Exhibit 10.44


 


 


WIRELESS FACILITIES, INC.

NONQUALIFIED DEFERRED COMPENSATION PLAN


 





















 


WIRELESS FACILITIES, INC.

NONQUALIFIED DEFERRED COMPENSATION PLAN


 


RECITALS


 


This Wireless Facilities, Inc. Nonqualified
Deferred Compensation Plan (the “Plan”) is adopted by Wireless Facilities, Inc.
(the “Company”) effective as of January 1, 2005, or if later, such date the
Plan is approved by the Company’s Board of Directors (the “Board”).  The Plan has been adopted primarily for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees of the Company and its related entities.  Accordingly, it is intended that this Plan be
exempt from the requirements of Parts II, III and IV of Title I of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”) pursuant to
Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA.  This Plan is intended to be an unfunded,
nonqualified deferred compensation plan. 
Plan participants shall have the status of unsecured creditors of the
Company with respect to the payment of Plan benefits.  Furthermore, this Plan is intended to meet
the requirements of section 409A of the Code and any regulations promulgated
pursuant to section 409A.


 


ARTICLE 1

DEFINITIONS


 


1.1           ACCOUNT means the book
entry account(s) established under the Plan for each Participant’s Compensation
Deferrals, Employer Contributions and any contribution credits and deemed
income, gains and losses credited thereto or debited therefrom.   Account balances shall be reduced by any
distributions made to the Participant or the Participant’s Beneficiary(ies)
therefrom and any charges that may be imposed on such Account(s) pursuant to
the terms of the Plan.  Separate
Subaccounts may be established to which shall be credited a Participant’s
Compensation Deferrals for each separate Plan Year, the Employer Contributions,
if any, and the gains and losses with respect thereto.  Where Subaccounts have been established,
Account shall refer to all of the Participants’ Subaccounts, collectively, as
the context may require.


 


1.2           BENEFICIARY means any
person or persons so designated in accordance with the provisions of Section
7.1.


 


1.3           BOARD means the Board of Directors of the Company.  If one or more committees have been appointed
by the Board to determine eligibility under the Plan, Employer Contributions to
be made to the Plan, or to exercise any other Company discretion with respect
to such Plan, “Board” also means such committee(s).


 


1.4           CODE means the Internal
Revenue Code of 1986 and the regulations thereunder, as amended from time to
time.


 


1.5           COMMITTEE means the
Administrative Committee composed of such individuals as may be appointed by
the Board which shall function as the administrator of the Plan.


 


1.6           COMPANY means Wireless
Facilities, Inc., a Delaware corporation, and any successor organization
thereto.


 


1.7           COMPENSATION means the
total salary and bonus paid by the Employer to an Eligible Employee with
respect to his or her performance of services for the Employer (as determined
by the Committee).  In addition,
Compensation shall include any commissions earned by the Eligible Employee with
respect to his or her services for the Employer (as determined by the
Committee, in its discretion). 
Compensation shall also include any “Performance Based Compensation” as
that term is defined under section 409A of the Code and any regulations
thereunder.


 


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1.6           COMPENSATION DEFERRALS
means the percentage of an Eligible Employee’s Compensation which the Eligible
Employee elects to defer pursuant to Section 3.1.


 


1.4           DESIGNATION DATE means
the date or dates as of which a designation of deemed investment directions by
an individual pursuant to Section 4.5, or any change in a prior designation of
deemed investment directions by an individual pursuant to Section 4.5, shall
become effective.  The Designation Dates
in any Plan Year shall be determined by the Committee.


 


1.7           DISABILITY will be
determined to exist if the Participant is by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months, and the Participant is receiving income replacement benefits for a
period of not less than 3 months under any disability benefit plan for covered
Employees of the Employer.


 


1.8           EFFECTIVE DATE means
the effective date of the Plan, which shall be January 1, 2005, or if later,
the date the Plan is approved by the Board.


 


1.9           ELECTION means the form
on which a Participant (i) elects to make Compensation Deferrals pursuant to
Article 3, or (ii) elects a fixed payment date pursuant to Article 5, or (iii)
elects the method by which his or her Account will be distributed pursuant to
Article 6.  The Election shall be in such
form, including specifically by electronic means, as may be prescribed by the
Committee.


 


1.10         ELIGIBLE EMPLOYEE means,
for any Plan Year (or applicable portion thereof), an employee of the Employer
who is a member of the select group of management and highly compensated employees
as more particularly described in Article 2 and who has been designated by
the Committee, in its sole discretion, as
eligible to participate in the Plan.


 


1.10         EMPLOYER means the
Company and any other subsidiary of the Company that has, with the consent of
the Committee, adopted this Plan for the benefit of its Eligible Employees.


 


1.11         EMPLOYER CONTRIBUTIONS
means the amount, if any, of contributions awarded to a Participant pursuant to
Section 3.2.


 


1.12         ENTRY DATE means the
first day of any Plan Year and, as to any Eligible Employee, the date which is
thirty (30) days from the date on which such Eligible Employee is first
notified by the Committee of his or her eligibility to participate in the
Plan.  Notwithstanding the foregoing, for
any individual first designated as an Eligible Employee on or before the
Effective Date, his or her Entry Date shall be the Effective Date.


 


1.13         OPEN ENROLLMENT PERIOD
means such period as the Committee may specify which ends prior to the first
day of each Plan Year, or, with respect to an Eligible Employee who first
becomes eligible to participate in the Plan during a Plan Year, ends within
thirty (30) days of becoming an Eligible Employee.  Notwithstanding the foregoing, the Open
Enrollment Period for deferrals of Performance Based Compensation may end no
later than six (6) months prior to the end of the performance period for which
services are to be rendered.


 


1.14         PARTICIPANT means an
Eligible Employee who has elected to participate in the Plan by executing and submitting
an Election to the Committee.  A
Participant shall also mean an Eligible Employee for whom Employer
Contributions are made, regardless of whether such Eligible Employee has
executed and submitted an Election.


 


1.14         PLAN means this Wireless
Facilities, Inc. Nonqualified Deferred Compensation Plan, as amended from time
to time.


 


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1.16         PLAN YEAR means the
twelve (12) month period beginning on each January 1 and ending on the
following December 31.


