Attached files
Exhibit 10.2
Deckers Outdoor Corporation Deferred Compensation Plan
Effective February 1, 2010
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS........................................................ 1
ARTICLE 2 SELECTION, ENROLLMENT, ELIGIBILITY................................. 5
ARTICLE 3 DEFERRAL ELECTIONS................................................. 6
ARTICLE 4 IN-SERVICE DISTRIBUTIONS AND UNFORESEEABLE EMERGENCIES............ 10
ARTICLE 5 BENEFITS.......................................................... 11
ARTICLE 6 BENEFICIARY DESIGNATION........................................... 13
ARTICLE 7 LEAVE OF ABSENCE.................................................. 13
ARTICLE 8 TERMINATION, AMENDMENT OR MODIFICATION............................ 14
ARTICLE 9 ADMINISTRATION.................................................... 15
ARTICLE 10 OTHER BENEFITS AND AGREEMENTS.................................... 15
ARTICLE 11 CLAIMS PROCEDURES................................................ 16
ARTICLE 12 TRUST............................................................ 16
ARTICLE 13 MISCELLANEOUS.................................................... 16
i
Deckers Outdoor Corporation Deferred Compensation Plan
------------------------------------------------------
Effective February 1, 2010
--------------------------
Purpose
-------
The purpose of this Deferred Compensation Plan is to provide specified
benefits to a select group of management and highly compensated Employees who
contribute materially to the continued growth, development, and future business
success of Deckers Outdoor Corporation. The Plan shall be unfunded for tax
purposes and for purposes of Title I of ERISA.
The Plan is intended to comply with the requirements of Internal Revenue
Code Section 409A and final regulations thereunder (collectively referred to
herein as "Code Section 409A).
Definitions
For purposes of the Plan, unless otherwise clearly apparent from the
context, the following phrases or terms shall have the following indicated
meanings:
"Account Balance" shall mean, with respect to a Participant, a credit on the
records of the Company equal to the sum of (i) the Retirement Account balance
and (ii) the In Service Account balance. Base Salary deferrals and Bonus
deferrals, plus investment return as outlined in Section 3.5, shall be directed
to distinct Retirement Accounts and In Service Accounts as indicated on each
Class Year's Election Form. Any Company Contribution for a Plan Year will be
credited to the Base Salary Retirement Account for that Class Year, even if the
Participant does not direct any Deferral Amounts into the Base Salary Retirement
Account for that Plan Year. The Account Balance shall be a bookkeeping entry
only and shall be utilized solely as a device for the measurement and
determination of the amounts to be paid to a Participant, or his or her
Beneficiary, pursuant to the Plan.
"Affiliated Group" means (i) the Company and (ii) all entities with which the
Company would be considered a single employer under Code Sections 414(b) and
414(c), provided that in applying Code Sections 1563(a)(1), (2) and (3) for
purposes of determining whether a controlled group of corporations exists under
Code Section 414(b), the language "at least 50 percent" shall be used instead of
"at least 80 percent" each place it appears in Code Sections 1563(a)(1), (2) and
(3), and in applying Treasury Regulation Section 1.414(c)-2 for purposes of
determining whether trades or businesses (whether or not incorporated) are under
common control for purposes of Code Section 414(c), the language "at least 50
percent" shall be used instead of "at least 80 percent" each place it appears in
Treasury Regulation Section 1.414(c)-2. The term "Affiliated Group" shall be
interpreted in a manner consistent with the definition of "service recipient"
contained in Code Section 409A.
"Annual Installment Method" shall be an annual installment payment over the
number of years selected by the Participant in accordance with the Plan,
calculated as follows: (i) for the first annual installment, the vested Account
Balance of the Participant shall be calculated as of the date of payment in
accordance with Articles IV and V, and (ii) for remaining annual installments,
the vested Account Balance of the Participant shall be calculated on every
applicable anniversary of the first annual installment. Each annual installment
shall be calculated by multiplying this balance by a fraction, the numerator of
which is one and the denominator of which is the remaining number of annual
payments due the Participant. By way of example, if the Participant elects a ten
(10) year Annual Installment Method, the first payment shall be 1/10 of the
vested Account Balance, calculated as described in this definition. The
following year, the payment shall be 1/9 of the vested Account Balance,
calculated as described in this definition.
1
For purposes of Section 409A an annual installment payment shall be
considered as "individual payments" as defined in IRS regulation
1.409A-2(b)(2)(iii).
"Base Salary" shall mean the annual base rate of cash compensation plus any
bonus which does not qualify as "performance based compensation" under IRS
regulation 1.409A-1(e)(1) payable by the Affiliated Group during a calendar
year, excluding commissions, overtime, fringe benefits, stock options,
relocation expenses, incentive payments, non-monetary awards, fees, automobile
and other allowances, and prior to reduction for compensation voluntarily
deferred or contributed by the Participant pursuant to all qualified or
non-qualified plans of the Affiliated Group under Code Section 125, 402(e)(3),
402(h), or 403(b). Base Salary payable after the last day of a calendar year
solely for services performed during the final payroll period described in Code
Section 3401(b) containing December 31 of such year shall be treated as earned
during the subsequent calendar year.
"Beneficiary" shall mean the person or persons, designated in accordance with
Article 6, who are entitled to receive benefits under the Plan upon the death of
a Participant.
"Beneficiary Designation Form" shall mean the form established from time to time
by the Board that a Participant completes, signs and returns to the Board to
designate one or more Beneficiaries.
"Board" shall mean the board of directors of the Company or a committee
appointed by the Board to administer the Plan.
"Bonus" shall mean (i) any compensation relating to services performed during
any fiscal year running from January 1 to December 31 payable to a Participant
as an Employee under the Company's written bonus or cash compensation incentive
plans, excluding stock options and restricted stock and (ii) which qualifies as
"performance-based compensation" under IRS regulation 1.409A-1(e)(1).
