|
Texas
|
74-2211011
|
|
|
(State
or other jurisdiction of
incorporation
or organization)
|
(I.R.S.
Employer
Identification
No.)
|
|
|
3000
Technology Drive
Angleton,
Texas
|
77515
|
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
|
Large
accelerated filer
þ
|
Accelerated
filer
o
|
|
Non-accelerated
filer
o
(Do not
check if a smaller reporting company)
|
Smaller
reporting company
o
|
|
Title
of securities
to
be registered
|
Amount
to be
registered
|
Proposed
maximum
offering
price
per share
|
Proposed
maximum
aggregate
offering
price
|
Amount
of
registration
fee
|
|
Deferred
Compensation Obligations
(1)
|
$20,000,000
|
100%
|
$20,000,000
|
$786
|
|
(1)
|
The
Deferred Compensation Obligations are unsecured obligations of the
Registrant to pay deferred compensation in the future in accordance with
the Benchmark Electronics, Inc. Deferred Compensation
Plan.
|
|
4.1
-
|
Restated
Articles of Incorporation of the Registrant (incorporated herein by
reference to Exhibit 3.1 to the Registrant’s Registration Statement on
Form S-1 (Registration No. 33-46316) (the “Registration
Statement”)).
|
|
4.2
-
|
Amended
and Restated Bylaws of the Registrant (incorporated herein by reference to
Exhibit 99.2 to the Registrant’s Current Report on Form 8-K dated May 18,
2006 and filed on May 19, 2006 (Commission file number
1-10560)).
|
|
4.3
-
|
Amendment
to the Restated Articles of Incorporation of the Registrant adopted by the
shareholders of the Registrant on May 20, 1997 (incorporated by reference
to Exhibit 3.3 to the Registrant’s Annual Report on Form 10-K for the year
ended December 31, 1998 (Commission file number
1-10560)).
|
|
4.4
-
|
Specimen
form of certificate evidencing the Common Stock (incorporated herein by
reference to Exhibit 4.3 to the Registration
Statement).
|
|
4.5
-
|
Rights
Agreement dated December 11, 1998 between the Registrant and Harris Trust
and Savings Bank, as Rights Agent, together with the following exhibits
thereto: Exhibit A - Form of Statement of Resolution Establishing Series A
Cumulative Participating Preferred Stock of Benchmark Electronics, Inc.;
Exhibit B - Form of Right Certificate; and Exhibit C - Summary of Rights
to Purchase Preferred Stock of Benchmark Electronics, Inc. (incorporated
by reference to Exhibit 1 to the Registrant’s Form 8-A12B filed December
11, 1998 (Commission file number
1-10560)).
|
|
4.6
-
|
Summary
of Rights to Purchase Preferred Stock of Benchmark Electronics, Inc.
(incorporated herein by reference to Exhibit 3 to the Registrant’s Form
8-A12B/A filed December 22, 1998 (Commission file number
1-10560)).
|
|
4.7
-
|
Amendment
to the Restated Articles of Incorporation of the Registrant approved by
the shareholders of the Registrant on August 13, 2002 (incorporated by
reference to Exhibit 4.7 to the Registrant’s Form S-8 (Registration Number
333-103183)).
|
|
4.8
-
|
Amendment
to the Restated Articles of Incorporation of the Registrant approved by
the shareholders of the Registrant on May 10, 2006 (incorporated by
reference to Exhibit 99.1 to the Registrant’s Form 8-K dated October 16,
2006 and filed on October 16, 2006 (Commission file number
1-10560)).
|
|
5.1
-
|
Opinion
of Counsel.
|
|
23.1
-
|
Consent
of KPMG LLP.
|
|
23.2
-
|
Consent
of Kenneth S. Barrow (included in Exhibit
5.1).
|
|
99.1
-
|
Benchmark
Electronics, Inc. Deferred Compensation
Plan.
|
|
BENCHMARK
ELECTRONICS, INC.
|
||
|
By:
|
/s/ Cary T.
Fu
|
|
|
Chief Executive Officer
|
||
|
Name
|
Position
|
Date
|
|
Director
and
|
||
|
/s/
Cary T. Fu
|
Chief
Executive Officer
|
December
10, 2008
|
|
Cary
T. Fu
|
(principal
executive officer)
|
|
|
/s/
Donald F. Adam
|
Chief
Financial Officer
|
December
10, 2008
|
|
Donald
F. Adam
|
(principal
financial
|
|
|
and
accounting officer)
|
||
|
/s/
Donald E. Nigbor
|
Chairman
of the Board
|
December
10, 2008
|
|
Donald
E. Nigbor
|
of
Directors
|
|
|
/s/
Steven A. Barton
|
Director
|
December
10, 2008
|
|
Steven
A. Barton
|
||
|
/s/
Michael R. Dawson
|
Director
|
December
10, 2008
|
|
Michael
R. Dawson
|
||
|
/s/
Peter G. Dorflinger
|
Director
|
December
10, 2008
|
|
Peter
G. Dorflinger
|
||
|
/s/
Douglas G. Duncan
|
Director
|
December
10, 2008
|
|
Douglas
G. Duncan
|
||
|
/s/
Laura W. Lang
|
Director
|
December
10, 2008
|
|
Laura
W. Lang
|
||
|
/s/
Bernee D.L. Strom
|
Director
|
December
10, 2008
|
|
Bernee
D.L. Strom
|
||
|
/s/
Clay C. Williams
|
Director
|
December
10, 2008
|
|
Clay
C. Williams
|
|
BENCHMARK
ELECTRONICS, INC.
|
||
|
By:
|
/s/ Timothy B. Timbrook
|
|
|
Timothy
B. Timbrook
|
||
|
Vice
President Human
Resources
|
||
|
Exhibit
|
|
|
Number
|
Description
|
|
5.1
|
Opinion
of Counsel.
|
|
23.1
|
Consent
of KPMG LLP.
|
|
23.2
|
Consent
of Kenneth Barrow (included in the opinion filed as Exhibit 5.1
hereto).
|
|
99.1
|
Benchmark
Electronics, Inc. Deferred Compensation
Plan.
|
|
Establishment
and Purpose
|
1
|
|
Definitions
|
1
|
|
Eligibility
and Participation
|
8
|
|
Deferrals
|
8
|
|
Company
Contributions
|
12
|
|
Benefits
|
12
|
|
Modifications
to Payment Schedules
|
15
|
|
Valuation
of Account Balances; Investments
|
15
|
|
Administration
|
16
|
|
Amendment
and Termination
|
18
|
|
Informal
Funding
|
19
|
|
Claims
|
19
|
|
General
Provisions
|
24
|
|
2.1
|
Account.
