Commission
File
No.
|
Registrant, State of
Incorporation,
Address, and Telephone
Number
|
I.R.S Employer
Identification
No.
|
1-15467
|
Vectren
Corporation
|
35-2086905
|
(An
Indiana Corporation)
|
||
One
Vectren Square,
|
||
Evansville,
Indiana 47708
|
||
(812)
491-4000
|
||
1-16739
|
Vectren
Utility Holdings, Inc.
|
35-2104850
|
(An
Indiana Corporation)
|
||
One
Vectren Square,
|
||
Evansville,
Indiana 47708
|
||
(812)
491-4000
|
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
·
|
Slight
change to the notice period and slight clarification to the cure period
for the Company on a termination of employment for “good
reason.”
|
·
|
Addition
of a delay provision if compensation is not deductible under Section
162(m) of the Code.
|
·
|
Adjustments
to the timing of gross-up payment for those employment agreements with a
gross up payment and insertion of a methodology for cut-back of payments
for those employment agreements with a cut-back
provision.
|
·
|
Addition
of the same provisions as the change in control agreement, see
below. These provisions only apply after a change in
control.
|
·
|
Six-month
delay in most payments.
|
·
|
Addition
of a definition of “separation from
service.”
|
·
|
Participants
include certain highly compensated and management employees selected by
the Compensation and Benefits Committee and directors of the Corporation
and its subsidiaries.
|
·
|
Under
the terms of the plan, such employees and directors may defer compensation
including, without limitation, salary, fees, bonus, restricted stock, and
stock unit awards. In addition, certain contributions by the
Company may be made to the plan for certain employees and
directors.
|
·
|
The
plan sets forth the timing of deferral elections and the process and
timing for changes to any deferral
election.
|
·
|
Compensation
deferred into the plan is maintained in an account (which is a book
keeping entry) and allocated among measurement
funds.
|
·
|
Each
participant may select the payment events from those choices set forth in
the plan. Payment events include (1) scheduled distribution,
(2) change in control, (3) retirement, (4) separation from service (not
retirement), (5) disability, and (6) death. Depending on the
payment event selected, the participant will be paid in a lump sum or in
installments.
|
·
|
Payments
from the plan are generally delayed for six months after a separation from
service.
|
10.1
|
|
Amendment
Number One to the Vectren Corporation Change in Control Agreement,
effective as of March 1, 2005 between Vectren Corporation and Niel C.
Ellerbrook
|
10.2
|
|
Amendment
Number One to the Specimen Vectren Corporation Employment Agreement
between Vectren Corporation and Executive Officers
|
10.3
|
|
Vectren
Corporation Nonqualified Deferred Compensation Plan, effective January 1,
2005
|
VECTREN
CORPORATION
VECTREN
UTILITY HOLDINGS, INC.
|
|||
September
29, 2008
|
|||
By: /s/
Ronald E. Christian
|
|||
Ronald
E. Christion
|
|||
Executive
Vice President- Chief
|
|||
Administrative Officer and General | |||
Counsel |
Exhibit
Number
|
|
Description
|
10.1
|
|
Amendment
Number One to the Vectren Corporation Change in Control Agreement,
effective as of March 1, 2005 between Vectren Corporation and Niel C.
Ellerbrook
|
10.2
|
|
Amendment
Number One to the Specimen Vectren Corporation Employment Agreement
between Vectren Corporation and Executive Officers
|
10.3
|
|
Vectren
Corporation Nonqualified Deferred Compensation Plan, effective January 1,
2005
|
ARTICLE 1
|
Definitions
|
1
|
ARTICLE 2
|
Selection,
Enrollment, Eligibility
|
10
|
2.1
|
Selection
by Committee
|
10
|
2.2
|
Enrollment
and Eligibility Requirements; Commencement of
Participation
|
10
|
ARTICLE 3
|
Deferral
Commitments/Company Contribution Amounts/Company Restoration Matching
Amounts /Vesting/Crediting/Taxes
|
10
|
3.1
|
Maximum
Deferral
|
10
|
3.2
|
Timing of
Deferral
Elections; Effect of Election
Form
|
11
|
3.3
|
Withholding
and Crediting of Annual Deferral Amounts
|
13
|
3.4
|
Company
Contribution Amount
|
13
|
3.5
|
Company
Restoration Matching Amount
|
14
|
3.6
|
Vesting
|
14
|
3.7
|
Crediting/Debiting
of Account Balances
|
15
|
3.8
|
FICA
and Other Taxes
|
18
|
ARTICLE 4
|
Scheduled
Distributions
|
18
|
4.1
|
Scheduled
Distributions
|
18
|
4.2
|
Postponing
Scheduled Distributions
|
19
|
4.3
|
Other
Benefits Take Precedence Over Scheduled Distributions
|
19
|
4.4
|
Unforeseeable
Emergencies
|
19
|
ARTICLE 5
|
Change
In Control Benefit
|
20
|
5.1
|
Change
in Control Benefit
|
20
|
5.2
|
Payment
of Change in Control Benefit
|
20
|
ARTICLE 6
|
Retirement
Benefit
|
21
|
6.1
|
Retirement
Benefit
|
21
|
6.2
|
Payment
of Retirement Benefit
|
21
|
ARTICLE 7
|
Termination
Benefit
|
22
|
7.1
|
Termination
Benefit
|
22
|
7.2
|
Payment
of Termination Benefit
|
22
|
ARTICLE 8
|
Disability
Benefit
|
23
|
8.1
|
Disability
Benefit
|
23
|
8.2
|
Payment
of Disability Benefit
|
23
|
ARTICLE 9
|
Death
Benefit
|
23
|
9.1
|
Death
Benefit
|
23
|
9.2
|
Payment
of Death Benefit
|
24
|
ARTICLE 10
|
Beneficiary
Designation
|
24
|
10.1
|
Beneficiary
|
24
|
10.2
|
Beneficiary
Designation; Change; Spousal Consent
|
24
|
10.3
|
Acknowledgement
|
24
|
10.4
|
No
Beneficiary Designation
|
24
|
10.5
|
Doubt
as to Beneficiary
|
25
|
10.6
|
Discharge
of Obligations
|
25
|
ARTICLE 11
|
Leave
of Absence
|
25
|
11.1
|
Paid
Leave of Absence
|
25
|
11.2
|
Unpaid
Leave of Absence
|
25
|
ARTICLE 12
|
Termination
of Plan, Amendment or Modification
|
25
|
12.1
|
Termination
of Plan
|
25
|
12.2
|
Amendment
|
26
|
12.3
|
Effect
of Payment
|
26
|
ARTICLE 13
|
Administration
|
26
|
13.1
|
Committee
Duties
|
26
|
13.2
|
Administration
Upon Change In Control
|
27
|
13.3
|
Agents
|
27
|
13.4
|
Binding
Effect of Decisions
|
27
|
13.5
|
Indemnity
of Committee
|
27
|
13.6
|
Employer
Information
|
27
|
ARTICLE 14
|
Other
Benefits and Agreements
|
28
|
14.1
|
Coordination
with Other Benefits
|
28
|
ARTICLE 15
|
Claims
Procedures
|
28
|
15.1
|
Presentation
of Claim
|
28
|
15.2
|
Notification
of Decision
|
28
|
15.3
|
Review
of a Denied Claim
|
29
|
15.4
|
Decision
on Review
|
29
|
15
.5
|
Legal
Action
|
30
|
ARTICLE 16
|
Trust
|
30
|
16.1
|
Establishment
of the Trust
|
30
|
16.2
|
Interrelationship
of the Plan and the Trust
|
30
|
16.3
|
Distributions
From the Trust
|
30
|
ARTICLE 17
|
Miscellaneous
|
30
|
17.1
|
Status
of Plan
|
30
|
17.2
|
Unsecured
General Creditor
|
30
|
17.3
|
Employer’s
Liability
|
31
|
17
.4
|
Nonassignability
|
31
|
17.5
|
Not
a Contract of Employment
|
31
|
17
.6
|
Furnishing
Information
|
31
|
17.7
|
Terms
|
31
|
17.8
|
Captions
|
31
|
17.9
|
Governing
Law
|
32
|
17.1
|
Notice
|
32
|
17.11
|
Successors
|
32
|
17.12
|
Spouse’s
Interest
|
32
|
17.13
|
Validity
|
32
|
17.14
|
Incompetent
|
32
|
17.15
|
Domestic
Relations Orders
|
33
|
17.16
|
Distribution
in the Event of Income Inclusion Under Code Section 409A
|
33
|
17.17
|
Deduction
Limitation on Benefit Payments
|
33
|
1.1
|
“Account
Balance” shall mean, with respect to a Participant, an entry on the
records of the Employer equal to the sum of the Participant’s Annual
Accounts. The Account Balance shall be a bookkeeping entry only
and shall be utilized solely as a device for the measurement and
determination of the amounts to be paid to a Participant, or his or her
designated Beneficiary, pursuant to this
Plan.
|
1.2
|
“Annual
Account” shall mean, with respect to a Participant, an entry on the
records of the Employer equal to (a) the sum of the Participant’s
Annual Deferral Amount, Company Contribution Amount and Company
Restoration Matching Amount for any one Plan Year, plus (b) amounts
credited or debited to such amounts pursuant to this Plan, less (c) all
distributions made to the Participant or his or her Beneficiary pursuant
to this Plan that relate to the Annual Account for such Plan
Year. The Annual Account shall be a bookkeeping entry only and
shall be utilized solely as a device for the measurement and determination
of the amounts to be paid to a Participant, or his or her designated
Beneficiary, pursuant to this Plan.
