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Fifth Third Bancorp - Nonqualified Deferred Compensation Plan, As Amended And Restated
Exhibit 10.1
THE FIFTH THIRD BANCORP NONQUALIFIED DEFERRED COMPENSATION PLAN
(as amended and restated effective as of January 1, 2005)
THE FIFTH THIRD BANCORP
NONQUALIFIED DEFERRED COMPENSATION PLAN
(as amended and restated effective as of January 1, 2005)
ARTICLE I INTRODUCTION AND SECTION 409A COMPLIANCE 1.1 Amendment and Restatement . Fifth Third Bancorp amended and restated The Fifth Third Bancorp Nonqualified Deferred Compensation Plan in its entirety effective January 1, 2005, by an amendment executed on September 26, 2005. Fifth Third Bancorp hereby again amends and restates the Plan effective January 1, 2005. 1.2 Amendment and Restatement of Predecessor Plans . This Plan also constitutes a complete amendment and restatement of each Predecessor Plan effective January 1, 2005; provided, however, a Participant' s Predecessor Plan Diversified Account and/or Predecessor Plan Stock Account hereunder initially shall be credited as of such date in 2005 determined by the Committee, in its sole discretion, with the value of such Participant' s account determined under the provisions of such Predecessor Plan as of such date.
1.3 Transition Rules under Section 409A .
(a) Election to Terminate Participation . The Committee, in its sole and absolute discretion, may offer to any Participant the option to terminate participation in the Plan and to receive in 2005 a complete payout of his vested Account. Any such election shall be administered by the Committee in compliance with Internal Revenue Service Notice 2005-1 and any other applicable legal authority. The amount and other aspects of the payment shall be determined by the Committee generally in accordance with the Plan, but the Committee shall have the authority to vary from the Plan, as it deems necessary or appropriate, to complete the payout. Any such election shall terminate past participation but shall not affect future participation by the Participant.
(b) New Payment Elections . In accordance with Paragraph 10.3, the Committee shall administer new payment elections under Article X in 2005 which, for purposes of, Article X shall be treated as a Participant' s timely initial election under Paragraph 10.2(a) and not as a change in election under Paragraph 10.2(c). Any such election shall be administered by the Committee in its sole and absolute discretion and in compliance with Internal Revenue Service Notice 2005-1 and any other applicable legal authority.
ARTICLE II- DEFINITIONS
2.1" Account" shall mean the account established by an Employer as a book reserve to reflect the amounts credited to a Participant under this Plan. A Participant' s Account under the Plan may include one or more of the following subaccounts:
(a) Deferred Compensation Account.
(b) Matching Account.
(c) Predecessor Plan Diversified Account.
(d) Predecessor Plan Stock Account.
(e) Profit Sharing Account.
2.2" Beneficiary" shall mean the person or persons entitled to receive the distributions, if any, payable under the Plan upon or after a Participant' s death, to such person or persons as such Participant' s Beneficiary. Each Participant may designate a Beneficiary by filing the proper form with the Committee. A Participant may designate one or more contingent Beneficiaries to receive any distributions after the death of a prior Beneficiary. A designation shall be effective upon said filing, provided that it is so filed during such Participant' s lifetime, and may be changed from time to time by the Participant. 2.3" Claims Review Committee" shall mean the committee established by the Committee for purposes of administering the claims and claim review procedures under the Plan.
2.4" Code" shall mean the Internal Revenue Code of 1986, as amended at the particular time applicable. A reference to a section of the Code shall include said section and any comparable section or sections of any future legislation that amends, supplements or supersedes said section.
2.5" Committee" shall mean The Fifth Third Bank Pension, Profit Sharing and Medical Plan Committee which is responsible for the administration of this Plan in accordance with the provisions of the Plan as set forth in this document. A reference to the Committee includes its delegate.
2.6" Compensation" shall mean the total base earnings plus variable compensation and other bonuses (but excluding performance-based, additional cash compensation incentives) paid by an Employer to an Executive or which would otherwise be paid but for a deferral election hereunder or a compensation reduction election under the Master Profit Sharing Plan or The Fifth Third Bank 125 Plan.
