EXECUTIVE
DEFERRED COMPENSATION PLAN OF 2005
1.
PURPOSE
The
purpose
of this Express Scripts, Inc. Executive Deferred Compensation Plan of 2005
(the
“Plan”) is to provide eligible key employees of the Company with an opportunity
to defer compensation to be earned by them from the Company as a means
of saving
for retirement or other future purposes and to provide such employees with
competitive retirement and capital accumulation benefits. In addition,
the Plan
is intended to provide eligible key employees additional incentive to remain
employed by the Company and to attract certain executive-level
employees.
The
Company
previously adopted the Express Scripts, Inc. Executive Deferred Compensation
Plan, as amended and restated effective January 1, 2003 (“Prior Plan”).
Effective December 31, 2004, the Company amended the Prior Plan to cease
future
deferrals thereunder after December 31, 2004, and the Prior Plan is intended
to
be grandfathered for purposes of Section 409A of the Code. By this instrument,
effective January 1, 2005, the Company intends to set forth in a separate
document the terms of the Plan, which shall apply to amounts deferred or
that
first become vested hereunder after December 31, 2004. The Prior Plan and
the
Plan shall be considered one plan set forth in two separate
documents.
2.
DEFINITIONS
The
following
definitions shall be applicable throughout the Plan:
2.1
Accounting
Date
.
“Accounting
Date” means each Business Day on which a calculation concerning a Participant's
Compensation Account is performed, or as otherwise defined by the
Committee.
2.2
Basic
Company Credit
.
“Basic
Company Credit” means an amount, if any, credited to a Participant’s Retirement
Account as described in Section 7.
2.3
Beneficiary
.
“Beneficiary”
means the person or persons designated by the Participant in accordance
with
Section 10, or if no person or persons are so designated, the estate of
a
deceased Participant.
2.4
Board
.
“Board”
means
the Board of Directors of Express Scripts, Inc. or its designee.
2.5
Business
Day
.
“Business
Day” means a day on which the New York Stock Exchange is open for trading
activity.
2.6
Code.
“Code”
means
the Internal Revenue Code of 1986, as amended.
2.7
Committee
.
“Committee”
means the Compensation Committee of the Board.
2.8
Common
Stock
.
“Common
Stock” means the Common Stock, $0.01 par value, of Express Scripts,
Inc.
2.9
Common
Stock Fund
.
“Common
Stock
Fund” means that investment option, approved by the Committee, in which a
Participant's Compensation Accounts may be deemed to be invested and may
earn
income (or incur losses) based on a hypothetical investment in Common
Stock.
2.10
Company
.
“Company”
means Express Scripts, Inc., its divisions, subsidiaries and
affiliates.
2.11
Company
Credits
.
“Company
Credits” means amounts credited as either Basic Company Credits or Past Service
Credits by the Company to Compensation Accounts, in the sole discretion
of the
Committee, pursuant to Section 7.
2.12
Compensation
.
“Compensation”
means
all (a) salary, commissions, payments under the Company’s Annual Bonus Plan (but
not expense or other reimbursement or allowances) currently payable by
the
Company to a Participant, and (b) compensation in the form of Common Stock
which
the Employee may elect to convert to Stock Units if permitted by, and in
accordance with, the terms of the grant of such compensation. For purposes
of
this Plan, the Committee may determine the amounts that will be considered
Compensation with respect to any Participant.
2.13
Compensation
Account(s)
.
“Compensation
Account(s)” means the Retirement Account and/or the In-Service
Accounts.
2.14
Credit
Date
.
“Credit
Date”
means each date on which Deferred Compensation is credited to Compensation
Accounts in accordance with rules prescribed by the Committee.
2.15
Deferred
Bonus
.
“Deferred
Bonus” means an amount, if any, designated as such by the Committee and credited
to a Participant’s Compensation Account.
2.16
Deferred
Compensation
.
“Deferred
Compensation” means the Compensation elected by the Participant to be deferred
pursuant to the Plan.
2.17
Disability
.
“Disability”
means the Participant (a) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
that can be expected to result in death or can be expected to last for
a
continuous period of not less than 12 months, or (b) is, 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 12 months, receiving income replacement benefits for a period of not
less
than 3 months under an accident and health plan covering employees of the
Company.
2.18
Effective
Date
.
“Effective
Date” means the effective date of the Plan, January 1, 2005.
2.19
Election
.
“Election”
means a Participant's delivery of a written notice of election to the Committee
or its designee electing to defer payment of a specified percentage of
his or
her Compensation (in accordance with rules prescribed by the Committee)
either
until Retirement, death or such other time as further permitted by the
Committee.
2.20
Employee
.