|
1.3
|
“Annual
Deferral Amount” shall mean that portion of a Participant's Base Salary,
Bonus, Commissions, Employee Restricted Stock, Employee Stock Unit Awards,
Director Fees, Director Restricted Stock, Director Stock Unit Awards and
LTIP Amounts that a Participant defers in accordance with Article 3
for any one Plan Year, without regard to whether such amounts are withheld
and credited during such Plan Year.
|
1.4
|
“Annual
Installment Method” shall mean the method used to determine the amount of
each payment due to a Participant who has elected to receive a benefit
over a period of years in accordance with the applicable provisions of the
Plan. The amount of each annual payment due to the Participant
shall be calculated by multiplying the balance of the Participant’s
benefit by a fraction, the numerator of which is one and the denominator
of which is the remaining number of annual payments due to the
Participant. The amount of the first annual payment shall be
calculated as of the close of business on or around
the Participant’s
Benefit Distribution Date,
and the amount of
each subsequent annual payment shall be calculated on or around each
anniversary of such Benefit Distribution Date. For purposes of
this Plan, the right to receive a benefit payment in annual installments
shall be treated as the entitlement to a single
payment.
|
1.5
|
“Base
Salary” shall mean the annual cash compensation relating to services
performed during any calendar year, excluding distributions from
nonqualified deferred compensation plans, bonuses, commissions, overtime,
fringe benefits, stock options, restricted stock, stock unit awards,
restricted stock units, relocation expenses, incentive payments,
non-monetary awards, director fees and other fees, and automobile and
other allowances paid to a Participant for employment services rendered
(whether or not such allowances are included in the Employee’s gross
income). Base Salary shall be calculated before reduction for
compensation voluntarily deferred or contributed by the Participant
pursuant to all qualified or nonqualified plans of any Employer and shall
be calculated to include amounts not otherwise included in the
Participant's gross income under Code Sections 125, 402(e)(3), 402(h), or
403(b) pursuant to plans established by any Employer; provided, however,
that all such amounts will be included in compensation only to the extent
that had there been no such plan, the amount would have been payable in
cash to the Employee.
|
1.6
|
“Beneficiary”
shall mean one or more persons, trusts, estates or other entities,
designated in accordance with Article 10, that are entitled to
receive benefits under this Plan upon the death of a
Participant.
|
1.7
|
“Beneficiary
Designation Form” shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the Committee
to designate one or more
Beneficiaries.
|
1.8
|
“Benefit
Distribution Date” shall mean the date upon which all or an objectively
determinable portion of a Participant’s vested benefits will become
eligible for distribution. Except as otherwise provided in the
Plan, a Participant’s Benefit Distribution Date shall be determined based
on the earliest to occur of an event or scheduled date set forth in
Articles 4 through 9, as
applicable.
|
1.9
|
“Board”
shall mean the board of directors of the
Company.
|
1.10
|
“Bonus”
shall mean any compensation, in addition to Base Salary, Commissions,
Employee Restricted Stock, Employee Stock Unit Awards and LTIP Amounts,
earned by a Participant under any Employer's annual bonus and cash
incentive plans.
|
1.11
|
“Change
in Control” shall mean the occurrence of a “change in the ownership,” a
“change in the effective control” or a “change in the ownership of a
substantial portion of the assets” of a corporation, as determined in
accordance with this Section.
|
(a)
|
A
“change in the ownership” of the applicable corporation shall occur on the
date on which any one person, or more than one person acting as a group,
acquires ownership of stock of such corporation that, together with stock
held by such person or group, constitutes more than 50% of the total fair
market value or total voting power of the stock of such corporation, as
determined in accordance with Treas. Reg.
§1.409A-3(i)(5)(v). If a person or group is considered either
to own more than 50% of the total fair market value or total voting power
of the stock of such corporation, or to have effective control of such
corporation within the meaning of part (b) of this Section, and such
person or group acquires additional stock of such corporation, the
acquisition of additional stock by such person or group shall not be
considered to cause a “change in the ownership” of such
corporation.
|
(b)
|
A
“change in the effective control” of the applicable corporation shall
occur on either of the following
dates:
|
(i)
|
The
date on which any one person, or more than one person acting as a group,
acquires (or has acquired during the 12-month period ending on the date of
the most recent acquisition by such person or persons) ownership of stock
of such corporation possessing 30% or more of the total voting power of
the stock of such corporation, as determined in accordance with Treas.
Reg. §1.409A-3(i)(5)(vi). If a person or group is considered to
possess 30% or more of the total voting power of the stock of a
corporation, and such person or group acquires additional stock of such
corporation, the acquisition of additional stock by such person or group
shall not be considered to cause a “change in the effective control” of
such corporation; or
|
(ii)
|
The
date on which a majority of the members of the applicable corporation’s
board of directors is replaced during any 12-month period by directors
whose appointment or election is not endorsed by a majority of the members
of such corporation’s board of directors before the date of the
appointment or election, as determined in accordance with Treas. Reg.
§1.409A-3(i)(5)(vi). In determining whether the event described
in the preceding sentence has occurred, the applicable corporation to
which the event must relate shall only include a corporation identified in
accordance with Treas. Reg. §1.409A-3(i)(5)(ii) for which no other
corporation is a majority
shareholder.
|
(c)
|
A
“change in the ownership of a substantial portion of the assets” of the
applicable corporation shall occur on the date on which any one person, or
more than one person acting as a group, acquires (or has acquired during
the 12-month period ending on the date of the most recent acquisition by
such person or persons) assets from the corporation that have a total
gross fair market value equal to or more than 40% of the total gross fair
market value of all of the assets of the corporation immediately before
such acquisition or acquisitions, as determined in accordance with Treas.
Reg. §1.409A-3(i)(5)(vii). A transfer of assets shall not be
treated as a “change in the ownership of a substantial portion of the
assets” when such transfer is made to an entity that is controlled by the
shareholders of the transferor corporation, as determined in accordance
with Treas. Reg.
§1.409A-3(i)(5)(vii)(B).
|
1.12
|
“Code”
shall mean the Internal Revenue Code of 1986, as it may be amended from
time to time.
|
1.13
|
“Commissions”
shall mean the cash commissions earned by a Participant during a Plan
Year, as determined in accordance with Code Section 409A and related
Treasury Regulations.
|
1.14
|
“Committee”
shall mean the committee described in
Article 13.
|
1.15
|
“Company”
shall mean Vectren Corporation, an Indiana corporation, and any successor
to all or substantially all of the Company’s assets or
business.
|
1.16
|
“Company
Contribution Amount” shall mean, for any one Plan Year, the amount
determined in accordance with Section
3.4.
|
1.17
|
“Company
Restoration Matching Amount” shall mean, for any one Plan Year, the amount
determined in accordance with Section
3.5.
|
1.18
|
“Director”
shall mean any member of the board of directors of any
Employer.
|
1.19
|
“Director
Fees” shall mean the annual fees earned by a Director from any Employer,
including retainer fees and meetings fees, as compensation for serving on
the board of directors.
|
1.20
|
“Director
Restricted Stock” shall mean any Director Fees or other compensation
earned by a Director in the form of Restricted
Stock.
|
1.21
|
“Director
Stock Unit Award” shall mean any Director Fees or other compensation
earned by a Director in the form of Stock Unit
Awards.
|
1.22
|
“Disability”
or “Disabled” shall mean that a Participant is either (a) 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) 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,
receiving income replacement benefits for a period of not less than 3
months under an accident and health plan covering employees of the
Participant’s Employer. For purposes of this Plan, a
Participant shall be deemed Disabled if determined to be totally disabled
by the Social Security Administration. A Participant shall also
be deemed Disabled if determined to be disabled in accordance with the
applicable disability insurance program of such Participant’s Employer,
provided that the definition of “disability” applied under such disability
insurance program complies with the requirements of this
Section.
|
1.23
|
“Election
Form” shall mean the form, which may be in electronic format, established
from time to time by the Committee that a Participant completes, signs and
returns to the Committee to make an election under the
Plan.
|
1.24
|
“Employee”
shall mean a person who is an employee of an
Employer.
|
1.25
|
“Employee
Restricted Stock” shall mean any compensation earned by an Employee in the
form of Restricted Stock.
|
1.26
|
“Employee
Stock Unit Award” shall mean any compensation earned by an Employee in the
form of Stock Unit Awards.
|
1.27
|
“Employer(s)”
shall be defined as follows:
|
(a)
|
Except
as otherwise provided in part (b) of this Section, the term “Employer”
shall mean the Company and/or any of its subsidiaries (now in existence or
hereafter formed or acquired) that have been selected by the Committee to
participate in the Plan and have adopted the Plan as a
sponsor.
|
(b)
|
For
the purpose of determining whether a Participant has experienced a
Separation from Service, the term “Employer” shall
mean:
|
(i)
|
The
entity for which the Participant performs services and with respect to
which the legally binding right to compensation deferred or contributed
under this Plan arises; and
|
(ii)
|
All
other entities with which the entity described above would be aggregated
and treated as a single employer under Code Section 414(b) (controlled
group of corporations) and Code Section 414(c) (a group of trades or
businesses, whether or not incorporated, under common control), as
applicable. In order to identify the group of entities
described in the preceding sentence, the Committee shall use an ownership
threshold of at least 50% as a substitute for the 80% minimum ownership
threshold that appears in, and otherwise must be used when applying, the
applicable provisions of (A) Code Section 1563 for determining a
controlled group of corporations under Code Section 414(b), and (B) Treas.