 


1.17         RETIREMENT means the
Participant’s termination of service with the Employer after obtaining either
age fifty-nine and a half (59 1⁄2) years old or age fifty-five (55) years old
with at least four Years of Service.


 


1.18         SPECIFIED
EMPLOYEE means any Participant who would be considered a “Specified Employee”
as that term is defined in section 409A(a)(2)(B)(i) of the Code.


 


1.19         TRUST means any trust,
including a grantor trust within the meaning of subpart E, part I, subchapter
J, chapter I, subtitle A of the Code, created by the Trust Agreement, to hold
Compensation Deferrals and Employer Contributions.


 


1.20         TRUST AGREEMENT means the
trust agreement entered into between the Company and AST Trust Company, a
division of American Stock Transfer & Trust Company, effective as of the
Effective Date, and any amendments thereto.


 


1.21         TRUSTEE means the Trustee
named in the Trust Agreement and any duly appointed successor or successors
thereto.


 


1.22         VALUATION DATE means any
business day on which the New York Stock Exchange is open, or such other date
that the Committee, in its sole discretion, designates as a Valuation Date.


 


1.22         YEAR OF SERVICE means the
12 consecutive month period measured by an Eligible Employee’s date of hire and
anniversaries thereof during which the Eligible Employee is employed by the Employer.


 


ARTICLE 2

ELIGIBILITY AND PARTICIPATION


 


2.1           ELIGIBILITY.  Eligibility for participation in the Plan
shall be limited to a select group of management or highly compensated
employees of the Employer, who are designated by the Committee, in its sole discretion,
as eligible to participate in the Plan. 
Eligible Individuals shall be notified as to their eligibility to
participate in the Plan.  Participation
in the Plan is voluntary.


 


2.2           COMMENCEMENT OF
PARTICIPATION.  An Eligible Employee
may begin participation in the Plan upon any Entry Date, subject to the
execution and submission of an Election pursuant to Article 3.  In addition, participation of an Eligible
Employee who has not otherwise commenced participation in the Plan, shall
commence when an Employer Contribution is made to the Account of such Eligible
Employee pursuant to the provisions of Section 3.2.


 


2.3           CESSATION OF PARTICIPATION.  Active participation in the Plan shall end
when a Participant’s employment terminates for any reason or at such time as a
Participant is notified by the Committee, pursuant to Section 2.4, below,
that he or she is no longer eligible to participate in the Plan.  Upon termination of employment or
eligibility, a Participant shall remain an inactive Participant in the Plan
until the vested Account of the Participant under this Plan has been paid in
full.


 


2.4           CESSATION OF ELIGIBILITY.  The Committee may at any time, in its sole
discretion, notify any Participant that he or she is not eligible to
participate in the Plan, or is not eligible for Employer Contributions in any
Plan Year.


 


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ARTICLE 3

CONTRIBUTIONS AND CREDITS


 


3.1           PARTICIPANT CONTRIBUTIONS
AND CREDITS.


 


(a)           Compensation Deferrals.  An Eligible Employee may elect to reduce his
or her Compensation by the percentage set forth in a executed Election filed
with the Committee, subject to the provisions of this Article 3.  The Compensation Deferrals shall not be paid
to the Participant, but shall be withheld from the Participant’s Compensation
and an amount equal to the Compensation Deferrals shall be credited to the
Participant’s applicable subaccount. 
Each Election to make Compensation Deferrals shall apply only to
Compensation earned after the effective date of such Election.


 


(b)           Timing of Election.  The Election must be filed with the Committee
during the Open Enrollment Period for the Plan Year to which such Election
applies.


 


(c)           Irrevocable Election.  The Participant’s Election with respect to
his or her Compensation Deferrals is irrevocable.  Unless increased, decreased or terminated
during any subsequent Open Enrollment Period, an Election shall remain in
effect until so changed by the Participant during such subsequent Open
Enrollment Period.


 


(d)           Limitation on Compensation
Deferrals.  A Participant’s Compensation
Deferral Elections shall be subject to the following:


 


(1)           A Participant must defer a
minimum of $1,000 each Plan Year.  In the
event the total amount deferred by a Participant in a Plan Year is less than
the applicable minimum deferral amount, the Committee may, in its sole
discretion, direct the Company to pay the amount deferred during that Plan Year
to the Participant as soon as administratively feasible after the end of the
Plan Year;


 


(2)           A Participant may elect to
defer up to a maximum of eighty percent (80%) of his or her Compensation.


 


(3)           The Compensation Deferrals
elected by the Participant shall be reduced by the amount(s), if any, which may
be necessary, in the Committee’s sole and absolute discretion: (i) to satisfy
all applicable income and employment taxes withholding and FICA contributions;
(ii) to pay all contributions elected by the Participant pursuant to any other
Company benefit plan which would require such compensation to be taken into
account under such plan; and (iii) to satisfy all garnishments or other amounts
required to be withheld by applicable law or court order.


 


(e)           No Withdrawal.  Except as provided in Section 5.2 below,
amounts credited to a Participant’s Account may not be withdrawn by a
Participant and shall be paid only in accordance with the provisions of this
Plan and applicable Participant Election.


 


(f)            Vesting.  A Participant shall at all times be 100%
vested in amounts credited to his or her Compensation Deferral Account.


 


3.2           EMPLOYER CONTRIBUTIONS AND CREDITS.


 


(a)           Employer Contributions.  Apart from Compensation Deferral
Contributions, the Board shall retain the right to make discretionary
contributions for any Participant under this Plan at the times and in the
amount(s) designated by the Employer, in its sole discretion. Amounts so
credited will be considered a Participant’s “Employer Contributions.”


 


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(b)           Vesting. Unless
otherwise determined by the Board prior to awarding any Employer Contribution,
amounts credited to the Employer Contribution Account shall be subject to the
vesting schedule designated by the Board for each annual Employer
Contribution.  Notwithstanding the
preceding sentence, in the event of a Participant’s Disability, Retirement or
death, provided that at the time of such Participant’s death the Participant
was employed by the Employer, the Participant shall become one hundred percent
(100%) vested in all Employer Contributions. 
Any Participant that terminates employment with the Employer for any
reason other than Disability, Retirement or death prior to full vesting shall
irrevocably forfeit the portion not vested.  
The Committee shall have the discretion to reinstate any such
forfeitures if the Participant later becomes re-employed by the Employer.