"Change in Control" shall mean the occurrence of a "change in the ownership," a
"change in the effective control," or a "change in the ownership of a
substantial portion of the assets" of the Company within the meaning of Code
Section 409A.
"Class Year" shall mean the designation of the Account Balance by year in which
the Deferral Amounts are received by the Plan.
"Code" shall mean the Internal Revenue Code of 1986, as it may be amended from
time to time.
1.12 "Company" shall mean Deckers Outdoor Corporation and any successor to
all or substantially all of the Company's assets or business.
1.13 "Company Contribution Amount" shall mean, for any one Plan Year, the
amount determined in accordance with Section 3.3. Company Contribution
Amounts shall be credited with investment return as outlined in Section
3.5(c). All Company Contribution Amounts shall be credited to the Base
Salary Retirement Account for that Class Year, even if the Participant
does not direct any Deferral Amounts into the Base Salary Retirement
Account for that Plan Year.
2
1.14 "Death Benefit" shall mean the benefit set forth in Sections 5.3 and
5.4
1.15 "Deferral Amount" shall mean that portion of a Participant's Base
Salary and Bonus that a Participant elects to have deferred in
accordance with Article 3, for any one Plan Year. In the event of a
Participant's Disability, death or a Termination of Employment prior to
the end of a Plan Year, such year's Deferral Amount shall be the actual
amount withheld prior to such event.
1.16 "Deferral Election" shall mean a Participant's election on an Election
Form to defer a portion of his Base Salary or Bonus, in accordance with
the provisions of Article 3.
1.17 "Disability" shall have the same meaning as outlined in the Deckers
Outdoor Corporation 401(k) Plan which is the inability to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death
or which has lasted or can be expected to last for a continuous period
of not less than twelve months. The permanence and degree of such
impairment must be supported by medical evidence.
3
1.18 "Disability Benefit" shall mean the benefit set forth in Section 5.5.
"Election Form" shall mean the form established from time to time by the Board
that a Participant completes, signs and returns to the Board to make a Deferral
Election under the Plan.
"Employee" shall mean a person who is an employee of the Company.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as it
may be amended from time to time.
"In-Service Account" shall mean (i) the sum of that portion of a Participant's
Deferral Amount that a Participant elects to have distributed while in service
of the Company in accordance with Article 4, plus (ii) amounts credited in
accordance with all the applicable crediting provisions of the Plan, less (iii)
all distributions made to the Participant or his or her Beneficiary pursuant to
the Plan that relate to his or her In-Service Account.
"In-Service Benefit" shall mean the benefit set forth in Section 4.1
"Participant" shall mean any Employee (i) who is selected to participate in the
Plan, (ii) who elects to participate in the Plan, (iii) who signs an Election
Form and a Beneficiary Designation Form, (iv) whose signed Election Form and
Beneficiary Designation Form are accepted by the Board, (v) who commences
participation in the Plan, and (vi) whose participation in the Plan has not
terminated. A spouse or former spouse of a Participant shall not be treated as a
Participant in the Plan or have an account balance under the Plan, even if he or
she has an interest in the Participant's benefits under the Plan as a result of
applicable law or property settlements resulting from legal separation or
divorce.
"Plan" shall mean the Deckers Outdoor Corporation Deferred Compensation Plan, as
amended from time to time.
"Plan Year" shall mean a period beginning on January 1 of each calendar year and
continuing through December 31 of such calendar year.
"Retirement", "Retire(s)" or "Retired" shall mean, with respect to an Employee,
severance from employment from the Company for any reason other than a leave of
absence, death or Disability on or after the attainment of age sixty-five (65).
"Retirement Account" shall mean (i) that portion of a Participant's Deferral
Amount that a Participant elects to have distributed upon termination in
accordance with Article 5, plus (ii) amounts credited in accordance with all the
applicable crediting provisions of the Plan, less (iii) all distributions made
to the Participant or his or her Beneficiary pursuant to the Plan that relate to
his or her Retirement Account.
"Retirement Benefit" shall mean the benefit set forth in Section 5.1.
"Termination Benefit" shall mean the benefit set forth in Section 5.2.
4
"Termination of Employment" shall mean a termination of employment with the
Affiliated Group in such a manner as to constitute a "separation from service"
as defined under Code Section 409A, voluntarily or involuntarily, for any reason
other than Disability, or death. For this purpose, the employment relationship
is treated as continuing while a Participant is on military leave, sick leave,
or other bona fide leave of absence if the period of such leave does not exceed
six months or, if longer, so long as the individual retains a right to
reemployment with the Affiliated Group under an applicable statute or by
contract. A leave of absence constitutes a bona fide leave of absence only if
there is a reasonable expectation that the Participant will return to perform
services for the Affiliated Group. If the period of leave exceeds six months and
the Participant does not retain a right to reemployment under an applicable
statute or by contract, the employment relationship is deemed to terminate on
the first day immediately following such six-month period. A Termination of
Employment will occur if there is a reasonable expectation that the level of
services by the Participant for the Affiliated Group will permanently decrease
to 20% or less of the average level of services during the previous 36 months
(or, if shorter, the actual period of services).
"Trust" shall mean one or more rabbi trusts established by the Company in
accordance with Article 12 of the Plan as amended from time to time.
"Unforeseeable Emergency" shall mean a severe financial hardship to the
Participant resulting from (i) an illness or accident of the Participant or
Beneficiary or his spouse or dependent (as defined in Code Section 152(a)
without regard to Code Sections 152(b)(1), 152(b)(2), and 152(d)(1)(B)), (ii)
loss of the Participant's property due to casualty (including the need to
rebuild a home following damage to the home not otherwise covered by insurance),
or (iii) other similar extraordinary and unforeseeable circumstances arising as
a result of events beyond the control of the Participant. The term
"Unforeseeable Emergency" shall be interpreted in a manner consistent with the
definition of "unforeseeable emergency" contained in Code Section 409A.