Reg. §1.414(c)-2 for determining the trades or businesses that are under
common control under Code Section
414(c).
|
1.28
|
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as it may
be amended from time to time.
|
1.29
|
“401(k)
Plan” shall mean, with respect to an Employer, a plan qualified under Code
Section 401(a) that contains a cash or deferral arrangement described in
Code Section 401(k), adopted by the Employer, as it may be amended from
time to time, or any successor
thereto.
|
1.30
|
“LTIP
Amounts” shall mean any portion of the compensation attributable to a Plan
Year that is earned by a Participant under any Employer's long-term
incentive plan or any other long-term incentive arrangement designated by
the Committee.
|
1.31
|
“Measurement
Fund” shall have the meaning set forth in Section
3.7(a).
|
1.32
|
“Participant”
shall mean any Employee or Director (a) who is selected to
participate in the Plan, and (b) whose executed Election Form and
Beneficiary Designation Form are accepted by the
Committee.
|
1.33
|
“Performance-Based
Compensation” shall mean compensation the entitlement to or amount of
which is contingent on the satisfaction of pre-established organizational
or individual performance criteria relating to a performance period of at
least 12 consecutive months, as determined by the Committee in accordance
with Treas. Reg. §1.409A-1(e).
|
1.34
|
“Plan”
shall mean this Vectren Corporation Nonqualified Deferred Compensation
Plan, which shall be evidenced by this instrument, as it may be amended
from time to time, and by any other documents that together with this
instrument define a Participant’s rights to amounts credited to his or her
Account Balance.
|
1.35
|
“Plan
Year” shall
mean a period
beginning on January 1 of each calendar year and continuing through
December 31 of such calendar year.
|
1.36
|
“Restricted
Stock” shall mean any portion of the compensation attributable to a Plan
Year that is earned by a Participant under any Employers’ plan in the form
of restricted stock or an award similar
thereto.
|
1.37
|
“Retirement,”
“Retire(s)” or “Retired” shall mean with respect to a Participant who is
an Employee, a Separation from Service on or after the attainment of age
55 with at least 10 Years of Service, and shall mean with respect to a
Participant who is a Director, a Separation from Service. If a
Participant is both an Employee and a Director and participates in the
Plan in each capacity, (a) the determination of whether the Participant
qualifies for Retirement as an Employee shall be made when the Participant
experiences a Separation from Service as an Employee and such
determination shall only apply to the applicable Account Balance
established in accordance with Section
1.1
for amounts deferred under the Plan as an Employee, and (b) the
determination of whether the Participant qualifies for Retirement as a
Director shall be made at the time the Participant experiences a
Separation from Service as a Director and such determination shall only
apply to the applicable Account Balance established in accordance with
Section
1.1
for amounts deferred under the
Plan as a Director.
|
1.38
|
“Separation
from Service” shall mean a termination of services provided by a
Participant to his or her Employer, whether voluntarily or involuntarily,
other than by reason of death or Disability, as determined by the
Committee in accordance with Treas. Reg. §1.409A-1(h). In
determining whether a Participant has experienced a Separation from
Service, the following provisions shall apply:
|
(a)
|
For
a Participant who provides services to an Employer as an Employee, except
as otherwise provided in part (c) of this Section, a Separation from
Service shall occur when such Participant has experienced a termination of
employment with such Employer. A Participant shall be
considered to have experienced a termination of employment when the facts
and circumstances indicate that the Participant and his or her Employer
reasonably anticipate that either (i) no further services will be
performed for the Employer after a certain date, or (ii) that the level of
bona fide services the Participant will perform for the Employer after
such date (whether as an Employee or as an independent contractor) will
permanently decrease to less than 50% of the average level of bona fide
services performed by such Participant (whether as an Employee or an
independent contractor) over the immediately preceding 36-month period (or
the full period of services to the Employer if the Participant has been
providing services to the Employer less than 36
months).
|
(b)
|
For
a Participant who provides services to an Employer as an independent
contractor, except as otherwise provided in part (c) of this Section, a
Separation from Service shall occur upon the expiration of the contract
(or in the case of more than one contract, all contracts) under which
services are performed for such Employer, provided that the expiration of
such contract(s) is determined by the Committee to constitute a good-faith
and complete termination of the contractual relationship between the
Participant and such Employer.
|
(c)
|
For
a Participant who provides services to an Employer as both an Employee and
an independent contractor
,
a Separation from
Service generally shall not occur until the Participant has ceased
providing services for such Employer as both as an Employee and as an
independent contractor, as determined in accordance with the provisions
set forth in parts
(a)
and
(b)
of this Section,
respectively. Similarly, if a Participant either (i) ceases
providing services for an Employer as an independent contractor and begins
providing services for such Employer as an Employee, or (ii) ceases
providing services for an Employer as an Employee and begins providing
services for such Employer as an independent contractor, the Participant
will not be considered to have experienced a Separation from Service until
the Participant has ceased providing services for such Employer in both
capacities, as determined in accordance with the applicable provisions set
forth in parts
(a)
and
(b)
of this Section.
|
1.39
|
“Specified
Employee” shall mean any Participant who is determined to be a “key
employee” (as defined under Code Section 416(i) without regard to
paragraph (5) thereof) for the applicable period, as determined annually
by the Committee in accordance with Treas. Reg.
§1.409A-1(i). In determining whether a Participant is a
Specified Employee, the following provisions shall
apply:
|
(a)
|
The
Committee’s identification of the individuals who fall within the
definition of “key employee” under Code Section 416(i) (without regard to
paragraph (5) thereof) shall be based upon the 12-month period ending on
each December 31
st
(referred to below as the “identification date”). In applying
the applicable provisions of Code Section 416(i) to identify such
individuals, “compensation” shall be determined in accordance with Treas.
Reg. §1.415(c)-2(a) without regard to (i) any safe harbor provided in
Treas. Reg. §1.415(c)-2(d), (ii) any of the special timing rules provided
in Treas. Reg. §1.415(c)-2(e), and (iii) any of the special rules provided
in Treas. Reg. §1.415(c)-2(g); and
|
(b)
|
Each
Participant who is among the individuals identified as a “key employee” in
accordance with part (a) of this Section shall be treated as a Specified
Employee for purposes of this Plan if such Participant experiences a
Separation from Service during the 12-month period that begins on the
April 1
st
following the applicable identification
date.
|
1.40
|
“Stock
Unit Awards” shall mean any portion of the compensation attributable to a
Plan Year that is earned by a Participant under any Employer’s plan in the
form of stock unit awards, restricted stock units or an award similar
thereto.
|
1.41
|
“Termination
Benefit” shall have the meaning set forth in Section
7.1.
|
1.42
|
“Trust”
shall mean one or more trusts established by the Company in accordance
with Article 16.
|
1.43
|
“Unforeseeable
Emergency” shall mean a severe financial hardship of the Participant
resulting from (a) an illness or accident of the Participant, the
Participant’s spouse, the Participant’s Beneficiary or the Participant’s
dependent (as defined in Code Section 152 without regard to paragraphs
(b)(1), (b)(2) and (d)(1)(b) thereof), (b) a loss of the Participant’s
property due to casualty, or (c) such other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of the Participant, all as determined by the Committee based on
the relevant facts and
circumstances.
|
1.44
|
“Vectren
Stock” shall mean common stock of the Company, without par value, or any
other equity securities of the Company designated by the
Committee.
|
1.45
|
“Vectren
Stock Measurement Fund” shall have the meaning set forth in Section
3.7(c).
|
1.46
|
“Years
of Service” shall mean the total number of full years in which a
Participant has been employed by one or more Employers. For
purposes of this definition, a year of employment shall be a 365 day
period (or 366 day period in the case of a leap year) that, for the first
year of employment, commences on the Employee's date of hiring and that,
for any subsequent year, commences on an anniversary of that hiring
date. A partial year of employment shall not be treated as a
Year of Service.
|
2.1
|
Selection
by Committee
. Participation in the Plan shall be limited
to Directors and, as determined by the Committee in its sole discretion, a
select group of management or highly compensated
Employees. From that group, the Committee shall select, in its
sole discretion, those individuals who may actually participate in this
Plan.
|
2.2
|
Enrollment
and Eligibility Requirements; Commencement of
Participation
.
|
(a)
|
As
a condition to participation, each Director or selected Employee shall
complete, execute and return to the Committee an Election Form and a
Beneficiary Designation Form by the deadline(s) established by the
Committee in accordance with the applicable provisions of this
Plan. In addition, the Committee shall establish from time to
time such other enrollment requirements as it determines, in its sole
discretion, are necessary.
|
(b)
|
Each
Director or selected Employee who is eligible to participate in the Plan
shall commence participation in the Plan on the date that the Committee
determines that the Director or Employee has met all enrollment
requirements set forth in this Plan and required by the Committee,
including returning all required documents to the Committee within the
specified time period.
|
(c)
|
If
a Director or an Employee fails to meet all requirements established by
the Committee within the period required, that Director or Employee shall
not be eligible to participate in the Plan during such Plan
Year.
|
3.1
|
Maximum
Deferral
.