 


(c)           Forfeitures for Misconduct.  If
a Participant separates from service with the Employer as a result of the
Participant’s gross misconduct, as determined by the Committee, or if the
Participant engages in unlawful business competition with the Employer, the
Participant shall forfeit all amounts allocated to his or her Employer
Contribution Account(s) under this Section 3 (regardless of the vesting of such
amounts).  Such forfeitures shall be
retained by the Employer. 
Notwithstanding any provision of the Plan to the contrary, this Section
3.2(c) shall only be enforceable to the extent authorized by applicable law.


 


ARTICLE 4

ALLOCATION OF FUNDS


 


4.1           ALLOCATION OF DEEMED
EARNINGS OR LOSSES ON ACCOUNTS. 
Subject to Section 4.5, each Participant shall have the right to direct
the Committee as to how amounts in his or her Account shall be deemed to be
invested.  Subject to such limitations as
may from time to time be required by law, imposed by the Committee or the
Trustee or contained elsewhere in the Plan, and subject to such operating rules
and procedures as may be imposed from time to time by the Committee, prior to
the date on which a direction will become effective, the Participant shall have
the right to direct the Committee as to how amounts in his or her Account shall
be deemed to be invested. The Committee may, but is not required to, invest
assets held by the Company on behalf of the Participant pursuant to the deemed
investment directions the Committee has properly received from the Participant,
and may utilize the Trust for the same in its discretion.  The value of the Participant’s Account shall
be equal to the value of the deemed investments specified by the Participant as
if the Committee had so invested the Account.


 


As of each Valuation Date, the Participant’s
Account will be credited or debited to reflect the Participant’s deemed
investments.  The Participant’s Account
will be credited or debited with the increase or decrease in the realizable net
asset value of the designated deemed investments, as follows.  As of each Valuation Date, an amount equal to
the net increase or decrease in realizable net asset value (as determined by
the Committee) of each deemed investment option within the Account since the
preceding Valuation Date shall be allocated among all Participants’ Accounts
deemed to be invested in that investment option in accordance with the ratio
which the portion of the Account of each Participant which is deemed to be
invested within that investment option, determined as provided herein, bears to
the aggregate of all amounts deemed to be invested within that investment
option.


 


4.2           ACCOUNTING FOR
DISTRIBUTIONS.  As of the date of any
distribution hereunder, the distribution made hereunder to the Participant or
his or her Beneficiary or Beneficiaries shall be charged to such Participant’s
Account.  Such amounts shall be charged
on a pro rata basis against the investments of the Plan in which the
Participant’s Account is deemed to be invested.


 


4.3           DEEMED INVESTMENT
DIRECTIONS OF PARTICIPANTS.  Subject
to such limitations as may from time to time be required by law, imposed by the
Employer or the Trustee or contained elsewhere in the Plan, and subject to such
operating rules and procedures as may


 


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be imposed from time to time by the Employer, prior to and effective
for each Designation Date, each Participant may communicate to the Employer a
direction (in accordance with (a), below) as to how his or her Account should
be deemed to be invested among such categories of deemed investments as may be
made available by the Employer hereunder. 
Such direction shall designate the percentage (in any whole percent
multiples) of each portion of the Participant’s Account which is requested to
be deemed to be invested in such categories of deemed investments, and shall be
subject to the following rules:


 


(a)           Any initial or subsequent
deemed investment direction shall be in writing, on a form supplied by and
filed with the Committee, and/or, as required or permitted by the Committee,
shall be by oral designation and/or electronic transmission designation.  A designation shall be effective as of the
Designation Date next following the date the direction is received and accepted
by the Committee on which it would be reasonably practicable for the Committee
to effect the designation.  The
Participant may, if permitted by the Committee, make a deemed investment
direction for his or her existing Account balance as of the Designation Date
and a separate deemed investment direction for contribution credits occurring
after the Designation Date.


 


(b)           All amounts credited to the
Participant’s Account shall be deemed to be invested in accordance with the
then effective deemed investment direction, and as of the Designation Date with
respect to any new deemed investment direction, all or a portion of the
Participant’s Account at that date shall be reallocated among the designated
deemed investment funds according to the percentages specified in the new
deemed investment direction unless and until a subsequent deemed investment
direction shall be filed and become effective. 
An election concerning deemed investment choices shall continue
indefinitely as provided in the Participant’s most recent Election, or other
form specified by the Committee.


 


(c)           If the Employer receives an
initial or revised deemed investment direction which it deems to be incomplete,
unclear or improper, the Participant’s investment direction then in effect
shall remain in effect (or, in the case of a deficiency in an initial deemed
investment direction, the Participant shall be deemed to have filed no deemed
investment direction) until the next Designation Date, unless the Employer
provides for, and permits the application of, corrective action prior thereto.


 


(d)           If the Employer possesses (or
is deemed to possess as provided in (c), above) at any time directions as to
the deemed investment of less than all of a Participant’s Account, the
Participant shall be deemed to have directed that the undesignated portion of
the Account be deemed to be uninvested. 
Or, in its discretion, the Employer may direct such undesignated portion
of the Account to be deemed to be invested in a money market, fixed income or
similar fund made available under the Plan as determined by the Employer.


 


(e)           Each reference in this Section
to a Participant shall be deemed to include, where applicable, a reference to a
Beneficiary.


 


ARTICLE 5

ENTITLEMENT TO BENEFITS


 


5.1           FIXED PAYMENT DATES;
TERMINATION OF EMPLOYMENT.  During
the Open Enrollment Period of each Plan Year and on his or her Election a
Participant may select a fixed payment date for the payment of amounts (or a
portion of amounts) credited to his or her Compensation Deferral Account and
Employer Contribution Account (to the extent authorized by the Board when any
such contribution is authorized) during the Plan Year for which the Participant
Election is effective, which will be valued and payable according to the
provisions of Article 6.  Such fixed
payment dates may be postponed to later dates so long as elections to so
postpone the dates are made by the Participant at least twelve (12) months
prior to the date on which the distribution was originally scheduled to be
made, the election will not take effect until at


 


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least twelve (12) months after the date on which the election is made,
and the new postponed distribution date is at least five (5) years from the
originally scheduled date. 
Notwithstanding the foregoing, in no event shall any such fixed payment
date be accelerated to a date earlier than that initially selected by the
Participant.


