DELAWARE
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1-
11083
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04-
2695240
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(State or other
jurisdiction of incorporation)
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(Commission file
number)
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(IRS
employer identification no.)
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One Boston Scientific Place,
Natick, Massachusetts
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01760-1537
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(Address
of principal executive offices)
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(Zip
code)
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ITEM
1.01.
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ENTRY
INTO A MATERIAL DEFINITIVE AGREEMENT.
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On
October 28, 2008, our Board of Directors approved an amendment to and
restatement of the Boston Scientific Corporation Deferred Compensation
Plan (the “Plan”) in order to bring the Plan into compliance with Internal
Revenue Code Section 409A and to make several technical and administrative
changes. A copy of the Plan, as amended and restated, is filed
herewith as Exhibit 10.1.
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ITEM
9.01.
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FINANCIAL
STATEMENTS AND EXHIBITS.
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Exhibit No.
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Description |
10.1
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Boston
Scientific Corporation Non-Employee Director Deferred Compensation Plan,
as Amended and Restated, effective as of January 1,
2009.
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BOSTON SCIENTIFIC CORPORATION | |||
Date: October
31, 2008
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By:
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/s/ Lawrence J. Knopf | |
Lawrence
J. Knopf
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Senior
Vice President and Deputy General
Counsel
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Page
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ARTICLE
I
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Definitions
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1
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ARTICLE
II
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Eligibility
and Enrollment
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5
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2.1
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Participation
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5
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2.2
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Enrollment
Requirements
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5
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2.3
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Commencement
of Participation
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5
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ARTICLE
III
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Deferral
Commitments/Interest Crediting/Taxes
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5
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3.1
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Maximum
Deferral
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5
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3.2
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Election
to Defer: Effect of Election Form.
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5
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3.3
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Withholding
of Deferral Amounts
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6
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3.4
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Initial
Credits and Interest Crediting
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6
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3.5
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Interest
Crediting for Installment Distributions
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8
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3.6
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Taxes
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8
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3.7
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Quarterly
Statements
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9
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ARTICLE
IV
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Fixed
Date Payout; Withdrawals; Change in Control
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9
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4.1
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Fixed
Date Payout
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9
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4.2
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Other
Benefits Take Precedence Over Fixed Date Payout
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9
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4.3
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Unforeseeable
Financial Emergencies.
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9
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4.4
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Change
in Control
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10
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ARTICLE
V
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Termination Benefit |
10
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5.1
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Termination
Benefit
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10
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5.2
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Payment
of Termination Benefit.
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10
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5.3
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Failure
to Elect
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11
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5.4
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Death
Prior to Completion of Termination Benefit
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11
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ARTICLE
VI
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Pre-Termination
Survivor Benefit
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11
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6.1
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Pre-Termination
Survivor Benefit
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11
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6.2
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Payment
of Pre-Termination Survivor Benefit.
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12
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6.3
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Failure
to Elect
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12
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ARTICLE
VII
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Beneficiary
Designation
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13
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7.1
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Beneficiary
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13
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7.2
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Beneficiary
Designation: Change
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13
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7.3
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Acknowledgment
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13
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7.4
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No
Beneficiary Designation
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13
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7.5
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Doubt
as to Beneficiary
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13
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7.6
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Discharge
of Obligations
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13
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ARTICLE
VIII
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Termination,
Amendment or Modification
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13
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8.1
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Termination
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13
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8.2
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Amendment
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14
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8.3
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Plan
Agreement
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14
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8.4
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Effect
of Payment
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14
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ARTICLE
IX
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Administration
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14
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9.1
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Committee
Duties
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14
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9.2
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Agents
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14
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9.3
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Binding
Effect of Decisions
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15
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9.4
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Indemnity
of Committee
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15
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9.5
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Company
Information
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15
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ARTICLE
X
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Other
Benefits and Agreements
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15
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10.1
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Coordination
with Other Benefits
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15
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ARTICLE
XI
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Claims
Procedures
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15
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11.1
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Presentation
of Claim
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15
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11.2
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Notification
of Decision
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15
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11.3
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Review
of a Denied Claim
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16
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11.4
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Decision
on Review
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16
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11.5
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Legal
Action
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16
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ARTICLE
XII
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Funding
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17
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12.1
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No
Funding
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17
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12.2
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Grantor
Trust
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17
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ARTICLE
XIII
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Miscellaneous |
17
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13.1
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Limitation
on Benefit Payment
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17
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13.2
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Status
of Plan
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18
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13.3
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Unsecured
General Creditor
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18
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13.4
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Company’s
Liability
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18
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13.5
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Nonassignability
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18
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13.6
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Not
a Contract of Employment
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18
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13.7
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Furnishing
Information
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18
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13.8
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Terms
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18
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13.9
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Captions
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18
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13.10
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Governing
Law
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19
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13.11
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Notice
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19
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13.12
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Successors
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19
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13.13
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Spouse’s
Interest
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19
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13.14
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Validity
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19
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13.15
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Incompetent
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19
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13.16
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Court
Order
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19
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13.17
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Distribution
in the Event of Taxation.
