THE EXECUTIVE NONQUALIFIED "EXCESS" PLAN ADOPTION AGREEMENT
Exhibit 4.3
NOTE:
Execution of this Adoption Agreement creates a legal liability of the Employer
with significant tax consequences to the Employer and Participants. The Employer
should obtain legal and tax advice from its professional advisors before
adopting the Plan. Principal Life Insurance Company disclaims all liability for
the legal and tax consequences which result from the elections made by the
Employer in this Adoption Agreement.
Principal Life
Insurance Company, Xxxxxxx, XX 00000
A member of the
Principal Financial Group®
THE
EXECUTIVE NONQUALIFIED "EXCESS" PLAN
THIS
AGREEMENT is the adoption by CHS/Community Health Systems,
Inc. (the "Company") of the CHS/Community Health
Systems, Inc. Nonqualified Deferred Compensation Plan ("Plan").
W I T N E S S E T
H:
WHEREAS,
the Company desires to adopt the Plan as an unfunded, nonqualified deferred
compensation plan; and
WHEREAS,
the provisions of the Plan are intended to comply with the requirements of
Section 409A of the Code and the regulations thereunder and shall apply to
amounts subject to section 409A; and
WHEREAS,
the Company has been advised by Principal Life Insurance Company to obtain legal
and tax advice from its professional advisors before adopting the
Plan,
NOW,
THEREFORE, the Company 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.
ARTICLE
II
The
Employer hereby makes the following designations or elections for the purpose of
the Plan:
|
2.6
|
Committee:
|
The
duties of the Committee set forth in the Plan shall be satisfied
by:
|
| ___ |
(a)
|
Company
|
|
| ___ |
(b)
|
The
administrative committee appointed by the Board to serve at the pleasure
of the Board.
|
|
| ___ |
(c)
|
Board.
|
|
|
XX
|
(d)
|
Other
(specify): CHS/Community
Health Systems, Inc. Retirement
Committee.
|
|
2.8
|
Compensation:
|
The
"Compensation" of a Participant shall mean all of a
Participant's:
|
|
XX
|
(a)
|
Base
salary.
|
|
| ___ |
(b)
|
Service
Bonus.
|
|
| ___ |
(c)
|
Performance-Based
Compensation earned in a period of 12 months or more.
|
|
| ___ |
(d)
|
Commissions.
|
|
| ___ |
(e)
|
Compensation
received as an Independent Contractor reportable on Form
1099.
|
|
|
XX
|
(f)
|
Other:
Bonus
|
|
|
2.9
|
Crediting
Date:
|
The
Deferred Compensation Account of a Participant shall be credited with the
amount of any Participant Deferral to such account at the time
designated
below:
|
| ___ |
(a)
|
The
last business day of each Plan Year.
|
|
| ___ |
(b)
|
The
last business day of each calendar quarter during the Plan
Year.
|
|
| ___ |
(c)
|
The
last business day of each month during the Plan Year.
|
|
| ___ |
(d)
|
The
last business day of each payroll period during the Plan
Year.
|
|
| ___ |
(e)
|
Each
pay day as reported by the Employer.
|
|
|
XX
|
(f)
|
Any
business day on which Participant Deferrals are received by the
administrative recordkeeper.
|
|
| ___ |
(g)
|
Other:
___________________________________________.
|
|
2.13
|
Effective
Date:
|
| ___ |
(a)
|
This
is a newly-established Plan, and the Effective Date of the Plan is
_______________.
|
|
|
XX
|
(b)
|
This
is an amendment and restatement of a plan named Triad
Hospitals, Inc. Deferred Compensation Plan with an effective date
of January
1, 2005, an amendment and restatement of a plan named Quorum
Nonqualified Retirement Plan with an effective date of July
1, 1994, an
amendment and restatement of a plan named River
Region Physicans’ Nonqualified Retirement Plan with an effective
date of November 1, 1994, an amendment and
restatement of a plan named Kosciusko
Physicans’ Nonqualified Retirement Plan with an effective
date of February 1, 1999, an amendment and
restatement of a plan named Xxxx
Xxxxx Health Systems, LLC Nonqualified Retirement Plan with an effective
date of July
1, 1996 and an amendment and restatement of a plan named CHS NQDCP with an
effective date of November
1, 2008.
