EXHIBIT 10.1
THE EXECUTIVE NONQUALIFIED EXCESS PLAN
ADOPTION AGREEMENT
THIS AGREEMENT is made the 1st day of December, 2001, by THE
CONCORD TELEPHONE COMPANY (the "Employer"), having its principal office at 00
XXXXXXXX XXX., XXXXXXX, XX 00000 and EXECUTIVE BENEFIT SERVICES, INC. (the
"Sponsor"), having its principal office at 000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx Xxxxxxxx 00000.
W I T N E S S E T H:
-------------------
WHEREAS, the Sponsor has established The Executive Nonqualified Excess
Plan (the "Plan"); and
WHEREAS, the Employer desires to adopt the Plan as an unfunded,
nonqualified deferred compensation plan, for the benefit of the Employer's
[X] Employees and/or [X] Independent Contractors;
NOW, THEREFORE, the Employer hereby adopts the Plan in accordance with
the terms and conditions set forth in this Adoption Agreement:
ARTICLE I
Terms used in this Adoption Agreement shall have the same meaning as in
the Plan, unless some other meaning is expressly herein set forth. The Employer
hereby represents and warrants that the Plan has been adopted by the Employer
upon proper authorization and the Employer hereby elects to adopt the Plan for
the benefit of its Participants as referred to in the Plan. By the execution of
this Adoption Agreement, the Employer hereby agrees to be bound by the terms of
the Plan.
This Adoption Agreement may only be used in connection with The
Executive Nonqualified Excess Plan. The Sponsor will inform the Employer of any
amendments to the Plan or of the discontinuance or abandonment of the Plan. For
questions concerning the Plan, the Employer may call the Sponsor at (919)
833-1042.
ARTICLE II
The Employer hereby makes the following designations or elections for
the purpose of the Plan [Section references below correspond to Section
references in the Plan]:
2.4 ADJUSTMENT DATE: The Deferred Compensation Account of Participants
shall be adjusted for the amount of any Salary Deferral Credits, Employer
Matching Credits and Employer Performance Incentive Credits to such account on
the last business day of each Plan
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Year and such other times as may be designated below [check any additional
desired Adjustment Dates]:
__ (i) The last business day of each calendar quarter during
the Plan Year.
__ (ii) The last business day of each month during the Plan
Year.
XX (iii) The last business day of each payroll period during
-- the Plan Year.
__ (iv) Each day securities are traded on a national stock
exchange.
__ (v) Other [specify] _____________________________________
____________________________________________________.
2.9 COMPENSATION: The "Compensation" of a Participant shall mean all of
each Participant's [check desired option(s)]:
XX (i) compensation received as an Employee reportable in
-- box 1, Wages, Tips and other Compensation, on
Form W-2.
__ (ii) annual base salary.
__ (iii) annual bonus.
__ (iv) long term incentive plan compensation.
__ (v) compensation received as an Independent Contractor
reportable on Form 1099.
__ (vi) other [specify] _____________________________________
____________________________________________________.
Notwithstanding the foregoing, Compensation [X] SHALL [ ] SHALL NOT include
Salary Deferral Credits under this Plan and amounts contributed by the
Participant pursuant to a Salary Deferral Agreement to another employee benefit
plan of the Employer which are not includible in the gross income of the
Employee under Section 125, 402(e)(3), 402(h) or 403(b) of the Code.
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2.13 EFFECTIVE DATE: [check desired option]:
XX (i) This is a newly-established Plan, and the Effective
-- Date of the Plan is DECEMBER 1, 2001.
__ (ii) This is an amendment and restatement of a Plan with
an effective date of ___________, and the Effective
Date of this amended and restated Plan is _________.
This is amendment number _____.
2.20 NORMAL RETIREMENT AGE: The Normal Retirement Age of a Participant
shall be [check desired option]:
XX (i) Age 65 .
-- ----
__ (ii) The later of age ____ or the ______ anniversary of
the participation commencement date. The
participation commencement date is the first day of
the first Plan Year in which the Participant
commenced participation in the Plan.
2.22 PARTICIPATING EMPLOYER(S): As of the Effective Date, the following
Participating Employer(s) are parties to the Plan [list all employer-parties,
including the Employer]:
Name of Employer Address Telephone No. EIN
---------------- ------- ------------ ---
THE CONCORD TELEPHONE COMPANY 00 XXXXXXXX XXX. 704-722-2356 00-0000000
XXXXXXX, XX 00000
2.23 PLAN: The name of the Plan as applied to the Employer is: THE
EXECUTIVE NONQUALIFIED EXCESS PLAN OF THE CONCORD TELEPHONE COMPANY
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2.24 PLAN ADMINISTRATOR: The Plan Administrator shall be [check desired
option]:
__ (i) Committee.
XX (ii) Employer.