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20
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13.18
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Code
Section 409A
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20
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1.1
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“Account
Balance” shall mean (i) the Deferral Amount, plus (ii) interest credited
in accordance with all the applicable interest crediting provisions of
this Plan, less (iii) all distributions or other debits credited pursuant
to the provisions of this Plan. This Account Balance shall be a
bookkeeping entry only and shall be utilized solely as a device for the
measurement and determination of the amounts to be paid or issued to a
Participant pursuant to this Plan.
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1.2
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“Annual
Deferral Amount” shall mean that portion of a Participant’s Directors Fees
that a Participant elects to have deferred in accordance with Article 3
for any one Plan Year. In the event of a Participant’s Separation from
Service or death prior to the end of a Plan Year, such year’s Annual
Deferral Amount shall be the actual amount deferred prior to such event.
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1.3
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“Beneficiary”
shall mean one or more persons, trusts, estates or other entities,
designated in accordance with Article 7, that are entitled to receive
benefits under this Plan upon the death of a
Participant.
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1.4
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“Beneficiary
Designation Form” shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the Committee
to designate one or more
Beneficiaries.
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1.5
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“Board”
shall mean the board of directors of the
Company.
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1.6
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“Cash
Common Stock Account Balance” shall mean the portion of a Participant’s
Account Balance attributable to Directors Fees that, absent deferral under
the Plan, would have been paid to the Director in cash and which is
converted and credited under the Common Stock Option pursuant to the
Director’s election under Section
3.4(a).
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1.7
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“Change
in Control” shall mean the first to occur of any of the following change
in control events, as determined by the Committee in accordance with the
provisions of Treas. Reg.
§1.409A-3(i)(5):
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(i)
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The
acquisition by any one person, or more than one person acting as a group
(as defined in Treas. Reg. §1.409A-3(i)(5)(v)(B)) on one date (or during
the 12-month period ending on the date of the most recent acquisition by
such person or persons) ownership of stock of the Company possessing 30%
or more of the total voting power of the stock of the Company; provided,
however, that any acquisition by (x) any noncorporate shareholder of the
Company as of the effective date of the initial registration of an
offering of Common Stock under the Securities Act of 1933, (y) the Company
or any of its subsidiaries, or any employee benefit plan (or related
trust) sponsored or maintained by the Company or any of its subsidiaries
or (z) any corporation with respect to which, following such acquisition,
more than 60% of, respectively, the then outstanding shares of common
stock of such corporation and combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the outstanding
Common Stock and Company voting securities immediately prior to such
acquisition in substantially the same proportion as their ownership,
immediately prior to such acquisition, of the outstanding Common Stock and
Company voting securities, as the case may be, shall not constitute a
Change in Control.
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(ii)
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The
replacement of a majority of members of the Board during any 12-month
period by Directors whose appointment or election is not endorsed by a
majority of the members of the Board before the date of the appointment or
election.
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1.8
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“Claimant”
shall have the meaning set forth in Section
11.1.
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1.9
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“Code”
shall mean the Internal Revenue Code of 1986, as may be amended from time
to time.
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1.10
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“Committee”
shall mean the committee described in Article
9.
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1.11
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“Common
Stock” shall mean the common stock, $.01 par value, of the
Company.
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1.12
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“Common
Stock Option” shall mean the conversion and crediting option described in
Section 3.4(a)(ii).
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1.13
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“Common
Stock Account Balance” shall mean the Cash Common Stock Account Balance
and the Equity Common Stock Account
Balance.
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1.14
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“Company”
shall mean Boston Scientific Corporation, a Delaware corporation, and any
successor to all or substantially all of the Company’s assets or business
which assumes the obligations of the Company to the maximum extent
permitted by Code section 409A.
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1.15
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“Deferral
Amount” shall mean the sum of all of a Participant’s Annual Deferral
Amounts.
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1.16
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“Deduction
Limitation” shall mean the limitation described in Section 13.1 on a
benefit that may otherwise be distributable pursuant to the provisions of
this Plan.
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1.17
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“Director”
shall mean any non-employee member of the board of directors of the
Company.
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1.18
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“Directors
Fees” shall mean the annual fees paid by the Company, including retainer
fees and committee chair fees and any equity-based awards granted to the
Director by the Company, in each case for serving on its board of
directors.
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1.19
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“Election
Form” shall mean the form established from time to time by the Committee
that a Participant completes, signs and returns to the Committee to make
an election under the Plan.
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1.20
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“Equity
Common Stock Account Balance” shall mean the portion of a Participant’s
Account Balance attributable to Directors Fees that, absent deferral under
the Plan, would have been issued to the Director in the form of one or
more equity-based awards.
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1.21
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“Fixed
Date Payout” shall mean the payout described in Section
4.1.
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1.22
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“Market
Price” shall mean, as of any trading date, the closing price of Common
Stock on such date (or, if no trading shall have occurred on such date, on
the immediately preceding date on which trading shall have
occurred).
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1.23
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“Moody’s
Rate Option” shall mean the interest crediting option described in Section
3.4(a)(i).
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1.24
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“Moody’s
Rate Option Account Balance” shall mean the portion of a Participant’s
Account Balance attributable to Directors Fees that, absent deferral under
the Plan, would have been paid to the Director in cash and as to which
interest is being credited under the Moody’s Rate Option pursuant to the
Director’s election under Section
3.4(a).