“Employee”
means an individual classified by the Committee as a full-time, regular
salaried
employee of the Company.
2.21
Fair
Market Value
.
“Fair
Market
Value” means, as of any specified date, the closing sales price of a share of
Common Stock, as reported on the Nasdaq National Market on that date (or,
if
there are no sales on that date, the last preceding date on which there
was a
sale), or, in the event the Common Stock is listed on a stock exchange,
the
closing sales price of a share of Common Stock, as reported on such exchange
on
that date (or, if there are no sales on that date, the last preceding date
on
which there was a sale). In the absence of any listing of the Common Stock
on
the Nasdaq National Market or on any established stock exchange, Fair Market
Value means the fair market value of the Common Stock on any specified
date as
determined in good faith by the Committee.
2.22
In-Service
Account
.
“In-Service
Account” means the account or accounts to which a Participant elects to
contribute Deferred Compensation and, to the extent permitted in an award
as
described in Section 5, Special Bonuses and/or Deferred Bonuses, and from
which,
pursuant to Section 8.2, distributions are made. The portion of any In-Service
Account which was not vested under the Prior Plan as of December 31, 2004
shall
be hypothetically transferred and credited to the In-Service Account under
this
Plan and shall be subject to the vesting provisions hereunder from the
date
first credited under the Prior Plan.
2.23
Participant
.
“Participant”
means an Employee selected by the Committee to be eligible to participate
in the
Plan.
2.24
Past
Service Credit
.
“Past
Service
Credit” means an amount, if any, credited to a Participant’s Retirement Account
as described in Section 7.
2.25
Plan
.
“Plan”
means
this Express Scripts, Inc. Executive Deferred Compensation Plan of 2005,
as
amended from time to time.
2.26
Plan
Year
.
“Plan
Year”
means the annual period commencing January 1 and ending the following December
31.
2.27
Retirement
.
“Retirement”
means a Participant’s termination of employment after attaining age 55 and
having a combination of full years of age plus Service Years totaling at
least
65.
2.28
Retirement
Account
.
“Retirement
Account” means the account to which a Participant elects to contribute Deferred
Compensation and to which Company Credits, Special Bonuses and/or Deferred
Bonuses (subject to any election described in Section 5) are made, and
from
which, pursuant to Section 8.1, distributions are made. The portion of
any
Retirement Account which was not vested under the Prior Plan as of December
31,
2004 shall be hypothetically transferred and credited to the Retirement
Account
under this Plan and shall be subject to the vesting provisions hereunder
from
the date first credited under the Prior Plan.
2.29
Service
Year
.
“Service
Year” means, as designated by the Committee, such year or portion thereof during
which the services have been rendered by a Participant for which Compensation
is
payable.
2.30
Special
Bonus
.
“Special
Bonus” means an amount, if any, designated as such by the Committee and credited
to a Participant’s Compensation Account.
2.31
Stock
Unit(s)
.
“Stock
Unit(s)” means the share equivalents credited to the Common Stock Fund of a
Participant's Compensation Account in accordance with Sections 5, 6 and
7.
2.32
Termination
.
“Termination”
means termination of services as an Employee for any reason other than
Retirement. Such determination of whether a Termination has occurred shall
be
made in a manner consistent with Section 409A of the Code and the regulations
and other guidance issued thereunder to avoid adverse tax consequences
thereunder.
3.
ADMINISTRATION
Full
power
and authority to construe, interpret and administer the Plan shall be vested
in
the Committee. This power and authority includes, but is not limited to,
selecting which Employees are eligible to participate in the Plan, selecting
Compensation eligible for deferral, selecting investment indices, establishing
the level of Company Credits (if any) to the Plan, establishing deferral
terms
and conditions, receiving and approving beneficiary designation forms,
and
adopting modifications, amendments and procedures as may be deemed necessary,
appropriate or convenient by the Committee. Decisions of the Committee
shall be
final, conclusive and binding upon all parties. The Committee, in its sole
discretion, may delegate day-to-day administration of the Plan to an employee
or
employees of the Company or to a third-party administrator. The Committee
may
also rely on outside counsel, independent accountants or other consultants
or
advisors for advice and assistance in fulfilling its administrative duties
under
the Plan.
4.
ELIGIBILITY
Employees
at
the vice-president level or higher shall be eligible to participate in
the Plan
commencing on the first date they are employed by the Company in such capacity;
provided that if such date is on or after November 1 in any Plan Year or if
such Employee already participates in a deferred compensation arrangement
that
would be aggregated with this Plan for purposes of Section 409A of the
Code and
the regulations and guidance issued thereunder, such Employee shall not
be
eligible to participate in the Plan until the following January 1. The
Committee shall have the ability to impose restrictions on the eligibility
of
new Employees as it considers appropriate.
