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Ball
Corporation
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2005
Deferred Compensation
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Company
Stock Plan
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Effective
January 1, 2005
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2.1
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Account.
Account means a bookkeeping account maintained by the Plan Administrator
to record deferrals allocated to it by the Participant, the Company
in the
form of Company Awards (if any), returns on Units, payments, and
such
other transactions, if any, that may be required to properly administer
the Plan. Without limiting the Plan Administrator’s authority to establish
Accounts as it deems necessary, Accounts may include, for each
Participant, up to six Separation Accounts. Such Accounts shall
be used
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2.2
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Account
Balance.
Account Balance means, with respect to any Account, the value on
each
Business Day of such Account. The Account Balance is determined
as of the
Payment Date (or Business Day next preceding the Payment Date if
not on a
Business Day) for the purpose of paying any benefit under the provisions
of Article VII.
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2.3
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Beneficiary.
Beneficiary means a person, estate, or trust designated by a Participant
to receive benefits to which such 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
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a.
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the
Participant has not designated a person or trust as Beneficiary,
or
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b.
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the
designated Beneficiary(ies) has/have all predeceased the
Participant.
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2.4
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Business
Day.
A
Business Day is each day on which the New York Stock Exchange is
open for
business.
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2.5
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Change
in Control.
Change of Control shall have the meaning given to a “change in control” or
similar term as defined in the trust established under Section
10.2. If
such trust does not define “change in control” or a similar term, Change
in Control shall have the same definition as the definition under
Section
409A of the Code.
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2.6
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Code.
Code means the Internal Revenue Code of 1986, as amended from time
to
time, the Treasury Department regulations issued thereunder, and
applicable Notices, Revenue Rulings and similar guidance issued
by the
Internal Revenue Service.
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2.7
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Committee.
Committee means the Deferred Compensation Committee of the Company.
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2.8
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Company.
Company means Ball Corporation, its subsidiaries and its
successors.
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2.9
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Company
Award.
Company Award means a credit by the Company to a Separation Account
as
specified by the Company in accordance with the provisions of Article
V of
the Plan. Company Awards are made or not made in the sole discretion
of
the Company and the fact that a Company Award is made in one year
shall
not obligate the Company to continue to make such Company Award
in
subsequent years.
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2.10
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Company
Stock.
“Company Stock” means the common stock of Ball
Corporation.
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2.11
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Compensation.
Compensation means, for purposes of this Plan, annual incentive
awards and
long-term incentive compensation. Compensation may also include,
without
limitation, base salary (including any deferred salary under a
Code
Section 401(k) or 125 plan) and such other cash or equity-based
compensation (if any) that is determined by the Plan Administrator,
in its
sole discretion, as eligible for deferral under the terms of this
Plan.
Compensation for Directors includes the non-equity portion of Annual
Incentive Retainer and other compensation for services performed
as a
Director.
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2.12
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Compensation
Deferral Agreement.
Compensation Deferral Agreement means an agreement submitted to
the Plan
Administrator in which a Participant (a) makes an election to defer
Compensation in accordance with Article IV, (b) specifies the Separation
Accounts that will be credited with deferrals under the Agreement,
(c)
specifies the Payment Dates upon establishing each Separation Account
and
(d) specifies a Payment Schedule upon establishing each Separation
Account. A Compensation Deferral Agreement is effective (and irrevocable,
subject to the provisions of the Plan) with respect to a service
period or
Company Contribution as of the first day following the election
period
specified in Article IV or as provided under Treasury Department
regulations. A Compensation Deferral Agreement remains in effect
until
modified in accordance with the Plan.
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2.13
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Death
Distribution.
Death Distribution shall mean the payment of the Participant’s Separation
Account Balances to the Participant's Beneficiary(ies) in accordance
with
Article VII of the Plan.
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2.14
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Deferral.
Deferral means a deferral of Compensation that is subject to the
deferral
election and payment requirements of Code Section
409A.
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2.15
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Deferred
Compensation Account.
Deferred Compensation Account means the Account maintained by the
Plan
Administrator that records the total amount of liability of the
Company to
a Participant at any point in time, and includes all unpaid Account
Balances.
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2.16
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Director.
Director means a non-employee member of the Board of Directors
of the
Company.