--
__ (iii) Other (specify): ___________________________________.
2.25 PLAN YEAR: The Plan Year shall be the 12 consecutive calendar
month period ending on the last day of the month of December, and each
anniversary thereof.
2.33 TRUST: [check desired option]:
XX (i) The Employer DOES desire to establish a "rabbi" trust
-- for the purpose of setting aside assets of the
Employer contributed thereto for the payment of
benefits under the Plan.
__ (ii) The Employer DOES NOT desire to establish a "rabbi"
trust for the purpose of setting aside assets of the
Employer contributed thereto for the payment of
benefits under the Plan.
2.35 YEARS OF SERVICE: For vesting purposes, Years of Service of a
Participant shall be calculated from the date designated below [check desired
option]:
XX (i) First Day of Service.
--
__ (ii) Effective Date of the Plan.
__ (iii) Each Contribution Date. Under this option (iii), each
Employer Matching Credit or Performance Incentive
Credit shall vest in accordance with the applicable
schedule selected in Section 7 of this Adoption
Agreement based on the Years of Service of a
Participant from the Adjustment Date on which each
Employer Matching Credit or Performance Incentive
Credit is credited to his or her Deferred
Compensation Account.
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3.1 SALARY DEFERRAL CREDITS: A Participant may elect to have his
Compensation (as selected in Section 2.9 of this Adoption Agreement) reduced by
the following percentage or amount per pay period, or for a specified pay period
or periods, as designated in writing to the Committee [check the applicable
options]:
XX (i) annual base salary:
--
[complete the following blanks only if a minimum or
maximum deferral is desired]:
minimum deferral: $__________ or 1.00%
maximum deferral: $__________ or 90.00%
XX (ii) annual bonus:
--
[complete the following blanks only if a minimum or
maximum deferral is desired]:
minimum deferral: $__________ or 1.00%
maximum deferral: $__________ or 90.00%
__ (iii) other [please specify type, as selected in
Section 2.9 of this Adoption Agreement]: ___________:
[complete the following blanks only if a minimum or
maximum deferral is desired]:
minimum deferral: $__________ or __________%
maximum deferral: $__________ or __________%
__ (iv) no salary deferral provision.
3.1.3 TERMINATION OF SALARY DEFERRALS: A Participant may terminate his
Salary Deferral Agreement effective as of [check desired option]:
__ (i) the first full payroll period commencing after the
date written notice of the termination is received by
the Committee.
XX (ii) the January 1 occurring after the date written notice
-- of the termination is received by the Committee.
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3.2 EMPLOYER MATCHING CREDITS: The Employer may make matching credits
to the Deferred Compensation Account of each Participant in an amount determined
as follows [check desired option(s)]:
__ (i) ______% of the Participant's Salary Deferral Credits.
__ (ii) ______% of the first ______% of the Participant's
Compensation which is elected as a Salary Deferral
Credit.
__ (iii) An amount determined each Plan Year by the Employer.
XX (iv) The Employer shall decide from year to year whether
-- matching credits will be made and shall notify
Participants annually of the manner in which matching
credits will be calculated for the subsequent year.
__ (v) The Employer shall not match amounts provided above
in excess of $_______, or in excess of ___% of the
Participant's Compensation per Plan Year.
__ (vi) No Employer matching credits provision.
3.3 EMPLOYER PERFORMANCE INCENTIVE CREDITS: The Employer may make
performance incentive credits to the Deferred Compensation Account of each
Active Participant in an amount determined as follows:
__ (i) Such amount out of the current or accumulated net
profit of the Employer for such year as the Employer
in its sole discretion shall determine.
XX (ii) Such amount as the Employer in its sole discretion
-- shall determine without regard to current or
accumulated net profit.
__ (iii) The Employer shall not make Performance Incentive
Credits in excess of $________, or in excess of ____%
of the Participant's Compensation per Plan Year.
__ (iv) No Employer performance incentive credits provision.
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4.1 DEATH OF A PARTICIPANT: If the Participant dies while in Service,
the Employer shall pay a benefit to the Beneficiary in an amount equal to the
Accrued Benefit of the Participant determined as of the date payments to the
Beneficiary commence, plus [check if desired]:
__ (i) An amount to be determined by the Committee.
__ (ii) A lump sum of $ ____________.
__ (iii) _____ times the annual base salary of the Participant
at his date of death.