Account means a bookkeeping account maintained by the Committee to record
the payment obligation of a Participating Employer to a Participant as
determined under the terms of the Plan. The Committee may maintain an
Account to record the total obligation to a Participant and component
Accounts to reflect amounts payable at different times and in different
forms. Reference to an Account means any such Account established by the
Committee, as the context requires. Accounts are intended to constitute
unfunded obligations within the meaning of Sections 201(2), 301(a)(3) and
401(a)(1) of ERISA.
|
|
2.2
|
Account
Balance.
Account Balance means, with respect to any Account, the
total payment obligation owed to a Participant from such Account as of the
most recent Valuation Date.
|
|
2.3
|
Adopting
Employer.
Adopting Employer means an Affiliate who, with the
consent of the Company, has adopted the Plan for the benefit of its
eligible employees.
|
|
2.4
|
Affiliate.
Affiliate means a corporation, trade or business that, together with the
Company, is treated as a single employer under Code Section 414(b) or
(c).
|
|
2.5
|
Beneficiary.
Beneficiary means a natural person, estate, or trust designated by a
Participant to receive payments to which a Beneficiary is entitled in
accordance with provisions of the Plan. The Participant’s spouse, if
living, otherwise the Participant’s estate, shall be the Beneficiary if:
(i)the Participant has failed to properly designate a Beneficiary, or (ii)
all designated Beneficiaries have predeceased the
Participant.
|
|
2.6
|
Business Day
.
Business Day means each day on which the New York Stock Exchange is open
for business.
|
|
2.7
|
Change in
Control
. Change in Control means, with respect to a Participating
Employer that is organized as a corporation, any of the following events:
(i) a change in the ownership of the Participating Employer, (ii) a change
in the effective control of the Participating Employer, or (iii) a change
in the ownership of a substantial portion of the assets of the
Participating Employer.
|
|
2.8
|
Claimant.
Claimant means a Participant or Beneficiary filing a claim under Article
XII of this Plan.
|
|
2.9
|
Code.
Code
means the Internal Revenue Code of 1986, as amended from time to
time.
|
|
2.10
|
Code Section
409A.
Code Section 409A means section 409A of the Code, and
regulations and other guidance issued by the Treasury Department and
Internal Revenue Service
thereunder.
|
|
2.11
|
Committee.
Committee means the Employee Benefits Advisory Council appointed by the
Board of Directors of the Company to administer the Plan under the
direction of the Compensation Committee of the Board of Directors. If no
designation is made, the Chief Executive Officer of the Company or his
delegate shall have and exercise the powers of the
Committee.
|
|
2.12
|
Company.
Company means Benchmark Electronics,
Inc.
|
|
2.13
|
Company
Contribution.
Company Contribution means a credit by a
Participating Employer to a Participant’s Account(s) in accordance with
the provisions of Article V of the Plan. Company Contributions are
credited at the sole discretion of the Participating Employer and the fact
that a Company Contribution is credited in one year shall not obligate the
Participating Employer to continue to make such Company Contribution in
subsequent years. Unless the context clearly indicates otherwise, a
reference to Company Contribution shall include Earnings attributable to
such contribution.
|
|
2.14
|
Compensation.
Compensation means a Participant’s base salary, bonus, commission, and
such other cash or equity-based compensation (if any) approved by the
Committee as Compensation that may be deferred under this Plan.
Compensation shall not include any compensation that has been previously
deferred under this Plan or any other arrangement subject to Code Section
409A.
|
|
2.15
|
Compensation Deferral
Agreement.
Compensation Deferral Agreement means an agreement
between a Participant and a Participating Employer that specifies: (i) the
amount of each component of Compensation that the Participant has elected
to defer to the Plan in accordance with the provisions of Article IV, and
(ii) the Payment Schedule applicable to one or more Accounts. The
Committee may permit different deferral amounts for each component of
Compensation and may establish a minimum or maximum deferral amount for
each such component. Unless otherwise specified by the Committee in the
Compensation Deferral Agreement, Participants may defer up to 75% of their
base salary and up to 100% of other types of Compensation for a Plan Year.
A Compensation Deferral Agreement may also specify the investment
allocation described in Section
8.4.
|
|
2.16
|
Death Benefit.
Death Benefit means the benefit payable under the Plan to a Participant’s
Beneficiary(ies) upon the Participant’s death as provided in Section 6.1
of the Plan.
|
|
2.17
|
Deferral.
Deferral means a credit to a Participant’s Account(s) that records that
portion of the Participant’s Compensation that the Participant has elected
to defer to the Plan in accordance with the provisions of Article IV.
Unless the context of the Plan clearly indicates otherwise, a reference to
Deferrals includes Earnings attributable to such
Deferrals.
|
|
2.18
|
Earnings.
Earnings means an adjustment to the value of an Account in accordance with
Article VIII.
|
|
2.19
|
Effective Date.
Effective Date means January 1,
2009.
|
|
2.20
|
Eligible
Employee.
Eligible Employee means a member of a “select group of
management or highly compensated employees” of a Participating Employer
within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA,
as determined by the Committee from time to time in its sole
discretion.
|
|
2.21
|
Employee.
Employee means a common-law employee of an
Employer.
|
|
2.22
|
Employer.
Employer means, with respect to Employees it employs, the Company and each
Affiliate.
|
|
2.23
|
ERISA.
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
|
|
2.24
|
Fiscal Year
Compensation.
Fiscal Year Compensation means Compensation earned
during one or more consecutive fiscal years of a Participating Employer,
all of which is paid after the last day of such fiscal year or
years.
|
|
2.25
|
Participant.