5.
PARTICIPANT
ACCOUNTS
Upon
a
Participant’s initial election to participate in the Plan, there shall be
established a Retirement Account and an In-Service Account, as designated
by the
Participant, to which there shall be credited any Deferred Compensation
on or
after January 1, 2005 with respect to services performed subsequent to
such
election as of each Credit Date. In addition, Company Credits, if any,
made
pursuant to Section 7 shall be allocated to a Participant’s Retirement Account
in accordance with rules prescribed by the Committee. Each such Compensation
Account shall be credited (or debited) on each Accounting Date with income
(or
loss) based upon a hypothetical investment in any one or more of the investment
options available under the Plan, as prescribed by the Committee for the
particular Compensation credited, which may include a Common Stock Fund.
A
Participant shall make two separate investment elections, one with respect
to
his or her Retirement Account and one with respect to his or her In-Service
Accounts; provided, however, that earnings and losses on Deferred Compensation
which relates to Compensation which would have been paid (absent the Election)
in Common Stock shall initially be measured by reference to a hypothetical
investment in the Common Stock Fund and shall be further subject to the
terms of
the grant of such Compensation.
A
Participant’s Special Bonus and/or Deferred Bonus, if any, to the extent not yet
deferred and vested under the Prior Plan as of December 31, 2004, shall
be
credited to the Participant’s Retirement Account, unless the Agreement or award
providing for such bonus(es) provides that the Participant may elect to
credit
any or all of such amounts to his or her In-Service Account and the Participant
so elects prior to the Plan Year in which such bonus(es) is earned and
otherwise
in accordance with rules prescribed by the Committee.
Each
Participant at any time may have no more than two In-Service Accounts under
this
Plan and the Prior Plan, in the aggregate.
If
all or any
portion of a Participant’s Compensation Account(s) is measured by a hypothetical
investment in the Common Stock Fund, that portion of the Participant’s
Compensation Account(s) shall be credited on the first day of the calendar
quarter following each Credit Date with Stock Units equal to the number
of
shares of Common Stock (including fractions of a share) that could have
been
purchased with the amount of such Deferred Compensation (plus earnings
and less
losses determined in accordance with the next sentence) at the Fair Market
Value
on such first day of such calendar quarter. For the period between such
Credit
Date and the first day of such calendar quarter, earnings and losses shall
be
measured by reference to a hypothetical investment selected by the Committee.
As
of any date for the payment of cash dividends on the Common Stock, the
portion
of the Participant’s Compensation Account(s) invested in the Common Stock Fund
as of the dividend record date shall be credited with additional Stock
Units
calculated by dividing (i) the product of (a) the dollar value of the dividend
declared in respect of a share of Common Stock multiplied by (b) the number
of
Stock Units credited to the Participant’s Compensation Account(s) as of the
dividend record date by (ii) the Fair Market Value of a share of Common
Stock on
the dividend payment date.
6.
ELECTION
TO PARTICIPATE
6.1
In
General
.
Any
Employee
selected by the Committee to participate in the Plan may elect to do so
by
delivering to the Committee or its designee an Election on a form prescribed
by
the Committee, designating the Compensation Account to which the Deferred
Compensation is to be credited, electing the timing and form of distribution
(if
applicable), and setting forth the manner in which such Deferred Compensation
shall be invested in accordance with Section 5. A Participant’s initial Election
must be filed at such time as designated by the Committee, but in no event
later
than the day immediately preceding the first day of the Plan Year to which
such
Election relates. A Participant may submit a new Election for any subsequent
year in order to change the election previously made. Such subsequent Election
must be filed at such time as designated by the Committee, but in no event
later
than 15 days preceding the first day of the Plan Year to which such subsequent
Election relates. If a specific election has not been made with respect
to any
Plan Year, the Election (if any) effective with respect to the immediately
preceding Plan Year shall remain in effect. An effective Election may not
be
revoked or modified during a Plan Year with respect to that Plan
Year.
Subject
to
Section 4, newly employed or eligible Employees who are eligible to participate
in the Plan may elect to participate for the current Plan Year within the
first
30 days after commencing employment or becoming eligible. Such election
shall be
effective on the first day of the month following the end of such 30-day
period
and shall apply only with respect to Compensation earned after the effective
date of such election. Elections for subsequent Plan Years shall be made
in
accordance with the preceding paragraph.