Selection, Enrollment, Eligibility
Selection by Board. Participation in the Plan shall be limited to those
Employees who are determined by the Board to be a member of a select group of
management or highly compensated employees and who are designated by the Board
to be eligible Employees.
Enrollment Requirements. As a condition to participation, each selected Employee
shall complete, execute and return to the Board an Election Form and a
Beneficiary Designation Form, all within 30 days (or such shorter time as the
Board may determine) after he or she is selected to participate in the Plan. In
addition, the Board shall establish from time to time such other enrollment
requirements as it determines in its sole discretion are necessary.
Eligibility; Commencement of Participation. Provided an Employee selected to
participate in the Plan has met all enrollment requirements set forth in the
Plan and required by the Board, including returning all required documents to
the Board within thirty (30) days (or such shorter time as the Board may
determine) after he or she is selected to participate in the Plan, that Employee
shall commence participation in the Plan on the first day of the pay period
following the date on which the Employee completes all enrollment requirements.
If an Employee fails to meet all such requirements within the period required,
that Employee shall not be eligible to participate in the Plan until the first
day of the Plan Year following the delivery to and acceptance by the Board of
the required documents.
5
Termination of Deferrals. If the Board determines in good faith that a
Participant no longer qualifies as a member of a select group of management or
highly compensated employees, as membership in such group is determined in
accordance with Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, the
Participant's entitlement to defer Base Salary and Bonus shall cease with
respect to calendar years following the calendar year in which such
determination is made, although the Participant shall remain subject to all
terms and conditions of the Plan for as long as he remains a Participant.
Deferral Elections
Elections to Defer Base Salary or Bonus.
----------------------------------------
Deferral Election.
------------------
(i) New Participant. In connection with a Participant's
commencement of participation in the Plan, a Participant
may elect to defer Base Salary or Bonus, by filing with the
Board an Election Form that conforms to the requirements of
Article 2 within the time period specified in Section 2.3,
and the Deferral Election shall become irrevocable at the
end of such time period. The Deferral Election shall apply
only to Base Salary earned during the first Plan Year
beginning with the first payroll period that begins
immediately after the date the Participant has completed
and returned a complete and signed Election Form. The
Deferral Election shall apply only to that portion of the
Bonus earned after the Deferral Election becomes
irrevocable. If a Participant does not make a deferral
election with respect to the first Plan Year with respect
to which the Participant is eligible to participate in the
Plan, the Participant may elect to defer Base Salary or
Bonus for any subsequent Plan Year by filing with the Board
an Election Form that conforms with the requirements of
Article 2 before the start of that Plan Year.
(ii) Annual Deferral Election. Unless Section 3.1(a)(i) applies,
each Participant may elect to defer Base Salary or Bonus
for a Plan Year by filing a Deferral Election with the
Board within the timeframes specified by the Board for the
Plan Year for which such Base Salary or Bonus is earned.
However, the Deferral Election with respect to Base Salary
becomes irrevocable as of such December 31 preceding the
Plan Year for which such Base Salary is earned and with
respect to a Bonus becomes irrevocable as of the date six
months prior to the end of the performance period or such
earlier dates as specified by the Board.
Amount of Deferral. A Participant shall designate on the Deferral Election form
the amount of Base Salary or Bonus that is to be deferred in accordance with
this Article 3. The Deferral Amount, in whole percentages, shall not exceed
fifty percent (50%) of the Participant's Base Salary and ninety-five percent
(95%) of the Participant's Bonus; provided that the total amount deferred by a
Participant shall be limited in any calendar year, if necessary, to satisfy
FICA, income tax, and employee benefit plan withholding requirements as
determined in the sole and absolute discretion of the Board.
6
Allocation of Deferral. A Participant shall further designate the percentage of
each Class Year's Base Salary and Bonus deferral that will be allocated to the
Class Year's Retirement Account and In-Service Account. The allocation of each
Class Year's Deferral Amount into the Retirement Account or In-Service Account
shall be in whole percentages only. A Participant is not obligated to apply the
same percentage allocation to the Base Salary and Bonus. As an example, an
employee can allocate 50% of the Base Salary deferral into the Retirement
Account and 50% into the In-Service Account while allocating 100% of the Bonus
into the Retirement Account.
Duration of Deferral Election. A Participant's Deferral Election shall apply
only to Base Salary or Bonus earned during the Plan Year to which the Deferral
Election relates. A Participant must indicate a new Deferral Election for any
subsequent Plan Year by filing a new Election Form with the Board prior to the
beginning of such Plan Year or at such time as the Board may require, which
Deferral Election shall be effective on the first day of the next following Plan
Year. If a Participant fails to complete a new Election Form for any subsequent
Plan Year the deferral election for that subsequent Plan Year will be deemed to
be zero.
Class Year Elections: Each Plan Year's Deferral Election will be maintained in
separate and distinct accounts by Retirement Account and In Service Account and
by calendar year in which the contribution is received. Unique distribution
elections apply to each Class Year. Any Company Contribution Amount shall be
allocated to that Class Year's Base Salary Retirement Account
Withholding of Deferral Amounts. For each Plan Year, the Base Salary portion of
the Deferral Amount shall be withheld from each regularly scheduled Base Salary
payroll in equal amounts, as adjusted from time to time for increases and
decreases in Base Salary. The Bonus portion of the Deferral Amount shall be
withheld at the time the Bonus is or otherwise would be paid to the Participant,
whether or not this occurs during the Plan Year.