Participant means an Eligible Employee who has received notification of
his or her eligibility to defer Compensation under the Plan under Section
3.1 and any other person with an Account Balance greater than zero,
regardless of whether such individual continues to be an Eligible
Employee. A Participant’s continued participation in the Plan shall be
governed by Section 3.2 of the
Plan.
|
|
2.26
|
Participating
Employer.
Participating Employer means the Company and each
Adopting Employer.
|
|
2.27
|
Payment
Schedule.
Payment Schedule means the date as of which payment of an
Account under the Plan will commence and the form in which payment of such
Account will be made.
|
|
2.28
|
Performance-Based
Compensation.
Performance-Based Compensation means Compensation
where the amount of, or entitlement to, the Compensation is contingent on
the satisfaction of pre-established organizational or individual
performance criteria relating to a performance period of at least 12
consecutive months. Organizational or individual performance criteria are
considered pre-established if established in writing by not later than 90
days after the commencement of the period of service to which the criteria
relate, provided that the outcome is substantially uncertain at the time
the criteria are established. The determination of whether Compensation
qualifies as “Performance-Based Compensation” will be made in accordance
with Treas. Reg. Section 1.409A-1(e) and subsequent
guidance.
|
|
2.29
|
Plan.
Generally, the term Plan means the “Benchmark Electronics, Inc. Deferred
Compensation Plan” as documented herein and as may be amended from time to
time hereafter. However, to the extent permitted or required under Code
Section 409A, the term Plan may in the appropriate context also mean a
portion of the Plan that is treated as a single plan under Treas. Reg.
Section 1.409A-1(c), or the Plan or portion of the Plan and any other
nonqualified deferred compensation plan or portion thereof that is treated
as a single plan under such
section.
|
|
2.30
|
Plan Year.
Plan
Year means January 1 through December
31.
|
|
2.31
|
Retirement/Termination
Benefit.
Retirement/Termination Benefit means the benefit payable
to a Participant under the Plan following the Participant’s Separation
from Service for reasons other than
death.
|
|
2.32
|
Retirement/Termination
Account.
Retirement/Termination Account means an Account
established by the Committee to record the amounts payable to a
Participant upon Separation from Service. Unless the Participant has
established a Specified Date Account, all Deferrals and Company
Contributions shall be allocated to a Retirement/Termination Account on
behalf of the Participant.
|
|
2.33
|
Separation from
Service.
Separation from Service means an Employee’s
termination of employment with the Employer for reasons other than
death. Whether a Separation from Service has occurred shall be
determined by the Committee in accordance with Code Section
409A.
|
|
2.34
|
Specified Date
Account.
Specified Date Account means an Account established by the
Committee to record the amounts payable at a future date as specified in
the Participant’s Compensation Deferral Agreement. Unless otherwise
determined by the Committee, a Participant may maintain no more than five
Specified Date Accounts. A Specified Date Account may be identified in
enrollment materials as an “In-Service Account” or such other name as
established by the Committee without affecting the meaning
thereof.
|
|
2.35
|
Specified Date
Benefit.
Specified Date Benefit means the benefit payable to a
Participant under the Plan in accordance with Section
6.1(b).
|
|
2.36
|
Specified
Employee.
Specified Employee means an Employee who, as of the date
of his or her Separation from Service, is a “key employee” of the Company
or any Affiliate, any stock of which is actively traded on an established
securities market or otherwise.
|
|
2.37
|
Specified Employee
Identification Date.
Specified Employee Identification Date means
December 31, unless the Employer has elected a different date through
action that is legally binding with respect to all nonqualified deferred
compensation plans maintained by the
Employer.
|
|
2.38
|
Specified Employee
Effective Date.
Specified Employee Effective Date means the first
day of the fourth month following the Specified Employee Identification
Date, or such earlier date as is selected by the
Committee.
|
|
2.39
|
Substantial Risk of
Forfeiture.
Substantial Risk of Forfeiture means the description
specified in Treas. Reg. Section
1.409A-1(d).
|
|
2.40
|
Unforeseeable
Emergency.
Unforeseeable Emergency means a severe financial
hardship to the Participant resulting from an illness or accident of the
Participant, the Participant’s spouse, the Participant’s dependent (as
defined in Code section 152, without regard to section 152(b)(1), (b)(2),
and (d)(1)(B)), or a Beneficiary; loss of the Participant’s property due
to casualty (including the need to rebuild a home following damage to a
home not otherwise covered by insurance, for example, as a
result of a natural disaster); or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of the Participant. The types of events which may qualify as an
Unforeseeable Emergency may be limited by the
Committee.
|
|
2.41
|
Valuation Date.
Valuation Date means each Business
Day.
|
|
2.42
|
Year of
Service
. Year of Service means each 12-month period of continuous
service with the Employer.
|
|
3.1
|
Eligibility and
Participation.
An Eligible Employee becomes a Participant upon the
earlier to occur of: (i) a credit of Company Contributions under Article
V, or (ii) receipt of notification of eligibility to
participate.
|
|
3.2
|
Duration.
A
Participant shall be eligible to defer Compensation and receive
allocations of Company Contributions, subject to the terms of the Plan,
for as long as such Participant remains an Eligible Employee. A
Participant who is no longer an Eligible Employee but has not Separated
from Service may not defer Compensation under the Plan beyond the Plan
Year in which he or she became ineligible but may otherwise exercise all
of the rights of a Participant under the Plan with respect to his or her
Account(s). On and after a Separation from Service, a Participant shall
remain a Participant as long as his or her Account Balance is greater than
zero (0), and during such time may continue to make allocation elections
as provided in Section 8.4. An individual shall cease being a Participant
in the Plan when all benefits under the Plan to which he or she is
entitled have been paid.
|
|
|
Article
IV
|
|
4.1
|
Deferral Elections,
Generally.
|
|
|
(a)
|
A
Participant may elect to defer Compensation by submitting a Compensation
Deferral Agreement during the enrollment periods established by the
Committee and in the manner specified by the Committee, but in any event,
in accordance with Section 4.2. A Compensation Deferral Agreement that is
not timely filed with respect to a service period or component of
Compensation shall be considered void and shall have no effect with
respect to such service period or Compensation. The Committee may modify
any Compensation Deferral Agreement prior to the date the election becomes
irrevocable under the rules of Section
4.2.
|
|
|
(b)
|
The
Participant shall specify on his or her Compensation Deferral Agreement
the amount of Deferrals and whether to allocate Deferrals to a
Retirement/Termination Account or to a Specified Date Account. If no
designation is made, Deferrals shall be allocated to the
Retirement/Termination Account. A Participant may also specify in his or
her Compensation Deferral Agreement the Payment Schedule applicable to his
or her Plan Accounts. If the Payment Schedule is not specified in a
Compensation Deferral Agreement, the Payment Schedule shall be the Payment
Schedule specified in Section 6.2.
|
|
|
(a)
|
First Year of
Eligibility.