__ (iv) Other [specify]: ___________________________________.
XX (v) No additional benefits.
--
4.4.2 EARLY RETIREMENT: The Employer may elect to provide for Early
Retirement. If Early Retirement is permitted, it shall be subject to the
following eligibility requirements [check desired option and fill in appropriate
blanks]:
__ (i) Completion of _____ Years of Service.
XX (ii) Attainment of age 62, or at discretion of Board of
-- Directors
__ (iii) Completion of _____ Years of Service and attainment
of age _____.
__ (iv) No Early Retirement provisions.
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5.1 REGULAR IN-SERVICE WITHDRAWALS: [check desired option]:
__ (i) The Employer DOES elect to permit regular in-service
withdrawals by a Participant from his Deferred
Compensation Account.
XX (ii) The Employer DOES NOT elect to permit regular
-- in-service withdrawals by a Participant from his
Deferred Compensation Account.
5.3 "HAIRCUT" WITHDRAWALS: [check desired option]:
__ (i) The Employer DOES elect to permit "haircut"
withdrawals by a Participant from his Deferred
Compensation Account.
Specify percentage (not less than 10%) of amount
withdrawn that shall be forfeited: 10%
XX (ii) The Employer DOES NOT elect to permit "haircut"
-- withdrawals by a Participant from his Deferred
Compensation Account.
5.4 COLLEGE EDUCATION WITHDRAWALS: [check desired option]:
__ (i) The Employer DOES elect to permit college education
withdrawals by a Participant from his Deferred
Compensation Account.
XX (ii) The Employer DOES NOT elect to permit college
-- education withdrawals by a Participant from his
Deferred Compensation Account.
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6.1 PAYMENT OPTIONS: Any benefit payable under the Plan may be made to
the Participant or his Beneficiary (as applicable) in any of the following
payment forms, as selected by the Participant upon his entry into the Plan
[check desired option(s)]:
XX (i) A lump sum in cash as soon as feasible following the
-- date Participant's service with the Employer
terminates for any reason (including Retirement,
Disability or death).
XX (ii) Approximately equal annual installments over a term
-- no longer than 5 years as elected by the Participant
upon his entry into the Plan.
Payment of the benefit shall commence as of the
following date [select desired option]:
__ The first business day of the calendar year
following the date Participant's service with
the Employer terminates for any reason
(including Retirement, Disability or death).
__ The first business day of the calendar
quarter following the date Participant's
service with the Employer terminates for any
reason (including Retirement, Disability or
death).
XX The first business day of the calendar month
-- following the date Participant's service with
the Employer terminates for any reason
(including Retirement, Disability or death).
The payment of each annual installment shall be made
on the anniversary of the date selected for the
commencement of the installment payments in this
subsection (ii). The amount of the annual installment
shall be adjusted on each anniversary date of the
commencement of the installment payments for credits
or debits to the Participant's account pursuant to
Section 8 of the Plan. Such adjustment shall be made
by dividing the balance in the Deferred Compensation
Account on each such date (following adjustment on
such date) by the number of annual installments
remaining to be paid hereunder; provided that the
last annual installment due under the Plan shall be
the entire amount credited to the Participant's
account on the date of payment.
__ (iii) Other [specify]: __________________________________
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7. VESTING:
(i) VESTING OF EMPLOYER MATCHING CREDITS: The nonforfeitable
percentage of each Participant in his Accrued Benefit
attributable to any applicable Employer Matching Credits shall
be as follows [check (a), (b), (c), (d), (e), (f) or (g)]:
___ (a) Immediate 100% vesting.
___ (b) 100% vesting after ___ Years of Service.
___ (c) 100% vesting at age ____.
___ (d) Number of Years Vested
of Service Percentage
--------------- ----------
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
___ (e) Number of Years Vested
of Service Percentage
--------------- ----------
Less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
XX (f) Number of Years Vested
-- of Service Percentage
--------------- ----------
Less than 1 0%
1 0%
2 0%
3 0%
4 0%
5 50%
6 50%
7 50%
8 50%
9 50%
10 or more 50%
THE PARTICIPANTS WILL BECOME 100% VESTED EITHER AT RETIREMENT AGE 65 OR
IF THERE IS A CHANGE OF CONTROL OF THE EMPLOYER, WHICHEVER EVENT OCCURS FIRST.