|
(a)
|
Annual
Deferral Amount
. For each Plan Year, a Participant may
elect to defer, as his or her Annual Deferral Amount, Base Salary, Bonus,
Commissions, LTIP Amounts, Employee Restricted Stock, Employee Stock Unit
Awards, Director Restricted Stock, Director Stock Unit Awards and/or
Director Fees up to the following maximum percentages for each deferral
elected:
|
Deferral
|
Maximum
Percentage
|
Base
Salary
|
90%
|
Bonus
|
100%
|
Commissions
|
100%
|
LTIP
Amounts
|
100%
|
Employee
Restricted Stock
|
100%
|
Employee
Stock Unit Awards
|
100%
|
Director
Restricted Stock
|
100%
|
Director
Stock Unit Awards
|
100%
|
Director
Fees
|
100%
|
(b)
|
Short
Plan Year
. Notwithstanding the foregoing, if a
Participant first becomes a Participant after the first day of a Plan
Year, then to the extent required by Section
3.2
and Code Section 409A and related Treasury
Regulations, the maximum amount of the Participant’s Base Salary, Bonus,
Commissions, LTIP Amounts, Employee Restricted Stock, Employee Stock Unit
Awards, Director Restricted Stock, Director Stock Unit Awards or Director
Fees that may be deferred by the Participant for the Plan Year shall be
determined by applying the percentages set forth in Section 3.1(a) to the
portion of such compensation attributable to services performed after the
date that the Participant’s deferral election is
made.
|
3.2
|
Timing
of Deferral Elections; Effect of Election
Form
.
|
(a)
|
General
Timing Rule for Deferral Elections
. Except as otherwise
provided in this Section 3.2, in order for a Participant to make a valid
election to defer Base Salary, Bonus, Commissions, Director Fees, Employee
Restricted Stock, Employee Stock Unit Awards, Director Restricted Stock,
Director Stock Unit Awards and/or LTIP Amounts, the Participant must
submit an Election Form on or before the deadline established by the
Committee, which in no event shall be later than the December 31
st
preceding the Plan Year in which such compensation will be earned or
during which the Participant will obtain a legally binding right to such
compensation.
|
(b)
|
Timing
of Deferral Elections for Newly Eligible Plan
Participants
. A Director or selected Employee who first
becomes eligible to participate in the Plan on or after the beginning of a
Plan Year, as determined in accordance with Treas. Reg.
§1.409A-2(a)(7)(ii) and the “plan aggregation” rules provided in Treas.
Reg. §1.409A-1(c)(2), may be permitted to make an election to defer the
portion of Base Salary, Bonus, Commissions, Director Fees, Employee
Restricted Stock, Employee Stock Unit Awards, Director Restricted Stock,
Director Stock Unit Awards and/or LTIP Amounts attributable to services to
be performed after such election, provided that the Participant submits an
Election Form on or before the deadline established by the Committee,
which in no event shall be later than 30 days after the Participant first
becomes eligible to participate in the
Plan.
|
(c)
|
[Intentionally
Omitted]
|
(d)
|
Timing
of Deferral Elections for Performance-Based Compensation
.
Subject to
the limitations described below, the Committee may determine that an
irrevocable deferral election for an amount that qualifies as
Performance-Based Compensation may be made by submitting an Election Form
on or before the deadline established by the Committee, which in no event
shall be later than 6 months before the end of the performance
period.
|
(e)
|
Timing
Rule for Deferral of Compensation Subject to Risk of
Forfeiture
.
With
respect to compensation (i) to which a Participant has a legally binding
right to payment in a subsequent year, and (ii) that is subject to a
forfeiture condition requiring the Participant’s continued services for a
period of at least 12 months from the date the Participant obtains the
legally binding right, the Committee may determine that an irrevocable
deferral election for such compensation may be made by timely delivering
an Election Form to the Committee in accordance with its rules and
procedures, no later than the 30
th
day after the Participant obtains the legally binding right to the
compensation, provided that the election is made at least 12 months in
advance of the earliest date at which the forfeiture condition could
lapse, as determined in accordance with Treas. Reg.
§1.409A-2(a)(5).
|
3.3
|
Withholding
and Crediting of Annual Deferral Amounts
. For each Plan
Year, the Base Salary portion of the Annual Deferral Amount shall be
withheld from each regularly scheduled Base Salary payroll in equal
amounts, as adjusted from time to time for increases and decreases in Base
Salary. The Bonus, Commissions, LTIP Amounts, Employee
Restricted Stock, Employee Stock Unit Awards, Director Restricted Stock,
Director Stock Unit Awards and/or Director Fees portion of the Annual
Deferral Amount shall be withheld at the time the Bonus, Commissions, LTIP
Amounts, Employee Restricted Stock, Employee Stock Unit Awards, Director
Restricted Stock, Director Stock Unit Awards or Director Fees are or
otherwise would be paid to the Participant, whether or not this occurs
during the Plan Year itself. Annual Deferral Amounts shall be
credited to the Participant’s Annual Account for such Plan Year at the
time such amounts would otherwise have been paid to the
Participant. With respect to Employee Restricted Stock,
Employee Stock Unit Awards paid in shares of Vectren Stock, Director
Restricted Stock and Director Stock Unit Awards paid in shares of Vectren
Stock, the amount credited to the Participant’s Annual Account shall be
calculated using the closing price of the Vectren Stock as of the trading
day coinciding with, or if such day is not a trading day then the trading
day closest before, the date the Employee Restricted Stock, Employee Stock
Unit Awards, Director Restricted Stock or Director Stock Unit Awards
vests.
|
3.4
|
Company
Contribution Amount
.
|
(a)
|
For
each Plan Year, an Employer may be required to credit amounts to a
Participant’s Annual Account in accordance with employment or other
agreements entered into between the Participant and the Employer, which
amounts shall be part of the Participant’s Company Contribution Amount for
that Plan Year. Such amounts shall be credited to the
Participant’s Annual Account for the applicable Plan Year on the date or
dates prescribed by such
agreements.
|
(b)
|
For
each Plan Year, an Employer, in its sole discretion, may, but is not
required to, credit any amount it desires to any Participant’s Annual
Account under this Plan, which amount shall be part of the Participant’s
Company Contribution Amount for that Plan Year. The amount so
credited to a Participant may be smaller or larger than the amount
credited to any other Participant, and the amount credited to any
Participant for a Plan Year may be zero, even though one or more other
Participants receive a Company Contribution Amount for that Plan
Year. The Company Contribution Amount described in this Section
3.4(b), if any, shall be credited to the Participant’s Annual Account for
the applicable Plan Year on a date or dates to be determined by the
Committee.
|
(c)
|
If
not otherwise specified in the Participant’s employment or other agreement
entered into between the Participant and the Employer, the amount (or the
method or formula for determining the amount) of a Participant’s Company
Contribution Amount shall be set forth in writing in one or more
documents, which shall be deemed to be incorporated into this Plan in
accordance with Section 1.34, no later than the date on which such Company
Contribution Amount is credited to the applicable Annual Account of the
Participant.
|
3.5
|
Company
Restoration Matching Amount
. A Participant's Company
Restoration Matching Amount for any Plan Year shall be an amount
determined by the Committee to make up for certain limits applicable to
the 401(k) Plan or other qualified plan for such Plan Year, as identified
by the Committee, or for such other purposes as determined by the
Committee in its sole discretion. The amount so credited to a
Participant under this Plan for any Plan Year (a) may be smaller or larger
than the amount credited to any other Participant, and (b) may differ from
the amount credited to such Participant in the preceding Plan Year. The
Participant’s Company Restoration Matching Amount, if any, shall be
credited to the Participant’s Annual Account for the applicable Plan Year
on a date or dates to be determined by the Committee. The
amount (or the method or formula for determining the amount) of a
Participant’s Company Restoration Matching Amount shall be set forth in
writing in one or more documents, which shall be deemed to be incorporated
into this Plan in accordance with Section 1.34, no later than the date on
which such Company Restoration Matching Amount is credited to the
applicable Annual Account of the
Participant.
|
3.6
|
Vesting
.
|
(a)
|
A
Participant shall at all times be 100% vested in the portion of his or her
Account Balance attributable to Annual Deferral Amounts, plus amounts
credited or debited on such amounts pursuant to Section
3.7.
|
(b)
|
A
Participant shall be vested in the portion of his or her Account Balance
attributable to any Company Contribution Amounts, plus amounts credited or
debited on such amounts pursuant to Section 3.7, in accordance with the
vesting schedule(s) set forth in his or her employment agreement or any
other agreement entered into between the Participant and his or her
Employer.
|
(c)
|
A
Participant shall be vested in the portion of his or her Account Balance
attributable to any Company Restoration Matching Amounts, plus amounts
credited or debited on such amounts pursuant to Section 3.7, only to the
extent that the Participant would be vested in such amounts under the
provisions of the 401(k) Plan, as determined by the Committee in its sole
discretion.
|
(d)
|
Notwithstanding
anything to the contrary contained in this Section 3.6, in the event of a
Change in Control, or upon a Participant’s Disability, Separation from
Service on or after qualifying for Retirement, or death prior to
Separation from Service, any amounts that are not vested in accordance
with Sections 3.6(b) or 3.6(c) above, shall immediately become 100%
vested.