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1.25
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“Participant”
shall mean a Director (i) who elects to participate in the Plan (in
accordance with the provisions of the Plan), (ii) who signs a Plan
Agreement, an Election Form and a Beneficiary Designation Form, (iii)
whose signed Plan Agreement, Election Form and Beneficiary Designation
Form are accepted by the Committee, (iv) who commences participation in
the Plan, and (v) whose Plan Agreement has not terminated. A spouse or
former spouse of a Participant shall not be treated as a Participant in
the Plan, even if he or she has an interest in the Participant’s benefits
under the Plan as a result of applicable law or property settlements
resulting from legal separation or
divorce.
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1.26
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“Plan”
shall mean the Boston Scientific Corporation Non-Employee Director
Deferred Compensation Plan, as amended and restated effective January 1,
2009, and as may be further amended from time to time, which shall be
evidenced by this instrument, including any amendment hereto, and by each
Plan Agreement.
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1.27
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“Plan
Agreement” shall mean a written agreement which is entered into by and
between the Company and a Participant. Each Plan Agreement executed by a
Participant and the Company shall provide for the entire benefit to which
such Participant is entitled to under the Plan, and the Plan Agreement
bearing the latest date of acceptance by the Committee shall govern such
entitlement. The terms of any Plan Agreement may vary by Participant, and
any Plan Agreement may provide additional benefits not set forth in the
Plan or limit the benefits otherwise provided under the Plan; provided,
however, that any such additional benefits or benefit limitations must be
agreed to by both the Company and the
Participant.
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1.28
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“Plan
Year” shall mean the twelve (12) month period beginning on January 1 and
continuing through December 31.
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1.29
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“Pre-Termination
Survivor Benefit” shall mean the benefit described in Article
6.
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1.30
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“Separation
from Service” and correlative terms mean the ceasing of all services as a
Director constituting a “separation from service” (as that term is defined
at Treas. Reg. § 1.409A-1(h)) from the Company and any corporation or
other trade or business that together with the Company would be treated as
a single “employer” for purposes of Treas. Reg. §
1.409A-1(h)(3).
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1.31
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“Termination
Benefit” shall mean the benefit described in Article
5.
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1.32
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“Unforeseeable
Financial Emergency” shall mean an unanticipated emergency that is caused
by an event beyond the control of the Participant that would result in
severe financial hardship to the Participant resulting from (i) a sudden
and unexpected illness or accident of the Participant or a dependent of
the Participant, (ii) a loss of the Participant’s property due to
casualty, or (iii) other extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant and
constituting an “unforeseeable emergency” as defined in Treas. Reg.
§ 1.409A-3(i)(3), all as determined in the sole discretion of the
Committee.
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2.1
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Participation
. Participation
in the Plan shall be limited to
Directors.
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2.2
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Enrollment
Requirements
. As a condition to participation, each
Director shall complete, execute and return to the Committee a Plan
Agreement, an Election Form and a Beneficiary Designation Form not later
than the applicable election deadline specified in Section
3.2. In addition, the Committee shall establish from time to
time such other enrollment requirements as it determines, in its sole
discretion, are necessary.
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2.3
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Commencement of
Participation
. Each Director shall commence
participation in the Plan upon satisfaction of all enrollment requirements
set forth in this Plan and required by the Committee, including returning
all required documents to the Committee within the required time frame. If
a Director fails to meet all such requirements within the required time
frame, he or she shall not be eligible to participate in the Plan until
the first day of the Plan Year commencing after the delivery to and
acceptance by the Committee of the required
documents.
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3.1
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Maximum
Deferral
. For each Plan Year, a Participant may elect to
defer up to 100% of his or her Directors Fees. Notwithstanding the
foregoing, if a Participant first becomes a Participant after the first
day of a Plan Year, the maximum Annual Deferral Amount shall be limited to
the amount of Directors Fees not yet earned by the Participant as of the
date the Participant submits a Plan Agreement and Election Form that are
accepted by the Committee.
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3.2
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Election to Defer:
Effect of Election Form
.
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3.3
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Withholding of
Deferral Amounts
. For each Plan Year, Directors Fees
with respect to which a deferral election has been made under Section 3.2
shall be withheld at the time such Directors Fees are or otherwise would
be paid, transferred, or delivered to the
Participant.
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3.4
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Initial Credits and
Interest Crediting
. Amounts withheld under Section 3.3
shall be credited to each Participant’s Account Balance as set forth in
this Section 3.4.
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(i)
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Moody’s Rate
Option
. If the Moody’s Rate Option is elected for all or
a designated portion of an Annual Deferral Amount, that amount shall be
credited to the Participant’s Moody’s Rate Option Account Balance, and
interest shall be credited for each Plan Year to the Annual Deferral
Amount (or the designated portion thereof) at the applicable Moody’s rate.