2.7" Deferred Compensation Account" shall mean the account established by an Employer as a book reserve to reflect the amounts deferred by a Participant under Paragraph 4.1, as adjusted by earnings (and losses) under Article VIII and as reduced by distributions under Article X and Article XI.
- 2 - 2.8" Effective Date" shall mean January 1, 2005.
2.9" Employer" shall mean Fifth Third Bank, an Ohio Banking Corporation, and any other subsidiary of Fifth Third Bancorp or any successor or assignee of any of them.
2.10" Executive" shall mean an employee of an Employer who is employed on a full-time basis and who is a Bank President, Bank Executive Vice President, Bank Senior Vice President or Bank Vice President.
2.11" Grandfathered Participant" shall mean a Participant (other than an individual who is a Participant under Paragraph 2.15(b)) whose service with all Employers terminated prior to September 1, 1999.
2.12" Master Profit Sharing Plan" shall mean The Fifth Third Bancorp Master Profit Sharing Plan, as amended from time to time. 2.13" Matching Account" shall mean the account established by an Employer as a book reserve to reflect the amounts credited by an Employer as matching contributions under Article V, as adjusted by earnings (and losses) under Article VIII and as reduced by distributions under Article X and Article XI.
2.14" Open Enrollment Period" shall mean such period no more than thirty (30) days in length prescribed by the Committee, closing no later than the last day of the Plan Year immediately preceding the Plan Year for which elections to defer Compensation under Article IV are permitted.
2.15" Participant" shall mean any of the following:
(a) any Executive who satisfies the eligibility requirements of Article III and who receives an allocation to his Account under Article IV, Article V, or Article VI, as well as any former Executive who has an Account under the Plan; or
(b) any person who has a Predecessor Plan Diversified Account or Predecessor Plan Stock Account attributable to his employment covered by a Predecessor Plan.
2.16" Plan" shall mean The Fifth Third Bancorp Nonqualified Deferred Compensation Plan as described in this instrument, and as may be amended, thereafter.
2.17" Plan Year" shall mean the calendar year.
2.18" Predecessor Plan" shall mean any other nonqualified deferred compensation plan designated by the Committee. This Plan shall be considered a complete amendment and restatement of each Predecessor Plan effective January 1, 2005.
2.19" Predecessor Plan Diversified Account" shall mean an account established by the Employer as a book reserve to reflect amounts credited hereunder with respect to a Predecessor Plan, other than amounts credited to a Predecessor Plan Stock Account with respect to such Predecessor Plan, as adjusted by earnings (and losses) under Article VIII and as reduced by distributions under Article X and Article XI.
- 3 - 2.20" Predecessor Plan Stock Account" shall mean an account established by the Employer as a book reserve to reflect amounts credited hereunder with respect to a Predecessor Plan in which participants' benefits were to be distributed solely in common stock of Fifth Third Bancorp, as determined by the Committee, as adjusted by earnings (and losses) under Article VIII and as reduced by distributions under Article X and Article XI.
2.21" Profit Sharing Account" shall mean the account established by an Employer as a book reserve to reflect the amounts credited by an Employer as profit sharing contributions under Article VI, as adjusted by earnings (and losses) under Article VIII and as reduced by distributions under Article X and Article XI.
ARTICLE III ELIGIBILITY AND PARTICIPATION
3.1 Each individual who is an Executive on the first day of an Open Enrollment Period:
(a) may elect to defer Compensation for services performed during the ensuing Plan Year to which the Open Enrollment Period relates, in accordance with Article IV; and
(b) shall be eligible for matching allocations under Article V and profit sharing allocation under Article VI for the Plan Year in which such Open Enrollment Period falls.
An individual who is not an Executive on the first day of an Open Enrollment Period but who later becomes an Executive (including a former Executive who is reemployed by an Employer as an Executive) shall not be eligible to elect to defer Compensation until the first day of the next Open Enrollment Period with respect to which he is still an Executive (for the Plan Year to which such next Open Enrollment Period relates); and he shall not be eligible for matching or profit sharing allocations until the Plan Year containing the next Open Enrollment Period as of the first day of which he is an Executive.