|
3.7
|
Crediting/Debiting
of Account Balances
. In accordance with, and subject to,
the rules and procedures that are established from time to time by the
Committee, in its sole discretion, amounts shall be credited or debited to
a Participant's Account Balance in accordance with the following
rules:
|
(a)
|
Measurement
Funds
. The Participant may elect one or more of the
measurement funds selected by the Committee, in its sole discretion, which
are based on certain mutual funds including, without limitation, any
Vectren Stock Measurement Fund (the “Measurement Funds”), for the purpose
of crediting or debiting additional amounts to his or her Account
Balance. As necessary, the Committee may, in its sole
discretion, discontinue, substitute or add a Measurement
Fund.
|
(b)
|
Election
of Measurement Funds
. A Participant, in connection with
his or her initial deferral election in accordance with Section 3.2 above,
shall elect one or more Measurement Fund(s) (as described in Section
3.7(a) above) to be used to determine the amounts to be credited or
debited to his or her Account Balance. If a Participant does
not elect any of the Measurement Funds as described in the previous
sentence, the Participant’s Account Balance shall automatically be
allocated into the lowest-risk Measurement Fund, as determined by the
Committee, in its sole discretion. The Participant may (but is
not required to) elect, by such process as is approved by the Committee,
to add or delete one or more Measurement Fund(s) to be used to determine
the amounts to be credited or debited to his or her Account Balance, or to
change the portion of his or her Account Balance allocated to each
previously or newly elected Measurement Fund. If an election is
made in accordance with the previous sentence, it shall apply as of the
first business day deemed reasonably practicable by the Committee, in its
sole discretion, and shall continue thereafter for each subsequent day in
which the Participant participates in the Plan, unless changed in
accordance with the previous sentence. Notwithstanding anything
herein to the contrary, the Committee, in its sole discretion, may impose
limitations on the frequency with which one or more of the Measurement
Funds elected in accordance with this Section
3.7
(b)
or Section
3.7(c) may be added or deleted by such Participant; furthermore, the
Committee, in its sole discretion, may impose limitations on the frequency
with which the Participant may change the portion of his or her Account
Balance allocated to each previously or newly elected Measurement
Fund.
|
(c)
|
Vectren
Corporation Stock Measurement
Fund
.
|
(i)
|
A
Participant, in connection with his or her initial deferral election in
accordance with Section 3.2 above, may elect a Measurement Fund invested
solely in Vectren Stock (the “Vectren Stock Measurement Fund”) to be used
to determine amounts to be credited or debited to his or her Account
Balance. The Participant may (but is not required to) elect, by
such process as is approved by the Committee, to add or delete the Vectren
Stock Measurement Fund as a Measurement Fund to be used to determine the
amounts to be credited or debited to his or her Account Balance, or to
change the portion of his or her Account Balance allocated to the Vectren
Stock Measurement Fund. If an election is made in accordance
with the previous sentence, it shall apply as of the first business day
deemed reasonably practicable by the Committee, in its sole discretion,
and shall continue thereafter for each subsequent day in which the
Participant participates in the Plan, unless changed in accordance with
the previous sentence. Notwithstanding anything to the contrary
contained in this Section 3.7, the Committee may, in its sole discretion
disallow any transfer which is made during a period in which the
Participant is prohibited (by Company policy or otherwise) from acquiring
or disposing of the Company’s equity
securities.
|
(ii)
|
Any
earnings, including stock dividends, cash dividends or other non-cash
dividends that would have been payable on the Vectren Stock credited to a
Participant’s Account Balance shall be treated separately from amounts
otherwise deferred under the Plan and shall be credited to the
Participant’s Account Balance in the form of additional shares of Vectren
Stock and shall automatically and irrevocably be deemed to be re-invested
in the Vectren Corporation Stock Measurement Fund until such amounts are
distributed to the Participant;
provided
,
however
, a
Participant may elect, in connection with the Participant’s commencement
of participation in the Plan, to receive such earnings in cash, less
applicable withholdings. The number of shares credited to the
Participant for a particular stock dividend shall be equal to (a) the
number of shares of Vectren Stock credited to the Participant’s Account
Balance as of the payment date for such dividend in respect of each share
of Vectren Stock, multiplied by (b) the number of additional or fractional
shares of Vectren Stock actually paid as a dividend in respect of each
share of Vectren Stock. The number of shares credited to the
Participant for a particular cash dividend or other non-cash dividend
shall be equal to (a) the number of shares of Vectren Stock credited to
the Participant’s Account Balance as of the payment date for such dividend
in respect of each share of Vectren Stock, multiplied by (b) the fair
market value of the dividend, divided by (c) the “fair market value” of
the Vectren Stock on the payment date for such
dividend.
|
(iii)
|
The
number of shares of Vectren Stock credited to the Participant’s Account
Balance may be adjusted by the Committee, in its sole discretion, to
prevent dilution or enlargement of Participants’ rights with respect to
the portion of his or her Account Balance allocated to Vectren Corporation
Measurement Stock Fund
in the event of
any reorganization, reclassification, stock split, or other unusual
corporate transaction or event which affects the value of the Vectren
Stock, provided that any such adjustment shall be made taking into account
any crediting of shares of Vectren Stock to the Participant under Section
3.7.
|
(iv)
|
For
purposes of this Section 3.7(c), the fair market value of the Stock shall
be determined by the Committee in its sole
discretion.
|
(d)
|
Proportionate
Allocation
. In making any election described in Section
3.7(b) or 3.7(c) above, the Participant shall specify on the Election
Form, in increments of five percent (5%) or such other percent selected by
the Committee, the percentage of his or her Account Balance to be
allocated/reallocated.
|
(e)
|
Crediting
or Debiting Method
. The performance of each Measurement
Fund (either positive or negative) will be determined on a daily basis
based on the manner in which such Participant’s Account Balance has been
hypothetically allocated among the Measurement Funds by the
Participant.
|
(f)
|
No
Actual Investment
. Notwithstanding any other provision
of this Plan that may be interpreted to the contrary, the Measurement
Funds are to be used for measurement purposes only, and a Participant's
election of any such Measurement Fund, the allocation of his or her
Account Balance thereto, the calculation of additional amounts and the
crediting or debiting of such amounts to a Participant's Account Balance
shall not be considered or construed in any manner as an actual investment
of his or her Account Balance in any such Measurement Fund. In
the event that the Company or the Trustee (as that term is defined in the
Trust), in its own discretion, decides to invest funds in any or all of
the investments on which the Measurement Funds are based, no Participant
shall have any rights in or to such investments
themselves. Without limiting the foregoing, a Participant's
Account Balance shall at all times be a bookkeeping entry only and shall
not represent any investment made on his or her behalf by the Company or
the Trust and the Participant shall at all times remain an unsecured
creditor of the Company.
|
3.8
|
FICA
and Other Taxes
.
|
(a)
|
Annual
Deferral Amounts
. For each Plan Year in which an Annual
Deferral Amount is being withheld from a Participant, the Participant’s
Employer(s) shall withhold from that portion of the Participant’s Base
Salary, Bonus, Commissions, Employee Restricted Stock, Employee Stock Unit
Awards and/or LTIP Amounts that is not being deferred, in a manner
determined by the Employer(s), the Participant’s share of FICA and other
employment taxes on such Annual Deferral Amount. If necessary,
the Committee may reduce the Annual Deferral Amount in order to comply
with this Section 3.8.
|
(b)
|
Company
Restoration Matching Amounts and Company Contribution
Amounts
. When a Participant becomes vested in a portion
of his or her Account Balance attributable to any Company Restoration
Matching Amounts and/or Company Contribution Amounts, the Participant’s
Employer(s) shall withhold from that portion of the Participant’s Base
Salary, Bonus, Commissions, Employee Restricted Stock, Employee Stock Unit
Awards and/or LTIP Amounts that is not deferred, in a manner determined by
the Employer(s), the Participant’s share of FICA and other employment
taxes on such amounts. If necessary, the Committee may reduce
the vested portion of the Participant’s Company Restoration Matching
Amount or Company Contribution Amount, as applicable, in order to comply
with this Section 3.8.
|
(c)
|
Distributions
. The
Participant’s Employer(s), or, if applicable, the trustee of the Trust,
shall withhold from any payments made to a Participant under this Plan all
federal, state and local income, employment and other taxes required to be
withheld by the Employer(s), or, if applicable, the trustee of the Trust,
in connection with such payments, in amounts and in a manner to be
determined in the sole discretion of the Employer(s) and, if applicable,
the trustee of the Trust.
|
4.1
|
Scheduled
Distributions
. In connection with each election to defer
an Annual Deferral Amount, a Participant may elect to receive all or a
portion of such Annual Deferral Amount, plus amounts credited or debited
on that amount pursuant to Section 3.7, in the form of a lump sum
payment, calculated as of the close of business on or around the Benefit
Distribution Date designated by the Participant in accordance with this
Section (a “Scheduled Distribution”). The Benefit Distribution
Date for the amount subject to a Scheduled Distribution election shall be
the first day of any Plan Year designated by the Participant, which may be
no sooner than 3 Plan Years after the end of the Plan Year to which the
Participant’s deferral election relates, unless otherwise provided on an
Election Form approved by the
Committee.