The applicable Moody’s rate for a Plan Year shall be the interest rate,
stated as an annual rate, that (i) is published in Moody’s Bond Record
under the heading of “Moody’s Composite Yield on Seasoned Corporate Bonds”
and (ii) is equal to the average corporate bond yield calculated for the
month of September preceding the Plan Year for which the rate is to be
used. Interest shall be credited under this option as though
the Annual Deferral Amount for each Plan Year were withheld at the
beginning of the Plan Year or, in the case of the first year of Plan
participation, were withheld on the date that the Participant commenced
participation in the Plan, and shall be compounded annually. In
the event distribution of the Annual Deferral Amount is made or commences
prior to the end of a Plan Year, the basis for that year’s interest
crediting on such distribution will be a fraction of the full year’s
interest, based on the number of full months prior to such distribution or
commencement. For purposes of crediting interest up to the time
of a distribution, each distribution shall be treated as made on the first
day of the month in which the distribution is actually
made.
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(ii)
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Common Stock
Option
: If the Common Stock Option is elected for all or
a designated portion of an Annual Deferral Amount, that amount will be
converted (in the manner prescribed in this Section 3.4(a)(ii)) into
hypothetical Common Stock equivalent units and credited to the
Participant’s Cash Common Stock Account Balance. The number of
such units shall be determined by dividing that part of the Annual
Deferral Amount (or designated portion thereof) that is attributable to
each calendar quarter by the average of the Market Prices of Common Stock
during the last five (5) trading days of the preceding calendar
quarter. Common Stock equivalent units will be calculated to
the nearest thousandth. On each dividend payment date for the
Common Stock, dividend equivalents in the form of additional units
representing Common Stock will be credited to the Participant’s Cash
Common Stock Account Balance equal to (i) the per-share cash dividend
divided by the average of the Market Prices of Common Stock on the five
(5) trading days preceding the payment date, multiplied by (ii) the number
of such units reflected in such Account Balance on the day before the
dividend payment date. Upon the Participant’s Separation from
Service or death, or in the event of a Fixed Date Payout, the Common Stock
equivalent units credited to the Cash Common Stock Account Balance will be
valued for payment by multiplying the applicable number of units by the
average of the Market Prices of Common Stock during the last five (5)
trading days of the month preceding the date on which the Annual Deferral
Amount is to be paid (or on which payments of such Amount are to
commence). If the outstanding shares of Common Stock are
increased, decreased or exchanged for a different number or kind of shares
or other securities, or if additional shares or new or different shares or
other securities are distributed with respect to such shares of Common
Stock or other securities through merger, consolidation, sale of all or
substantially all the property of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse
stock split or other distribution with respect to such shares of Common
Stock or other securities, appropriate adjustments will be made by the
Company in the number of Common Stock equivalent units credited to a
Participant’s Cash Common Stock Account
Balance.
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(i)
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The
number of such units shall be equal to the number of shares of Common
Stock subject to the equity-based award which has been
deferred. If the outstanding shares of Common Stock are
increased, decreased or exchanged for a different number or kind of shares
or other securities, or if additional shares or new or different shares or
other securities are distributed with respect to such shares of Common
Stock or other securities through merger, consolidation, sale of all or
substantially all the property of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse
stock split or other distribution with respect to such shares of Common
Stock or other securities, appropriate adjustments will be made by the
Company in the number of Common Stock equivalent units credited to a
Participant’s Equity Common Stock Account
Balance.
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(ii)
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No
additional amounts or units shall be credited in respect of any units
credited under the Equity Common Stock Account Balance in respect of any
dividend payment date for the Common Stock. Each Director shall
be entitled to a lump sum cash payment payable each calendar year, no
later than December 31st of such year, in an amount equal to the sum of
the following calculated for each dividend payment date that occurred
during such calendar year: (i) the per-share cash dividend declared for
such dividend payment date, multiplied by (ii) the number of units
reflected in the Participant’s Equity Common Stock Account Balance on the
day before such dividend payment
date.
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3.5
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Interest Crediting for
Installment Distributions
. If a Participant’s benefits
under this Plan are to be paid from the Moody’s Rate Option Account
Balance in substantially equal monthly installments, such payments shall
be determined by amortizing the Participant’s specified benefit over the
number of months elected, using the interest rate determined under the
Moody’s Rate Option for each year and treating the first installment
payment as all principal and each subsequent installment payment, first as
interest accrued for the applicable installment period on the unpaid
Moody’s Rate Option Account Balance and second as a reduction in the
Moody’s Rate Option Account Balance.
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3.6
|
Taxes
. The
Company, or the trustee of any trust established under Section 12.2, shall
withhold from any payments made to a Participant under this Plan any
applicable federal, state and local income, employment and other taxes
that are required to be withheld by the Company, or the trustee of the
trust, in connection with such payments, in amounts and in a manner to be
determined in the sole discretion of the Company or the
trustee.
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3.7
|
Quarterly
Statements
. As soon as practicable after the end of each
calendar quarter, the Committee shall provide a statement to each
Participant showing the Participant’s Account Balance as of the end of the
quarter. In determining the Account Balance as of the end of a
quarter, the Committee shall credit interest under the Moody’s Rate Option
through the last day of the quarter, and shall provide the aggregate
number of Common Stock equivalent units credited to the Participant’s Cash
Common Stock Account Balance and to the Participant’s Equity Common Stock
Account Balance as of the last day of the
quarter.