In the case of the first year in which an Eligible
Employee becomes eligible to participate in the Plan, he or she has up to
30 days following his or her initial eligibility to submit a Compensation
Deferral Agreement with respect to Compensation to be earned during such
year. The Compensation Deferral Agreement described in this paragraph
becomes irrevocable upon the end of such 30-day period. The determination
of whether an Eligible Employee may file a Compensation Deferral Agreement
under this paragraph shall be determined in accordance with the rules of
Code Section 409A, including the provisions of Treas. Reg. Section
1.409A-2(a)(7).
|
|
|
A
Compensation Deferral Agreement filed under this paragraph applies to
Compensation earned on and after the date the Compensation Deferral
Agreement becomes irrevocable.
|
|
|
(b)
|
Prior Year Election.
Except as otherwise provided in this Section 4.2, Participants may defer
Compensation by filing a Compensation Deferral Agreement no later than
December 31 of the year prior to the year in which the Compensation to be
deferred is earned. A Compensation Deferral Agreement described in this
paragraph shall become irrevocable with respect to such Compensation as of
January 1 of the year in which such Compensation is
earned.
|
|
|
(c)
|
Performance-Based
Compensation.
Participants may file a Compensation Deferral
Agreement with respect to Performance-Based Compensation no later than the
date that is six months before the end of the performance period, provided
that:
|
|
|
(i)
|
the
Participant performs services continuously from the later of the beginning
of the performance period or the date the criteria are established through
the date the Compensation Deferral Agreement is submitted;
and
|
|
|
(ii)
|
the
Compensation is not readily ascertainable as of the date the Compensation
Deferral Agreement is filed.
|
|
|
(d)
|
Sales Commissions.
Sales commissions (as defined in Treas. Reg. Section 1.409A-2(a)(12)(i))
are considered to be earned by the Participant in the taxable year of the
Participant in which the sale occurs. The Compensation Deferral Agreement
must be filed before the last day of the year preceding the year in which
the sales commissions are earned, and becomes irrevocable after that
date.
|
|
|
(e)
|
Fiscal Year
Compensation.
A Participant may defer Fiscal Year Compensation by
filing a Compensation Deferral Agreement prior to the first day of the
fiscal year or years in which such Fiscal Year Compensation is earned. The
Compensation Deferral Agreement described in this paragraph becomes
irrevocable on the first day of the fiscal year or years to which it
applies.
|
|
|
(f)
|
Short-Term Deferrals.
Compensation that meets the definition of a “short-term deferral”
described in Treas. Reg. Section 1.409A-1(b)(4) may be deferred in
accordance with the rules of Article VII, applied as if the date the
Substantial Risk of Forfeiture lapses is the date payments were originally
scheduled to commence, provided, however, that the provisions of Section
7.3 shall not apply to payments attributable to a Change in Control (as
defined in Treas. Reg. Section
1.409A-3(i)(5)).
|
|
|
(g)
|
Certain Forfeitable
Rights.
With respect to a legally binding right to a payment in a
subsequent year 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, an election to
defer such Compensation may be made on or before 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. The Compensation Deferral Agreement described in this paragraph
becomes irrevocable after such 30
th
day. If the forfeiture condition applicable to the payment lapses before
the end of the required service period as a result of the Participant’s
death or disability (as defined in Treas. Reg. Section 1.409A-3(i)(4)) or
upon a Change in Control (as defined in Treas. Reg. Section
1.409A-3(i)(5)), the Compensation Deferral Agreement will be void unless
it would be considered timely under another rule described in this
Section.
|
|
|
(h)
|
Company Awards.
Participating Employers may unilaterally provide for deferrals of Company
awards prior to the date of such awards. Deferrals of Company awards (such
as sign-on, retention, or severance pay) may be negotiated with a
Participant prior to the date the Participant has a legally binding right
to such Compensation.
|
|
|
(i)
|
“Evergreen” Deferral
Elections.
The Compensation Deferral Agreement of a Participant
will continue in effect for each subsequent year or performance period.
Such “evergreen” Compensation Deferral Agreements will become effective
with respect to an item of Compensation on the date such election becomes
irrevocable under this Section 4.2. An evergreen Compensation Deferral
Agreement may be terminated or modified prospectively with respect to
Compensation for which such election remains revocable under this Section
4.2. A Participant whose Compensation Deferral Agreement is cancelled in
accordance with Section 4.6 will be required to file a new Compensation
Deferral Agreement under this Article IV in order to recommence Deferrals
under the Plan.
|
|
4.3
|
Allocation of
Deferrals.
A Compensation Deferral Agreement may allocate Deferrals
to one or more Specified Date Accounts and/or to the
Retirement/Termination Account. The Committee may, in its discretion,
establish a minimum deferral period for the establishment of a Specified
Date Account (for example, the third Plan Year following the year
Compensation is allocated to such
accounts.).
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|
4.4
|
Deductions from
Pay.
The Committee has the authority to determine the payroll
practices under which any component of Compensation subject to a
Compensation Deferral Agreement will be deducted from a Participant’s
Compensation.
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|
4.5
|
Vesting.
Participant Deferrals shall be 100% vested at all
times.
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|
4.6
|
Cancellation of
Deferrals.