In addition, the nonforfeitable percentage of each Participant in his Accrued
Benefit attributable to any applicable Employer Matching Credits [X] SHALL
[ ] SHALL NOT become 100% vested at the Death or Disability of the Participant.
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(ii) VESTING OF EMPLOYER PERFORMANCE INCENTIVE CREDITS: The
nonforfeitable percentage of each Participant in his Accrued
Benefit attributable to any applicable Employer Performance
Incentive Credits shall be as follows [check (a), (b), (c),
(d), (e), (f) or (g)]:
___ (a) Immediate 100% vesting.
___ (b) 100% vesting after ___ Years of Service.
___ (c) 100% vesting at age ____.
___ (d) Number of Years Vested
of Service Percentage
--------------- ----------
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
___ (e) Number of Years Vested
of Service Percentage
--------------- ----------
Less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
XX (f) Number of Years Vested
-- of Service Percentage
--------------- ----------
Less than 1 0%
1 0%
2 0%
3 0%
4 0%
5 50%
6 50%
7 50%
8 50%
9 50%
10 or more 50%
THE PARTICIPANTS WILL BECOME 100% VESTED EITHER AT RETIREMENT AGE 65 OR
IF THERE IS A CHANGE OF CONTROL OF THE EMPLOYER, WHICHEVER EVENT OCCURS FIRST.
In addition, the nonforfeitable percentage of each Participant in his Accrued
Benefit attributable to any applicable Employer Performance Incentive Credits
[X] SHALL [ ] SHALL NOT become 100% vested at the Death or Disability of the
Participant.
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14. AMENDMENT OR TERMINATION OF PLAN: [check or complete all that
apply]:
__ (i) Notwithstanding any provision in this Adoption
Agreement or the Plan to the contrary, Sections _____
_______ of the Plan shall be amended to read as
follows:
See attached Exhibit ________.
__ (ii) The Plan shall be terminated upon the occurrence of
one or more of the following events [check if
desired]:
__ (a) The amount of shareholders equity shown on
the financial statements of the Employer
for each of the two most recent fiscal
years is less than $____________.
__ (b) The aggregate net loss (after tax) as
reported on the financial statements of the
Employer for the two most recent fiscal
years is greater than $____________.
__ (c) There is a change of control of the
Employer. For this purpose, a "change of
control" shall be deemed to have occurred
if: (A) any person other than an officer
who is an employee of the Employer for at
least one year preceding the change of
control, acquires or becomes the beneficial
owner, directly or indirectly, of
securities of the Employer representing
_____ % [insert percentage] or more of
the combined voting power of the Employer's
then outstanding securities and thereafter,
the membership of the Board becomes such
that a majority are persons who were not
members of the Board at the time of the
acquisition of securities; or (B) the
Employer, or its assets, are acquired by or
combined with another entity and less than
a majority of the outstanding voting shares
of such entity after the acquisition or
combination are owned, immediately after
the acquisition or combination, by the
owners of voting shares of the Employer
immediately prior to the acquisition or
combination.
XX (d) OTHER: CHANGE IN CONTROL. For purposes of this
-- Agreement, "Change in Control" shall mean
(A) the consummation of a merger,
consolidation, share exchange or similar
transaction of the Company with any other
corporation, entity or group, as a result of
which the holders of the voting capital stock
of the Company as a group would receive less
than 50% of the voting capital stock of the
surviving or resulting corporation; (B) the
consummation of an agreement providing for the
sale or transfer (other than as security for
obligations of the Company) of
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substantially all the assets of the Company;
or (C) in the absence of a prior expression of
approval by the Board, the acquisition except
by inheritance or devise of more than 20% of
the Company's voting capital stock by any
person within the meaning of Section 13(d)(3)
of the Securities Exchange Act of 1934, as
amended, other than a person, or group
including a person, who beneficially owned, as
of the date of this Agreement, more than 5% of
the Company's voting stock or equity, except
that transactions between the Company and
any affiliate or subsidiary of the Company
and transactions between the Company and any
employee stock ownership plan shall not be
deemed a "Change in Control" as described in
A, B or C above.
17.9 CONSTRUCTION: The provisions of the Plan and Trust (if any) shall
be construed and enforced according to the laws of the State of NORTH CAROLINA,
except to the extent that such laws are superseded by ERISA. IN WITNESS WHEREOF,
this Agreement has been executed as of the day and year first above stated.
THE CONCORD TELEPHONE COMPANY
Name of Employer
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxxx - Chairman and President
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