Deferred Compensation Plan for Directors and Certain Highly Compensated Employees - Washington Mutual Inc.
WASHINGTON MUTUAL
DEFERRED COMPENSATION PLAN FOR
DIRECTORS AND CERTAIN HIGHLY COMPENSATED EMPLOYEES
INITIALLY ADOPTED FEBRUARY 17, 1987
AMENDED AND RESTATED EFFECTIVE FEBRUARY 1, 1997
This Deferred Compensation Plan for Directors and Certain Highly
Compensated Employees was initially adopted by Washington Mutual Savings Bank
on February 17, 1987, was amended and restated effective January 1, 1988 and
was subsequently amended and restated effective January 1, 1993. Sponsorship
of this Plan was transferred to Washington Mutual, Inc. in 1994 in connection
with the corporate reorganization pursuant to which Washington Mutual Savings
Bank was merged into Washington Mutual Bank and become a subsidiary of
Washington Mutual, Inc. This Plan is hereby amended and restated in its
entirety by Washington Mutual, Inc., effective February 1, 1997 (except as
otherwise provided below), to provide as follows:
1. DEFINITIONS.
1.1 "Account" means a separate bookkeeping account established for
each Participant on the books of the Company that employs the applicable
Participant for the purpose of recording amounts of Compensation deferred by
such Participant and income earned thereon, pursuant to the provisions of this
Plan.
1.2 "Board" means the Board of Directors of WM, Inc.
1.3 "Annual Bonus" has its usual and ordinary meaning. It is not
intended to include commissions or other similar variable compensation, and is
not intended to include bonuses for services for less than the full calendar
year.
1.4 "Code" means the Internal Revenue Code of 1986, as it may be
amended or replaced from time to time.
1.5 "Company" means WM, Inc., or any direct or indirect subsidiary
of WM, Inc. With respect to any Participant or former Participant, the term
"Company" means the Company by whom the Participant is currently employed, or
was last employed in the case of a former Participant.
1.6 "Compensation" means salary, Annual Bonus, quarterly or
semi-annual bonuses, commissions, variable compensation, and other direct
compensation payable by a Company to an Eligible Employee for employment by the
Company, and Directors' fees payable by WM, Inc. to its Directors. The term
"Compensation" shall not include reimbursement for expenses incurred by the
Eligible Employee, or contributions to or benefits accrued under any Retirement
Plan.
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1.7 "Effective Date" means February 1, 1997, the effective date of
this amendment and restatement of the Plan. This stated effective date
notwithstanding, the revisions to the Plan reflected in Sections 4.2, 5.2 and
the last sentence of Section 1.8 shall be retroactive, the revisions to the
Plan reflected in Sections 1.3, 2.1, 2.2, 2.6 and 4.2 shall be effective
January 1, 1997, and the deletion of Section 2.8 shall be effective January 1,
1997.
1.8 "Eligible Employee" means (a) each Director of WM, Inc., (b)
each salaried employee of either WM, Inc. or any banking subsidiary of WM, Inc.
who has the following corporate title: Chairman, President, Senior Executive
Vice President or Executive Vice President, (c) each salaried employee of
either WM, Inc. or any banking subsidiary of WM, Inc. who has the corporate
title of Senior Vice President and who is determined by the Plan Administration
Committee, in its discretion, to be eligible to participate under this Plan,
and (d) each salaried employee of a non-banking subsidiary of WM, Inc. who has
the corporate title of President. The provisions of the Pre-Existing Plan
notwithstanding, no former employee of American Savings Bank or Western Bank
shall be considered to have been an Eligible Employee under the Pre-Existing
Plan.
1.9 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
1.10 "Final Payment Date" means the date of any payment to a
Participant or former Participant attributable to amounts deferred hereunder
which reduces such Participant's or former Participant's Account to zero.
1.11 "Participant" means any Eligible Employee who has elected to
defer Compensation under this Plan.
1.12 "Plan" means this plan for the deferral of Compensation, as it
may be amended from time to time.
1.13 "Plan Administration Committee" or "Committee" means such
person or persons appointed under the provisions of Section 6 hereof to
administer and interpret the terms of the Plan.