The Effective Date of this amended and
restated Plan is September
1, 2009.
|
|
XX
|
(i)
|
All
amounts in Deferred Compensation Accounts shall be subject to the
provisions of this amended and restated Plan.
|
|
| ___ |
(ii)
|
Any
Grandfathered Amounts shall be subject to the Plan rules in effect on
October 3, 2004.
|
|
2.20
|
Normal
Retirement
Age:
|
The
Normal Retirement Age of a Participant shall
be:
|
| ___ |
(a)
|
Age
___.
|
|
| ___ |
(b)
|
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.
|
|
|
XX
|
(c)
|
Other:
The later of age 65 or
age 55 and 10 Years of Service based on Section
6(f)(1).
|
|
2.23
|
Participating
Employer(s):
|
As
of the Effective Date, the following Participating Employer(s) are parties
to the Plan:
|
|
Name of Employer
|
Address
|
Telephone No.
|
EIN
|
|||
|
0000
Xxxxxxxx Xxxx.
|
000-000-0000
|
00-0000000
|
||||
|
Xxxxxxxx,
XX 00000
|
||||||
|
2.26
|
Plan:
|
The
name of the Plan is
|
| CHS NQDCP. |
|
2.28
|
Plan
Year:
|
The
Plan Year shall end each year on the last day of the month of December.
|
|
2.30
|
Seniority
Date:
|
The
date on which a Participant has:
|
| ___ |
(a)
|
Attained
age ___.
|
|
| ___ |
(b)
|
Completed
__ Years of Service from First Date of Service.
|
|
| ___ |
(c)
|
Attained
age __ and completed __ Years of Service from First Date of
Service.
|
|
| ___ |
(d)
|
Attained
an age as elected by the Participant.
|
|
|
XX
|
(e)
|
Attained
age 65
or attained age 55 and completed
10
Years of Service from based on Section 6(f)(1).
|
|
| ___ |
(f)
|
Not
applicable – distribution elections for Separation from Service are not
based on Seniority Date
|
|
4.1
|
Participant
Deferral Credits:
|
Subject
to the limitations in Section 4.1 of the Plan, a Participant may elect to
have his Compensation
(as selected in Section 2.8 of this Adoption Agreement) deferred within
the annual limits below by the following percentage or amount as
designated in writing to the
Committee:
|
|
XX
|
(a)
|
Base
salary:
|
|
minimum
deferral: __________%
|
|
maximum
deferral : $__________ or ____75______%
|
| ___ |
(b)
|
Service
Bonus:
|
|
minimum
deferral: __________%
|
|
maximum
deferral : $__________ or
__________%
|
| ___ |
(c)
|
Performance-Based
Compensation:
|
|
minimum
deferral: __________%
|
|
maximum
deferral : $__________ or
__________%
|
| ___ |
(d)
|
Commissions:
|
|
minimum
deferral: __________%
|
|
maximum
deferral : $__________ or
__________%
|
| ___ |
(e)
|
Form
1099 Compensation:
|
|
minimum
deferral: __________%
|
|
maximum
deferral : $__________ or
__________%
|
|
XX
|
(f)
|
Other: Bonus
|
|
minimum
deferral: __________%
|
|
maximum
deferral : $__________ or ____100______%
|
| ___ |
(g)
|
Participant
deferrals not allowed.
|
|
4.2
|
Employer
Credits:
|
Employer
Credits will be made in the following
manner:
|
|
XX
|
(a)
|
Employer Discretionary
Credits: The Employer may make discretionary credits to the
Deferred Compensation Account of each Active Participant in an amount
determined as follows:
|
|
XX
|
(i)
|
An
amount determined each Plan Year by the Employer.