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4.1
|
Fixed Date
Payout
. In connection with each election to defer an
Annual Deferral Amount, a Participant may elect irrevocably to receive a
future “Fixed Date Payout” from the Plan. Subject to the
Deduction Limitation, the Fixed Date Payout shall be a lump sum payment,
payable in cash except with respect to amounts credited under the Equity
Common Stock Account which shall, to the extent vested, be issuable in
stock, in an amount that is equal to such Annual Deferral Amount plus
interest, if any, credited in the manner provided in Section 3.4 above on
that amount. Subject to the Deduction Limitation and the other
terms and conditions of this Plan, each Fixed Date Payout elected shall be
paid within 60 days of the first day of any Plan Year designated by the
Participant that is at least three (3) years after the first day of the
Plan Year in which the Annual Deferral Amount is actually
deferred. Any portion of the Participant’s Equity Common Stock
Account Balance which is not vested in accordance with Section 3.4(b) as
of the date of the Fixed Date Payout shall be forfeited as of such
date. At any time prior to the first day of the Plan Year
preceding the Plan Year in which a Fixed Date Payout is otherwise
scheduled to be made under this Section 4.1, the Participant may change
this election by submitting a new Election Form to the Committee that is
accepted by the Committee in its sole discretion;
provided that
he or she must irrevocably elect to postpone such Fixed Date Payout by a
period of not fewer than five (5) years, in which case payment shall be
made on or within thirty (30) days following the last day of such
subsequent Plan Year. No such additional deferral election
shall take effect until one year has elapsed from the date the new
Election Form is accepted by the
Committee.
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4.2
|
Other Benefits Take
Precedence Over Fixed Date Payout
. Should an event occur
that triggers a benefit under Article 5 or 6, any Annual Deferral Amount,
plus interest thereon, if any, that is subject to a Fixed Date Payout
election or additional deferral election under Section 4.1 shall not be
paid in accordance with Section 4.1, but shall be paid or issued in
accordance with the other applicable
Article.
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4.3
|
Unforeseeable
Financial Emergencies
.
|
4.4
|
Change in
Control
. If a Change in Control occurs, all deferral
elections under the Plan shall automatically cease, and each Participant
(or Beneficiary of a deceased Participant) shall receive a distribution of
the aggregate value of his or her Moody’s Rate Option Account Balance and
his or her Cash Common Stock Account Balance in a single lump sum cash
payment as soon as practicable, and no later than 60 days, after such
Change in Control. The Participant’s Equity Common Stock
Account Balance shall not be paid under this Section 4.4 but shall,
instead, be paid out in accordance with the other provisions of the
Plan.
|
5.1
|
Termination
Benefit
. Subject to the Deduction Limitation, a
Participant who experiences a Separation from Service prior to his or her
death shall receive, as a Termination Benefit, his or her Account Balance
in accordance with this Article 5.
|
5.2
|
Payment of Termination
Benefit
.
|
5.3
|
Failure to
Elect
. With respect to each Plan Year in which a
Participant makes a deferral election, if a Participant does not make any
election with respect to the form of payment of the Annual Deferral Amount
allocated to the Moody’s Rate Option, then the Termination Benefit
attributable to such Annual Deferral Amount shall be payable in a lump sum
no later than 60 days after the date the Participant Separates from
Service.
|
5.4
|
Death Prior to
Completion of Termination Benefit
. If a Participant dies
after Separation from Service but before the Termination Benefit is paid
or paid in full, the Participant’s unpaid Termination Benefit shall be
paid, or payments shall commence or continue to be made, to the
Participant’s Beneficiary (a) at the same time or times as, or over the
remaining number of months and in the same amounts as, that unpaid
Termination Benefit would have been paid to the Participant had the
Participant survived, or (b) in a lump sum, if requested by the
Beneficiary and allowed in the sole discretion of the Committee (but only
to the extent permissible under Code section 409A), that is equal to the
Participant’s unpaid remaining Account
Balance.
|
6.1
|
Pre-Termination
Survivor Benefit
. Subject to the Deduction Limitation,
the Participant’s Beneficiary shall receive a Pre-Termination Survivor
Benefit equal to the Participant’s Account Balance, if the Participant
dies before he or she experiences a Separation from
Service.
|
6.2
|
Payment of
Pre-Termination Survivor
Benefit
.
|
6.3
|
Failure to
Elect
. If a Participant does not make any election with
respect to the form of payment of his or her Moody’s Rate Option Account
Balance as a Pre-Termination Survivor Benefit, then such benefit shall be
paid in a lump sum no later than 90 days after the date of the
Participant’s death.
|
7.1
|
Beneficiary
. Each
Participant shall have the right, at any time, to designate his or her
Beneficiary(ies) (both primary as well as contingent) to receive any
benefits payable under the Plan to a beneficiary upon the death of a
Participant. The Beneficiary designated under this Plan may be the same as
or different from the Beneficiary designation under any other plan of the
Company in which the Participant
participates.
|
7.2
|
Beneficiary
Designation: Change
. A Participant shall designate his
or her Beneficiary by completing and signing the Beneficiary Designation
Form, and returning it to the Committee or its designated
agent. A Participant shall have the right to change a
Beneficiary by completing, signing and otherwise complying with the terms
of the Beneficiary Designation Form and the Committee’s rules and
procedures, as in effect from time to time. Upon the acceptance
by the Committee of a new Beneficiary Designation Form, all Beneficiary
designations previously filed shall be canceled. The Committee
shall be entitled to rely on the last Beneficiary Designation Form filed
by the Participant and accepted by the Committee prior to his or her
death.