|
4.2
|
Postponing
Scheduled Distributions
. A Participant may elect to
postpone a Scheduled Distribution described in Section
4.1
above, and have such amount paid out during a
60 day period commencing immediately after an allowable alternative
Benefit Distribution Date designated in accordance with this Section
4.2
. In order to make such an
election, the Participant must submit an Election Form to the Committee in
accordance with the following
criteria:
|
(a)
|
The
election of the new Benefit Distribution Date shall have no effect until
at least 12 months after the date on which the election is
made;
|
(b)
|
The
new Benefit Distribution Date selected by the Participant for such
Scheduled Distribution must be the first day of a Plan Year that is no
sooner than 5 years after the previously designated Benefit Distribution
Date; and
|
(c)
|
The
election must be made
at least 12 months
prior to the Participant's previously designated Benefit Distribution Date
for such Scheduled Distribution.
|
4.3
|
Other
Benefits Take Precedence Over Scheduled
Distributions
. Should an event occur prior to any
Benefit Distribution Date designated for a Scheduled Distribution that
would trigger a benefit under Articles 5 through 9, as applicable, all
amounts subject to a Scheduled Distribution election shall be paid in
accordance with the other applicable provisions of the Plan and not in
accordance with this Article 4.
|
4.4
|
Unforeseeable
Emergencies
.
|
a.
|
If
a Participant experiences an Unforeseeable Emergency prior to the
occurrence of a distribution event described in Articles 5 through 9, as
applicable, the Participant may petition the Committee to receive a
partial or full payout from the Plan. The payout, if any, from
the Plan shall not exceed the lesser of (i) the Participant's vested
Account Balance, calculated as of the close of business on or around the
Benefit Distribution Date for such payout, as determined by the Committee
in accordance with provisions set forth below, or (ii) the amount
necessary to satisfy the Unforeseeable Emergency, plus amounts necessary
to pay Federal, state, or local income taxes or penalties reasonably
anticipated as a result of the distribution. A Participant
shall not be eligible to receive a payout from the Plan to the extent that
the Unforeseeable Emergency is or may be relieved (A) through
reimbursement or compensation by insurance or otherwise, (B) by
liquidation of the Participant’s assets, to the extent the liquidation of
such assets would not itself cause severe financial hardship or (C) by
cessation of deferrals under this
Plan.
|
b.
|
A
Participant’s deferral elections under this Plan shall also be cancelled
to the extent the Committee determines that such action is required for
the Participant to obtain a hardship distribution from an Employer’s
401(k) Plan pursuant to Treas. Reg.
§1.401(k)-1(d)(3).
|
5.1
|
Change
in Control Benefit
. A Participant, in connection with
his or her commencement of participation in the Plan, shall have an
opportunity to irrevocably elect to receive his or her unpaid vested
Account Balance in the form of a lump sum payment in the event that a
Change in Control (a) occurs prior to the Participant’s Separation from
Service, Disability or death or (b) notwithstanding any election made
pursuant to Article 6 or Article 7 to receive payment in an Annual
Installment Method, occurs within one year after the Participant’s
Separation from Service (including Retirement) (the “Change in Control
Benefit”). The Benefit Distribution Date for the Change in
Control Benefit, if any, shall be the date on which the Change in Control
occurs.
|
5.2
|
Payment
of Change in Control Benefit
. The Change in Control
Benefit, if any, shall be calculated as of the close of business on or
around the Participant’s Benefit Distribution Date, as determined by the
Committee, and paid to the Participant no later than 60 days after
the Participant’s Benefit Distribution
Date.
|
6.1
|
Retirement
Benefit
. If a Participant experiences a Separation from
Service that qualifies as a Retirement, the Participant shall be eligible
to receive his or her vested Account Balance in either a lump sum or
annual installment payments, as elected by the Participant in accordance
with Section
6.2
(the “Retirement
Benefit”). A Participant’s Retirement Benefit shall be
calculated as of the close of business on or around the applicable Benefit
Distribution Date for such benefit, which shall be (i) the first day after
the end of the 6-month period immediately following the date on which the
Participant experiences such Separation from Service if the Participant is
a Specified Employee, and
(ii) for all other
Participants, the date on which the Participant experiences a Separation
from Service; provided, however, if a Participant changes the form of
distribution for the Retirement Benefit in accordance with Section 6.2(b),
the Benefit Distribution Date for the Retirement Benefit shall be
determined in accordance with Section 6.2(b).
|
6.2
|
Payment
of Retirement Benefit
.
|
(a)
|
A
Participant, in connection with his or her commencement of participation
in the Plan, shall elect on an Election Form to receive the Retirement
Benefit in a lump sum or pursuant to an Annual Installment Method of 5, 10
or 15 years. If a Participant does not make any election with
respect to the payment of the Retirement Benefit, then such Participant
shall be deemed to have elected to receive the Retirement Benefit as a
lump sum.
|
(b)
|
A
Participant may change the form of payment for the Retirement Benefit by
submitting an Election Form to the Committee in accordance with the
following criteria:
|
(i)
|
The
election shall not take effect until at least 12 months after the date on
which the election is made;
|
(ii)
|
The
new Benefit Distribution Date for the Participant’s Retirement Benefit
shall be 5 years after the Benefit Distribution Date that would otherwise
have been applicable to such benefit;
and
|
(iii)
|
The
election must be made at least 12 months prior to the Benefit Distribution
Date that would otherwise have been applicable to the Participant’s
Retirement Benefit.
|
(c)
|
The
lump sum payment shall be made, or installment payments shall commence, no
later than 60 days after the Participant’s Benefit Distribution
Date. Remaining installments, if any, shall be paid no later
than 60 days after each anniversary of the Participant’s Separation from
Service.
|
7.1
|
Termination
Benefit
.
If a Participant
experiences a Separation from Service that does not qualify as a
Retirement, the Participant shall be eligible to receive his or her vested
Account Balance in either a lump sum or annual installment payments, as
elected by the Participant in accordance with Section 7.2 (the
“Termination Benefit”). A Participant’s Termination Benefit
shall be calculated as of the close of business on or around the
applicable Benefit Distribution Date for such benefit, which shall be
(i)
the first
day after the end of the 6-month period immediately following the date on
which the Participant experiences such Separation from Service if the
Participant is a Specified Employee, and (ii) for all other Participants,
the date on which the Participant experiences a Separation from Service;
provided, however, if a Participant changes the form of distribution for
the Termination Benefit in accordance with Section 7.2(b), the Benefit
Distribution Date for the Termination Benefit shall be determined in
accordance with Section 7.2(b).
|
7.2
|
Payment
of Termination Benefit
.
|
(a)
|
A
Participant, in connection with his or her commencement of participation
in the Plan, shall elect on an Election Form to receive the Termination
Benefit in a lump sum or pursuant to an Annual Installment Method of 5
years. If a Participant does not make any election with respect
to the payment of the Termination Benefit, then such Participant shall be
deemed to have elected to receive the Termination Benefit as a lump
sum.
|
(b)
|
A
Participant may change the form of payment for the Termination Benefit by
submitting an Election Form to the Committee in accordance with the
following criteria:
|
(i)
|
The
election shall not take effect until at least 12 months after the date on
which the election is made;
|
(ii)
|
The
new Benefit Distribution Date for the Participant’s Termination Benefit
shall be 5 years after the Benefit Distribution Date that would otherwise
have been applicable to such benefit;
and
|
(iii)
|
The
election must be made at least 12 months prior the Benefit Distribution
Date that would otherwise have been applicable to the Participant’s
Termination Benefit.
|
(c)
|
The
lump sum payment shall be made, or installment payments shall commence, no
later than 60 days after the Participant’s Benefit Distribution
Date. Remaining installments, if any, shall be paid no later
than 60 days after each anniversary of the Participant’s Separation from
Service.
|
8.1
|
Disability
Benefit
. If a Participant becomes Disabled prior to the occurrence
of a distribution event described in Articles 5 through 7, as applicable,
the Participant shall receive his or her vested Account Balance in the
form of a lump sum payment (the “Disability Benefit”). The
Disability Benefit shall be calculated as of the close of business on or
around the Participant’s Benefit Distribution Date for such benefit, which
shall be the date on which the Participant becomes
Disabled.
|
8.2
|
Payment
of Disability Benefit
.
The Disability
Benefit shall be paid to the Participant no later than 60 days after the
Participant’s Benefit Distribution
Date.
|
9.1
|
Death
Benefit
. In the event of a Participant’s death prior to
the complete distribution of his or her vested Account Balance, the
Participant's Beneficiary(ies) shall receive the Participant's unpaid
vested Account Balance in a lump sum payment (the “Death
Benefit”). The Death Benefit shall be calculated as of the
close of business on or around the Benefit Distribution Date for such
benefit, which shall be the date on which the Committee is provided with
proof that is satisfactory to the Committee of the Participant’s
death.
|
9.2
|
Payment
of Death Benefit
. The Death Benefit shall be paid to the
Participant’s Beneficiary(ies) no later than 60 days after the
Participant’s Benefit Distribution
Date.
|
10.1
|
Beneficiary
. Each
Participant shall have the right, at any time, to designate his or her
Beneficiary(ies) (both primary as well as contingent) to receive any
benefits payable under the Plan to a beneficiary upon the death of a
Participant. The Beneficiary designated under this Plan may be
the same as or different from the Beneficiary designation under any other
plan of an Employer in which the Participant
participates.