|
|
| ___ |
(ii)
|
Other:
_______________________________________.
|
|
XX
|
(b)
|
Other Employer Credits:
The Employer may make other credits to the Deferred Compensation Account
of each Active Participant in an amount determined as
follows:
|
|
XX
|
(i)
|
An
amount determined each Plan Year by the Employer.
|
|
| ___ |
(ii)
|
Other:
_______________________________________.
|
| ___ |
(c)
|
Employer
Credits not allowed.
|
|
5.2
|
Disability
of a Participant:
|
| ___ |
(a)
|
A
Participant's becoming Disabled shall be a Qualifying Distribution Event
and the Deferred Compensation Account shall be paid by the Employer as
provided in Section 7.1.
|
|
|
XX
|
(b)
|
A
Participant becoming Disabled shall not be a
Qualifying Distribution Event.
|
|
5.3
|
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 vested balance in the Deferred Compensation Account
of the Participant determined as of the date payments to the Beneficiary
commence, plus:
|
| ___ |
(a)
|
An
amount to be determined by the Committee.
|
|
| ___ |
(b)
|
Other:
________________________________.
|
|
|
XX
|
(c)
|
No
additional benefits.
|
|
5.4
|
In-Service
or Education Distributions:
|
In-Service
and Education Accounts are permitted under the
Plan:
|
|
XX
|
(a)
|
In-Service
Accounts are allowed with respect
to:
|
|
XX
|
Participant Deferral Credits
only. (Effective
1/1/09)
|
|
| ___ | Employer Credits only. | |
|
XX
|
Participant
Deferral and Employer Credits. (Effective
through 12/31/08)
|
|
|
In-service
distributions may be made in the following manner:
|
||
|
XX
|
Single
lump sum payment.
|
|
|
XX
|
Annual
installments over a term certain not to exceed 3
years.
|
|
|
Education
Accounts are allowed with respect to:
|
||
| ___ |
Participant
Deferral Credits only.
|
|
| ___ |
Employer
Credits only.
|
|
| ___ |
Participant
Deferral and Employer Credits.
|
|
|
Education
Accounts distributions may be made in the following
manner:
|
||
| ___ |
Single
lump sum payment.
|
|
| ___ |
Annual
installments over a term certain not to exceed __
years.
|
|
|
If
applicable, amounts not vested at the time payments due under this Section
cease will be:
|
||
| ___ |
Forfeited
|
|
| ___ |
Distributed
at Separation from Service if vested at that
time
|
|
|
(b)
|
No
In-Service or Education Distributions
permitted.
|
|
5.5
|
Change
in Control Event:
|
| ___ |
(a)
|
Participants
may elect upon initial enrollment to have accounts distributed upon a
Change in Control Event.
|
|
|
XX
|
(b)
|
A
Change in Control shall not be a
Qualifying Distribution Event.
|
|
5.6
|
Unforeseeable
Emergency Event:
|
|
|
|
XX
|
(a)
|
Participants
may apply to have accounts distributed upon an Unforeseeable Emergency
event.
|
|
| ___ |
(b)
|
An
Unforeseeable Emergency shall not be
a Qualifying Distribution Event
|
|
6.
|
Vesting:
|
An
Active Participant shall be fully vested in the Employer Credits made
to the Deferred Compensation Account upon the first to occur of the
following events:
|
|
XX
|
(a)
|
Normal
Retirement Age.
|
|
|
XX
|
(b)
|
Death.
|
|
| ___ |
(c)
|
Disability.
|
|
| ___ |
(d)
|
Change
in Control Event
|
|
| ___ |
(e)
|
Other:
________________________________.
|
|
|
XX
|
(f)
|
Satisfaction
of the vesting requirement as specified below:
|
|
|
XX
|
Employer
Discretionary Credits:
|
| ___ |
(i)
|
Immediate
100% vesting.
|
|
|
XX
|
(ii)
|
100%
vesting after 3
Years of Service.