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2.17
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Dividends.
“Dividends” means an amount credited to each of the Participant’s Accounts
equal to the number of Units in each such Account (as determined
pursuant
to Section 6.2) multiplied by the amount of quarterly dividend
payable
with respect to one share of Company Stock. The amount of quarterly
Dividends shall be determined based on the number of Units in the
Participant’s Deferred Compensation Account as of the record date for
determining dividends payable to shareholders of the Company.
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2.18
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Effective
Date.
Effective Date means January 1, 2005 with respect to Deferrals
occurring
on or after such date.
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2.19
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Eligible
Employee.
Eligible Employee means an Employee of the Company or its subsidiaries
who
is part of a select group of management or highly compensated employees
of
the Company (which also includes for this purpose its subsidiaries
and
affiliated companies) within the meaning of Sections 201(2), 301(a)(3)
and
401(a)(1) of ERISA, and who is selected by the Plan Administrator
to
participate in the Plan. An Eligible Employee shall also include
any
member of the Company’s Board of Directors as the context
requires.
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2.20
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Employee.
Employee means a common law employee of the
Company.
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2.21
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ERISA.
ERISA means the Employee Retirement Income Security Act of 1974,
as
amended from time to time.
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2.22
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Participant.
Participant means an Eligible Employee who: (a) has elected to
defer
Compensation in accordance with the Plan; (b) has received a Company
Award; or (c) has a Deferred Compensation Account Balance greater
than
zero regardless of whether the Participant is still employed by
or, in the
case of Directors, providing services as a Director to the Company.
A
Participant’s continued participation in the Plan shall be governed by
Section 3.2 of the Plan.
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2.23
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Payment
Date.
Payment Date means the date on which payments from an Account are
scheduled to commence.
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1.
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If
Separation from Service occurs prior to July 1, actual payment
will be
made no earlier than January 1 of the year next following the year
in
which the Separation from Service occurred, and, except where required
for
administrative necessity, no later than February 15 of such
year.
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2.
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If
Separation from Service occurs on or after July 1 and before December
31,
actual payment will be made no earlier than July 1 of the year
next
following the year in which the Separation from Service occurred,
and,
except where required for administrative necessity, no later than
August
15 of such year.
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2.24
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Payment
Schedule.
Payment Schedule means the form in which payments will be made
from the
Account established under the Plan. The Payment Schedule for an
Account
will be a single lump sum unless the Participant elects an alternative
Payment Schedule at the time(s) and in the manner specified in
this
Plan.
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2.25
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Performance-Based
Compensation.
Performance-Based Compensation means Compensation based on services
performed over a period of not less than twelve months and which
meets the
following requirements: (a) the payment of the Compensation or
the amount
of the Compensation is contingent upon the satisfaction of organizational
or individual performance criteria that are established within
the first
90 days of the performance period, and (b) the performance criteria
are
not substantially certain to be met at the time a Compensation
Deferral
Agreement is submitted to the Plan Administrator. Performance criteria
may
be subjective but must relate to the performance of the Participant,
a
group of Employees that includes the Participant or a business
Unit (which
may include the Company) for which the Participant provides services.
For
Directors, Performance criteria may be subjective but must relate
to the
performance of the Participant, a Directors’ committee that includes the
Participant or the Board of Directors as a whole. The determination
that
any subjective performance criteria have been met shall not be
made by the
Participant or by a family member of the Participant. Performance-Based
Compensation does not include any amount or portion of any amount
that
will be paid regardless of performance or which is based on a level
of
performance that is substantially certain to be met at the time
the
criteria is established. The definition of Performance-Based Compensation
shall at all times be applied consistently with the provisions
of Code
Section 409A, which are incorporated by
reference.
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2.26
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Plan.
Plan means the Ball Corporation Deferred Compensation Company Stock
Plan
as documented herein and as may be amended from time to time
hereafter.
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2.27
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Plan
Administrator.
Plan Administrator means the Deferred Compensation Committee of
the
Company.
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2.28
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Separation
from Service.
Separation from Service or Separates from Service shall mean a
Participant’s termination of employment with the Company or its
subsidiaries for any reason. The foregoing not withstanding, if
a
Participant transfers to the employ of the Company or any other
entity
that is within the controlled group of entities described in Section
414(b),(c),(m) or (o) of the Code that includes the Company, no
Separation
from Service shall be deemed to have occurred for purposes of this
Plan.