 


A Participant who selects a fixed payment date for amounts credited to
his or her Account during a Plan Year shall receive payment of such vested
amounts at the earlier of such fixed payment date (as postponed, if applicable)
or his or her termination of employment with the Employer.


 


Any fixed payment date elected by a Participant as provided above must
be a date no earlier than the January 1 of the second calendar year after the
calendar year for which the election is effective.


 


If a Participant does not make an election as provided above for any
particular amounts hereunder, and the Participant terminates employment with
the Employer for any reason, other than reaching Retirement, the Participant’s
vested Account at the date of such termination shall be valued and payable in a
single lump sum as soon as practicable after such termination according to the
provisions of Article 6.


 


5.2           HARDSHIP DISTRIBUTIONS.  In the event of an unforeseeable emergency of
the Participant, as hereinafter defined, the Participant may apply to the
Committee for the distribution of all or any part of his or her vested Account.  The Committee shall
consider the circumstances of each such case, and the best interests of the
Participant and his or her family, and shall have the right, in its sole
discretion, if applicable, to allow such distribution, or, if applicable, to
direct a distribution of part of the amount requested, or to refuse to allow
any distribution.  Upon a finding of
unforeseeable emergency, the Committee shall make the appropriate distribution
to the Participant from amounts under the Participant’s vested Account.  In no event shall the aggregate amount of the
distribution exceed either the full value of the Participant’s vested Account
or the amount determined by the Committee to be necessary to alleviate the
Participant’s financial hardship (which financial hardship may be considered to
include any taxes due because of the distribution occurring because of this
Section) caused by the unforeseeable emergency, and which is not reasonably
available from other resources of the Participant. For purposes of this
Section, the value of the Participant’s vested Account shall be determined as
of the date of the distribution. “Unforeseeable Emergency” means (a) a severe
financial hardship to the Participant resulting from an illness or accident of
the Participant or of a dependent (as defined in Code section 152(a)) of the
Participant, (b) loss of the Participant’s property due to casualty, or (c)
other similar extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant, each as determined to exist by
the Committee.  A distribution may be
made under this Section only with the written consent of the Committee.


 


5.3           RE-EMPLOYMENT OF RECIPIENT.  If a Participant receiving installment
distributions by virtue of an entitlement due to termination of employment
after reaching Retirement is re-employed by the Employer, the remaining
distributions due to the Participant shall be suspended until such time as the
Participant (or his or her Beneficiary) once again becomes eligible for
benefits under Section 5.1, at which time such installment distributions shall
commence, subject to the limitations and conditions contained in this Plan.


 


5.4           LIMITATION ON DISTRIBUTIONS
TO COVERED EMPLOYEES.  
Notwithstanding any other provision of this Plan, in the event that the
Participant is a “covered employee” as that term is defined in Section
162(m)(3) of the Code, or would be a covered employee if amounts were
distributed in accordance with his or her distribution election or hardship
withdrawal, the maximum amount which may be distributed from the Participant’s
Account in any Plan Year shall not exceed one million dollars ($1,000,000) less
the amount of compensation paid to the Participant in such Plan Year which is
not “performance-based” (as


 


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defined in Code Section 162(m)(4)(C), which amount shall be reasonably
determined by the Committee at the time of the proposed distribution.  Any amount which is not distributed to the
Participant in a Plan Year as a result of this limitation shall be distributed
to the Participant in the next Plan Year, subject to compliance with the
foregoing limitations set forth in this Section 5.4.  During any such delay in payment, unpaid
amounts shall continue to be credited (or debited) with deemed investment
income, gains and losses under Article 4.  
Notwithstanding the foregoing, distribution of a Participant’s Account
shall be made without regard to the deductibility limitation of Code section
162(m) if the time for distribution is accelerated pursuant to Section 9.3 or
Section 10.4.


 


5.5           Supplemental Death Benefit. 
A supplement death benefit in the amount specified by any applicable
insurance policy shall be paid to the Beneficiary of an eligible Participant,
who has satisfied the criteria set forth in Section 5.5(a).


 


(a)           To be eligible for this
supplemental death benefit, a Participant must have satisfied the following
criteria prior to his or her death:


 


(i)            The Participant is eligible to participate in the Plan and, at the time
of his or her death, had a current account balance (regardless of whether or
not the Participant actually was making basic, director fees, bonus and/or
commission deferrals at the time of his or her death);


 


(ii)           The Participant was an active employee with the Employer at the time of
his or her death;


 


(iii)          The Participant completed and submitted an insurance application to the
Committee; and


 


(iv)          The Company subsequently purchased an insurance policy on the life of the
Participant, with a death benefit payable, and which policy is in effect at the
time of the Participant’s death.


 


(b)           Notwithstanding any provision of
this Plan or any other document to the contrary, the supplemental death benefit
payable pursuant to this Section 5.5 shall be paid only if an insurance
policy has been issued on the Participant’s life and such policy is in force at
the time of the Participant’s death and the Company shall have no obligation
with respect to the payment of the supplemental death benefit, or to maintain
an insurance policy for any Participants.


 


(c)           The supplemental death benefit
provided under this Section 5.5 shall be taxable income when paid.


 


ARTICLE 6

DISTRIBUTION OF BENEFITS


 


6.1           AMOUNT.  The value of the Participant’s (or his or her
Beneficiary’s) distribution shall be equal to the vested value of the
Participant’s Account as of the Valuation Date or such other date as the
Committee may specify, each as adjusted for Compensation Deferrals, Employer
Contributions, and/or withdrawals which have been subsequently credited thereto
or made therefrom prior to the distribution date.


 


6.2           TIMING OF DISTRIBUTION.   Subject to the Participant having satisfied
all applicable tax withholding obligations, distributions shall be paid (or,
payments shall commence in installments) as soon as practicable after the earlier
of:


 


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(a)           The fixed payment date
designated by the Participant; or


 


(b)           The date as soon as
administratively feasible following the Participant’s termination of employment
with the Employer, death, or Disability.