|
10.2
|
Beneficiary
Designation; Change; Spousal Consent
. A Participant
shall designate his or her Beneficiary by completing and signing the
Beneficiary Designation Form, and returning it to the Committee or its
designated agent. A Participant shall have the right to change
a Beneficiary by completing, signing and otherwise complying with the
terms of the Beneficiary Designation Form and the Committee's rules and
procedures, as in effect from time to time. If the Participant
names someone other than his or her spouse as a Beneficiary, the Committee
may, in its sole discretion, determine that spousal consent is required to
be provided in a form designated by the Committee, executed by such
Participant's spouse and returned to the Committee. Upon the
acceptance by the Committee of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be
canceled. The Committee shall be entitled to rely on the last
Beneficiary Designation Form filed by the Participant and accepted by the
Committee prior to his or her
death.
|
10.3
|
Acknowledgment
. No
designation or change in designation of a Beneficiary shall be effective
until received and acknowledged in writing by the Committee or its
designated agent.
|
10.4
|
No
Beneficiary Designation
. If a Participant fails to
designate a Beneficiary as provided in Sections 10.1, 10.2 and 10.3
above or, if all designated Beneficiaries predecease the Participant
or die prior to complete distribution of the Participant's benefits, then
the Participant's designated Beneficiary shall be deemed to be his or her
surviving spouse. If the Participant has no surviving spouse,
the benefits remaining under the Plan to be paid to a Beneficiary shall be
payable to the executor or personal representative of the Participant's
estate.
|
10.5
|
Doubt
as to Beneficiary
. If the Committee has any doubt as to
the proper Beneficiary to receive payments pursuant to this Plan, the
Committee shall have the right, exercisable in its discretion, to cause
the Participant's Employer to withhold such payments until this matter is
resolved to the Committee's
satisfaction.
|
10.6
|
Discharge
of Obligations
. The payment of benefits under the Plan
to a Beneficiary shall fully and completely discharge all Employers and
the Committee from all further obligations under this Plan with respect to
the Participant.
|
11.1
|
Paid
Leave of Absence
. If a Participant is authorized by the
Participant's Employer to take a paid leave of absence from the employment
of the Employer, and such leave of absence does not constitute a
Separation from Service, (a) the Participant shall continue to be
considered eligible for the benefits provided under the Plan, and (b) the
Annual Deferral Amount
shall continue to
be withheld during such paid leave of absence in accordance with
Section 3.2.
|
11.2
|
Unpaid
Leave of Absence
. If a Participant is authorized by the
Participant's Employer to take an unpaid leave of absence from the
employment of the Employer for any reason, and such leave of absence does
not constitute a Separation from Service, such Participant shall continue
to be eligible for the benefits provided under the Plan. During
the unpaid leave of absence, the Participant shall not be allowed to make
any additional deferral elections. However, if the Participant
returns to employment, the Participant may elect to defer an Annual
Deferral Amount for the Plan Year following his or her return to
employment and for every Plan Year thereafter while a Participant in the
Plan, provided such deferral elections are otherwise allowed and an
Election Form is delivered to and accepted by the Committee for each such
election in accordance with Section 3.2
above.
|
12.1
|
Termination
of Plan
. Although each Employer anticipates that it will
continue the Plan for an indefinite period of time, there is no guarantee
that any Employer will continue the Plan or will not terminate the Plan at
any time in the future. Accordingly, each Employer reserves the
right to terminate the Plan with respect to all of its
Participants. In the event of a Plan termination no new
deferral elections shall be permitted for the affected Participants and
such Participants shall no longer be eligible to receive new company
contributions. However, after the Plan termination the Account
Balances of such Participants shall continue to be credited with Annual
Deferral Amounts attributable to a deferral election that was in effect
prior to the Plan termination to the extent deemed necessary to comply
with Code Section 409A and related Treasury Regulations, and additional
amounts shall continue to credited or debited to such Participants’
Account Balances pursuant to Section 3.7. The Measurement Funds
available to Participants following the termination of the Plan shall be
comparable in number and type to those Measurement Funds available to
Participants in the Plan Year preceding the Plan Year in which the Plan
termination is effective.
In addition,
following a Plan
termination, Participant Account Balances shall remain in the Plan and
shall not be distributed until such amounts become eligible for
distribution in accordance with the other applicable provisions of the
Plan.
Notwithstanding
the preceding sentence, to the extent permitted by Treas. Reg.
§1.409A-3(j)(4)(ix), the Employer may provide that upon termination of the
Plan, all Account Balances of the Participants shall be distributed,
subject to and in accordance with any rules established by such Employer
deemed necessary to comply with the applicable requirements and
limitations of Treas. Reg. §1.409A-3(j)(4)(ix).
|
12.2
|
Amendment
. Any
Employer may, at any time, amend or modify the Plan in whole or in part
with respect to that Employer. Notwithstanding the foregoing,
(i) no amendment or modification shall be effective to directly decrease
the value of a Participant's vested Account Balance in existence at the
time the amendment or modification is made, and (ii) no amendment or
modification of this Section 12.2 or Section 13.2 of the Plan shall be
effective unless and until two-thirds (2/3) of Participants with an
Account Balance in the Plan as of the date of such proposed amendment or
modification provide prior written consent in a time and manner determined
by the Committee.
|
12.3
|
Effect
of Payment
. The full payment of the Participant’s vested
Account Balance in accordance with the applicable provisions of the Plan
shall completely discharge all obligations to a Participant and his or her
designated Beneficiaries under this
Plan.
|
13.1
|
Committee
Duties
. Except as otherwise provided in this Article 13,
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 (a) make,
amend, interpret, and enforce all appropriate rules and regulations for
the administration of this Plan, and (b) decide or resolve any and
all questions, including benefit entitlement determinations and
interpretations of this Plan, as may arise in connection with the
Plan. Any individual serving on the Committee who is a
Participant shall not vote or act on any matter relating solely to himself
or herself. When making a determination or calculation, the
Committee shall be entitled to rely on information furnished by a
Participant or the Company.
|
13.2
|
Administration
Upon Change In Control
. Within 120 days following a Change in
Control, the individuals who comprised the Committee immediately prior to
the Change in Control (whether or not such individuals are members of the
Committee following the Change in Control) may, by written consent of the
majority of such individuals, appoint an independent third party
administrator (the “Administrator”) to perform any or all of the
Committee’s duties described in Section
13.1
above, including without limitation, the power to determine any questions
arising in connection with the administration or interpretation of the
Plan, and the power to make benefit entitlement
determinations. Upon and after the effective date of such
appointment, (a) the Company must pay all reasonable administrative
expenses and fees of the Administrator, and (b) the Administrator may only
be terminated with the written consent of the majority of Participants
with an Account Balance in the Plan as of the date of such proposed
termination.
|
13.3
|
Agents
.
In the administration of this Plan, the Committee or the Administrator, as
applicable, may, from time to time, employ agents and delegate to them
such administrative duties as it sees fit (including acting through a duly
appointed representative) and may from time to time consult with
counsel.
|
13.4
|
Binding
Effect of Decisions
. The decision or action of the
Committee or Administrator, as applicable, 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.
|
13.5
|
Indemnity
of Committee
. All Employers shall indemnify and hold
harmless the members of the Committee, any Employee to whom the duties of
the Committee may be delegated, and the Administrator against any and all
claims, losses, damages, expenses or liabilities arising from any action
or failure to act with respect to this Plan, except in the case of willful
misconduct by the Committee, any of its members, any such Employee or the
Administrator.
|
13.6
|
Employer
Information
. To enable the Committee and/or
Administrator to perform its functions, the Company and each Employer
shall supply full and timely information to the Committee and/or
Administrator, as the case may be, on all matters relating to the Plan,
the Trust, the Participants and their Beneficiaries, the Account Balances
of the Participants, the compensation of its Participants, the date and
circumstances of the Separation from Service, Disability or death of
its Participants, and such other pertinent information as the Committee or
Administrator may reasonably
require.
|
14.1
|
Coordination
with Other Benefits
. The benefits provided for a
Participant and Participant's Beneficiary under the Plan are in addition
to any other benefits available to such Participant under any other plan
or program for employees of the Participant's Employer. The
Plan shall supplement and shall not supersede, modify or amend any other
such plan or program except as may otherwise be expressly
provided.
|
15.1
|
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.
|
15.2
|
Notification
of Decision
. The Committee shall consider a Claimant's
claim within a reasonable time, but no later than 90 days after receiving
the claim. If the Committee determines that special
circumstances require an extension of time for processing the claim,
written notice of the extension shall be furnished to the Claimant prior
to the termination of the initial 90 day period. In no event
shall such extension exceed a period of 90 days from the end of the
initial period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the
Committee expects to render the benefit determination. The
Committee shall notify the Claimant in
writing:
|
(a)
|
that
the Claimant's requested determination has been made, and that the claim
has been allowed in full; or
|
(b)
|
that
the Committee has reached a conclusion contrary, in whole or in part, to
the Claimant's requested determination, and such notice must set forth in
a manner calculated to be understood by the
Claimant:
|
(i)
|
the
specific reason(s) for the denial of the claim, or any part of
it;
|
(ii)
|
specific
reference(s) to pertinent provisions of the Plan upon which such denial
was based;
|
(iii)
|
a
description of any additional material or information necessary for the
Claimant to perfect the claim, and an explanation of why such material or
information is necessary;
|
(iv)
|
an
explanation of the claim review procedure set forth in Section 15.3
below; and
|
(v)
|
a
statement of the Claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on
review.