The Committee may cancel a Participant’s Deferrals: (i)
for the balance of the Plan Year in which an Unforeseeable Emergency
occurs, (ii) if the Participant receives a hardship distribution under the
Employer’s qualified 401(k) plan, through the end of the Plan Year in
which the six month anniversary of the hardship distribution falls, and
(iii) during periods in which the Participant is unable to perform the
duties of his or her position or any substantially similar position due to
a mental or physical impairment that can be expected to result in death or
last for a continuous period of at least six months, provided cancellation
occurs by the later of the end of the taxable year of the Participant or
the 15
th
day of the third month following the date the Participant incurs the
disability (as defined in this
paragraph).
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|
5.1
|
401(k) Make-Up
Contributions
. The Participating Employer may credit a
401(k) Make-Up Contribution to the Account of any Participant to
compensate the Participant for matching contributions that were not
received under the 401(k) plan due to deferrals under this
Plan. Such contributions will be credited to a Participant’s
Retirement/Termination Account.
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|
5.2
|
Discretionary Company
Contributions.
The Participating Employer may, from time to time in
its sole and absolute discretion, credit Company Contributions to any
Participant in any amount determined by the Participating Employer. Such
contributions will be credited to a Participant’s Retirement/Termination
Account.
|
|
5.2
|
Vesting.
Company Contributions described in Section 5.1, above, and the Earnings
thereon, shall be 100% vested at all times. Company
Contributions described in Section 5.2 above, and the Earnings thereon,
shall vest in accordance with the vesting schedule(s) established by the
Committee at the time that the Company Contribution is made. All Company
Contributions shall become 100% vested upon the occurrence of the earliest
of: (i) the death of the Participant while actively employed, or (ii) a
Change in Control. The Participating Employer may, at any time,
in its sole discretion, increase a Participant’s vested interest in a
Company Contribution. The portion of a Participant’s Accounts that remains
unvested upon his or her Separation from Service after the application of
the terms of this Section 5.2 shall be
forfeited.
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|
6.1
|
Benefits,
Generally.
A Participant shall be entitled to the following
benefits under the Plan:
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|
|
(a)
|
Retirement/Termination
Benefit.
Upon the Participant’s Separation from Service, he or she
shall be entitled to a Retirement/Termination Benefit. The
Retirement/Termination Benefit shall be equal to the vested portion of the
Retirement/Termination Account and the vested portion of any Specified
Date Accounts with respect to which payments have not yet commenced. The
Retirement/Termination Benefit shall be based on the value of that
Account(s) as of the end of the month preceding the month of payment. If
Separation from Service occurs between January 1 and June 30, payment of
the Retirement/Termination Benefit will be made or begin in January of the
year following the year the Participant Separated from
Service. If Separation from Service occurs between July 1
and December 31, payment of the Retirement/Termination Benefit will be
made or begin in July of the year following the year the Participant
Separated from Service.
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|
|
(b)
|
Specified Date Benefit.
If the Participant has established one or more Specified Date Accounts, he
or she shall be entitled to a Specified Date Benefit with respect to each
such Specified Date Account. The Specified Date Benefit shall be equal to
the vested portion of the Specified Date Account, based on the value of
that Account as of the last business day in June of the year designated by
the Participant at the time the Account was established. Payment of the
Specified Date Benefit will be made or begin in July of the designated
year.
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|
|
(c)
|
Death Benefit
.
In the event of the
Participant’s death, his or her designated Beneficiary(ies) shall be
entitled to a Death Benefit. The Death Benefit shall be equal to the
vested portion of the Retirement/Termination Account and the unpaid
balances of any Specified Date Accounts. The Death Benefit shall be based
on the value of the Accounts as of the end of the month in which death
occurred, with payment made in the following
month.
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|
|
(d)
|
Unforeseeable Emergency
Payments.
A Participant who experiences an Unforeseeable Emergency
may submit a written request to the Committee to receive payment of all or
any portion of his or her vested Accounts. Whether a Participant or
Beneficiary is faced with an Unforeseeable Emergency permitting an
emergency payment shall be determined by the Committee based on the
relevant facts and circumstances of each case, but, in any case, a
distribution on account of Unforeseeable Emergency may not be made to the
extent that such emergency is or may be reimbursed through insurance or
otherwise, by liquidation of the Participant’s assets, to the extent the
liquidation of such assets would not cause severe financial hardship, or
by cessation of Deferrals under this Plan. If an emergency payment is
approved by the Committee, the amount of the payment shall not exceed the
amount reasonably necessary to satisfy the need, taking into account the
additional compensation that is available to the Participant as the result
of cancellation of deferrals to the Plan, including amounts necessary to
pay any taxes or penalties that the Participant reasonably anticipates
will result from the payment. The amount of the emergency payment shall be
subtracted first from the vested portion of the Participant's
Retirement/Termination Account until depleted and then from the vested
Specified Date Accounts, beginning with the Specified Date Account with
the latest payment commencement date. Emergency payments shall be paid in
a single lump sum within the 90-day period following the date the payment
is approved by the Committee.
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|
6.2
|
Form of
Payment.
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|
|
(a)
|
Retirement/Termination
Benefit.
A Participant who is entitled to receive a
Retirement/Termination Benefit shall receive payment of such benefit in a
single lump sum, unless the Participant elects on his or her initial
Compensation Deferral Agreement to have such benefit paid in one of the
following alternative forms of payment (i) substantially equal annual
installments over a period of two to fifteen years, as elected by the
Participant, or (ii) a lump sum payment of a percentage of the balance in
the Retirement/Termination Account, with the balance paid in substantially
equal annual installments over a period of two to fifteen years, as
elected by the Participant.
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|
|
(b)
|
Specified Date Benefit.
The Specified Date Benefit shall be paid in a single lump sum, unless the
Participant elects on the Compensation Deferral Agreement with which the
account was established to have the Specified Date Account paid in
substantially equal annual installments over a period of two to five
years, as elected by the
Participant.
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|
|
(c)
|
Death Benefit.
A
designated Beneficiary who is entitled to receive a Death Benefit shall
receive payment of such benefit in a single lump
sum.
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|
|
(d)
|
Change in Control.
A
Participant will receive his or her Retirement/Termination Benefit in a
single lump sum payment equal to the unpaid balance of all of his or her
Accounts if Separation from Service occurs within 24 months following a
Change in Control.
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|
|
(e)
|
Small Account Balances.