Notwithstanding
anything herein to the contrary, for the Plan Year beginning January 1,
2005, a
Participant may elect to defer Compensation for such Plan Year by delivering
to
the Committee or its designee an Election on a form prescribed by the Committee
on or before March 15, 2005 with respect to such Compensation that has
not been
paid or become payable at the time of delivery of such Election. Notwithstanding
the provisos in Sections 8.1 and 8.2 or anything else herein to the contrary,
a
Participant may change an Election as to the timing and form of distribution
(if
applicable) under the Plan if such Election is filed no later than December
31,
2007 in accordance with the rules established by the Committee or its designee;
provided, however, with respect to an Election on or after January 1, 2006
and
on or before December 31, 2006, the Election may change the time and form
of
distribution only with respect to amounts that would not otherwise be payable
in
2006 and may not cause an amount to be paid in 2006 that would not otherwise
be
payable in 2006; and, provided, further, with respect to an Election on
or after
January 1, 2007 and on or before December 31, 2007, the Election may change
the
time and form of distribution only with respect to amounts that would not
otherwise be payable in 2007 and may not cause an amount to be paid in
2007 that
would not otherwise be payable in 2007.
6.2
Investment
Alternatives For Existing Balances
.
A
Participant
may elect to change an existing selection as to the investment alternatives
in
effect with respect to an existing Compensation Account (in increments
prescribed by the Committee) as often, and with such restrictions, as determined
by the Committee.
7.
COMPANY
CREDITS AND SPECIAL AND DEFERRED BONUSES
In
the sole
discretion of the Committee, in a given Plan Year the Company may credit
a
specified percentage of a Participant’s Compensation to the Participant’s
Retirement Account as a Basic Company Credit. The Committee, in its sole
discretion, may cause the Company to credit such Basic Company Credit for
all or
any portion of the Participants in the Plan in such Plan Year. Further,
the
Committee may cause the Company to credit a Deferred Bonus and/or a Special
Bonus to recognize significant efforts by Plan Participants as the Committee,
in
its sole discretion, deems appropriate. In addition, the Committee may
cause the
Company to credit a Past Service Credit to recognize past service as the
Committee, in its sole discretion, deems appropriate. Such Basic Company
Credit,
Past Service Credit, Special Bonus and Deferred Bonus, if any, shall be
credited
to a Participant’s Retirement Account (except as provided in any election
described in Section 5) and shall be subject to the limitations determined
appropriate by the Committee, including the limitation contained in Section
8.3
and the limitations described below in this Section 7.
7.1
Vesting
.
A
Participant’s Deferred Compensation shall be immediately one-hundred percent
(100%) nonforfeitable upon being credited to such Participant’s Retirement or
In-Service Account; provided, however, that Deferred Compensation which
relates
to restricted shares of Common Stock shall vest in accordance with the
terms of
the restricted stock agreement to which they relate.
A
Participant’s Basic Company Credit for a Plan Year shall become nonforfeitable
three (3) years after the end of the Plan Year to which such Basic Company
Credit relates.
A
Participant’s Past Service Credit shall be fifty-percent (50%) nonforfeitable
upon being credited to his or her Retirement Account. The remaining
fifty-percent (50%) shall become nonforfeitable as follows: one (1) year
after
the end of the Plan Year in which the Past Service Credit is credited to
the
Participant’s Retirement Account, the Participant shall be one-third (1/3)
vested in the remaining fifty percent (50%); two (2) years after the end
of the
Plan Year in which the Past Service Credit is credited to the Participant’s
Retirement Account, the Participant shall be two-thirds (2/3) vested in
the
remaining fifty percent (50%); and three (3) years after the end of the
Plan
Year in which the Past Service Credit is credited to the Participant’s
Retirement Account, the Participant shall be one-hundred percent (100%)
vested
in the remaining fifty percent (50%). A Participant’s Special Bonus and/or
Deferred Bonus shall become vested in accordance with the terms of the
Agreement
or award providing for such bonus(es).
Upon
a
Participant’s Termination for any reason other than death, Disability or
Retirement, he or she shall forfeit any nonvested benefits. Except as otherwise
provided in an award, a Participant shall have a one-hundred percent (100%)
nonforfeitable right to Basic Company Credits, Past Service Credits, Special
Bonuses and Deferred Bonuses upon becoming eligible for Retirement or upon
Termination due to death or Disability.
7.2
Forfeiture
.
Upon
a
Participant’s Termination or Retirement, the Company reserves the right to
withhold payment of a portion of a Participant’s Retirement Account attributable
to Basic Company Credits, Past Service Credits, Special Bonuses and/or
Deferred
Bonuses made under Section 7 (and earnings thereon) in the event the Committee
determines that the Participant has violated the Company’s standard
noncompetition and nondisclosure agreement or any other employment agreement
executed by the Participant, or otherwise acts against the interests of
the
Company, as determined by the Committee in its sole discretion.