 


6.3           METHOD OF DISTRIBUTION.  A Participant’s Account shall be paid in one
of the following methods, as specified in his or her Election:


 


(a)           A single lump sum payment;


 


(b)           If, and only if, the
Participant’s employment was terminated after Retirement, and if elected by the
Participant in his or her most recent effective Election, in annual installment
payments of substantially equal amounts over a period of up to fifteen (15)
years.


 


(c)           A Participant may amend his or
her Election so as to select installments upon termination after Retirement by
filing an amended Election provided, however, that such Election to so change
to installment distributions upon Retirement is made by the Participant at
least twelve (12) months prior to the date on which the distribution was
originally scheduled to be made, the election will not take effect until at
least twelve (12) months after the date on which the election is made, and the
new postponed distribution date is at least five (5) years from the originally
scheduled date.  Notwithstanding the
foregoing, in no event shall any such distribution date be accelerated to a
date earlier than that initially selected by the Participant.


 


6.4           SPECIFIED EMPLOYEES.  In the event of a distribution to a Specified
Employee based upon such individual’s termination of employment with the
Employer, no distributions will be made, irrespective of any election to the
contrary, before the date which is six (6) months after the date of termination
of employment, or if earlier date of death of the Specified Employee.


 


ARTICLE 7

BENEFICIARIES; PARTICIPANT DATA


 


7.1           DESIGNATION OF
BENEFICIARIES.  Each Participant from
time to time may designate any person or persons (who may be named contingently
or successively) to receive such benefits as may be payable under the Plan upon
or after the Participant’s death, and such designation may be changed from time
to time by the Participant by filing a new designation.  Each designation will revoke all prior
designations by the same Participant, shall be in a form prescribed by the
Employer, and will be effective only when filed in writing with the Employer
during the Participant’s lifetime.


 


In the absence of a valid Beneficiary
designation, or if, at the time any benefit payment is due to a Beneficiary,
there is no living Beneficiary validly named by the Participant, the Employer
shall pay any such benefit payment to the Participant’s spouse, if then living,
but otherwise to the Participant’s then living descendants, if any, per
stirpes, but, if none, to the Participant’s estate.  In determining the existence or identity of
anyone entitled to a benefit payment, the Employer may rely conclusively upon
information supplied by the Participant’s personal representative, executor or
administrator.  If a question arises as
to the existence or identity of anyone entitled to receive a benefit payment as
aforesaid, or if a dispute arises with respect to any such payment, then,
notwithstanding the foregoing, the Employer, in its sole discretion, may
distribute such payment to the Participant’s estate without liability for any
tax or other consequences which might flow therefrom, or may take such other
action as the Employer deems to be appropriate.


 


7.2           INFORMATION TO BE FURNISHED
BY PARTICIPANTS AND BENEFICIARIES; INABILITY TO LOCATE PARTICIPANTS OR
BENEFICIARIES.  Any


 


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communication, statement or notice addressed to a Participant or to a
Beneficiary at his or her last post office address as shown on the Employer’s
records shall be binding on the Participant or Beneficiary for all purposes of
the Plan.  The Committee shall not be
obliged to search for any Participant or Beneficiary beyond the sending of
notice to such last known address.  If
the Committee notifies any Participant or Beneficiary that he or she is
entitled to an amount under the Plan and the Participant or Beneficiary fails
to claim such amount or make his or her location known to the Committee within
three (3) years thereafter, then, except as otherwise required by law, if the
location of one or more of the next of kin of the Participant is known to the
Committee, the Committee may direct distribution of such amount to any one or
more or all of such next of kin, and in such proportions as the Committee
determines.  If the location of none of
the foregoing persons can be determined, the Committee shall have the right to
direct that the amount payable shall be deemed to be a forfeiture, except that
the dollar amount of the forfeiture, unadjusted for deemed gains or losses in
the interim, shall be paid by the Committee if a claim for the benefit
subsequently is made by the Participant or the Beneficiary to whom it was
payable.  If a benefit payable to an
unlocated Participant or Beneficiary is subject to escheat pursuant to
applicable state law, the Committee shall not be liable to any person for any
payment made in accordance with such law.


 


ARTICLE 8

ADMINISTRATION


 


8.1           COMMITTEE POWERS AND
RESPONSIBILITIES.  The Committee shall
have the complete control of the administration of the Plan herein set forth
with all the powers necessary to enable it to properly carry out its duties in
that respect.  Not in limitation, but in
amplification of the foregoing, the Committee shall have the power and
authority to:


 


(a)           Construe the Plan and Trust
Agreement to determine all questions that shall arise as to the interpretations
of the Plan’s provisions including determination of which individuals are
Eligible Employees and the determination of the amounts credited to a
Participant’s Account, and the appropriate timing and method of distributions.


 


(b)           Adopt such rules of procedure
and regulations as in its opinion may be necessary for the proper and efficient
administration of the Plan and as are consistent with the Plan.


 


(c)           Implement the Plan in
accordance with its terms and the rules and regulations adopted as above.


 


(d)           Appoint any persons or firms,
or otherwise act to secure specialized advice or assistance, as it deems
necessary or desirable in connection with the administration and operation of
the Plan, and the Committee shall be entitled to rely conclusively upon, and
shall be fully protected in any action or omission taken by it in good faith
reliance upon, the advice or opinion of such firms or persons.  The Committee may authorize one or more
persons to execute any certificate or document on behalf of the Company, an
Employer or the Committee, in which event any person notified by the Committee
of such authorization shall be entitled to accept and conclusively rely upon
any such certificate or document executed by such person as representing action
by the Committee until such notified person shall have been notified of the
revocation of such authority.


 


(e)           Adopt amendments to the Plan
document which are deemed necessary or desirable to facilitate administration
of the Plan and/or to bring the Plan into compliance with all applicable laws
and regulations, provided that the Committee shall not have the authority to
adopt any Plan amendment that will result in substantially increased costs to
the Company unless such amendment is either expressly authorized by the Board
or contingent upon ratification by the Board before becoming effective.