|
7.3
|
Acknowledgment
. No
designation or change in designation of a Beneficiary shall be effective
until received, accepted and acknowledged in writing by the Committee or
its designated agent.
|
7.4
|
No Beneficiary
Designation
. If a Participant fails to designate a
Beneficiary as provided in Sections 7.1, 7.2 and 7.3 above, or if all
designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant’s benefits, then the
Participant’s designated Beneficiary shall be deemed to be his or her
surviving spouse. If the Participant has no surviving spouse,
the benefits remaining under the Plan to be paid to a Beneficiary shall be
payable to the executor or personal representative of the Participant’s
estate.
|
7.5
|
Doubt as to
Beneficiary
. If the Committee has any doubt as to the
proper Beneficiary to receive payments pursuant to this Plan, the
Committee shall have the right, exercisable in its discretion, to cause
the Company to withhold such payments until this matter is resolved to the
Committee’s satisfaction.
|
7.6
|
Discharge of
Obligations
. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge the Company and the
Committee from all further obligations under this Plan with respect to the
Participant, and that Participant’s Plan Agreement shall terminate upon
such full payment of benefits.
|
8.1
|
Termination
. Although
the Company anticipates that it will continue the Plan for an indefinite
period of time, there is no guarantee that the Company will continue the
Plan or will not terminate the Plan at any time in the future. The
Company, by action of the Board, may, at any time and from time to time,
terminate the Plan as a whole or with respect to any Participant or group
of Participants. The termination of the Plan shall not adversely affect
any Participant or Beneficiary who has become entitled to the payment of
any benefits under the Plan as of the date of termination; provided,
however, that, upon the full termination of the Plan, payments hereunder
shall be accelerated only to the extent permitted by Treas. Reg.
§1.409A-3(j)(4)(ix).
|
8.2
|
Amendment
. The
Company may, at any time, amend or modify the Plan in whole or in part by
action of the Board; provided, however, that no change shall be made to
the Plan that would be inconsistent with the applicable provisions of Code
section 409A and, except for any amendment or modification the Company
determines in its sole discretion is necessary to comply with law or
regulation, no amendment or modification shall be effective to (i)
decrease or restrict the value of a Participant’s Account Balance in
existence at the time the amendment or modification is made, calculated as
if the Participant had experienced a Separation from Service as of the
effective date of the amendment or modification, or, if the Participant
had Separated from Service as of the effective date of the amendment or
modification or (ii) affect any Participant or Beneficiary who has become
entitled to the payment of benefits under the Plan as of the date of the
amendment or modification.
|
8.3
|
Plan
Agreement
. Despite the provisions of Sections 8.1 and
8.2 above, if a Participant’s Plan Agreement contains benefits or
limitations that are not in this Plan document, the Company may only amend
or terminate such provisions with the consent of the
Participant.
|
8.4
|
Effect of
Payment
. The full payment of the applicable benefit
under Articles 5 or 6 of the Plan shall completely discharge all
obligations to a Participant and his or her designated Beneficiaries under
this Plan and the Participant’s Plan Agreement shall
terminate.
|
9.1
|
Committee
Duties
. This Plan shall be administered by a Committee
which shall consist of the Board, or such committee as the Board shall
appoint. Members of the Committee may be Participants under this
Plan. The Committee shall also have the discretion and
authority to (i) make, amend, interpret, and enforce all appropriate rules
and regulations for the administration of this Plan (ii) decide or resolve
any and all questions as may arise in connection with the Plan, including
without limitation any interpretations of this Plan and any entitlement to
benefits under the Plan, and (iii) delegate the performance of ministerial
tasks relating to Plan administration to such persons as the Committee may
designate. Any individual serving on the Committee who is a
Participant will not vote or act on any matter relating solely to himself
or herself. When making a determination or calculation, the
Committee shall be entitled to rely on information furnished by a
Participant or the Company.
|
9.2
|
Agents
. In
the administration of this Plan, the Committee may, from time to time,
employ agents and delegate to them such duties as it sees fit (including
acting through a duly appointed representative) and may from time to time
consult with counsel who may be counsel to the
Company.
|
9.3
|
Binding Effect of
Decisions
. The decision or action of the Committee with
respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules
and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan, in the absence
of clear and convincing evidence that the Committee acted arbitrarily and
capriciously.
|
9.4
|
Indemnity of
Committee
. The Company shall indemnify and hold harmless
the members of the Committee, and any individual or individuals to whom
duties of the Committee may be delegated, against any and all claims,
losses, damages, expenses or liabilities arising from any action or
failure to act with respect to this Plan, except in the case of willful
misconduct by the Committee, any of its members or any such individual or
individuals.
|
9.5
|
Company
Information
. To enable the Committee to perform its
functions, the Company shall supply full and timely information to the
Committee on all matters relating to the compensation of its Participants,
the date and circumstances of the Separation from Service or death of its
Participants, and such other pertinent information as the Committee may
reasonably require.