Annual Company Contribution Amount. For each Plan Year, the Board, in its sole
discretion, may, but is not required to, credit any amount it desires to any
Participant under the Plan, which amount shall equal the Annual Company
Contribution Amount for that Participant for that Plan Year. The amount so
credited to a Participant may be smaller or larger than the amount credited to
any other Participant, and the amount credited to any Participant for a Plan
Year may be zero, even though one or more other Participants receive an Annual
Company Contribution Amount for that Plan Year.
3.4 Vesting. A Participant shall at all times be 100% vested in his or her
Deferral Account, including any Company Contribution Amount credited to
him.
3.5 In-Service Accounts and Retirement Accounts. The Company shall
establish accounts for Base Salary Deferral Amounts and Bonus Deferral
Amounts and further sub-divided into In-Service Accounts and Retirement
Accounts for each Participant under the Plan. Each of those accounts
will be maintained by Class Year. Each Participant's Deferral Account
shall be further divided into separate subaccounts ("investment fund
subaccounts"), each of which corresponds to an investment fund elected
by the Participant. A Participant's Deferral Account shall be credited
as follows:
7
After amounts are withheld and deferred from a Participant's Base Salary or
Bonus, the Company shall credit the investment fund subaccounts of the
Participant's Deferral Account with an amount equal to the amount of Base Salary
or Bonus, or both, deferred by the Participant as of the date that the Base
Salary or Bonus would have been paid to the Participant, and the portion of the
Participant's deferred Base Salary or Bonus that the Participant has deemed to
be invested in a certain type of investment fund shall be credited to the
investment fund subaccount corresponding to that investment fund.
The Company shall credit the Participant with an amount equal to the Annual
Company Contribution Amount, if any, for that Participant, on the date or dates
to be determined by the Board in its sole discretion, and the portion of the
Participant's Annual Company Contribution Amount that the Participant has deemed
to be invested in a certain type of investment fund shall be credited to the
investment fund subaccount corresponding to that investment fund.
Each business day, each of the Participant's investment fund subaccounts shall
be credited with earnings or losses in an amount equal to that determined by
multiplying the balance credited to such investment fund subaccount as of the
prior day plus contributions allocated to the investment fund subaccount that
day by the rate of net gain or loss for the corresponding investment fund for
that day.
Each of the Participant's investment fund subaccounts shall be reduced pro rata
by the amount of any distributions made to the Participant, as of the date of
the distribution.
3.6 Investment Elections.
(a) The Board shall select from time to time, in its sole and absolute
discretion, commercially available investment funds to be used to
determine the amount of earnings or losses to be credited to the
Participant's Accounts under Section 3.5.
(b) At the time of making a Deferral Election, a Participant shall
designate, on the Election Form, the investment fund or funds in
which the Participant's Deferral Account attributable to deferrals
of Base Salary or Bonus will be deemed to be invested for purposes
of determining the amount of earnings or losses to be allocated to
the Deferral Account. The Participant may specify the deemed
investment, in whole percentage increments, in one or more of the
investment Funds as communicated from time to time by the Board.
At least quarterly, a Participant may change this investment
designation by filing a change of election and making a new
designation as designated by the Board.
(c) Notwithstanding any other provision of the Plan that may be
interpreted to the contrary, the investment funds selected by the
Board or designation of investment funds by a Participant shall
not be considered or construed in any manner as an actual
investment of the Participant's Account Balance in any such
investment fund. In the event that the Company or the Trustee, in
its sole and absolute discretion, shall invest funds in any or all
of the selected investment funds, no Participant shall have any
rights in or to such investments. Without limiting the foregoing,
a Participant's Account Balance shall at all times be a
bookkeeping entry only and shall not represent any investment made
on his or her behalf by the Company or the Trust; the Participant
shall remain at all times an unsecured creditor of the Company.
8
1.7 FICA and Other Taxes.
Deferral Amounts. For each Plan Year in which a Deferral Amount is being
withheld from a Participant, the Company shall withhold from that portion of the
Participant's Base Salary or Bonus that is not being deferred, in a manner
determined by the Company, the Participant's share of FICA and other employment
taxes on such Deferral Amount. If necessary, the Board may reduce the Deferral
Amount in order to comply with this Section 3.7(a).
Company Contribution Amounts. Upon contribution of a Company Contribution
Amount, the Company shall withhold from the Participant's Base Salary and/or
Bonus that is not deferred, in a manner determined by the Company, the
Participant's share of FICA and other employment taxes. If necessary, the Board
may reduce the vested portion of the Participant's Company Contribution Amount
in order to comply with this Section 3.7(b).
Distributions. The Company, or the trustee of the Trust, shall withhold from any
payments made to a Participant under the Plan all federal, state and local
income, employment and other taxes required to be withheld by the Company, or
the trustee of the Trust, in connection with such payments, in amounts and in a
manner to be determined in the sole discretion of the Company and the trustee of
the Trust.
In-Service Distributions and Unforeseeable Emergencies
4.1 In-Service Distributions. A Participant, in connection with his or her
initial commencement of participation in the Plan and each subsequent
annual enrollment, may elect on an Election Form the month and year of
distribution of the Deferral Amount allocated to that Class Year's
In-Service Account. The Participant must make the same Distribution
Election for the Base Salary and Bonus Deferral Election made on the
Enrollment Form. The Participant may elect payment in a lump sum or
pursuant to an Annual Installment Method not to exceed 10 years. If a
Participant elects to direct a percentage of the particular Plan Year's
Deferral Amount to the In-Service Account but does not indicate the
year in which the payment is made, then it will be assumed that no
In-Service election was made for that Plan Year and all such deferrals
will be directed to the Retirement Account. In addition, if a
Participant makes an election to allocate deferrals to an In-Service
Account and specifies a distribution date but fails to elect a form of
payment, the distribution election will be assumed to be a Lump Sum.