 


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(f)            Select, review and retain or
change any deemed investment fund under the Plan.


 


(g)           Compile and maintain all
records it determines to be necessary, appropriate or convenient in connection
with the administration of the Plan.


 


(h)           Direct the investment of the
assets of the Trust.


 


(i)            Review the performance of the
Trustee and any other advisor or service provider to the Plan.


 


(j)            Take such other action as may
be necessary or appropriate to the management and investment of the Plan assets
and administration of the Plan.


 


8.2           UNIFORMITY OF DISCRETIONARY
ACTS.  Whenever in the administration
or operation of the Plan discretionary actions by the Employer are required or
permitted, such actions shall be consistently and uniformly applied to all
persons similarly situated, and no such action shall be taken which shall
discriminate in favor of any particular person or group of persons.


 


8.3           LITIGATION.  Except as may be otherwise required by law,
in any action or judicial proceeding affecting the Plan, no Participant or
Beneficiary shall be entitled to any notice or service of process, and any
final judgment entered in such action shall be binding on all persons
interested in, or claiming under, the Plan.


 


8.4           INDEMNIFICATION.  To the extent permitted by law, the Company
shall indemnify each member of the Committee, and any other employee or member
of the Board with duties under the Plan, against losses and expenses (including
any amount paid in settlement) reasonably incurred by such person in connection
with any claims against such person by reason of such person’s conduct in the
performance of duties under the Plan, except in relation to matters as to which
such person has acted fraudulently or in bad faith in the performance of
duties.  Notwithstanding the foregoing,
the Company shall not indemnify any person for any expense incurred through any
settlement or compromise of any action unless the Company consents in writing
to the settlement or compromise.


 


8.5           CLAIMS PROCEDURE.  A Participant or Beneficiary who believes he
or she is entitled to any Benefit (a “Claimant”) under this Plan may file a
claim with the Administrator.  The
Administrator shall review the claim itself or appoint an individual or an
entity to review the claim.


 


(a)           Initial Claim.  A Participant or Beneficiary who believes he
or she is entitled to any Benefit (a “Claimant”) under this Plan may file a
claim with the Administrator.  The
Administrator shall review the claim itself or appoint an individual or an
entity to review the claim.


 


(i)            Benefit Claim. The
Claimant shall be notified within ninety days after the claim is filed whether
the claim is allowed or denied, unless the Claimant receives written notice
from the Administrator or from an appointee of the Administrator before the end
of the ninety day period stating that special circumstances require an
extension of the time for decision.  Any
such extension will not extend beyond one hundred eighty days after the day the
claim is filed.


 


(ii)           Manner and Content of
Denial of Initial Claims.  If the
Plan Administrator denies a claim, it must provide to the Claimant, in writing
or by electronic communication:


 


 


(A)          The specific reasons for the
denial;


 


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(B)           A reference to the Plan
provision or insurance contract provision upon which the denial is based;


 


(C)           A description of any
additional information or material that the Claimant must provide in order to
perfect the claim;


 


(D)          An explanation of why such
additional material or information is necessary;


 


(E)           Notice that the Claimant has a
right to request a review of the claim denial and information on the steps to
be taken if the Claimant wishes to request a review of the claim denial; and


 


(F)           A statement of the participant’s
right to bring a civil action under ERISA §502(a) following a denial on review
of the initial denial.


 


(b)           Review Procedures.


 


(i)            Benefit Claims.  A request for review of a denied claim must
be made in writing to the Plan Administrator within sixty days after receiving
notice of denial.  The decision upon
review will be made within sixty days after the Plan Administrator’s receipt of
a request for review, unless special circumstances require an extension of time
for processing, in which case a decision will be rendered not later than one
hundred twenty days after receipt of a request for review.  A notice of such an extension must be
provided to the Claimant within the initial sixty day period and must explain
the special circumstances and provide an expected date of decision.


 


The reviewer shall afford the Claimant an opportunity to review and
receive, without charge, all relevant documents, information and records and to
submit issues and comments in writing to the Plan Administrator.  The reviewer shall take into account all
comments, documents, records and other information submitted by the Claimant relating
to the claim regardless of whether the information was submitted or considered
in the initial benefit determination.


 


(ii)           Manner and Content of
Notice of Decision on Review.  Upon
completion of its review of an adverse initial claim determination, the Plan
Administrator will give the Claimant, in writing or by electronic notification,
a notice containing:


 


(A)          its decision;


 


(B)           the specific reasons for the
decision;


 


(C)           the relevant Plan provisions
or insurance contract provisions on which its decision is based;


 


(D)          a statement that the Claimant
is entitled to receive, upon request and without charge, reasonable access to,
and copies of, all documents, records and other information in the Plan’s files
which is relevant to the Claimant’s claim for benefits;


 


(E)           a statement describing the
Claimant’s right to bring an action for judicial review under ERISA §502(a);
and


 


(F)           if an internal rule,
guideline, protocol or other similar criterion was relied upon in making the
adverse determination on review, a statement that a copy of the rule,
guideline, protocol or other similar criterion will be provided without charge
to the Claimant upon request.


 


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(c)           Calculation of Time Periods.  For purposes of the time periods specified in
this section 8.5, the period of time during which a benefit determination is
required to be made begins at the time a claim is filed in accordance with the
Plan procedures without regard to whether all the information necessary to make
a decision accompanies the claim.  If a
period of time is extended due to a Claimant’s failure to submit all
information necessary, the period for making the determination shall be tolled
from the date the notification is sent to the Claimant until the date the
Claimant responds.


 


(d)           Failure of Plan to Follow
Procedures.  If the Plan fails to
follow the claims procedures required by this section 8.5, a Claimant shall be
deemed to have exhausted the administrative remedies available under the Plan
and shall be entitled to pursue any available remedy under ERISA section 502(a)
on the basis that the Plan has failed to provide a reasonable claims procedure
that would yield a decision on the merits of the claim.  If the Claimant fails to follow the claims
procedures required by this section 8.5, the Claimant shall not be entitled to
pursue any further legal action, claim or remedy until such time as the
Claimant, to the extent applicable, exhausts the administrative remedies
available under the Plan.