|
|
| ___ |
(iii)
|
100%
vesting at age __.
|
|
| ___ |
(iv)
|
Number
of
Years
Vested
of
Service
Percentage
|
|
Less
than
|
1
|
__%
|
||
|
1
|
__%
|
|||
|
2
|
__%
|
|||
|
3
|
__%
|
|||
|
4
|
__%
|
|||
|
5
|
__%
|
|||
|
6
|
__%
|
|||
|
7
|
__%
|
|||
|
8
|
__%
|
|||
|
9
|
__% | |||
|
10
or more
|
__%
|
|
For
this purpose, Years of Service of a Participant shall be calculated from
the date designated below:
|
|
XX
|
(1)
|
First
Day of Service.
|
|
| ___ |
(2)
|
Effective
Date of Plan Participation.
|
|
| ___ |
(3)
|
Each
Crediting Date. Under this option (3), each Employer Credit shall vest
based on the Years of Service of a Participant from the Crediting Date on
which each Employer Discretionary Credit is made to his or her Deferred
Compensation Account.
|
|
XX
|
Other
Employer Credits:
|
| ___ |
(i)
|
Immediate
100% vesting.
|
|
| ___ | (ii) |
100%
vesting after ___ Years of Service.
|
|
| ___ | (iii) |
100%
vesting at age __.
|
|
| XX | (iv) | As indicated by the Employer prior to the time of contribution and subject to approval of administration capability by Principal. | |
| ___ |
(v)
|
Number
of
Years
Vested
of
Service
Percentage
|
|
Less
than
|
1
|
__%
|
||||
|
1
|
__%
|
|||||
|
2
|
__%
|
|||||
|
3
|
__%
|
|||||
|
4
|
__%
|
|||||
|
5
|
__%
|
|||||
|
6
|
__%
|
|||||
|
7
|
__%
|
|||||
|
8
|
__%
|
|||||
|
9
|
__% | |||||
|
10
or more
|
__%
|
|||||
|
For
this purpose, Years of Service of a Participant shall be calculated from
the date designated below:
|
| ___ |
(1)
|
First
Day of Service.
|
|
| ___ |
(2)
|
Effective
Date of Plan Participation.
|
|
| ___ |
(3)
|
Each
Crediting Date. Under this option (3), each Employer Credit shall vest
based on the Years of Service of a Participant from the Crediting Date on
which each Employer Discretionary Credit is made to his or her Deferred
Compensation Account.
|
|
7.1
|
Payment
Options:
|
Any
benefit payable under the Plan upon a permitted Qualifying Distribution
Event may
be made to the Participant or his Beneficiary (as applicable) in any of
the following payment forms, as selected by the Participant in the
Participation Agreement:
|
|
(a)
|
Separation from Service prior to Seniority Date,
or Separation from Service if Seniority Date is Not
Applicable
|
|
XX
|
(i)
|
A
lump sum.
|
|
| ___ |
(ii)
|
Annual
installments over a term certain as elected by the Participant not to
exceed ___ years.
|
|
| ___ |
(iii)
|
Other:
____________________________.
|
|
(b)
|
Separation from Service on or After Seniority
Date, If Applicable
|
|
XX
|
(i)
|
A
lump sum.
|
|
|
XX
|
(ii)
|
Annual
installments over a term certain as elected by the Participant not to
exceed 15
years.
|
|
| ___ |
(iii)
|
Other:
_____________________________.
|
|
(c)
|
Separation from Service Upon a Change in Control
Event
|
| ___ |
(i)
|
A
lump sum.
|
|
| ___ |
(ii)
|
Annual
installments over a term certain as elected by the Participant not to
exceed ___ years.
|
|
|
XX
|
(iii)
|
Other:
Not
Applicable.
|
|
(d)
|
Death
|
|
XX
|
(i)
|
A
lump sum.
|
|
| ___ |
(ii)
|
Annual
installments over a term certain as elected by the Participant not to
exceed ___ years.