8.
DISTRIBUTION
8.1
Retirement
Account
.
In
the event
of a Participant’s Retirement, the Participant’s Retirement Account shall be
distributed at the time and in the manner elected by the Participant in
his or
her Election. If no Election is made by a Participant as to the timing
of
distribution or form of payment of his or her Retirement Account, upon
the
Participant’s Retirement such account shall be paid in a single lump sum. A
Participant may change this election to provide for a later distribution
date;
provided, that such election is filed in accordance with rules established
by
the Committee, and (a) such election shall not take effect until at least
12
months after the date on which such election is properly filed, (b) the
first
payment with respect to which such election is made shall be deferred for
a
period of not less than 5 years from the date such payment would otherwise
have
been made, and (c) any election related to a payment that was otherwise
to be
made at a specified time may not be made less than 12 months prior to the
date
of the first scheduled payment. Subject to the foregoing, the Election
most
recently accepted by the Committee shall govern the payout of any benefits
under
the Plan.
8.2
In-Service
Account
.
Deferred
Compensation, Special Bonuses and/or Deferred Bonuses credited to a
Participant's In-Service Account shall be distributed at the time and in
the
manner elected by the Participant in his or her Election. A Participant
may
extend the deferral period by notifying the Company in accordance with
the terms
of the Plan and procedures established by the Committee. A previously elected
deferral period for an In-Service Account may be extended only one time;
provided, that such election is filed in accordance with rules established
by
the Committee, and (a) such election shall not take effect until at least
12
months after the date on which such election is properly filed, (b) the
first
payment with respect to which such election is made shall be deferred for
a
period of not less than 5 years from the date such payment would otherwise
have
been made, and (c) any election related to a payment that was otherwise
to be
made at a specified time may not be made less than 12 months prior to the
date
of the first scheduled payment. Subject to the foregoing, the Election
most
recently accepted by the Committee shall govern the payout of any benefits
under
the Plan.
8.3
Termination
or Disability
.
In
the event
of a Participant's Termination or Disability, the Participant's vested
Compensation Accounts shall be distributed in a single lump sum to such
Participant 30 days after his or her Termination or Disability. Upon
Termination, all unvested amounts shall be immediately forfeited and removed
from the Participant’s Accounts.
8.4
Death
.
In
the event
of the Participant’s death (a) while in the employment of the Company or (b)
after the Participant’s Termination but prior to the payment of such
Participant’s Compensation Accounts pursuant to Section 8.3, the Company shall
pay the following amounts to the Participant’s Beneficiary in a single lump sum
30 days after the Participant’s date of death:
|
(1)
|
the
remaining amounts, if any, in a Participant’s In-Service Account;
and
|
|
(2)
|
the
amounts in the Participant’s Retirement
Account.
|
In
the event
of the Participant’s death following Retirement, the Company shall pay the
amount in the Participant’s Retirement Account to the Participant’s Beneficiary
in the form and at the time elected by the Participant pursuant to Section
6.1.
8.5
Form
of Distribution
.
Distribution
of a Participant’s Compensation Accounts shall be made in cash; provided that,
any amounts in a Participant’s Compensation Accounts invested in the Common
Stock Fund shall be distributed to the Participant in whole shares of Common
Stock with fractional shares paid in cash.
When
required, the Company shall withhold from any distribution of cash or Common
Stock to a Participant or other person under this Plan an amount sufficient
to
cover any required withholding taxes, including the Participant’s social
security and Medicare taxes (FICA) and federal, state and local income
tax with
respect to income arising from payment of the Award. The Company shall
have the
right to require the payment of any such taxes before issuing any Common
Stock
comprising a part of such distribution. In lieu of all or any part of a
cash
payment from a person receiving Common Stock under this Plan, the Committee
may
permit a person to cover all or any part of the required withholdings,
and to
cover any additional withholdings up to the amount needed to cover the
person’s
full FICA and federal, state and local income tax with respect to income
arising
from payment the Common Stock portion of such distribution, through a reduction
of the numbers of shares of Common Stock delivered to such person or a
delivery
or tender to the Company of other shares of Common Stock held by such person,
in
each case valued in the same manner as used in computing the withholding
taxes
under applicable laws.
9.
FINANCIAL
HARDSHIP
Upon
the
written request of a Participant or a Participant's legal representative
and a
finding that continued deferral will result in an unforeseeable financial
emergency to the Participant, the Committee (in its sole discretion) may
authorize (a) the payment of all or a part of a Participant's Compensation
Accounts representing Deferred Compensation and earnings thereon in a single
lump sum prior to his or her ceasing to be a Participant, or (b) a Participant
to cease contributing Deferred Compensation to the Plan during a Plan Year.