The Committee shall pay the value of the Participant’s Accounts upon a
Separation from Service in a single lump sum if the balance of such
Accounts is not greater than the applicable dollar amount under Code
Section 402(g)(1)(B), provided the payment represents the complete
liquidation of the Participant’s interest in the
Plan.
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|
|
(f)
|
Rules Applicable to
Installment Payments.
If a Payment Schedule specifies installment
payments, annual payments will be made beginning as of the payment
commencement date for such installments and shall continue on each
anniversary thereof until the number of installment payments specified in
the Payment Schedule has been paid. The amount of each installment payment
shall be determined by dividing (a) by (b), where (a) equals the Account
Balance as of the Valuation Date and (b) equals the remaining number of
installment payments.
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|
6.3
|
Acceleration of or
Delay in Payments.
The Committee, in its sole and absolute
discretion, may elect to accelerate the time or form of payment of a
benefit owed to the Participant hereunder, provided such acceleration is
permitted under Treas. Reg. Section 1.409A-3(j)(4). The Committee may
also, in its sole and absolute discretion, delay the time for payment of a
benefit owed to the Participant hereunder, to the extent permitted under
Treas. Reg. Section 1.409A-2(b)(7). If the Plan receives a domestic
relations order (within the meaning of Code Section 414(p)(1)(B))
directing that all or a portion of a Participant’s Accounts be paid to an
“alternate payee,” any amounts to be paid to the alternate payee(s) shall
be paid in a single lump sum.
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|
7.1
|
Participant’s Right to
Modify.
A Participant may modify any or all of the
alternative Payment Schedules with respect to a Specified Date Account,
consistent with the permissible Payment Schedules available under the
Plan, provided such modification complies with the requirements of this
Article VII. The Payment Schedule for the
Retirement/Termination Account may not be
modified.
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|
7.2
|
Time of
Election.
The date on which a modification election is submitted to
the Committee must be at least 12 months prior to the date on which
payment is scheduled to commence under the Payment Schedule in effect
prior to the modification.
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|
7.3
|
Date of Payment under
Modified Payment Schedule.
The date payments are to commence under
the modified Payment Schedule must be no earlier than five years after the
date payment would have commenced under the original Payment Schedule.
Under no circumstances may a modification election result in an
acceleration of payments in violation of Code Section
409A.
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|
7.4
|
Effective Date.
A modification election submitted in accordance with this Article VII is
irrevocable upon receipt by the Committee and becomes effective 12 months
after such date.
|
|
7.5
|
Effect on
Accounts.
An election to modify a Payment Schedule is specific to
the Account or payment event to which it applies, and shall not be
construed to affect the Payment Schedules of any other
Accounts.
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|
8.1
|
Valuation.
Deferrals shall be credited to appropriate Accounts on the date such
Compensation would have been paid to the Participant absent the
Compensation Deferral Agreement. Company Contributions shall be credited
to the Retirement/Termination Account at the times determined by the
Committee. Valuation of Accounts shall be performed under procedures
approved by the Committee.
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|
8.2
|
Earnings
Credit.
Each Account will be credited with Earnings on each
Business Day, based upon the Participant’s investment allocation among a
menu of investment options selected in advance by the Committee, in
accordance with the provisions of this Article VIII (“investment
allocation”).
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|
8.3
|
Investment
Options
. Investment options will be determined by the Committee.
The Committee, in its sole discretion, shall be permitted to add or remove
investment options from the Plan menu from time to time, provided that any
such additions or removals of investment options shall not be effective
with respect to any period prior to the effective date of such
change.
|
|
8.4
|
Investment
Allocations.
A Participant’s investment allocation constitutes a
deemed, not actual, investment among the investment options comprising the
investment menu. At no time shall a Participant have any real or
beneficial ownership in any investment option included in the investment
menu, nor shall the Participating Employer or any trustee acting on its
behalf have any obligation to purchase actual securities as a result of a
Participant’s investment allocation. A Participant’s investment allocation
shall be used solely for purposes of adjusting the value of a
Participant’s Account Balances.
|
|
8.5
|
Unallocated Deferrals
and Accounts.
If the Participant fails to make an investment
allocation with respect to an Account, such Account shall be invested in
an investment option, the primary objective of which is the preservation
of capital, as determined by the
Committee.
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|
9.1
|
Plan
Administration
. This Plan shall be administered by the Committee
which shall have discretionary authority to make, amend, interpret and
enforce all appropriate rules and regulations for the administration of
this Plan and to utilize its discretion to decide or resolve any and all
questions, including but not limited to eligibility for benefits and
interpretations of this Plan and its terms, as may arise in connection
with the Plan. Claims for benefits shall be filed with the Committee and
resolved in accordance with the claims procedures in Article
XII.
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|
9.2
|
Administration Upon
Change in Control.
Upon a Change in Control, the Committee, as
constituted immediately prior to such Change in Control, shall continue to
act as the Committee. The individual who was the Chief Executive Officer
of the Company (or if such person is unable or unwilling to act, the next
highest ranking officer) prior to the Change in Control shall have the
authority (but shall not be obligated) to appoint an independent third
party to act as the Committee.
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|
9.3
|
Withholding.
The Participating Employer shall have the right to withhold from any
payment due under the Plan (or with respect to any amounts credited to the
Plan) any taxes required by law to be withheld in respect of such payment
(or credit). Withholdings with respect to amounts credited to the Plan
shall be deducted from Compensation that has not been deferred to the
Plan.
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|
9.4
|
Indemnification.
The Participating Employers shall indemnify and hold harmless each
employee, officer, director, agent or organization, to whom or to which
are delegated duties, responsibilities, and authority under the Plan or
otherwise with respect to administration of the Plan, including, without
limitation, the Committee and its agents, against all claims, liabilities,
fines and penalties, and all expenses reasonably incurred by or imposed
upon him or it (including but not limited to reasonable attorney fees)
which arise as a result of his or its actions or failure to act in
connection with the operation and administration of the Plan to the extent
lawfully allowable and to the extent that such claim, liability, fine,
penalty, or expense is not paid for by liability insurance purchased or
paid for by the Participating Employer. Notwithstanding the foregoing, the
Participating Employer shall not indemnify any person or organization if
his or its actions or failure to act are due to gross negligence or
willful misconduct or for any such amount incurred through any settlement
or compromise of any action unless the Participating Employer consents in
writing to such settlement or
compromise.
