may elect to defer up to a maximum of 80% (or such other percentage
specified by the Compensation Committee from time to time) of such
participant’s base salary, bonuses and/or commissions earned by
completing and submitting a Compensation Deferral Agreement to
us.
Deferred Compensation Obligations will consist of an amount equal
to each participant’s account under the Plan, which includes
(i) the participant’s compensation deferral amounts, plus
(ii) any Discretionary Contributions (employer contributions
or allocations to a participant’s Plan account), plus or less
(iii) amounts credited to or debited from the participant’s
account based on the notional investment gains or losses on the
benchmark fund alternatives selected by the participant from a list
provided by the Compensation Committee (and in which the
participant’s account is deemed invested) in accordance with and
subject to the rules and procedures established from time to time
by the Compensation Committee made under the Plan; less
(iv) all distributions or withdrawals made to the participant
or his or her beneficiary pursuant to the Plan from the
participant’s account under the Plan.
A participant may elect in his or her Compensation Deferral
Agreement to receive distributions from his or her account under
the Plan in lump sum or installment payments. The times and forms
of the payment of a distribution provided to a participant differ
depending on the circumstances under which that participant
terminates employment with the Company, for instance by death or
disability or within two years following a Change in Control. The
participant also may be eligible to receive scheduled distributions
or make unscheduled withdrawals from his or her account while still
employed with us and our subsidiaries in accordance with the terms
and conditions of the Plan.
An irrevocable “rabbi” trust may be established to pay the Deferred
Compensation Obligations at the discretion of the Compensation
Committee. If established, such trust will be responsible for
investing the Plan assets as necessary or advisable to pay the
Deferred Compensation Obligations. We may make contributions to the
trust and, under certain circumstances, will be required to make
contributions to the trust.
The Plan is administered by the Compensation Committee, which has
the power to make, amend, interpret and enforce all appropriate
rules and regulations for the administration of the Plan, to
construe and resolve all questions arising under the Plan, and
otherwise to carry out the terms of the Plan. The Company, by
action of its Board of Directors, may terminate the Plan at any
time and, by action of the Board (or the Compensation Committee)
may amend the Plan from time to time; provided, however, that no
such amendment shall be effective to the extent it reduces the
value of a participant’s account under the Plan in existence as of
such amendment.
| Item 5. |
Interests of Named Experts and Counsel.
|
Not applicable.
| Item 6. |
Indemnification of Directors and Officers.
|
The registrant is a Delaware corporation. Reference is made to
Section 102(b)(7) of the General Corporation Law of the State
of Delaware (the “DGCL”), which enables a corporation in its
certificate of incorporation to eliminate or limit the personal
liability of a director for violations of the director’s fiduciary
duty, except:
| |
• |
|
for any breach of the director’s duty of loyalty to the corporation
or its stockholders;
|
| |
• |
|
for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
|
| |
• |
|
pursuant to Section 174 of the DGCL (providing for liability
of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions); or
|
| |
• |
|
for any transaction from which a director derived an improper
personal benefit.
|
Reference is also made to Section 145 of the DGCL, which
provides that a corporation may indemnify any persons, including
officers and directors, who are, or are threatened to be made,
parties to any threatened, pending or completed legal action, suit
or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a
director, officer, employee or agent of such corporation or is or
was serving at the request of such corporation as a director,
officer, employee or agent of another corporation or enterprise.
The indemnity may include expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action,
suit or proceeding, provided such director, officer, employee or
agent acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe that the person’s conduct was
unlawful. A Delaware corporation may indemnify officers and
directors in an action by or in the right of the corporation under
the same conditions, except that no indemnification is permitted
without judicial approval if the officer or director is adjudged to
be liable to the corporation. Where an officer or director is
successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her
against the expenses that such officer or director actually and
reasonably incurred. The indemnification permitted under the DGCL
is not exclusive, and a corporation is empowered to purchase and
maintain insurance against liabilities whether or not
indemnification would be permitted by statute.
The registrant’s Amended and Restated Certificate of Incorporation
and By-Laws provide for
indemnification of its directors and officers to the fullest extent
currently permitted by the DGCL. In addition, the registrant
maintains liability insurance for its directors and officers.