Whether a Separation from Service has occurred will be subject
to Treasury
Department regulations promulgated under Code Section
409A.
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2.29
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Separation
Account.
A
Separation Account is an Account established to record amounts
subject to
payment upon Separation from Service as described in Section
4.5a.
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2.30
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Unforeseeable
Emergency.
An unforeseeable emergency is a severe financial hardship to the
Participant resulting from a sudden and unexpected illness or accident
of
the Participant or of a dependent (as defined in Code Section 152(a))
of
the Participant, loss of the Participant's property due to casualty,
or
other similar extraordinary and unforeseeable circumstances arising
as a
result of events beyond the control of the Participant, as defined
in
Prop. Treas. Reg. 1.409A-3(g)(3). The Plan Administrator, in its
sole
discretion and subject to the requirements of Code Section 409A,
shall
determine
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2.31
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Unit.
“Unit” means the Units credited to a Participant’s Accounts pursuant to
Section 6. For valuation and distribution purposes, each Unit shall
be
equivalent to one share of Company Stock as of the applicable valuation
date. All Deferrals and Company Awards shall be credited to a
Participant’s Deferred Compensation Account in Units, or fractional Units,
with each Unit having a value equivalent to one share of Company
Stock.
With respect to any amount credited to a Participant’s Deferred
Compensation Account as of January 1 in any year, the number of
such
credited Units shall be determined by dividing the amount credited
to the
Participant’s account (including any related matching contributions) by
the closing price of one share of Company Stock indicated in the
New York
Stock Exchange Composite Listing as of the preceding Business Day.
With
respect to any amount credited to a Participant’s Deferred Compensation
Account (including any related matching contributions) as of any
day of
the year other than January 1, the number of such credited Units
shall be
determined based on the closing price of one share of Company Stock
indicated in the New York Stock Exchange Composite Listing as of
the
Business Day on which the Deferral is credited.
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3.1
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Eligibility
and Participation.
Each Eligible Employee shall be eligible to participate in this
Plan. An
Eligible Employee becomes a Participant upon submission of a Compensation
Deferral Agreement to the Plan
Administrator.
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3.2
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Duration.
A
Participant shall be eligible to defer Compensation and receive
allocations of Company Awards subject to the terms of the Plan
as long as
such Participant is an Eligible
Employee.
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3.3
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Revocation
of Future Participation.
Notwithstanding the provisions of Section 3.2, the Committee may,
in its
discretion, revoke such Participant’s eligibility to make future deferrals
under this Plan. Such revocation will not affect in any manner
a
Participant’s Deferred Compensation Account or other terms of this
Plan.
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3.4
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Notification.
Each newly Eligible Employee shall be notified by the Plan Administrator,
in writing, of the date of his or her initial eligibility to participate
in this Plan.
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4.1
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Deferral
Elections.
A
Participant shall make Deferral elections by completing and submitting
to
the Plan Administrator the Compensation Deferral Agreement which
shall
specify the amount of the Deferral and the allocation to one or
more
Separation Accounts, as described in this Article IV. A Participant
may
establish up to six Separation
Accounts.
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4.2
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Time
of Election.
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a.
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Initial
Eligibility.
In the case of the calendar year in which an Employee first becomes
an
Eligible Employee (or, in the case of Directors, becomes a Director),
a
Compensation Deferral Agreement that defers Compensation with respect
to
services to be performed in such calendar year and subsequent to
the
election may be submitted to the Plan Administrator within 30 days
after
such Eligible Employee or Director becomes eligible to participate
in the
Plan.
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b.
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Subsequent
Years.
Except as provided in c. through g., below, for any subsequent
year, the
Compensation Deferral Agreement containing the election to defer
Compensation for services performed during such year must be submitted
to
the Plan Administrator no later than December 31 of the preceding
calendar
year.
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c.
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Performance-Based
Compensation.