The lump sum payment shall be made or the installments shall commence
as soon as possible after the date elected on the Election Form.
If Termination of Employment for any reason, other than death, occurs
prior to the year selected for the In-Service Distribution or prior to
the complete payment of an In-Service Account in the process of being
distributed in the form of an Annual Installment Method, then any
remaining amount in the In-Service Account shall be paid to the
Participant in accordance with the election made for the Retirement
Account for that Class Year. If no Retirement Account election is in
effect for that Class Year, i.e., the Participant elected to have 100%
of that Class Year's Deferral Amount directed to the In-Service
Account, then payment will be made a lump sum as soon as practicable
following Termination of Employment. If Termination of Employment
occurs as a result of death, payment will be made in accordance with
either Section 5.3 or 5.4.
9
In no event will any Company Contribution Amount be available for
an In-Service distribution.
4.2 Change in Time or Form of Payment for In-Service Distribution.
Notwithstanding the methods of payment for each Class Year's Election
pursuant to such Election Form, the Participant may elect to change the
time of such payment under a subsequent election that meets the
following requirements:
The subsequent election may not take effect until at least 12 months after the
date on which the subsequent election is made.
The subsequent election is made not less than 12 months prior to the date of the
scheduled payment.
The payment with respect to which the subsequent election is made must be
deferred for a period of not less than five years from the date such payment
would otherwise have been made.
The subsequent election may not accelerate the time of any payment.
4.3 Payout/Suspensions for Unforeseeable Emergencies. If the Participant
experiences an Unforeseeable Emergency, the Participant may petition
the Board to receive a partial or full payout from the Plan
attributable to Deferral Amounts. Company Contribution Amounts are not
available for Unforeseeable Emergencies. Any payout will be made
starting with the most recently completed Class Year and from that
Class Year's In-Service Account, if any, and progressing to each
preceding Class Year as necessary. The Retirement Accounts will be used
only upon exhausting all completed prior Class Year In-Service
Accounts.
By way of example, if a request for an Unforeseeable Emergency is made
in 2012 and 2010 was the initial Class Year for the Participant;
payment will come from the 2011 Class Year's In-Service Account. To the
extent the 2011 Class Year's In-Service Account is insufficient,
additional amounts will come from the 2010 Class Year's In-Service
Account. If the previously completed Class Year's In-Service Accounts
are insufficient or if none exist, then the payout or any remaining
amount needed shall come from the 2011 Class Year's Retirement Account
and then from the 2010 Class Year's Retirement Account. Only when all
prior Class Years have been exhausted will the payout tap the 2012
Class Year and then from the In-Service Account first.
The payout shall not exceed the lesser of the Participant's Account
Balance, calculated as if such Participant were receiving a Termination
Benefit, or the amount reasonably needed to satisfy the Unforeseeable
Emergency plus amounts necessary to pay taxes reasonably anticipated as
a result of the payout, after taking into account the extent to which
such Unforeseeable Emergency is or may be relieved through
reimbursement or compensation by insurance or otherwise or by
liquidation of the Participant's assets (to the extent such liquidation
would not itself cause severe financial hardship).
10
If the Participant experiences an Unforeseeable Emergency, the
Participant may request a suspension of Deferral Amounts. In that case,
the suspension will apply for the entire Plan Year in which the request
is made and deferrals to be made for the remainder of the Plan Year
will be canceled.
If, subject to the sole discretion of the Board, the petition for a
suspension and/or payout is approved, suspension shall take effect upon
the date of approval and any payout shall be made within 60 days of the
date of approval.
1.4 Change in Control. Upon a Change in Control as defined in IRS
regulation 1.409A-3(i)(5), a Participant's Account Balance will be paid
in a lump sum.
Benefits
Retirement Benefit. A Participant who Retires shall receive, as a Retirement
Benefit, his or her Account Balance. A Participant, in connection with his or
her commencement of participation in the Plan and each subsequent Plan Year
shall elect on an Election Form the form of payment with respect to that Class
Year's Deferral Amount. The Participant may elect payment in a lump sum or
pursuant to an Annual Installment Method not to exceed 10 years. Thus, separate
Retirement Benefit elections may apply to each Class Year but the Participant
must make the same Distribution Election for the Base Salary and Bonus Deferral
Election made on the Enrollment Form. Any Company Contribution Amount credited
to the Participant's Base Salary Retirement Account for that Class Year shall be
paid in the same manner as elected by the Participant for that Class Year's Base
Salary. If a Participant does not make any election with respect to the payment
of the Retirement Benefit or if the Participant does not elect to direct a
Deferral Amount into the Retirement Account for that Class Year but will receive
a Company Contribution Amount for that Class Year, then such benefit shall be
payable in a lump sum. The lump sum payment shall be made, or installment
payments shall commence, within 60 days after Retirement.
Termination Benefit. A Participant who experiences a Termination of Employment
prior to Retirement shall receive as a Termination Benefit his or her Account
Balance in accordance with the same election made under Section 5.1. The lump
sum payment shall be made, or installment payments shall commence, within 60
days of Termination of Employment.
Death Prior to Retirement or Termination of Employment. The Beneficiary of a
Participant who dies prior to Retirement or Termination of Employment shall
receive a Death Benefit in the form of a Lump Sum equal to the then remaining
Account Balance, including any Installment Payment currently being distributed.
The payment shall be made as soon as practicable after certification of death.
Death After Retirement or Termination of Employment. If a Participant dies after
Retirement or Termination of Employment but before the Account Balance is paid
in full, the Participant's unpaid Account Balance shall be paid to the
Beneficiary in a Lump Sum. The payment shall be made as soon as practicable
after certification of death.