It
is intended that the Committee's determinations as to whether the Participant
has suffered an “unforeseeable financial emergency” shall be made consistent
with the requirements under Section 409A of the Code and the regulations
and
guidance thereunder. An “unforeseeable financial emergency” means a severe
financial hardship to the Participant, the Participant’s spouse, the
Participant’s beneficiary or the Participant’s dependent (as defined in Code
Section 152, without regard to Sections 152(b), (b)(2) and (d)(1)(B));
loss of
the Participant’s property due to casualty; or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control
of
the Participant. Any amounts distributed with respect to an emergency shall
not
exceed the amounts necessary to satisfy such emergency plus amounts necessary
to
pay taxes reasonably anticipated as a result of the distribution, after
taking
into account the extent to which such hardship is or may be relieved by
the
cancellation of the Participant’s deferral election under this Plan or through
reimbursement or compensation by insurance or otherwise or by liquidation
of the
Participant’s assets (to the extent the liquidation of such assets would not
itself cause severe financial hardship). The Committee may adopt procedures
for
determining when a hardship situation exists, including the use of independent
advisors to make such determinations.
Any
Participant receiving a hardship distribution may have no further amounts
deferred under this Plan for a period of one year from the date of such
distribution, and any subsequent deferral may only begin at the beginning
of a
subsequent Plan Year and in accordance with the procedures in Section 6.
The
Participant shall not repay to the Company amounts distributed pursuant
to this
Section 9.
10.
BENEFICIARY
DESIGNATION
A
Participant
may designate one or more persons (including a trust) to whom or to which
payments are to be made if the Participant dies before receiving distribution
of
all amounts due under the Plan. A Beneficiary designation made under the
Prior
Plan shall apply to this Plan, unless subsequently changed as provided
herein. A
Participant may, at any time, elect to change the designation of a Beneficiary.
A designation of Beneficiary will be effective only after the signed designation
of Beneficiary is filed with the Committee or its designee while the Participant
is alive and will cancel all designations of Beneficiary signed and filed
earlier, including any designations of Beneficiary made under the Prior
Plan. If
the Participant fails to designate a Beneficiary as provided above or if
all of
a Participant's Beneficiaries predecease him or her and he or she fails
to
designate a new Beneficiary, the remaining unpaid amounts shall be paid
in one
lump sum to the estate of such Participant. If all Beneficiaries of the
Participant die after the Participant but before complete payment of all
amounts
due hereunder, the remaining unpaid amounts shall be paid in one lump sum
to the
estate of the last to die of such Beneficiaries.
11.
UNSECURED
GENERAL CREDITOR STATUS OF EMPLOYEE
The
payments
to Participants and their Beneficiaries hereunder shall be made from the
general
corporate assets of the Company. No person shall have any interest in any
such
assets by virtue of the provisions of this Plan. The Company's obligation
hereunder shall be an unfunded and unsecured promise to pay money in the
future.
To the extent that any person acquires a right to receive payments from
the
Company under the provisions hereof, such right shall be no greater than
the
right of any unsecured general creditor of the Company; no such person
shall
have nor acquire any legal or equitable right, interest or claim in or
to any
property or assets of the Company. Any accounts maintained under this Plan
shall
be hypothetical in nature and shall be maintained for bookkeeping purposes
only.
Neither the Plan nor any account shall hold any actual funds or
assets.
12.
SHARES;
ADJUSTMENTS IN EVENT OF CHANGES IN CAPITALIZATION
An
aggregate
of 100,000 split-adjusted shares of Common Stock were initially allocated
to the
Prior Plan and reserved for the distribution of Compensation Accounts as
described in Section 8.5 thereof. An additional 750,000 shares were
subsequently allocated to the Prior Plan, subject to adjustment under
Section 12 thereof. Any shares allocated under the terms of the Prior Plan
shall be deemed allocated under this Plan since the Prior Plan and this
Plan are
considered one plan set forth in two separate documents. The Company may,
in its
discretion, use shares held in the Treasury under this Plan in lieu of
authorized but unissued shares of Common Stock.
In
the event
of any change in the outstanding Common Stock of the Company by reason
of any
stock split, share dividend, recapitalization, merger, consolidation,
reorganization, combination, or exchange or reclassification of shares,
split-up, split-off, spin-off, liquidation or other similar change in
capitalization, or any distribution to common shareholders other than cash
dividends, the number or kind of shares or Stock Units that may be credited
under the Plan shall be automatically adjusted so that the proportionate
interest of the Participants shall be maintained as before the occurrence
of
such event. Such adjustment shall be conclusive and binding for all purposes
of
the Plan.
13.
