APPLICABLE DEADLINE FOR MAKING SUCH A DEFERRAL
ELECTION PURSUANT TO SECTION 409A OF THE CODE.
ACCORDINGLY, DEFERRAL ELECTIONS
MUST BE MADE NO LATER THAN BY ONE OF THE FOLLOWING TIMES:
(I)
A DEFERRAL ELECTION WITH RESPECT TO COMPENSATION EARNED BY A PARTICIPANT
MUST BE MADE PRIOR TO THE FIRST DAY OF THE PLAN YEAR IN WHICH THE SERVICES
RELATED TO SUCH COMPENSATION WILL BE RENDERED
(II)
IN THE CASE OF A KEY EMPLOYEE WHO IS FIRST ELIGIBLE TO PARTICIPATE IN THE
PLAN DURING A PLAN YEAR, SUCH KEY EMPLOYEE MAY ELECT WITHIN 30 DAYS OF BECOMING
ELIGIBLE TO PARTICIPATE IN THE PLAN TO DEFER ANY UNEARNED PORTION OF HIS
COMPENSATION RELATED TO SERVICES TO BE PERFORMED AFTER THE DATE OF SUCH
ELECTION, TO THE EXTENT PERMITTED UNDER TREAS. REG. § 1.409A-2(A)(7).
(III)
IN THE CASE OF ANY COMPENSATION THAT CONSTITUTES "PERFORMANCE-BASED
COMPENSATION" WITHIN THE MEANING OF TREAS. REG. § 1.409A-1(E), THE ADMINISTRATOR
MAY PERMIT A PARTICIPANT TO MAKE A DEFERRAL ELECTION, WITH RESPECT TO SUCH
COMPENSATION, THAT DOES NOT BECOME IRREVOCABLE UNTIL THE DATE THAT IS SIX MONTHS
PRIOR TO THE END OF THE APPLICABLE PERFORMANCE PERIOD, TO THE EXTENT PERMITTED
UNDER TREAS. REG. § 1.409A-2(A)(8).
IN ANY EVENT, AT THE TIME OF THE DEFERRAL
ELECTION, IN ORDER FOR THE ELECTION TO BE IN COMPLIANCE WITH CODE SECTION 409A,
(I) THE KEY EMPLOYEE MUST PERFORM SERVICES CONTINUOUSLY FOR THE PERIOD BEGINNING
ON THE LATER OF THE FIRST DAY OF THE PERFORMANCE PERIOD OR THE DATE THE
PERFORMANCE CRITERIA ARE ESTABLISHED, AND ENDING ON THE DATE OF ELECTION WITH
RESPECT TO THE PERFORMANCE-BASED COMPENSATION AND (II) THE ELECTION IS NOT MADE
AFTER THE AMOUNT OF THE PERFORMANCE-BASED COMPENSATION BECOMES REASONABLY
ASCERTAINABLE
7
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ANY ELECTION TO DEFER
COMPENSATION THAT IS NOT MADE IN ACCORDANCE WITH SECTION 409A(A)(4) OF THE CODE
SHALL BE INEFFECTIVE AND VOID AB INITIO.
(D)
APPLICABILITY; NO REVOCATION.
A DEFERRAL ELECTION SHALL APPLY ONLY WITH
RESPECT TO COMPENSATION EARNED DURING THE PLAN YEAR (OR PERFORMANCE PERIOD, AS
APPLICABLE) FOR WHICH IT IS MADE AND SHALL NOT CONTINUE IN EFFECT FOR
COMPENSATION EARNED DURING ANY SUBSEQUENT PLAN YEAR (OR PERFORMANCE PERIOD, AS
APPLICABLE).
SUCH DIRECTIONS AND ELECTIONS, ONCE EXECUTED AND FILED WITH THE
ADMINISTRATOR, CANNOT BE REVOKED AFTER THE DATE SPECIFIED BY THE ADMINISTRATOR
OR THE DATE FOR A VALID DEFERRAL ELECTION AS REQUIRED BY SECTION 409A OF THE
CODE, WHICHEVER IS EARLIER.
SECTION 3.04.
PAYMENTS.
(A)
DESIGNATION OF DATE.
EACH DEFERRAL ELECTION GIVEN PURSUANT TO
SECTION 3.03(A) AND (B) SHALL INCLUDE THE DESIGNATION OF A SINGLE PAYMENT DATE
WITH RESPECT TO THE COMPENSATION DEFERRED.
A DESIGNATED PAYMENT DATE MAY ONLY
BE THE FIRST DAY OF A CALENDAR QUARTER, SUBJECT TO THE LIMITATION SET FORTH IN
SECTION 3.04(B).
(B)
LIMITATION.
A PARTICIPANT MAY DESIGNATE AN ORIGINAL PAYMENT DATE THAT IS
NO SOONER THAN THE FIRST ANNIVERSARY OF THE DATE OF SUCH ELECTION AND NO LATER
THAN THE DATE WHICH IS THREE MONTHS AFTER SUCH PARTICIPANT ATTAINS AGE 65.
(C)
ADJUSTMENT OF PAYMENT