11
5.5 Disability Benefit. A Participant suffering a Disability shall, for
benefit purposes under the Plan, be deemed to have experienced a
Termination of Employment. The Disability Benefit shall be paid in the
same form as elected in accordance with Section 5.1. The lump sum
payment shall be made, or installment payments shall commence within 60
days after Disability.
5.6 Change in Time or Form of Payment for Termination Benefit.
Notwithstanding the method of payment elected by a Participant on an
Election Form with respect to the Base Salary or Bonus deferred
pursuant to such Election Form, the Participant may elect to change the
time or form of such payment under a subsequent election that meets the
following requirements:
The subsequent election may not take effect until at least 12 months after the
date on which the subsequent election is made.
The first payment with respect to which the subsequent election is made must be
deferred for a period of not less than five years from the date such payment
would otherwise have been made. This five year deferral shall not apply to any
change in the Death Benefit or upon the occurrence of a Disability.
The subsequent election may not accelerate the time of any payment.
The form of payment elected in a subsequent election must be a
lump sum or an Annual Installment Method of between 2 and 10 years. In
accordance with section 1.3, each installment payment may be
individually changed.
Limitation on Key Employees. Notwithstanding any other provision of the Plan to
the contrary, the payment of a Termination Benefit with respect to a "key
employee" of the Company, within the meaning of Code Section 416(i)(1), if at
that time any stock of the Company is publicly traded on an established
securities market or otherwise, shall not be made within six months following
his separation from service with the Company, except in the event of death. As
of the effective date of this plan, this provision does not apply to the
Company.
5.8 Involuntary Cash Out Limit. If a Participant's total Account Balance
under this plan and all other such arrangements required to be
aggregated under Code Section 409A is less than or equal to the
deferral limit in effect under section 402(g) of the Code for the
calendar year in which the Participant experiences a Retirement or
Termination of Employment, then, despite the election made by the
Participant, the Company may, at its discretion, pay the Account
Balance in a lump sum as soon as practicable. In addition, if the
present value of any remaining installments due a Participant who has
experienced a Termination of Employment and elected an Annual
Installment Method falls below the deferral limit in effect under
section 402(g) of the Code for the calendar year in which the
Participant experienced a Termination of Employment, then the Company
may, at its discretion, pay the remaining Account Balance in a lump sum
as soon as practicable.
12
Beneficiary Designation
Beneficiary. Each Participant shall have the right, at any time, to designate
his or her Beneficiary(ies) (both primary as well as contingent) to receive any
benefits payable under the Plan upon the death of a Participant. The Beneficiary
designated under the Plan may be the same as or different from the Beneficiary
designation under any other plan of the Company in which the Participant
participates.
Beneficiary Designation Change. A Participant shall designate his or her
Beneficiary by completing and signing the Beneficiary Designation Form, and
returning it to the Board. A Participant shall have the right to change a
Beneficiary by completing, signing and otherwise complying with the terms of the
Beneficiary Designation Form and the Board's rules and procedures, as in effect
from time to. Upon the acceptance by the Board of a new Beneficiary Designation
Form, all Beneficiary designations previously filed shall be canceled. The Board
shall be entitled to rely on the last Beneficiary Designation Form filed by the
Participant and accepted by the Board prior to his or her death. If a
Participant is married, the designation of a Beneficiary other than the
Participant's spouse shall only be permitted upon written consent of the
Participant's spouse.
Acknowledgment. No designation or change in designation of a Beneficiary shall
be effective until received and acknowledged in writing by the Board.
No Beneficiary Designation. If a Participant fails to designate a Beneficiary as
provided in Sections 6.1, 6.2 and 6.3 above or, if all Beneficiaries predecease
the Participant or die prior to complete distribution of the Participant's
benefits, then the Participant's Beneficiary shall be deemed to be his or her
surviving spouse. If the Participant has no surviving spouse, the benefits
remaining under the Plan to be paid to a Beneficiary shall be payable to the
Participant's estate.
Doubt as to Beneficiary. If the Board has any doubt as to the proper Beneficiary
to receive payments pursuant to the Plan, the Board shall have the right,
exercisable in its discretion, to cause the Company to withhold such payments
until this matter is resolved to the Board's satisfaction.
Discharge of Obligations. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge the Company and the Board from
all further obligations under the Plan with respect to the Participant, and that
Participant's participation in the Plan shall terminate upon such full payment
of benefits.
Leave of Absence
Paid Leave of Absence. If a Participant is authorized by the Company for any
reason to take a paid leave of absence from the employment of the Company, the
Participant shall continue to be considered employed by the Company and the
Deferral Amount shall continue to be withheld during such paid leave of absence
in accordance with Section 3.1.
Unpaid Leave of Absence. If a Participant is authorized by the Company for any
reason to take an unpaid leave of absence from the employment of the Company,
the Participant shall continue to be considered employed by the Company and the
Participant shall be excused from making deferrals until the Participant returns
to a paid employment status. Upon such return, deferrals shall resume for the
remaining portion of the Plan Year in which the return occurs, based on the
deferral election, if any, made for that Plan Year. If no election was made for
that Plan Year, no deferral shall be withheld.
13
Termination, Amendment or Modification
Termination. Although the Company anticipates that it will continue the Plan for
an indefinite period of time, there is no guarantee that the Company will
continue the Plan or will not terminate the Plan at any time in the future.
Accordingly, the Company reserves the right to terminate the Plan at any time
with respect to any or all of its participating Employees, by action of the
Board. Upon the termination of the Plan, further deferrals under the Plan shall
terminate but all Account Balances shall remain subject to the terms of the Plan
and the elections made in the applicable Election Forms.