INALIENABILITY
OF BENEFITS
The
interests
of the Participants and their Beneficiaries under the Plan may not in any
way be
voluntarily or involuntarily transferred, alienated or assigned, nor subject
to
attachment, execution, garnishment or other such equitable or legal process.
A
Participant or Beneficiary cannot waive the provisions of this Section
13.
14.
CLAIMS
PROCEDURE
Any
Participant, Beneficiary or any other person claiming benefits, eligibility,
participation or any other right or interest under this Plan may file a
written
claim setting forth the basis of the claim with the Chief Executive Officer
of
the Company (“CEO”). A written notice of the CEO’s disposition of any such claim
shall be furnished to the claimant within a reasonable time (not to exceed
ninety (90) days) after the claim is received by the CEO. Notwithstanding
the
foregoing, the CEO may have additional time (not to exceed ninety (90)
days) to
decide the claim if special circumstances exist, provided that he advises
the
claimant, in writing and prior to the end of the initial ninety (90) day
period,
of the special circumstances giving rise to the need for additional time
and the
date on which he expects to decide the claim. If the claim is denied, in
whole
or in part, the notice of disposition shall include the specific reason
for the
denial, identify the specific provisions of the Plan upon which the denial
is
based, describe any additional material or information necessary to perfect
the
claim, explain why that material or information is necessary and describe
the
Plan’s review procedures, including the timeframes thereunder for a claimant
to
file a request for review and for the Committee to decide the claim. The
notice
shall also include a statement advising the claimant of his right to bring
a
civil action if his claim is denied, in whole or in part, upon review.
Within
sixty
(60) days after receiving the written notice of the CEO’s disposition of the
claim, the claimant may request, in writing, review by the Committee of
the
CEO’s decision regarding his claim. Upon written request, the claimant shall
be
entitled to a review meeting with the Committee to present reasons why
the claim
should be allowed. The claimant or his authorized representative may submit
a
written statement in support of his claim, together with such comments,
information and material relating to the claim, as he deems necessary or
appropriate. The claimant or his duly authorized representative shall be
provided, upon request and free of charge, reasonable access to, and copies
of,
all documents, records and other information which are relevant to the
claimant’s claim and its review. If the claimant does not request review within
sixty (60) days after receiving written notice of the CEO’s disposition of the
claim, the claimant shall be deemed to have accepted the CEO’s written
disposition.
The
Committee
shall make its decision on review and provide written notice thereof to
the
claimant within a reasonable time (not to exceed sixty (60) days) after
the
claim is received by the Committee. Notwithstanding the foregoing, the
Committee
may have additional time (not to exceed sixty (60) days) to decide the
claim if
special circumstances exist provided that the Committee advises the claimant,
in
writing, prior to the end of the initial sixty (60) day period, of the
special
circumstances giving rise to the need for additional time and the date
on which
it expects to decide the claim. In no event shall the Committee have more
than
one hundred twenty (120) days following its receipt of the claimant’s request
for review to provide the claimant with written notice of its decision.
The
Committee shall have the right to request of and receive from claimant
such
additional information, documents or other evidence as the Committee may
reasonably require. In the event that the Committee requests such additional
information from the claimant, the period for making the benefit determination
on review shall not take into account the period beginning on the date
on which
the Committee notifies the claimant in writing of the need for additional
information and ending on the date on which the claimant responds to the
request
for additional information.
If
the claim
is denied upon review, in whole or in part, the notice of disposition shall
include the specific reason for the denial, identify the specific provision
of
the Plan upon which the denial is based, include a statement advising the
claimant of his right to receive, upon written request and free of charge,
reasonable access to and copies of all documents, records and other information
which are relevant to the claimant’s claim and include a statement advising the
claimant of his right to bring a civil action under Section 502(a) of the
Act if
his claim is denied, in whole or in part, upon review.