|
15.3
|
Review
of a Denied Claim
. On or before 60 days after
receiving a notice from the Committee that a claim has been denied, in
whole or in part, a Claimant (or the Claimant's duly authorized
representative) may file with the Committee a written request for a review
of the denial of the claim. The Claimant (or the Claimant's
duly authorized representative):
|
(a)
|
may,
upon request and free of charge, have reasonable access to, and copies of,
all documents, records and other information relevant (as defined in
applicable ERISA regulations) to the claim for
benefits;
|
(b)
|
may
submit written comments or other documents;
and/or
|
(c)
|
may
request a hearing, which the Committee, in its sole discretion, may
grant.
|
15.4
|
Decision
on Review
. The Committee shall render its decision on
review promptly, and no later than 60 days after the Committee
receives the Claimant’s written request for a review of the denial of the
claim. If the Committee determines that special circumstances
require an extension of time for processing the claim, written notice of
the extension shall be furnished to the Claimant prior to the termination
of the initial 60 day period. In no event shall such extension
exceed a period of 60 days from the end of the initial
period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the
Committee expects to render the benefit determination. In
rendering its decision, the Committee shall take into account all
comments, documents, records and other information submitted by the
Claimant relating to the claim, without regard to whether such information
was submitted or considered in the initial benefit
determination. The decision must be written in a manner
calculated to be understood by the Claimant, and it must
contain:
|
(a)
|
specific
reasons for the decision;
|
(b)
|
specific
reference(s) to the pertinent Plan provisions upon which the decision was
based;
|
(c)
|
a
statement that the Claimant is entitled to receive, upon request and free
of charge, reasonable access to and copies of, all documents, records and
other information relevant (as defined in applicable ERISA regulations) to
the Claimant’s claim for benefits;
and
|
(d)
|
a
statement of the Claimant’s right to bring a civil action under ERISA
Section 502(a).
|
15.5
|
Legal
Action
. A Claimant's compliance with the foregoing
provisions of this Article 15 is a mandatory prerequisite to a
Claimant's right to commence any legal action with respect to any claim
for benefits under this Plan.
|
16.1
|
Establishment
of the Trust
. In order to provide assets from which to
fulfill its obligations to the Participants and their Beneficiaries under
the Plan, the Company may, but is not obligated to, establish a trust by a
trust agreement with a third party, the trustee, to which each Employer
may, in its discretion, contribute cash or other property, including
securities issued by the Company, to provide for the benefit payments
under the Plan (the
“Trust”).
|
16.2
|
Interrelationship
of the Plan and the Trust
. The provisions of the Plan
and the Plan Agreement shall govern the rights of a Participant to receive
distributions pursuant to the Plan. The provisions of the Trust
shall govern the rights of the Employers, Participants and the creditors
of the Employers to the assets transferred to the Trust. Each
Employer shall at all times remain liable to carry out its obligations
under the Plan.
|
16.3
|
Distributions
From the Trust
. Each Employer's obligations under the
Plan may be satisfied with Trust assets distributed pursuant to the terms
of the Trust, and any such distribution shall reduce the Employer's
obligations under this Plan.
|
17.1
|
Status
of Plan
. The Plan is intended to be a plan that is not
qualified within the meaning of Code Section 401(a) and that “is unfunded
and is maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees” within the meaning of ERISA Sections 201(2),
301(a)(3) and 401(a)(1). The Plan shall be administered and
interpreted (a) to the extent possible in a manner consistent with the
intent described in the preceding sentence, and (b) in accordance with
Code Section 409A and related Treasury guidance and
Regulations.
|
17.2
|
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 an
Employer. For purposes of the payment of benefits under this
Plan, any and all of an Employer's assets shall be, and remain, the
general, unpledged unrestricted assets of the Employer. An
Employer's obligation under the Plan shall be merely that of an unfunded
and unsecured promise to pay money in the
future.
|
17.3
|
Employer's
Liability
. An Employer's liability for the payment of
benefits shall be defined only by the Plan. An Employer shall
have no obligation to a Participant under the Plan except as
expressly provided in the Plan.
|
17.4
|
Nonassignability
. Neither
a Participant nor any other person shall have any right to commute, sell,
assign, transfer, pledge, anticipate, mortgage or otherwise encumber,
transfer, hypothecate, alienate or convey in advance of actual receipt,
the amounts, if any, payable hereunder, or any part thereof, which are,
and all rights to which are expressly declared to be, unassignable and
non-transferable. No part of the amounts payable shall, prior
to actual payment, be subject to seizure, attachment, garnishment or
sequestration for the payment of any debts, judgments, alimony or separate
maintenance owed by a Participant or any other person, be transferable by
operation of law in the event of a Participant's or any other person's
bankruptcy or insolvency or be transferable to a spouse as a result of a
property settlement or otherwise.
|
17.5
|
Not
a Contract of Employment
. The terms and conditions of
this Plan shall not be deemed to constitute a contract of employment
between any Employer and the Participant. Such employment is
hereby acknowledged to be an “at will” employment relationship that can be
terminated at any time for any reason, or no reason, with or without
cause, and with or without notice, unless expressly provided in a written
employment agreement. Nothing in this Plan shall be deemed to
give a Participant the right to be retained in the service of any
Employer, either as an Employee or a Director, or to interfere with
the right of any Employer to discipline or discharge the Participant at
any time.
|
17.6
|
Furnishing
Information
. A Participant or his or her Beneficiary
will cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be requested
in order to facilitate the administration of the Plan and the payments of
benefits hereunder, including but not limited to taking such physical
examinations as the Committee may deem
necessary.
|
17.7
|
Terms
. Whenever
any words are used herein in the masculine, they shall be construed as
though they were in the feminine in all cases where they would so apply;
and whenever any words are used herein in the singular or in the plural,
they shall be construed as though they were used in the plural or the
singular, as the case may be, in all cases where they would so
apply.
|
17.8
|
Captions
. The
captions of the articles, sections and paragraphs of this Plan are for
convenience only and shall not control or affect the meaning or
construction of any of its
provisions.
|
17.9
|
Governing
Law
. Subject to ERISA, the provisions of this Plan shall
be construed and interpreted according to the internal laws of the State
of Indiana without regard to its conflicts of laws
principles.
|
17.10
|
Notice
. Any
notice or filing required or permitted to be given to the Committee under
this Plan shall be sufficient if in writing and hand-delivered, or sent by
registered or certified mail, to the address
below:
|
Vectren
Corporation
|
Attn:
General Counsel
|
One
Vectren Square
|
Evansville,
IN 47708
|
17.11
|
Successors
. The
provisions of this Plan shall bind and inure to the benefit of the
Participant's Employer and its successors and assigns and the Participant
and the Participant's designated
Beneficiaries.
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17.12
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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.
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17.13
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Validity
. In
case any provision of this Plan shall be illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining parts
hereof, but this Plan shall be construed and enforced as if such illegal
or invalid provision had never been inserted
herein.
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17.14
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Incompetent
. If
the Committee determines in its discretion that a benefit under this Plan
is to be paid to a minor, a person declared incompetent or to a person
incapable of handling the disposition of that person's property, the
Committee may direct payment of such benefit to the guardian, legal
representative or person having the care and custody of such minor,
incompetent or incapable person. The Committee may require
proof of minority, incompetence, incapacity or guardianship, as it may
deem appropriate prior to distribution of the benefit. Any
payment of a benefit shall be a payment for the account of the Participant
and the Participant's Beneficiary, as the case may be, and shall be a
complete discharge of any liability under the Plan for such payment
amount.
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17.15
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Domestic
Relations Orders
. If necessary to comply with a domestic
relations order, as defined in Code Section 414(p)(1)(B), pursuant to
which a court has determined that a spouse or former spouse of a
Participant has an interest in the Participant’s benefits under the Plan,
the Committee shall have the right to immediately distribute the spouse’s
or former spouse’s interest in the Participant’s benefits under the Plan
to such spouse or former spouse.
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17.16
|
Distribution
in the Event of Income Inclusion Under Code Section 409A
.
If any
portion of a Participant’s Account Balance under this Plan is required to
be included in income by the Participant prior to receipt due to a failure
of this Plan to comply with the requirements of Code Section 409A and
related Treasury Regulations, the Committee may determine that such
Participant shall receive a distribution from the Plan in an amount equal
to the lesser of (i) the portion of his or her Account Balance required to
be included in income as a result of the failure of the Plan to comply
with the requirements of Code Section 409A and related Treasury
Regulations, or (ii) the unpaid vested Account
Balance.
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17.17
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Deduction
Limitation on Benefit Payments
.
If an
Employer reasonably anticipates that the Employer’s deduction with respect
to any distribution from this Plan would be limited or eliminated by
application of Code Section 162(m), then to the extent permitted by Treas.
Reg. §1.409A-2(b)(7)(i), payment shall be delayed as deemed necessary to
ensure that the entire amount of any distribution from this Plan is
deductible. Any amounts for which distribution is delayed
pursuant to this Section shall continue to be credited/debited with
additional amounts in accordance with Section
3.7
. The delayed amounts (and any
amounts credited thereon) shall be distributed to the Participant (or his
or her Beneficiary in the event of the Participant’s death) at the
earliest date the Employer reasonably anticipates that the deduction of
the payment of the amount will not be limited or eliminated by application
of Code Section 162(m). In the event that such date is
determined to be after a Participant’s Separation from Service and the
Participant to whom the payment relates is determined to be a Specified
Employee, then to the extent deemed necessary to comply with Treas. Reg.
§1.409A-3(i)(2), the delayed payment shall not made before the end of the
six-month period following such Participant’s Separation from
Service.
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