqualified plan maintained in whole or in part by the
Employers.
13.4. References to Laws. Any reference in the Plan Statement to a statute or
regulation shall be considered also to mean and refer to any subsequent
amendment or replacement of that statute or regulation.
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13.5. Choice of Law. This instrument has been executed and delivered in the
State of Minnesota and has been drawn in conformity to the laws of that State
and shall, except to the extent that federal law is controlling, be construed
and enforced in accordance with the laws of the State of Minnesota.
13.6. Effect on Other Plans. This Plan shall not alter, enlarge or diminish any
person's employment rights or obligations or rights or obligations under the
Retirement Plan or any other plan. It is specifically contemplated that the
Retirement Plan will, from time to time, be amended and possibly terminated. All
such amendments and termination shall be given effect under this Plan (it being
expressly intended that this Plan shall not lock in the benefit structures of
the Retirement Plan or any other plan as they exist at the adoption of this Plan
or upon the commencement of participation, or commencement of benefits by any
Participant).
Dated: __________________, 2000 C.H. ROBINSON WORLDWIDE, INC.
By_______________________________
Its _________________________
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