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|
9.5
|
Delegation of
Authority.
In the administration of this Plan, the Committee may,
from time to time, employ agents and delegate to them such administrative
duties as it sees fit, and may from time to time consult with legal
counsel who shall be legal counsel to the
Company.
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|
9.6
|
Binding Decisions or
Actions.
The decision or action of the Committee in respect of any
question arising out of or in connection with the administration,
interpretation and application of the Plan and the rules and regulations
thereunder shall be final and conclusive and binding upon all persons
having any interest in the Plan.
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|
10.1
|
Amendment and
Termination.
The Company may at any time and from time to time
amend the Plan or may terminate the Plan as provided in this Article X.
Each Participating Employer may also terminate its participation in the
Plan.
|
|
10.2
|
Amendments.
The
Company, by action taken by its Board of Directors, may amend the Plan at
any time and for any reason, provided that any such amendment shall not
reduce the vested Account Balances of any Participant accrued as of the
date of any such amendment or restatement (as if the Participant had
incurred a voluntary Separation from Service on such date) or reduce any
rights of a Participant under the Plan or other Plan features with respect
to Deferrals made prior to the date of any such amendment or restatement
without the consent of the Participant. The Board of Directors of the
Company may delegate to the Committee the authority to amend the Plan
without the consent of the Board of Directors for the purpose of: (i)
conforming the Plan to the requirements of law; (ii) facilitating the
administration of the Plan; (iii) clarifying provisions based on the
Committee’s interpretation of the document; and (iv) making such other
amendments as the Board of Directors may
authorize.
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|
10.3
|
Termination.
The Company, by action taken by its Board of Directors, may terminate the
Plan and pay Participants and Beneficiaries their Account Balances in a
single lump sum at any time, to the extent and in accordance with Treas.
Reg. Section 1.409A-3(j)(4)(ix). If a Participating Employer terminates
its participation in the Plan, the benefits of affected Employees shall be
paid at the time provided in Article
VI.
|
|
10.4
|
Accounts Taxable Under
Code Section 409A.
The Plan is intended to constitute a plan of
deferred compensation that meets the requirements for deferral of income
taxation under Code Section 409A. The Committee, pursuant to its authority
to interpret the Plan, may sever from the Plan or any Compensation
Deferral Agreement any provision or exercise of a right that otherwise
would result in a violation of Code Section
409A.
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|
11.1
|
General Assets.
Obligations established under the terms of the Plan may be satisfied from
the general funds of the Participating Employers, or a trust described in
this Article XI. No Participant, spouse or Beneficiary shall have any
right, title or interest whatever in assets of the Participating
Employers. Nothing contained in this Plan, and no action taken pursuant to
its provisions, shall create or be construed to create a trust of any
kind, or a fiduciary relationship, between the Participating Employers and
any Employee, spouse, or Beneficiary. To the extent that any person
acquires a right to receive payments hereunder, such rights are no greater
than the right of an unsecured general creditor of the Participating
Employer.
|
|
11.2
|
Rabbi Trust.
A
Participating Employer may, in its sole discretion, establish a grantor
trust, commonly known as a rabbi trust, as a vehicle for accumulating
assets to pay benefits under the Plan. Payments under the Plan may be paid
from the general assets of the Participating Employer or from the assets
of any such rabbi trust. Payment from any such source shall reduce the
obligation owed to the Participant or Beneficiary under the
Plan.
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|
12.1
|
Filing a Claim.
Any controversy or claim arising out of or relating to the Plan shall be
filed in writing with the Committee which shall make all determinations
concerning such claim. Any claim filed with the Committee and any decision
by the Committee denying such claim shall be in writing and shall be
delivered to the Participant or Beneficiary filing the claim (the
“Claimant”).
|
|
|
(a)
|
In General.
Notice of a
denial of benefits will be provided within 90 days of the Committee’s
receipt of the Claimant's claim for benefits. If the Committee determines
that it needs additional time to review the claim, the Committee will
provide the Claimant with a notice of the extension before the end of the
initial 90-day period. The extension will not be more than 90 days from
the end of the initial 90-day period and the notice of extension will
explain the special circumstances that require the extension and the date
by which the Committee expects to make a
decision.
|
|
|
(b)
|
Contents of Notice.
If
a claim for benefits is completely or partially denied, notice of such
denial shall be in writing and shall set forth the reasons for denial in
plain language. The notice shall: (i) cite the pertinent provisions of the
Plan document, and (ii) explain, where appropriate, how the Claimant can
perfect the claim, including a description of any additional material or
information necessary to complete the claim and why such material or
information is necessary. The claim denial also shall include an
explanation of the claims review procedures and the time limits applicable
to such procedures, including a statement of the Claimant’s right to bring
a civil action under Section 502(a) of ERISA following an adverse decision
on review.
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|
12.2
|
Appeal of Denied
Claims.
A Claimant whose claim has been completely or partially
denied shall be entitled to appeal the claim denial by filing a written
appeal with a committee designated to hear such appeals (the “Appeals
Committee”). A Claimant who timely requests a review of the denied claim
(or his or her authorized representative) may review, upon request and
free of charge, copies of all documents, records and other information
relevant to the denial and may submit written comments, documents, records
and other information relevant to the claim to the Appeals Committee. All
written comments, documents, records, and other information shall be
considered “relevant” if the information: (i) was relied upon in making a
benefits determination, (ii) was submitted, considered or generated in the
course of making a benefits decision regardless of whether it was relied
upon to make the decision, or (iii) demonstrates compliance with
administrative processes and safeguards established for making benefit
decisions. The Appeals Committee may, in its sole discretion and if it
deems appropriate or necessary, decide to hold a hearing with respect to
the claim appeal.
|
|
|
(a)
|
In General.