In
the case of any Performance-Based Compensation based upon a performance
period of at least 12 months, provided that the Participant performed
services continuously from a date no later than the date upon which
the
performance criteria are established through a date no earlier
than the
date upon which the service provider makes an initial deferral
election,
an initial deferral election may be made with respect to such
Performance-Based Compensation no later than the date that is six
months
before the end of the performance period, provided that in no event
may an
election to defer Performance-Based Compensation be made after
such
Compensation has become both substantially certain to be paid and
readily
ascertainable. A
Participant may elect to defer Performance-Based Compensation in
his or
her initial year of eligibility or any subsequent year, provided
the
requirements of this paragraph c. are
satisfied.
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e.
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Non-elective
Deferrals.
The HR Committee of the Company Board of Directors may specify
deferrals
of Compensation that, if paid, would be non-deductible under the
provisions of Code Section 162(m). Such amounts will be credited
to a
Separation Account designated by the
Company.
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f.
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Awards
Subject to Forfeiture.
A
Participant may elect to defer Compensation awarded during the
calendar
year, provided (i) the initial election with respect to such award
is
filed with the Plan Administrator no later than 30 days after the
award is
made, (ii) such award is subject to a substantial risk of forfeiture
for a
period of not less than thirteen (13) months from the date of the
award
and (iii) the award would, absent the deferral, be payable no later
than
2-1/2 months following the calendar year in which such award is
no longer
subject to a substantial risk of
forfeiture.
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g.
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2005
Elections.
The Plan Administrator has the authority, effective January 1,
2005 to
allow any or all Participants to make or modify a Compensation
Deferral
Agreement with respect to deferrals subject to Code Section 409A,
which
relate all or in part to services performed prior to December 31,
2005.
Such election or modification must be filed with the Plan Administrator
no
later than March 15, 2005.
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4.3
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Amount
of Deferral.
The deferral election under a Compensation Deferral Agreement shall
designate a dollar amount or whole percentage of Compensation to
be
deferred. The Plan Administrator may establish a minimum or maximum
deferral amount for each component of Compensation and may permit
separate
elections for each component of Compensation.
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4.4
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Changes
To A Deferral Election.
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a.
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Reductions
for Withholding.
A
Participant’s Deferral Election may be reduced by such amount as is
necessary to enable the Company to satisfy any tax withholding
and payroll
deduction obligations of the Participant and the Company as are
required
by law, the requirements of any benefit programs sponsored by the
Company
and Company procedures. Such reductions shall not be required if
the
Participant makes alternative arrangements with the Company for
payment of
such amounts.
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b.
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Participant’s
Right to Modify or Revoke.
An election to defer Compensation described in Section 4.2b. may
be
modified or revoked no later than the day preceding the first day
of the
calendar year to which such election applies. An election to defer
Performance-Based Compensation may be modified or revoked no later
than
the last day a deferral election may be filed under Section 4.2c
with
respect to such Compensation. Notwithstanding the foregoing, a
Participant
may revoke an election as provided in Section 4.4c and Section
4.5e.
Modifications and revocations must be submitted during such times
as are
specified by the Plan
Administrator.
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c.
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Unforeseeable
Emergency.
A
Participant may revoke an election to defer Compensation during
the
calendar year in which such Compensation is earned (or, in the
case of
Performance-Based Compensation, after the deadline specified in
the
enrollment materials) in the case of (a) an Unforeseeable Emergency
or (b)
a hardship distribution to the Participant described in Treas.
Reg.
Section 1.401(k)-1(d)(3).
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4.5
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Payment
Dates and Payment Schedules.
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a.
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Separation
Payments.
A
Participant’s Compensation Deferral Agreement may designate one or more
Payment Dates for payment of Deferrals after Separation from Service.
The
Plan Administrator shall create a Separation Account for each such
Payment
Date, to be credited with the portion of Deferrals allocated to
such
Separation Account. A Participant may maintain up to six Separation
Accounts.
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b.
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Modification
to Payment Date and/or Payment Schedule.
The Participant may modify a Payment Date and/or a Payment Schedule
for a
Separation Account as follows:
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i.
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An
existing Payment Date and/or Payment Schedule may be changed so
long as
(i) the election may not take effect until at least twelve (12)
months
after the date on which the election is made, (ii) the date that
such
election is submitted to the Plan Administrator is at least twelve
(12)
months prior to the current Payment Date, and (iii) the Payment
Date after
modification is at least five (5) years after the current Payment
Date.