 


ARTICLE 9

AMENDMENT


 


9.1           RIGHT TO AMEND.  The Committee or the Company, by action of
the Board, shall have the right to amend the Plan, at any time and with respect
to any provisions hereof, and all parties hereto or claiming any interest
hereunder shall be bound by such amendment; provided, however, that no such
amendment shall deprive a Participant or a Beneficiary of a right accrued
hereunder prior to the date of the amendment unless such an amendment is
required by applicable law or deemed necessary to preserve the preferred tax
treatment of the Plan.


 


9.2           AMENDMENTS TO ENSURE PROPER
CHARACTERIZATION OF PLAN. 
Notwithstanding the provisions of Section 9.1, the Plan may be amended
by the Committee or the Company, by action of its Board, at any time,
retroactively if required, if found necessary, in the opinion of the Committee
or the Board, in order to ensure that the Plan is characterized as a “top-hat”
plan of deferred compensation maintained for a select group of management or
highly compensated employees as described under ERISA sections 201(2), 301(a)(3),
and 401(a)(1), and to conform the Plan to the provisions and requirements of
any applicable law (including specifically Section 409A of the Code, and other
applicable portions of ERISA and the Code). 
No such amendment shall be considered prejudicial to any interest of a
Participant or a Beneficiary hereunder.


 


9.3           CHANGES
IN LAW AFFECTING TAXABILITY.


 


(a)           Operation.  This Section shall become operative upon the
enactment of any change in applicable statutory law or the promulgation by the
Internal Revenue Service of a final regulation or other pronouncement having
the force of law, which statutory law, as changed, or final regulation or
pronouncement, as promulgated, would cause any Participant to include in his or
her federal gross income amounts accrued by the Participant under the Plan on a
date (an “Early Taxation Event”) prior to the date on which such amounts are
made available to him or her hereunder.


 


(b)           Affected Right or Feature
Nullified.  Notwithstanding any other
Section of this Plan to the contrary (but subject to subsection (c), below), as
of an Early Taxation Event, the feature or features of this Plan that would
cause the Early Taxation Event shall be null and void, to the extent, and only
to the extent, required to prevent the Participant from being required to
include in his or her federal gross income amounts accrued by the Participant
under the Plan prior to the date on which such amounts are made available to
him or her hereunder.  If only a portion
of a Participant’s Account is impacted by the change in the law, then only such
portion


 


13





















 


shall be subject to this Section, with the remainder of the Account not
so affected being subject to such rights and features as if the law were not
changed.  If the law only impacts
Participants who have a certain status with respect to the Employer, then only
such Participants shall be subject to this Section.


 


(c)           Tax
Distribution.  If an Early Taxation
Event is earlier than the date on which the statute, regulation or
pronouncement giving rise to the Early Taxation Event is enacted or
promulgated, as applicable (i.e., if the change in the law is retroactive),
there shall be distributed to each Participant, as soon as practicable
following such date of enactment or promulgation, the amounts that became
taxable on the Early Taxation Event.


 


ARTICLE 10

TERMINATION


 


10.1         EMPLOYER’S RIGHT TO TERMINATE
OR SUSPEND PLAN.  The Employer
reserves the right to terminate the Plan and/or its obligation to make further
credits to Plan Accounts, by action of its Board of Directors.  The Employer also reserves the right to
suspend the operation of the Plan for a fixed or indeterminate period of time,
by action of its Board of Directors.


 


10.2         SUSPENSION OF DEFERRALS.  In the event of a suspension of the Plan, the
Employer shall continue all aspects of the Plan, other than Compensation
Deferrals and Employer Contributions, during the period of the suspension, in
which event payments hereunder will continue to be made during the period of
the suspension in accordance with Articles 5 and 6.


 


10.3         ALLOCATION AND DISTRIBUTION.  This Section shall become operative on a
complete termination of the Plan.  The
provisions of this Section also shall become operative in the event of a
partial termination of the Plan, as determined by the Employer, but only with
respect to that portion of the Plan attributable to the Participants to whom
the partial termination is applicable. 
Upon the effective date of any such event, notwithstanding any other
provisions of the Plan, no persons who were not theretofore Participants shall
be eligible to become Participants, the value of the interest of all
Participants and Beneficiaries shall be determined and, after deduction of
estimated expenses in liquidating and, if applicable, paying Plan benefits,
paid to them as soon as is practicable after such termination.


 


10.4         SUCCESSOR TO EMPLOYER.  Any corporation or other business
organization which is a successor to the Employer by reason of a consolidation,
merger or purchase of substantially all of the assets of the Employer shall
have the right to become a party to the Plan by adopting the same by resolution
of the entity’s board of directors or other appropriate governing body.  If, within ninety (90) days from the
effective date of such consolidation, merger or sale of assets, such new entity
does not become a party hereto, as above provided, the Plan automatically shall
be terminated, and the provisions of Section 10.4 shall become operative.


 


ARTICLE 11

THE TRUST


 


11.1         ESTABLISHMENT OF TRUST.  The Employer, in its sole and absolute
discretion, may establish a Trust with a qualified trustee pursuant to such
terms and conditions as are set forth in a Trust agreement to be entered into
between the Employer and such trustee. 
Or, the Employer may cause to be maintained one or more separate
subaccounts in an existing Trust maintained with the Trustee with respect to
one or more other plans of the Employer, which subaccount or subaccounts
represent Participants’ interests in the Plan. 
The Employer shall have the discretion to make contributions to such
Trust that correspond to credits to Participants’ Accounts and/or to invest
Trust assets in a manner that corresponds to Participants’ selected deemed
investments in order to provide a source of funds with which the Employer shall
pay Plan benefits as they become due.


 


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Any amounts held in a Trust established under this Section shall be the
sole property of the Employer and will not be held as collateral security for
fulfillment of the Employer’s obligation under the Plan.  Any such Trust shall be intended to be
treated as a “grantor trust” under the Code and the establishment of the Trust
or the utilization of any existing Trust for Plan benefits, as applicable,
shall not be intended to cause any Participant to realize current income on
amounts contributed thereto, and the Trust shall be so interpreted.  Any such funds will be subject to the claims
of all bankruptcy or insolvency creditors of the Employer as provided in the
Trust agreement, and no Participant or Beneficiary will have any vested
interest or secured or preferred position with respect to such funds or have
any claims against the Employer hereunder except as a general creditor.