|
|
| ___ |
(iii)
|
Other:
______________________________.
|
|
(e)
|
Disability
|
| ___ |
(i)
|
A
lump sum.
|
|
| ___ |
(ii)
|
Annual
installments over a term certain as elected by the Participant not to
exceed ___
years.
|
|
| ___ |
(iii)
|
Other:
______________________________.
|
|
|
XX
|
(iv)
|
Not
applicable.
|
|
|
If
applicable, amounts not vested at the time payments due under this Section
cease will be:
|
|||
| ___ |
Forfeited
|
||
| ___ |
Distributed
at Separation from Service if vested at that
time
|
||
|
(f)
|
Change in Control
Event
|
| ___ |
(i)
|
A
lump sum.
|
|
| ___ |
(ii)
|
Annual
installments over a term certain as elected by the Participant not to
exceed ___ years.
|
|
| ___ |
(iii)
|
Other:
|
|
|
XX
|
(iv)
|
Not
applicable.
|
|
|
If
applicable, amounts not vested at the time payments due under this Section
cease will be:
|
|||
| ___ |
Forfeited
|
||
| ___ |
Distributed
at Separation from Service if vested at that
time
|
||
|
7.4
|
De
Minimis Amounts.
|
|
|
| ___ |
(a)
|
Notwithstanding
any payment election made by the Participant, the vested balance in the
Deferred Compensation Account of the Participant will be distributed in a
single lump sum payment at the time designated under the Plan if at the
time of a permitted Qualifying Distribution Event that is either a
Separation from Service, death, Disability (if applicable) or Change in
Control Event (if applicable) the vested balance does not exceed ______. In addition, the
Employer may distribute a Participant's vested balance at any time if the
balance does not exceed the limit in Section 402(g)(1)(B) of the Code and
results in the termination of the Participant's entire interest in the
Plan
|
|
|
XX
|
(b)
|
There
shall be no pre-determined de minimis amount under the Plan; however, the
Employer may distribute a Participant's vested balance at any time if the
balance does not exceed the limit in Section 402(g)(1)(B) of the Code and
results in the termination of the Participant's entire interest in the
Plan.
|
|
10.1
|
Contractual
Liability:
|
Liability
for payments under the Plan shall be the responsibility of
the:
|
|
XX
|
(a)
|
Company.
|
|
| ___ |
(b)
|
Employer
or Participating Employer who employed the Participant when amounts were
deferred.
|
14. Amendment
and Termination of Plan: Notwithstanding
any provision in this Adoption Agreement or the Plan to the contrary, Sections
2.23,
2.8, 4.1 and 7.1(b) of the Plan shall be amended to read as provided in
attached Exhibit A,
and Section 4.1.2 of the
Plan shall be amended to read as provided in attached Exhibit B.
17.9 Construction: The
provisions of the Plan shall be construed and enforced according to the laws of
the State of Tennessee,
except to the extent that such laws are superseded by ERISA and the applicable
provisions of the Code.
IN
WITNESS WHEREOF, this Agreement has been executed as of the day and year stated
below.
|
Name
of Employer
|
|||
|
By:
|
/s/
Xxxxx X. Xxxxxxxx
|
||
|
Authorized
Person
|
|||
|
Date:
|
8/11/09
|
||
Exhibit
A
Section
2.8
Notwithstanding
Section 2.8 of the Adoption Agreement, Section 2.8 of the Plan, or any other
terms of the Adoption Agreement or Plan to the contrary, “Compensation” of a
Participant shall mean Base salary and Service Bonus attributable to wages,
salaries, and fees for professional services and other amounts received (without
regard to whether or not an amount is paid in cash) for personal services
actually rendered in the course of employment with the Employer to the extent
the amounts are includible in gross income (including, but not limited to,
commissions paid salespersons, compensation for services on the basis of a
percentage of profits, commissions on insurance premiums, tips, and
bonuses). Compensation shall also include all of the following types
of elective contributions and all of the following types of deferred
compensation: elective contributions that are made by the Employer on
behalf of a Participant that are not includible in gross income under Code
Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), and 403(b).