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ii.
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A
modification that does not conform to the requirements of this
paragraph
b. shall be deemed not to have been made and will be disregarded
by the
Plan Administrator. In such a case, the Plan Administrator will
pay
benefits as of the Payment Date and under the Payment Schedule
in effect
prior to the nonconforming
modification.
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iii.
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An
election to change a Payment Date and/or a Payment Schedule is
specific to
the Account to which it refers, and shall not affect other Accounts
or the
ability of the Participant to designate new Payment Dates and Payment
Schedules with respect to future
Deferrals.
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iv.
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The
modification of a Payment Date shall be further subject to the
requirements of Code Section 409A.
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c.
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2005
and 2006 Modifications to Payment Elections.
During 2005 and 2006, the Plan Administrator may, in its discretion,
permit Participants to establish Separation Accounts, to designate
a
Payment Date and Payment Schedule for each such Separation Account
and to
allocate existing Account balances among such Separation Accounts.
Participants may also be permitted to modify any Payment Date and/or
Payment Schedule associated with a Separation Account. Elections
may be
filed with the Plan Administrator pursuant to this paragraph without
regard to (i) the requirements in paragraph b., above and (ii)
the
prohibition on acceleration of payments under Code Section
409A.
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d.
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Company’s
Right to Modify.
The Plan Administrator may modify a Payment Schedule election as
necessary
(and only as necessary) to conform the Payment Schedule to applicable
law.
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5.1
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Company
Awards.
The HR Committee of the Board of Directors may, in its sole and
absolute
discretion, authorize Company Awards to one, some, or all of the
Participant(s) in an amount determined in the sole and absolute
discretion
of the Committee. A Company Award may be made at any time during
the
calendar year and may consist of “matching” contributions. The HR
Committee of the Board of Directors shall be under no obligation
to make
contributions to the Plan unless the Company has entered into a
separate
agreement (such as an employment agreement) to make such contributions.
The Plan Administrator also may establish a matching contribution
by
attaching a Schedule to this Plan
document.
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5.2
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Vesting.
Company Awards shall vest in accordance with the vesting schedule(s)
established by the Plan Administrator at the time that the Company
Award
is made. The unvested portion shall be forfeited upon Separation
from
Service. The Committee may, at any time, in its sole discretion,
increase
a Participant’s vested interest in a Company Award or restore any
forfeiture.
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6.1
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Valuation.
A
Participant’s Accounts shall be valued on each Business Day as
follows:
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6.2
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Notional
Investments.
Notwithstanding anything in this section to the contrary, the Plan
Administrator shall have the sole and exclusive authority to direct
the
investment of any or all amounts deferred in any manner. An investment
in
Units shall be used solely for purposes of determining the value
of such
Participant’s Account Balances and the amount of the corresponding
liability of the Company in accordance with this Plan and shall
not
require the Company to acquire or hold Company
Stock.
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7.1
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Separation
Accounts.
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a.
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Form
of Payment. In
the event that a Participant Separates from Service, any Separation
Account will be paid to such Participant in accordance with the
Payment
Schedule in effect for each such Account. In the event a Participant
has
elected installment payments, the installment payments shall be
determined
as set forth in Section 7.3 of the
Plan.
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b.
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Payment
in Company Stock.
All benefits payable to a Participant or Beneficiary under the
Plan shall
be paid in Company Stock, with one share distributed for each Unit
credited pursuant to Section 6.2. All fractional shares shall be
valued as
of the payment date and paid in
cash.
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c.
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Notwithstanding
a Participant’s election to receive a Separation Account as of a specified
year, all Separation Account Balances shall be distributed upon
Separation
from Service under the provisions of Section 2.23(b) in a single
lump
sum.
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7.3
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Small
Account Balance Lump Sum Payment.
Anything to the contrary in this Plan notwithstanding, in the event
that a
Participant’s Deferred Compensation Account Balance is less than $25,000
on the January 1 following the year in which the Participant Separates
from Service, the Participant’s Accounts shall be paid in a single lump
sum in such following year at the time specified in Section 2.23d
and any
form of payment election to the contrary shall be null and
void.
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7.4
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Death
Distribution.