Appeal of a
denied benefits claim must be filed in writing with the Appeals Committee
no later than 60 days after receipt of the written notification of such
claim denial. The Appeals Committee shall make its decision regarding the
merits of the denied claim within 60 days following receipt of the appeal
(or within 120 days after such receipt, in a case where there are special
circumstances requiring extension of time for reviewing the appealed
claim). If an extension of time for reviewing the appeal is required
because of special circumstances, written notice of the extension shall be
furnished to the Claimant prior to the commencement of the extension. The
notice will indicate the special circumstances requiring the extension of
time and the date by which the Appeals Committee expects to render the
determination on review. The review will take into account 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.
|
|
|
(b)
|
Contents of Notice.
If
a benefits claim is completely or partially denied on review, notice of
such denial shall be in writing and shall set forth the reasons for denial
in plain language.
|
|
12.3
|
Claims Appeals Upon
Change in Control.
Upon a Change in Control, the Appeals Committee,
as constituted immediately prior to such Change in Control, shall continue
to act as the Appeals Committee. Upon such Change in Control, the Company
may not remove any member of the Appeals Committee, but may replace
resigning members if 2/3rds of the members of the Board of Directors of
the Company and a majority of Participants and Beneficiaries with Account
Balances consent to the
replacement.
|
|
12.4
|
Legal Action.
A
Claimant may not bring any legal action, including commencement of any
arbitration, relating to a claim for benefits under the Plan unless and
until the Claimant has followed the claims procedures under the Plan and
exhausted his or her administrative remedies under such claims procedures.
Any such legal action must be commenced within one year of a final
determination hereunder with respect to such
claim.
|
|
12.5
|
Discretion of Appeals
Committee.
All interpretations, determinations and decisions of the
Appeals Committee with respect to any claim shall be made in its sole
discretion, and shall be final and
conclusive.
|
|
12.6
|
Arbitration.
|
|
|
(a)
|
Prior to Change in
Control.
If, prior to a Change in Control, any claim or controversy
between a Participating Employer and a Participant or Beneficiary is not
resolved through the claims procedure set forth in Article XII, such claim
shall be submitted to and resolved exclusively by expedited binding
arbitration by a single arbitrator. Arbitration shall be
conducted in accordance with the following
procedures:
|
|
|
(b)
|
Upon Change in Control.
If, upon the occurrence of a Change in Control, any dispute, controversy
or claim arises between a Participant or Beneficiary and the Participating
Employer out of or relating to or concerning the provisions of the Plan,
such dispute, controversy or claim shall be finally settled by a court of
competent jurisdiction which, notwithstanding any other provision of the
Plan, shall apply a de novo standard of review to any determination made
by the Company or its Board of Directors, a Participating Employer, the
Committee, or the Appeals
Committee.
|
|
13.1
|
Assignment.
No
interest of any Participant, spouse or Beneficiary under this Plan and no
benefit payable hereunder shall be assigned as security for a loan, and
any such purported assignment shall be null, void and of no effect, nor
shall any such interest or any such benefit be subject in any manner,
either voluntarily or involuntarily, to anticipation, sale, transfer,
assignment or encumbrance by or through any Participant, spouse or
Beneficiary. Notwithstanding anything to the contrary herein, however, the
Committee has the discretion to make payments to an alternate payee in
accordance with the terms of a domestic relations order (as defined in
Code Section 414(p)(1)(B)).
|
|
|
The
Company may assign any or all of its liabilities under this Plan in
connection with any restructuring, recapitalization, sale of assets or
other similar transactions affecting a Participating Employer without the
consent of the Participant.
|
|
13.2
|
No Legal or Equitable
Rights or Interest.
No Participant or other person shall have any
legal or equitable rights or interest in this Plan that are not expressly
granted in this Plan. Participation in this Plan does not give any person
any right to be retained in the service of the Participating Employer. The
right and power of a Participating Employer to dismiss or discharge an
Employee is expressly reserved. The Participating Employers make no
representations or warranties as to the tax consequences to a Participant
or a Participant’s beneficiaries resulting from a deferral of income
pursuant to the Plan.
|
|
13.3
|
No Employment
Contract.
Nothing contained herein shall be construed to constitute
a contract of employment between an Employee and a Participating
Employer.
|
|
13.4
|
Notice.
Any
notice or filing required or permitted to be delivered to the Committee
under this Plan shall be delivered in writing, in person, or through such
electronic means as is established by the Committee. Notice shall be
deemed given as of the date of delivery or, if delivery is made by mail,
as of the date shown on the postmark on the receipt for registration or
certification. Written transmission shall be sent by certified mail
to:
|
|
13.5
|
Headings.
The
headings of Sections are included solely for convenience of reference, and
if there is any conflict between such headings and the text of this Plan,
the text shall control.
|
|
13.6
|
Invalid or
Unenforceable Provisions.
If any provision of this Plan shall be
held invalid or unenforceable, such invalidity or unenforceability shall
not affect any other provisions hereof and the Committee may elect in its
sole discretion to construe such invalid or unenforceable provisions in a
manner that conforms to applicable law or as if such provisions, to the
extent invalid or unenforceable, had not been
included.
|
|
13.7
|
Lost Participants or
Beneficiaries.
Any Participant or Beneficiary who is entitled to a
benefit from the Plan has the duty to keep the Committee advised of his or
her current mailing address. If benefit payments are returned to the Plan
or are not presented for payment after a reasonable amount of time, the
Committee shall presume that the payee is missing. The Committee, after
making such efforts as in its discretion it deems reasonable and
appropriate to locate the payee, shall stop payment on any uncashed checks
and may discontinue making future payments until contact with the payee is
restored.
|
|
13.8
|
Facility of Payment to
a Minor.
If a distribution is to be made to a minor, or
to a person who is otherwise incompetent, then the Committee may, in its
discretion, make such distribution: (i) to the legal guardian, or if none,
to a parent of a minor payee with whom the payee maintains his or her
residence, or (ii) to the conservator or committee or, if none, to the
person having custody of an incompetent payee. Any such distribution shall
fully discharge the Committee, the Company, and the Plan from further
liability on account thereof.
|
|
13.9
|
Governing Law.
To the extent not preempted by ERISA, the laws of the State of Texas shall
govern the construction and administration of the
Plan.
|
|
By:
Gayla J.
Delly
|
(Print
Name)
|
|
|
Its:
President
|
(Title)
|
|
|
/s/ Gayla J. Delly
|
(Signature)
|