1.14 "Plan Year" means the 12 consecutive month period commencing
each January 1 and ending each December 31.
1.15 "Pre-Existing Plan" shall mean this Plan as in effect prior to
the Effective Date.
1.16 "Retirement Plan" means any defined benefit or defined
contribution plan qualified under Section 401(a) of the Code, and which is
sponsored by one or more Companies.
1.17 "Termination Date" means the date on which an Eligible
Employee ceases to be an Eligible Employee, for any reason.
1.18 "WM, Inc." means Washington Mutual, Inc., a Washington
corporation.
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2. DEFERRAL ELECTION.
2.1 Election to Defer Compensation.
(a) Any Eligible Employee may elect at any time on or
prior to 15 days preceding the first day of any calendar quarter to
defer the receipt of all or any portion of his or her Compensation for
services to be rendered in the immediately following calendar quarter
or quarters (not including any Annual Bonus). In the case of a bonus
determined on less than an annual basis (e.g., a quarterly or
semi-annual bonus), the deferral election must be made on or prior to
15 days preceding the first day of the first calendar quarter in which
any services will be rendered that relate, in whole or in part, to the
bonus in question.
(b) Notwithstanding anything in this Section 2.1 to the
contrary, any amount to be deferred under this Plan shall not reduce
the current Compensation of the Participant below the total amount
which is to be withheld from the Participant's Compensation pursuant
to a requirement of law or pursuant to an elected optional payroll
deduction.
(c) The parties hereto understand that this Plan does not
determine or affect any Participant's entitlement to any bonus.
Accordingly, in the event that a Participant elects to defer a
percentage of any potential bonus which is not ultimately awarded,
such election shall be null and void.
2.2 Election to Defer Annual Bonus.
(a) Each Eligible Employee may elect to defer a certain
percentage amount, up to 100%, of any Annual Bonus which may be
awarded by the Company. Each such election must be made on or before
December 31 of the calendar year preceding the Plan Year in respect to
which the Annual Bonus may be awarded. For example, for an Annual
Bonus for services rendered during the Plan Year 1998, any Annual
Bonus deferral election must be made by December 31, 1997.
(b) In addition to the foregoing, any Eligible Employee
who is a former employee of American Savings Bank or Western Bank may
elect, for any Annual Bonus which may be awarded for services in the
1997 Plan Year, a condition of which is that the Eligible Employee
must remain employed by the Company through the end of 1997, to defer
a certain percentage amount, up to 100%, of any such Annual Bonus
which may be awarded by the Company. Any election under this
provision must be made on or before March 1, 1997.
(c) The parties hereto understand that this Plan does not
determine or affect any Participant's entitlement to any Annual Bonus.
Accordingly, in the event that a Participant elects to defer a
percentage of his or her potential Annual Bonus which is not
ultimately awarded, such election shall be null and void.
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2.3 Form and Manner of Election. Any election under Section 2.1
or Section 2.2 shall be made in writing and in such form and manner as may be
prescribed by the Plan Administration Committee. The election shall specify
such items as the Committee shall reasonably require, including but not limited
to:
(a) The amount to be deferred, either as a specific
dollar amount or as a percentage of Compensation. Each election of a
dollar amount shall be not less than $300 for each calendar quarter.
Each election of a percentage amount shall be not less than 15% of
Compensation for each calendar quarter; provided, however, that an
election under Section 2.2 with respect to any Annual Bonus that may
be granted by the Company shall be only in such percentage amount as
determined by the Participant;
(b) One of the applicable payment options designated
under Section 2.4 below, unless an option has previously been
designated (including any designation under the Pre-Existing Plan), in
which event the election need include such a designation only if a
change from the existing designated payment option is desired;
(c) A payment commencement date as specified under
Section 2.5 below, unless a payment commencement date has previously
been designated (including any designation under the Pre-Existing
Plan), in which event the election need include such a designation
only if a change from the existing designated commencement date is
desired; and
(d) A designated beneficiary or beneficiaries as provided
in Section 3 hereof.
2.4 Payment Options. At the time of making an election under
Section 2.1 or Section 2.2, the Participant shall specify one of the following
payment options:
(a) Payment of the entire Account balance in a single
lump sum payment.