In the event of a Participant’s death, the Participant’s Beneficiary shall
be paid a Death Distribution as specified in Section 2.23c and
under the
Payment Schedule in effect for each of the Participant’s
Accounts.
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7.5
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Unforeseeable
Emergency.
A
Participant may request, in writing to the Plan Administrator,
a
withdrawal from his or her Accounts if the Participant experiences
an
Unforeseeable Emergency. Withdrawals of amounts because of an
Unforeseeable Emergency are limited to the extent reasonably needed
to
satisfy the emergency need, which cannot be met with other resources
of
the Participant. The amount of such withdrawal shall be subtracted
first
from the vested portion of the Account with the latest Payment
Date at the
time of the withdrawal request and then from the Account with the
next
latest Payment Date until the withdrawal is completed. Values for
purposes
of determining the source of the withdrawal under this
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7.6
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Domestic
Relations Order.
Notwithstanding the Payment Dates and Payment Schedules selected
by a
Participant with respect to his or her Accounts and any other provision
of
this Plan, the Plan Administrator is authorized to divide such
Participant’s Accounts with and distribute a portion of such Participant’s
Accounts to one or more “alternate payees” at the time and in the manner
specified in a court order described in Section 414(p)(1)(B) of
the
Code.
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7.7
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Permitted
Delays.
Notwithstanding the foregoing, the Company shall delay any payment
to a
Participant under the Plan upon the Plan Administrator’s reasonable
anticipation of one or more of the following events:
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a.
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The
Company’s deduction with respect to such payment otherwise would be
limited or eliminated by application of Code Section
162(m);
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b.
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The
making of the payment would violate a term of a loan agreement
to which
the Company or one of its subsidiaries is a party, or other similar
contract to which the Company or one of its subsidiaries is a party,
and
such violation would cause material harm to the Company or one
of its
subsidiaries; or
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c.
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The
making of the payment would violate Federal securities laws or
other
applicable law;
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8.1
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Plan
Administration.
This Plan shall be administered by the Plan Administrator, 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 Plan Administrator
and
resolved in accordance with the claims procedures in Article
XI.
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8.2
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Withholding.
The Company shall have the right to withhold from any payment made
under
the Plan (or any amount deferred into the Plan) any taxes required
by law
to be withheld in respect of such payment (or
deferral).
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8.3
|
Indemnification.
The Company shall indemnify and hold harmless each employee, officer,
or
director to whom or to which it delegated duties, responsibilities,
and
authority under the Plan or otherwise with respect to administration
of
the Plan, including, without limitation, the Plan Administrator,
the
Committee and their 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
Company.
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8.4
|
Expenses.
The expenses of administering the Plan shall be paid by the Company.
Notwithstanding the foregoing, the Committee may indirectly allocate
expenses, in its discretion, to Participants through a reduction
to any or
all Participant Accounts.
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8.5
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Delegation
of Authority.
In the administration of this Plan, the Plan Administrator 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 may
be legal counsel to the Company.
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8.6
|
Binding
Decisions or Actions.
The decision or action of the Plan Administrator 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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9.1
|
Amendment
and Termination.
The Plan is intended to be permanent, but the HR Committee of the
Board of
Directors of the Company may at any time modify, amend, or terminate
the
Plan, provided that such modification, amendment or termination
shall not
cancel, reduce, or otherwise adversely affect the amount of benefits
of
any Participant accrued (and any form of payment elected) as of
the date
of any such modification, amendment, or termination, without the
consent
of the Participant. A termination of the Plan shall not, by itself,
result
in payments to Participants under the Plan, except to the extent
permitted
under Code Section 409A. Unless distributions are otherwise permissible
under such regulations, payments to Participants shall be made
at the
times specified in a Participant’s Compensation Deferral Agreements and
the terms of the Plan applicable to such Agreements prior to the
Plan’s
termination.
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9.2
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Adverse
Income Tax Determination.
Notwithstanding anything to the contrary in the Plan, if any Participant
receives a deficiency notice from the United States Internal Revenue
Service asserting constructive receipt of deferrals under the Plan,
Company Awards, and/or the investment earnings attributed thereto
due to
any Participant withdrawal right or other Plan provision, the Plan
Administrator, in its sole discretion, may declare null and void
any Plan
provision with respect to affected Participants that causes such
Participant to be in constructive receipt of income. If the laws
of the
United
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10.1
|
General
Assets.