|
10.1
|
Coordination with
Other Benefits
. The benefits provided for a Participant
and Participant’s Beneficiary under the Plan are in addition to any other
benefits available to such Participant under any other plan or program
sponsored or maintained by the Company. The Plan shall
supplement and shall not supersede, modify or amend any other such plan or
program except as may otherwise be expressly
provided.
|
11.1
|
Presentation of
Claim
. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as a
“Claimant”) may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such Claimant
from the Plan. If such a claim relates to the contents of a
notice received by the Claimant, the claim must be made within 60 days
after such notice was received by the Claimant. All other
claims must be made within 180 days of the date on which the event that
caused the claim to arise occurred. The claim must state with
particularity the determination desired by the
Claimant.
|
11.2
|
Notification of
Decision
. The Committee shall consider a Claimant’s
claim within a reasonable time, and shall notify the Claimant in
writing:
|
(i)
|
the
specific reason(s) for the denial of the claim, or any part of
it;
|
(ii)
|
specific
reference(s) to pertinent provisions of the Plan upon which such denial
was based;
|
(iii)
|
a
description of any additional material or information necessary for the
Claimant to perfect the claim, and an explanation of why such material or
information is necessary; and
|
(iv)
|
an
explanation of the claim review procedure set forth in Section 11.3
below.
|
11.3
|
Review of a Denied
Claim
. Within 60 days after receiving a notice from the
Committee that a claim has been denied, in whole or in part, a Claimant
(or the Claimant’s duly authorized representative) may file with the
Committee a written request for a review of the denial of the
claim. Thereafter, but not later than 30 days after the review
procedure began, the Claimant (or the Claimant’s duly authorized
representative):
|
11.4
|
Decision on
Review
. The Committee shall render its decision on
review promptly, and not later than 60 days after the filing of a written
request for review of the denial, unless a hearing is held or other
special circumstances require additional time, in which case the
Committee’s decision must be rendered within 120 days after such date.
Such decision must be written in a manner calculated to be understood by
the Claimant, and it must contain:
|
11.5
|
Legal
Action
. A Claimant’s compliance with the foregoing
provisions of this Article 11 is a mandatory prerequisite to a Claimant’s
right to commence any legal action with respect to any claim for benefits
under this Plan.
|
12.1
|
No
Funding
. Nothing in the Plan will be construed to create
a trust or to obligate the Company or any other person to segregate a
fund, purchase an insurance contract, or in any other way currently to
fund the future payment of any benefits hereunder, nor will anything
herein be construed to give any Participant or any other person rights to
any specific assets of the Company or of any other person. The
Plan constitutes a mere promise by the Company to make benefit payments in
the future, and is intended to be unfunded for tax
purposes. Any benefits which become payable hereunder shall be
paid from the general assets of the Company, and the rights of any
Participant or of his or her estate or Beneficiary shall be those of an
unsecured general creditor.
|
12.2
|
Grantor
Trust
. The Company, in its sole discretion, may
establish, in a manner not inconsistent with the requirements of Code
section 409A(b), a trust (a “grantor trust”) of which it is treated as the
owner under Subpart E of Subchapter J, Chapter 1 of the Code to provide
for the payment of benefits hereunder, subject to the claims of the
Company’s general creditors in the event of insolvency, and subject to
such other terms and conditions as the Company may deem necessary or
advisable to ensure that benefits are not includable, by reason of the
trust, in the income of trust beneficiaries prior to their actual
distribution.
|
13.1
|
Limitation on Benefit
Payment
. To the extent applicable and except as
otherwise provided, this limitation shall be applied to all distributions
that are “subject to the Deduction Limitation” under this
Plan. If the Company determines in good faith prior to a Change
in Control that there is a reasonable likelihood that any compensation
paid to a Participant for a taxable year of the Company would not be
deductible by the Company solely by reason of the limitation under Code
section 162(m), then to the extent deemed necessary by the Company to
ensure that the entire amount of any distribution to the Participant
pursuant to this Plan prior to the Change in Control is deductible, the
Company may defer all or any portion of a distribution under this Plan;
provided, that the payment is made either during the Participant’s first
taxable year in which the Company reasonably anticipates, or should
reasonably anticipate, that if the payment is made during such year, the
deduction of such payment will not be barred by application of Code
section 162(m) or during the period beginning with the date of the
Participant’s Separation from Service and ending on the later of the last
day of the taxable year of the Company which the Participant Separates
from Service or the 15
th
day of the third month following the Participant’s Separation from
Service, or if earlier upon a Change in Control, and provided further that
where any scheduled payment to a Participant in the Company’s taxable year
is delayed in accordance with this paragraph, the delay in payment will be
treated as a subsequent deferral election under Code section 409A unless
all scheduled payments to that Participant that could be delayed in
accordance with this paragraph are also delayed. Any amounts
deferred pursuant to this limitation shall continue to be credited with
interest in accordance with Section 3.5. Notwithstanding
anything to the contrary in this Plan, the Deduction Limitation shall not
apply to any distributions made after a Change in
Control.
|
13.2
|
Status of
Plan
. The Plan is intended to be a plan that is not
qualified within the meaning of Code section 401(a) and that is unfunded
for tax purposes. The Plan shall be administered and
interpreted to the extent possible in a manner consistent with that
intent.