 


ARTICLE 12

MISCELLANEOUS


 


12.1         LIMITATIONS ON LIABILITY OF EMPLOYER.  Neither the establishment of the Plan nor any
modification thereof, nor the creation of any account under the Plan, nor the
payment of any benefits under the Plan shall be construed as giving to any
Participant or other person any legal or equitable right against the Employer,
or any officer or employer thereof except as provided by law or by any Plan
provision.  The Employer does not in any
way guarantee any Participant’s Account from loss or depreciation, whether
caused by poor investment performance of a deemed investment or the inability
to realize upon an investment due to an insolvency affecting an investment
vehicle or any other reason.  In no event
shall the Employer, or any successor, employee, officer, director or
stockholder of the Employer, be liable to any person on account of any claim
arising by reason of the provisions of the Plan or of any instrument or
instruments implementing its provisions, or for the failure of any Participant,
Beneficiary or other person to be entitled to any particular tax consequences
with respect to the Plan, or any credit or distribution hereunder.


 


12.2         CONSTRUCTION.  If any provision of the Plan is held to be
illegal or void, such illegality or invalidity shall not affect the remaining
provisions of the Plan, but shall be fully severable, and the Plan shall be
construed and enforced as if said illegal or invalid provision had never been
inserted herein.  For all purposes of the
Plan, where the context admits, the singular shall include the plural, and the plural
shall include the singular.  Headings of
Articles and Sections herein are inserted only for convenience of reference and
are not to be considered in the construction of the Plan.  The laws of the state of the Employer’s
incorporation shall govern, control and determine all questions of law arising
with respect to the Plan and the interpretation and validity of its respective
provisions, except where those laws are preempted by the laws of the United
States.  Participation under the Plan
will not give any Participant the right to be retained in the service of the
Employer nor any right or claim to any benefit under the Plan unless such right
or claim has specifically accrued hereunder.


 


The Plan is intended to be and at all times shall be interpreted and
administered so as to qualify as an unfunded deferred compensation plan, and no
provision of the Plan shall be interpreted so as to give any individual any
right in any assets of the Employer which right is greater than the rights of a
general unsecured creditor of the Employer.


 


12.3         SPENDTHRIFT PROVISION.  No amount payable to a Participant or a
Beneficiary under the Plan will, except as otherwise specifically provided by
law, be subject in any manner to anticipation, alienation, attachment,
garnishment, sale, transfer, assignment (either at law or in equity), levy,
execution, pledge, encumbrance, charge or any other legal or equitable process,
and any attempt to do so will be void; nor will any benefit be in any manner
liable for or subject to the debts, contracts, liabilities, engagements or
torts of the person entitled thereto. Further, (i) the withholding of taxes
from Plan benefit payments, (ii) the recovery under the Plan of overpayments of
benefits previously made to a Participant or Beneficiary, (iii) if applicable,
the transfer of benefit rights from the Plan to another plan, or (iv) the
direct deposit of benefit


 


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payments to an account in a banking institution (if not actually part
of an arrangement constituting an assignment or alienation) shall not be
construed as an assignment or alienation.


 


In the event that any Participant’s or Beneficiary’s benefits hereunder
are garnished or attached by order of any court, the Employer or Trustee may
bring an action or a declaratory judgment in a court of competent jurisdiction
to determine the proper recipient of the benefits to be paid under the
Plan.  During the pendency of said
action, any benefits that become payable shall be held as credits to the
Participant’s or Beneficiary’s Account or, if the Employer or Trustee prefers,
paid into the court as they become payable, to be distributed by the court to
the recipient as the court deems proper at the close of said action.


 


12.4         TAX WITHHOLDING.  Distribution and withdrawal payments under
this Plan shall be subject to all applicable withholding requirements for state
and federal income taxes and to any other federal, state or local taxes that
may be applicable to such payments.  The
Company shall have the right, but not the obligation, to deduct from any
distribution from the Plan, that amount equal to all or any part of the
federal, state, local and foreign taxes, if any, required by law to be withheld
by the Company with respect to such distributions.  Alternatively or in addition, in its
discretion, the Company shall have the right to require a Participant, through
payroll withholding, cash payment or otherwise, to make adequate provision for
any such tax withholding obligations of the Company arising in connection with
any distribution from the Plan.  The
Trustee shall have no obligation to distribute amounts form the Trust until the
Company’s tax withholding obligations have been satisfied by the Participant.


 


12.5         NO EMPLOYMENT AGREEMENT.  Nothing contained herein shall be construed
as conferring upon any Participant the right to continue in the employ of the
Employer as an employee.


 


12.6         ATTORNEY’S FEES.  If the Employer, the Participant, any
Beneficiary, any beneficiary under an insurance policy purchased under the
Trust, and/or a successor in interest to any of the foregoing, brings legal
action to enforce any of the provisions of this Plan, the prevailing party in
such legal action shall be reimbursed by the other party, the prevailing party’s
costs of such legal action including, without limitation, reasonable fees of
attorneys, accountants and similar advisors and expert witnesses.


 


12.7         GOVERNING LAW.  This Plan shall be construed in accordance
with and governed by any applicable provisions of ERISA and the laws of the
State of California.


 


12.8         ENTIRE AGREEMENT.  This Plan constitutes the entire
understanding and agreement with respect to the subject matter contained
herein, and there are no agreements, understandings, restrictions,
representations or warranties among any Participant and the Employer other than
those as set forth or provided for herein.


 


12.9         SEVERABILITY.  If any provision of this Plan is determined,
by the Committee or any governmental agency or court decision, to be
unenforceable or invalid under any applicable law, such unenforceability or
invalidity shall not render this Plan unenforceable or invalid as a whole, and
such provision shall be changed and interpreted by the Committee, in its sole
discretion, so as to best accomplish the objectives of such unenforceable or invalid
provision within the limits of applicable law or applicable court decisions.


 


16





















 


IN
WITNESS WHEREOF, this Plan has been adopted effective as of the Effective Date.


 


	
   

  	
  WIRELESS FACILITIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
  , 2004

  	
  By:

  	
   

  	
   

  
					



 


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