However,
Compensation shall exclude all of the following items (even if includible in
gross income): reimbursements or other expense allowances, fringe benefits (cash
and non-cash), moving expenses, and welfare benefits. In addition,
Compensation shall also exclude the following: (a) amounts realized
from the exercise of a nonqualified stock option, or when restricted stock (or
property) held by the Participant either becomes freely transferable or is no
longer subject to a substantial risk of forfeiture; (b) amounts realized from
the sale, exchange or other disposition of stock acquired under an incentive
stock option; (c) other amounts that received special tax benefits (whether or
not the amounts are actually excludable from the gross income of the
Participant) unless specifically included above; (d) amounts received as
severance pay; and (e) amounts received after severance from employment,
provided, however, that Compensation shall include Post-Severance
Compensation.
“Post-Severance
Compensation" means payments made within 2 ½ months after severance from
employment (within the meaning of Code Section 401(k)(2)(B)(i)(I)) if they are
payments that, absent a severance from employment, would have been paid to the
Employee while the Employee continued in employment with the Employer and are
regular compensation for services during the Employee's regular working hours,
compensation for services outside the Employee's regular working hours (such as
overtime or shift differential), commissions, bonuses, or other similar
compensation, and payments for accrued bona fide sick, vacation or other leave,
but only if the Employee would have been able to use the leave if employment had
continued. Any payments not described above are not considered compensation if
paid after severance from employment, even if they are paid within 2 ½ months
following severance from employment, except for payments to an individual who
does not currently perform services for the Employer by reason of qualified
military service (within the meaning of Code Section 414(u)(1)) to the extent
these payments do not exceed the amounts the individual would have received if
the individual had continued to perform services for the Employer rather than
entering qualified military service.
Section
2.23
Notwithstanding
Section 2.23 of the Adoption Agreement, Sections 2.15, 2.23, and 2.24 of the
Plan, or any other terms of the Adoption Agreement or Plan to the contrary, a
“Participating Employer" shall include any corporation that is a member of a
controlled group of corporations (as defined in Code Section 414(b)) that
includes the Company; any trade or business (whether or not incorporated) that
is under common control (as defined in Code Section 414(c)) with the Company;
any organization (whether or not incorporated) that is a member of an affiliated
service group (as defined in Code Section 414(m)) which includes the Company;
and any other entity required to be aggregated with the Company under Code
Section 414(o), regardless of whether such corporation, trade or business,
organization, or entity formally adopts the Plan.
Section
4.1
Notwithstanding
Section 4.1 of the Adoption Agreement, Section 4.1 of the Plan, or any other
terms of the Adoption Agreement or Plan to the contrary, with respect to a
Participant who elects to defer Compensation made with respect to plan years
commencing prior to January 1, 2009, the minimum deferral shall be
$2,000.
Section
7.1(b)
Notwithstanding
Section 7.1(b) of the Adoption Agreement, Section 7.1 or 7.3 of the Plan, or any
other terms of the Adoption Agreement or Plan to the contrary, the minimum
number of years with respect to annual installments payment option shall be two
(2) years with respect to plan years commencing prior to January 1,
2009.
Exhibit
B
to
the
Adoption Agreement for the
Executive
Nonqualified Excess Plan
In accordance with
Section 14 of the Adoption Agreement (the “AA”) for the Executive Nonqualified
Excess Plan as adopted for the CHS NQDCP (the “Plan”), which permits
CHS/Community Health Systems, Inc., as sponsor of the Plan, to amend the terms
of the AA and the Plan, CHS/Community Health Systems, Inc. hereby adopts this
Exhibit B to the AA concurrently with the adoption of the Plan. All
other provisions of the Plan and AA remain in force and unamended.
1. Section
4.1.2 of the Plan shall be amended by deleting the final sentence thereto and
replacing it with the following sentence:
The
election of a Participant shall be effective only with respect to the calendar
year credits on account of which the election is made.