|
13.3
|
Unsecured General
Creditor
. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interests
or claims in any property or assets of the Company. For
purposes of the payment of benefits under this Plan, any and all of the
Company’s assets shall be, and remain, the general, unpledged unrestricted
assets of the Company. The Company’s obligation under the Plan
shall be merely that of an unfunded and unsecured promise to pay money in
the future.
|
13.4
|
Company’s’s
Liability
. The Company’s liability for the payment of
benefits shall be defined only by the Plan and the Plan Agreement, as
entered into between the Company and a Participant. The Company
shall have no obligation to a Participant under the Plan except as
expressly provided in the Plan and his or her Plan
Agreement.
|
13.5
|
Nonassignability
. Neither
a Participant nor any other person shall have any right to commute, sell,
assign, transfer, pledge, anticipate, mortgage or otherwise encumber,
transfer, hypothecate, alienate or convey in advance of actual receipt,
the amounts, if any, payable hereunder, or any part thereof, which are,
and all rights to which are expressly declared to be, unassignable and
non-transferable, except that the foregoing shall not apply to any court
order specified in Section 13.16 below. No part of the amounts
payable shall, prior to actual payment, be subject to seizure, attachment,
garnishment or sequestration for the payment of any debts, judgments,
alimony or separate maintenance owed by a Participant or any other person,
nor be transferable by operation of law in the event of a Participant’s or
any other person’s bankruptcy or
insolvency.
|
13.6
|
Not a Contract of
Employment
. The terms and conditions of this Plan shall
not be deemed to constitute a contract of employment between the Company
and the Participant. Nothing in this Plan shall be deemed to
give a Participant the right to be retained in the service of the Company
as a Director, or to interfere with the right of the Company to discipline
or discharge the Participant at any
time.
|
13.7
|
Furnishing
Information
. A Participant or his or her Beneficiary
will cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be requested
in order to facilitate the administration of the Plan and the payments of
benefits hereunder.
|
13.8
|
Terms
. Whenever
any words are used herein in the masculine, they shall be construed as
though they were in the feminine in all cases where they would so apply;
and whenever any words are used herein in the singular or in the plural,
they shall be construed as though they were used in the plural or the
singular, as the case may be, in all cases where they would so
apply.
|
13.9
|
Captions
. The
captions of the articles, sections and paragraphs of this Plan are for
convenience only and shall not control or affect the meaning or
construction of any of its
provisions.
|
13.10
|
Governing
Law
. The provisions of this Plan shall be construed and
interpreted according to the laws of the Commonwealth of Massachusetts
without regard to its conflict of laws
principles.
|
13.11
|
Notice
. Any
notice or filing required or permitted to be given to the Committee under
this Plan shall be sufficient if in writing and hand-delivered, or sent by
overnight, registered or certified mail, to the address
below:
|
13.12
|
Successors
. The
provisions of this Plan shall bind and inure to the benefit of the Company
and its successors and assigns and the Participant and the Participant’s
designated Beneficiaries.
|
13.13
|
Spouse’s
Interest
. The interest in the benefits hereunder of a
spouse of a Participant who has predeceased the Participant shall
automatically pass to the Participant and shall not be transferable by
such spouse in any manner, including but not limited to such spouse’s
will, nor shall such interest pass under the laws of intestate
succession.
|
13.14
|
Validity
. In
case any provision of this Plan shall be illegal or invalid for any
reason, said illegality or invalidly shall not affect the remaining parts
hereof, but this Plan shall be construed and enforced as if such illegal
or invalid provision had never been inserted
herein.
|
13.15
|
Incompetent
. If
the Committee determines in its discretion that a benefit under this Plan
is to be paid to a minor, a person declared incompetent or a person
incapable of handling the disposition of that person’s property, the
Committee may direct payment of such benefit to the guardian, legal
representative or person having the care and custody of such minor,
incompetent or incapable person. The Committee may require
proof of minority, incompetency, incapacity or guardianship, as it may
deem appropriate prior to distribution of the benefit. Any
payment of a benefit shall be a payment for the account of the Participant
and the Participant’s Beneficiary, as the case may be, and shall be a
complete discharge of any liability under the Plan for such payment
amount.
|
13.16
|
Court
Order
. The Committee is authorized to make any payments
directed by court order in any action in which the Plan or the Committee
has been named as a party. In addition, if a court determines
that a spouse or former spouse of a Participant has an interest in the
Plan as the result of a property settlement or otherwise, the Committee,
in its sole discretion, shall have the right, notwithstanding any election
made by a Participant, to distribute immediately the spouse’s or former
spouse’s interest in the Plan to that spouse or former
spouse.
|
13.17
|
Distribution in the
Event of Taxation
.
|
13.18
|
Code Section
409A
. The Plan shall be interpreted and construed in
accordance with Code section 409A and the Treasury regulations and other
interpretative guidance issued thereunder, including, to the extent
required under Treas. Reg. §1.409A-3(i)(2), enforcement of the six (6)
month delay on any distribution upon the Separation from Service of a
“specified employee” within the meaning of Code section
409A(a)(2)(B)(i).
|