ARTICLE IV - ELECTION TO DEFER COMPENSATION
4.1 Each Executive eligible under Article III may elect to have a portion of his Compensation for services performed during a Plan Year deferred and credited with earnings in accordance with the terms and conditions of the Plan. The amount of Compensation deferred for any Plan Year by an Executive may not reduce the amount of base pay such Executive receives in a Plan Year below $50,000. 4.2 An eligible Executive desiring to exercise an election under Paragraph 4.1 for a Plan Year shall notify the Committee each Plan Year of his deferral election during the Open Enrollment Period established by the Committee for such Plan Year. Such notice must be in writing, on a form provided by the Committee, and delivered to the Committee during the Open Enrollment Period.
- 4 - 4.3 A deferral election shall be effective for the entire Plan Year (but not for any future Plan Year) to which it relates and may not be modified or terminated for that Plan Year; provided however, such an election shall terminate if the Participant' s employment status changes so that he is no longer an Executive.
4.4 The Compensation otherwise payable to the Participant during the Plan Year shall be reduced by the amount of the Participant' s election under Paragraph 4.1. Such amounts shall be credited to the Participant' s Deferred Compensation Account at the time his Compensation is so reduced.
ARTICLE V - MATCHING ALLOCATIONS
5.1 Matching Allocations . An Employer, in its discretion, may credit a matching allocation to the Matching Account of any Executive eligible under Article III it selects provided:
(a) the Executive remains in the employment of an Employer as an Executive (or is on an Employer-approved leave of absence) on the date the Committee determines to credit the allocation; and
(b) the Executive either has a Compensation deferral election in effect under Paragraph 4.1 for the Plan Year, or has " Annual Compensation" (as defined in the Master Profit Sharing Plan) in the corresponding Plan Year of that plan in excess of the compensation limitation imposed by section 401(a)(17) of the Code.
The matching allocations for such selected Executives shall be determined by the Employer and may vary for each such Executive. The amount of the matching allocations as so determined under this paragraph shall be credited to the Participants' Matching Accounts as of the last day of the Plan Year, or at such other time or times determined by the Committee.
ARTICLE VI- PROFIT SHARING ALLOCATIONS 6.1 Profit Sharing Allocations . An Employer, in its discretion, may credit a profit sharing allocation to the Profit Sharing Account of any Executive eligible under Article III it selects for a Plan Year provided the Executive remains in the employment of an Employer as an Executive (or is on an Employer-approved leave of absence) on the date the Committee determines to credit the allocation.
The profit sharing allocations for such selected Executives shall be determined by the Employer and may vary for each such Executive. The amount of the profit sharing allocations as so determined under this paragraph shall be credited to the Participants' Profit Sharing Accounts as of the last day of the Plan Year, or at such other time or times determined by the Committee.
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ARTICLE VII- PARTICIPANT' S INTEREST 7.1 Unsecured Creditor . No Participant or his designated Beneficiary shall acquire any property interest in his Account or any other assets of the Employer or Fifth Third Bancorp, their rights being limited to receiving from the Employer or Fifth Third Bancorp deferred payments as set forth in this Plan and these rights are conditioned upon continued compliance with the terms and conditions of this Plan. To the extent that any Participant or Beneficiary acquires a right to receive benefits under this Plan, such right shall be no greater than the right of any unsecured general creditor of the Employer or Fifth Third Bancorp.
ARTICLE VIII - CREDITING OF EARNINGS
8.1 General . There shall be credited to the Account of each Participant an additional amount of earnings (or losses) determined under this Article VIII.
8.2 Earnings . Except as provided in Paragraph 8.3, each Participant' s Account shall be credited with earnings (or losses) as if it is invested entirely in common stock of Fifth Third Bancorp. This shall include, without limitation, the re-investment of dividends in such common stock of Fifth Third Bancorp. The time and method of such crediting and the recordkeeping methodologies used shall be determined in the sole and absolute discretion of the Committee.
8.3 Available Investment Elections .
(a) Coverage . Paragraph 8.2 shall have no effect with respect to a Grandfathered Participant. Instead, a Grandfathered Participant' s Account shall be credited with earnings (or losses) in accordance with this Paragraph 8.3. In addition, Paragraph 8.2 shall have no effect with respect to a Participant' s Predecessor Plan Diversified Account. Instead, such a Participant' s Predecessor Plan Diversified Account shall be credited with earnings (or losses) in accordance with this Paragraph 8.3.