Notwithstanding
anything herein, if a claimant is denied a benefit because he or she is
determined not to be disabled and he or she makes a claim pursuant to such
denial, the provisions of this paragraph shall apply. Upon receipt of a
claim,
the reply period shall be forty-five (45) days. If, prior to the end of
such
45-day period, the claims reviewer determines that, due to matters beyond
the
control of the Plan, a decision cannot be rendered, the period for making
the
determination may be extended for up to thirty (30) days, and the claims
reviewer shall notify the claimant, prior to the expiration of such 45-day
period, of the circumstances requiring an extension and the date by which
the
Plan expects to render a decision. If, prior to the end of the first 30-day
extension period, the claims reviewer determines that, due to matters beyond
the
control of the Plan, a decision cannot be rendered within that extension
period,
the period for making the determination may be extended for up to an additional
thirty (30) days, and the claims reviewer shall notify the claimant, prior
to
the expiration of the first 30-day extension period, of the circumstances
requiring the extension and the date by which the Plan expects to render
a
decision. In the case of any extension described in this paragraph, the
notice
of extension shall specifically explain the standards on which entitlement
to a
benefit is based, the unresolved issues that prevent a decision on the
claim and
the additional information needed to resolve those issues, and the claimant
shall be afforded forty-five (45) days within which to provide the specified
information. If information is requested, the period for making the benefit
determination shall be tolled from the date on which notification of an
extension is sent to the claimant until the date on which the claimant
responds
to the request for information. Within one hundred eighty (180) days after
receiving the written notice of an adverse disposition of the claim, the
claimant may request in writing, and shall be entitled to, a review of
the
benefit determination. In deciding an appeal of any adverse benefit
determination that is based in whole or in part on a medical judgment,
the Plan
shall consult with a health care professional who has appropriate training
and
experience in the field of medicine involved in the medical judgment. Such
health care professional shall be an individual who is neither an individual
who
was consulted in connection with the adverse benefit determination that
is the
subject of the appeal nor the subordinate of any such individual. The medical
or
vocational experts whose advice was obtained on behalf of the Plan in connection
with the claimant’s adverse benefit determination will be identified to the
claimant. If the claimant does not request a review within one hundred
eighty
(180) days after receiving written notice of the original’s disposition of the
claim, the claimant shall be deemed to have accepted the original written
disposition. A decision on review shall be rendered in writing by the Plan
within a reasonable period of time, but ordinarily not later than forty-five
(45) days after receipt of the claimant’s request for review by the Plan, unless
the Plan determines that special circumstances require an extension of
time for
processing the claim. If the Plan determines that an extension of time
for
processing is required, written notice of the extension shall be furnished
to
the claimant prior to the termination of the initial forty-five (45) period.
In
no event shall such extension exceed a period of forty-five (45) days from
the
end of the initial period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the
Plan
expects to render the determination on review. In the event the extension
is due
to a claimant’s failure to submit information necessary to decide the claim, the
claimant shall be afforded forty-five (45) days within which to provide
the
specified information, and the period for making the benefit determination
on
review shall be tolled from the date on which notification of the extension
is
sent to the claimant until the date on which the claimant responds to the
request for additional information.
For
purposes
of this Section, a document, record or information will be considered “relevant’
if it (a) was relied upon by the CEO or Committee, as applicable, in making
the
benefit decision, (b) was submitted, considered or generated in the course
of
making such decision, even if it was not relied upon in making those decisions,
or (c) demonstrates compliance with the administrative processes and safeguards
established by the Plan to insure that the terms of the Plan have been
followed
and applied consistently.
To
the extent
permitted by law, a decision on review by the Committee shall be binding
and
conclusive upon all persons whomsoever. Completion of the claims procedure
described in this Section shall be a mandatory precondition that must be
complied with prior to commencement of a legal or equitable action in connection
with the Plan by a person claiming rights under the Plan, or by another
person
claiming rights through such a person. The Committee may, in its sole
discretion, waive these procedures as a mandatory precondition to such
an
action.
15.
GOVERNING
LAW
The
provisions of this plan shall be interpreted and construed in accordance
with
the laws of the State of Missouri, except to the extent preempted by Federal
law.
16.
AMENDMENTS
The
Committee
may amend, alter or terminate this Plan at any time without the prior approval
of the Board; provided, however, that the Committee may not, without approval
by
the Board, materially increase the benefits accruing to Participants under
the
Plan.
17.
TIME
FOR PAYMENT
Notwithstanding
anything herein to the contrary, in the event that a Participant is determined
to be a specified employee in accordance with Section 409A of the Code
and the
regulations and other guidance issued thereunder for purposes of any payment
on
termination of employment under this Plan, such payment(s) shall be made
or
begin, as applicable, on the first payroll date which is more than six
months
following the date of separation from service, to the extent required to
avoid
the adverse tax consequences to the Participant under Section 409A of the
Internal Revenue Code of 1986, as amended.
All
payments
due and payable under the Plan on a fixed date shall be deemed to be made
upon
such fixed date if such payment is made on such date or a later date within
the
same calendar year or, if later, by the fifteenth day of the third calendar
month following the specified date (provided the Participant is not entitled,
directly or indirectly, to designate the taxable year of the payment).
In
addition, a payment is treated as made upon a fixed date under the Plan
if the
payment is made no earlier than 30 days before the designated payment date
and
the service provider is not permitted, directly or indirectly, to designate
the
taxable year of the payment.
IN
WITNESS
WHEREOF, this Plan is effective as of January 1, 2005.