Notwithstanding the previous paragraph, upon termination of the plan
and at the discretion of the Company, Account Balances may be
distributed in a consistent manner to all Participants in compliance
with IRS Regulation 1.409A-3(j)(4)(ix)(C), specifically:
(a) The termination and liquidation does not occur as a result of
downturn in the financial health of the Company;
(b) The Company terminates and liquidates all similar arrangements
sponsored by the Company that would be aggregated with any other
arrangements under ss.1.409A-1(c) if the Participants had
deferrals of compensation under all of the arrangements that are
terminated;
(c) No payments are made within 12 months of the date the Company
takes all necessary action to irrevocably terminate and liquidate
the plan other than payments that would be payable under the
terms of the plan if the action to terminate and liquidate the
plan had not occurred;
(d) All payments are made within 24 months of the date the Company
takes all necessary action to irrevocably terminate and liquidate
the plan; and
(e) The Company does not adopt a new plan that would be aggregated
with any terminated and liquidated plan under ss.1.409A-1(c) if
the same Participant participated in both plans, at any time
within three years following the date the Company takes all
necessary action to irrevocably terminate and liquidate the plan.
Amendment. The Company may, at any time, amend or modify the Plan in whole or in
part by the action of the Board; provided, however, that: (i) no amendment or
modification shall be effective to decrease or restrict the value of a
Participant's Account Balance in existence at the time the amendment or
modification is made, calculated as if the Participant had experienced a
Termination of Employment as of the effective date of the amendment or
modification, and (ii) no amendment or modification of this Section 8.2 of the
Plan shall be effective. The amendment or modification of the Plan shall not
affect any Participant or Beneficiary who has become entitled to the payment of
benefits under the Plan as of the date of the amendment or modification. The
Company specifically reserves the right to amend the Plan to conform the
provisions of the Plan to the guidance issued by the Secretary of the Treasury
with respect to Code Section 409A, in accordance with such guidance.
14
Effect of Payment. The full payment of the applicable benefit under Articles 4
or 5 of the Plan shall completely discharge all obligations to a Participant and
his or her Beneficiaries under the Plan and the Participant's participation in
the Plan shall terminate.
Administration
Administrative Duties. To the extent that ERISA applies to the Plan, the Company
shall be the "named fiduciary" of the Plan and the "plan administrator" of the
Plan. The Board shall be responsible for the general administration of the Plan.
The Board will, subject to the terms of the Plan, have the authority to: (i)
approve for participation employees who are recommended for participation by the
Chief Executive Officer of the Company, (ii) adopt, alter, and repeal
administrative rules and practices governing the Plan, (iii) interpret the terms
and provisions of the Plan, and (iv) otherwise supervise the administration of
the Plan. All decisions by the Board will be made with the approval of not less
than a majority of its members. The Board may delegate any of its authority to
any other person or persons that it deems appropriate. Who approves the Board
Agents. In the administration of the Plan, the Board may, from time to time,
employ agents and delegate to them such administrative duties as it sees fit
(including acting through a duly appointed representative) and may from time to
time consult with counsel who may be counsel to the Company.
Binding Effect of Decisions. All decisions by the Board, and by any other person
or persons to whom the Board has delegated authority, shall be final and
conclusive and binding upon all persons having any interest in the Plan.
Indemnity of Board. The Company shall indemnify and hold harmless the members of
the Board and any Employee to whom the duties of the Board may be delegated
against any and all claims, losses, damages, expenses or liabilities arising
from any action or failure to act with respect to the Plan, except in the case
of willful misconduct by the Board, any of its members, or any such Employee.
Information. To enable the Board to perform its functions, the Company shall
supply full and timely information to the Board on all matters relating to the
compensation of its Participants, the date and circumstances of the Disability,
death or Termination of Employment of its Participants, and such other pertinent
information as the Board may reasonably require.
Other Benefits and Agreements
Coordination with Other Benefits. The benefits provided for a Participant and
Participant's Beneficiary under the Plan are in addition to any other benefits
available to such Participant under any other plan or program for employees of
the Company. The Plan shall supplement and shall not supersede, modify or amend
any other such plan or program except as may otherwise be expressly provided.
15
Claims Procedures
Procedures for Handling Claims. In accordance with the provisions of Section 503
of ERISA, the Company shall provide a procedure for handling claims for benefits
under the Plan. The procedure shall be in accordance with the regulations issued
by the Secretary of Labor and provide adequate written notice within a
reasonable period of time with respect to a claim denial. The procedure shall
also provide for a reasonable opportunity for a full and fair review by the
Company of any claim denial.
Trust
Establishment of the Trust. The Company may establish one or more Trusts to
which the Company may transfer such assets as the Company determines in its sole
discretion to assist in meeting its obligations under the Plan.
Interrelationship of the Plan and the Trust. The provisions of the Plan and the
Participant's Election Forms shall govern the rights of a Participant to receive
distributions pursuant to the Plan. The provisions of the Trust shall govern the
rights of the Company, Participants and the creditors of the Company to the
assets transferred to the Trust.
Distributions From the Trust. The Company's obligations under the Plan may be
satisfied with Trust assets distributed pursuant to the terms of the Trust, and
any such distribution shall reduce the Company's obligations under the Plan.
Miscellaneous
Status of Plan. The Plan is intended to be a plan that is not qualified within
the meaning of Code Section 401(a) and that "is unfunded and is maintained by an
employer primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employee" within the meaning of
Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. The Plan shall be
administered and interpreted to the extent possible in a manner consistent with
that intent.
Unsecured General Creditor. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interests or
claims in any property or assets of the Company. For purposes of the payment of
benefits under the Plan, any and all of the Company's assets shall be, and
remain, the general, unpledged unrestricted assets of the Company. The Company's
obligation under the Plan shall be merely that of an unfunded and unsecured
promise to pay money in the future.