All benefits in respect of a Participant under this Plan shall
be paid
directly from the general funds of the Company or a Rabbi Trust
created
for the purpose of informally funding the Plan, and other than
such Rabbi
Trust, if created, no special or separate fund shall be established
and no
other segregation of assets shall be made to assure payment. No
Participant, spouse or Beneficiary shall have any right, title
or interest
whatever in or to any investments that the Company or its subsidiaries
may
make to aid the Company in meeting its obligation hereunder. 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 Company, or any if its subsidiaries or
affiliated companies and any Employee, Director, spouse, or Beneficiary.
To the extent that any person acquires a right to receive payments
from
the Company hereunder, such rights are no greater than the right
of an
unsecured general creditor of the
Company.
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10.2
|
Rabbi
Trust.
The Company may, at its sole discretion, establish a grantor trust,
commonly known as a Rabbi Trust, as a vehicle for accumulating
the assets
needed to pay the promised benefit, but the Company shall be under
no
obligation to establish any such trust or any other informal funding
vehicle.
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11.1
|
Filing
a Claim.
Any controversy or claim arising out of or relating to the Plan
shall be
filed with the Plan Administrator which shall make all determinations
concerning such claim. Any decision by the Plan Administrator denying
such
claim shall be in writing and shall be delivered to the Participant
or
Beneficiary filing the claim (‘Claimant’).
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a.
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In
General.
Notice of a denial of benefits will be provided within 90 days
of the Plan
Administrator’s receipt of the Claimant's claim for benefits. If the Plan
Administrator determines that it needs additional time to review
the
claim, the Plan Administrator 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 Plan Administrator
expects
to make a decision.
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b.
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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 (1) cite the pertinent provisions
of the
Plan document and (2) 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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11.2
|
Appeal
of Denied Claims.
An Employee Claimant whose claim has been completely or partially
denied
shall be entitled to appeal the claim denial by filing a written
appeal
with the HR Committee. An Employee 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 HR
Committee. All written comments, documents, records, and other
information
shall be considered “relevant” if the information (1) was relied upon in
making a benefits determination, (2) 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 (3) demonstrates
compliance with administrative processes and safeguards established
for
making benefit decisions. The HR Committee may, in its sole discretion
and
if it deems appropriate or necessary, decide to hold a hearing
with
respect to the claim appeal.
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a.
|
In
General.
Appeal of a denied benefits claim must be filed in writing with
the HR
Committee no later than sixty (60) days after receipt of the written
notification of such claim denial. The HR Committee shall make
its
decision regarding the merits of the denied claim within sixty
(60) days
following receipt of the appeal (or within one hundred and twenty
(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 HR 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.
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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.
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i.
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The
decision on review shall set forth (a) the specific reason or reasons
for
the denial, (b) specific references to the pertinent Plan provisions
on
which the denial is 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, or other information relevant
(as
defined above) to the Claimant’s claim, and (d) a statement describing any
voluntary appeal procedures offered by the plan and a statement
of the
Claimant’s right to bring an action under Section 502(a) of
ERISA.
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11.3
|
Legal
Action.
A
Claimant may not bring any legal action 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.
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11.4
|
Discretion
of Committee.
All interpretations, determinations and decisions of the Committee
with
respect to any claim shall be made in its sole discretion, and
shall be
final and conclusive.
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11.5
|
Administration
Upon Change in Control.
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12.1
|
Anti-assignment
Rule.
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.
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12.2
|
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 Company or any of its subsidiaries
or
affiliated companies. The right and power of the Company or its
subsidiaries to dismiss or discharge an Employee is expressly reserved.
Notwithstanding the provisions of Section 9.2, the Company makes
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 or that the Plan complies in form or operation
with
Section 409A of the Code and regulations issued
thereunder.
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12.3
|
No
Employment Contract.
Nothing contained herein shall be construed to constitute a contract
of
employment between an Employee and the Company or any of its subsidiaries
or affiliated companies.
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12.4
|
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.
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12.5
|
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 Plan Administrator 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.
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12.6
|
Governing
Law.
To the extent not preempted by ERISA, the laws of the State of
Indiana
shall govern the construction and administration of the
Plan.
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