(b) Investment Elections . Each Grandfathered Participant and each Participant with a Predecessor Plan Diversified Account, shall elect to have earnings (or losses) credited to his entire Account (in the case of a Grandfathered Participant) or his Predecessor Plan Diversified Account (in the case of other Participants), from among various investment benchmarks the Committee determines to establish for this purpose. One of such investment benchmarks shall be the Fifth Third Stock Fund.
Such an election shall be made in such manner as the Committee shall direct.
The Committee may prescribe rules including rules which limit the frequency of changes to elections, prescribe times for making elections, regulate the amount or increment a Participant may allocate to a particular investment benchmark,
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require or allow an election (or election change) to relate only to future allocations, require an election to apply consistently to all subaccounts and provide for the investment of an Account (or Predecessor Plan Diversified Account) of a Participant who fails to make an election.
(c) Rate of Return Benchmarks . The Committee shall determine the rate of return for the Fifth Third Stock Fund under the Master Profit Sharing Plan (which rate of return will apply to the Fifth Third Stock Fund investment election under this Plan) as well as each of the other investment benchmarks selected by the Committee under Paragraph 8.3(b) above. (d) Crediting . The Participant' s Account (in the case of a Grandfathered Participant) or his Predecessor Plan Diversified Account (in the case of other Participants), shall be increased or decreased as if it had earned the rate of return corresponding to the Participant' s investment election. The time and method of such crediting and the recordkeeping methodologies used shall be determined in the sole and absolute discretion of the Committee.
ARTICLE IX VESTING
9.1 Vesting Provisions .
(a) Deferred Compensation Account . A Participant' s rights to his Deferred Compensation Account shall be nonforfeitable at all times.
(b) Predecessor Plan Diversified Account and Predecessor Plan Stock Account . A Participant' s rights to his Predecessor Plan Diversified Account and Predecessor Plan Stock Account shall be nonforfeitable at all times.
(c) Matching Account . A Participant' s rights to his Matching Account shall be nonforfeitable at all times. (d) Profit Sharing Account . A Participant' s rights to his Profit Sharing Account shall be nonforfeitable at all times.
ARTICLE X- PLAN BENEFITS 10.1 Distributions .
(a)
Time and Form of Payment . In accordance with the election procedures in Paragraph 10.2, a Participant may elect to have the amounts represented by the Participant' s vested Account paid (or commence to be paid) as of the first business day of August of the Plan Year immediately following the Plan Year in which the Participant' s separation from service with all Employers occurs, or the first business day of August of any subsequent year, but not later than the first business day of August of the tenth Plan Year following the Plan Year in which
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such separation from service occurs. In accordance with the election procedures in Paragraph 10.2, a Participant may elect to have such amounts paid in one of the following forms:
(i) single lump sum distribution; or
(ii) annual installments, the last payment of which is no later than the first business day of August of the tenth Plan Year following the Plan Year in which such separation from service occurs.
If installment payments are in effect, the Participant' s Account shall continue to be credited with earnings (or losses) under Article VIII until fully paid.
Notwithstanding the foregoing or Paragraph 10.3(a), (b) or (c), effective December 31, 2005, in the event the Participant' s vested Account does not exceed $25,000 as of any December 31
st after the Participant has separated from service, then any payment election by a Participant shall be disregarded. In such a case, the vested Account (or remaining balance thereof) shall be paid in a single lump sum distribution as of the first business day of August following such December 31 st (even if such vested Account exceeds $25,000 at that time). (b) Medium of Payment . Except for Grandfathered Participants and Predecessor Plan Diversified Accounts, the payment as a lump sum or installments under (a) above, Paragraph 1.3(a) or 10.3, shall be in common stock of Fifth Third Bancorp. In the case of a Grandfathered Participant or a Predecessor Plan Diversified Account, such payment shall be in cash. 10.2 Election Procedures .
(a) A Participant who wishes to make an initial election referred to in Paragraph 10.1 must do so within the first Open Enrollment Period applicable to him under Article III.
Any such election shall be effective immediately.
As provided in Paragraph 1.3(b), a payment election in 2005 under Internal Revenue Service Notice 2005-1 shall be considered a timely initial election. (b) If a Participant does not make a timely initial e...
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