Company's Liability. The Company's liability for the payment of benefits shall
be defined only by the Plan and the Participant's Election Forms. The Company
shall have no obligation to a Participant under the Plan except as expressly
provided in the Plan and his or her Election Forms.
Nonassignability. Neither a Participant nor any other person shall have any
right to commute, sell, assign, transfer, pledge, anticipate, mortgage or
otherwise encumber, transfer, hypothecate, alienate or convey in advance of
actual receipt, the amounts, if any, payable hereunder, or any part thereof,
which are, and all rights to which are expressly declared to be, unassignable
and non-transferable. No part of the amounts payable shall, prior to actual
payment, be subject to seizure, attachment, garnishment or sequestration for the
payment of any debts, judgments, alimony or separate maintenance owed by a
Participant or any other person, be transferable by operation of law in the
event of a Participant's or any other person's bankruptcy or insolvency or be
transferable to a spouse as a result of a property settlement or otherwise.
16
Not a Contract of Employment. The terms and conditions of the Plan shall not be
deemed to constitute a contract of employment between the Company and the
Participant, either expressed or implied. Such employment is hereby acknowledged
to be an "at will" employment relationship that can be terminated at any time
for any reason, or no reason, with or without cause, and with or without notice,
unless expressly provided in a written employment agreement. Nothing in the Plan
shall be deemed to give a Participant the right to be retained in the service of
the Company, or to interfere with the right of the Company to discipline or
discharge the Participant at any time.
Furnishing Information. A Participant or his or her Beneficiary will cooperate
with the Board by furnishing any and all information requested by the Board and
take such other actions as may be requested in order to facilitate the
administration of the Plan and the payments of benefits hereunder, including but
not limited to taking such physical examinations as the Board may deem
necessary.
Terms. Whenever any words are used herein in the masculine, they shall be
construed as though they were in the feminine in all cases where they would so
apply; and whenever any words are used herein in the singular or in the plural,
they shall be construed as though they were used in the plural or the singular,
as the case may be, in all cases where they would so apply.
Captions. The captions of the articles, sections and paragraphs of the Plan are
for convenience only and shall not control or affect the meaning or construction
of any of its provisions.
Governing Law. Subject to ERISA, the provisions of the Plan shall be construed
and interpreted according to the internal laws of the State of California
without regard to its conflicts of laws principles.
Notice. Any notice or filing required or permitted to be given to the Board
under the Plan shall be sufficient if in writing and hand-delivered, or sent by
registered or certified mail, to the address below:
Deckers Outdoor Corporation
495 Fairview Ave Ste A
Goleta, CA 93117-3681
Such 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.
17
Any notice or filing required or permitted to be given to a Participant
under the Plan shall be sufficient if in writing and hand-delivered, or
sent by mail, to the last known address of the Participant.
Successors. The provisions of the Plan shall bind and inure to the benefit of
the Company and its successors and assigns and the Participant and the
Participant's Beneficiaries.
Spouse's Interest. The interest in the benefits hereunder of a spouse of a
Participant who has predeceased the Participant shall automatically pass to the
Participant and shall not be transferable by such spouse in any manner,
including but not limited to such spouse's will, nor shall such interest pass
under the laws of intestate succession.
Validity. In case any provision of the Plan shall be illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining parts
hereof, but the Plan shall be construed and enforced as if such illegal or
invalid provision had never been inserted herein.
Incompetent. If the Board determines in its discretion that a benefit under the
Plan is to be paid to a minor, a person declared incompetent or to a person
incapable of handling the disposition of that person's property, the Board may
direct payment of such benefit to the guardian, legal representative or person
having the care and custody of such minor, incompetent or incapable person. The
Board may require proof of minority, incompetence, incapacity or guardianship,
as it may deem appropriate prior to distribution of the benefit. Any payment of
a benefit shall be a payment for the account of the Participant and the
Participant's Beneficiary, as the case may be, and shall be a complete discharge
of any liability under the Plan for such payment amount.
Court Order. The Board is authorized to make any payments directed by court
order in any action in which the Plan or the Board has been named as a party. In
addition, if a court determines that a spouse or former spouse of a Participant
has an interest in the Participant's benefits under the Plan in connection with
a property settlement or otherwise, the Board, in its sole discretion, shall
have the right, notwithstanding any election made by a Participant, to
immediately distribute the spouse's or former spouse's interest in the
Participant's benefits under the Plan to that spouse or former spouse.
Insurance. The Company, on its own behalf or on behalf of the trustee of the
Trust, and, in its sole discretion, may apply for and procure insurance on the
life of the Participant, in such amounts and in such forms as the Trust may
choose. The Company or the trustee of the Trust, as the case may be, shall be
the sole owner and beneficiary of any such insurance. The Participant shall have
no interest whatsoever in any such policy or policies, and at the request of the
Company shall submit to medical examinations and supply such information and
execute such documents as may be required by the insurance company or companies
to whom the Company has applied for insurance.
No Acceleration of Benefits. The acceleration of the time or schedule of any
payment under the Plan is not permitted, except as provided in regulations by
the Secretary of the Treasury.
Compliance with Code Section 409A. The Plan is intended to provide for the
deferral of compensation in accordance with Code Section 409A for compensation
earned, vested, or deferred after December 31, 2004. Notwithstanding any
provisions of the Plan or any Election Form to the contrary, no otherwise
permissible election under the Plan shall be given effect that would result in
the taxation of any amount under Code Section 409A.
18
IN WITNESS WHEREOF, the Company has signed this Plan document on
_________________, 2009.
DECKERS OUTDOOR CORPORATION
By:
_________________________________________
Title:
_________________________________________
1