(b) Payment of the Account balance in monthly
installments over a period certain not to exceed 10 years, with each
installment to be an amount equal to the Account balance as of the
date of payment divided by the number of installments remaining to be
paid, including the current installment; provided, however, that no
monthly installment may be less than $300.
If a Participant fails to specify a payment option described
above, option (a) shall apply. If a Participant designates different payment
options at different times, the last payment option elected shall apply
(including any last election under the Pre-Existing Plan).
2.5 Commencement of Payment. At the time of making a deferral
election under Section 2.1 or Section 2.2, the Participant shall irrevocably
specify the date for the commencement of payment of the Compensation deferred
pursuant to that election. If a Participant fails to specify a payment date,
payment shall be made or commenced, as the case may be, on the first day of the
month immediately following such Participant's Termination Date. A Participant
may designate different payment commencement dates to apply to separate
deferral elections. A payment date may be a date certain, or may be a date
related to an
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employment event such as the date of termination of employment or retirement,
or may be a date related to any other objectively determined event acceptable
to the Plan Administration Committee. The payment commencement date may not be
modified with respect to deferrals elected at the time the payment commencement
date is designated. Subsequent deferral elections may specify a different
payment commencement date for those deferrals.
2.6 Modification of Election.
(a) A Participant's election under Section 2.1 above
shall continue from calendar quarter to calendar quarter until the
election is terminated pursuant to Section 2.7 below, or the election
is modified; provided that an election modification must be made at
least 15 days prior to the first day of such calendar quarter; and
provided further that if an election has been made to defer
compensation that is for services to be rendered during more than one
calendar quarter (e.g., a semi-annual bonus), any modification of that
election must be made at least 15 days prior to the first day of the
first calendar quarter in which any services are to be rendered that
relate, in whole or in part, to the element of Compensation that was
deferred. A Participant's election under Section 2.2 above is
effective only for the Plan Year for which the election is made. Any
modification of such election must be made prior to January 1 of the
Plan Year for which the Annual Bonus may be awarded.
(b) Payment options may be modified at any time more than
30 days prior to the Participant's payment commencement date. As
provided in Section 3 hereof, Beneficiary designations may be modified
at any time. Payment commencement dates may not be modified. Any
modification of an election pursuant to this Section 2.6 shall be
ineffective unless it is made in writing and is timely delivered to
the Plan Administration Committee, in such form as shall be reasonably
required by the Committee.
2.7 Termination of Election. A Participant's deferral election
under Section 2.1 above shall terminate upon the earlier of: (a) the first day
of the calendar quarter immediately following the date on which the Plan
Administration Committee receives from such Participant written notice stating
that his or her election is terminated (provided that if an election has been
made to defer compensation that is for services to be rendered during more than
one calendar quarter (e.g., a semi-annual bonus), any termination of that
election must be done at least 15 days prior to the first day of the first
calendar quarter in which any services are to be rendered that relate, in whole
or in part, to the element of Compensation that was deferred); (b) such
Participant's Termination Date; or (c) termination of this Plan. In the event
of a voluntary termination of an election by the Participant pursuant to clause
(a) above, the Participant may not defer additional amounts until a timely
election is made to defer Compensation which is payable in a subsequent
calendar quarter, as provided in Section 2.1 hereof.
3. BENEFICIARY DESIGNATION.
3.1 Designation of Beneficiary. At the time of making an election
under Section 2.1 or Section 2.2 hereof, a Participant shall designate a person
or persons as the Participant's
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beneficiary or beneficiaries (both primary as well as secondary) to whom
payment under this Plan shall be made in the event of the Participant's death
prior to complete distribution of such Participant's Account balance under the
Plan. Each beneficiary designation shall become effective only when filed in
writing with the Plan Administration Committee during the Participant's
lifetime on a form prescribed by the Committee. Such payments shall be made to
the primary beneficiary if such person survives the Participant. If not, such
payments shall be made to the secondary beneficiary if such person survives the
Participant, and if not, then payments will be made in accordance with the
provisions of Section 3.3 below. If a beneficiary dies at a time such
beneficiary is entitled to receive payments hereunder, the remaining payments
shall be made to such beneficiary's estate, as provided in Section 3.4 below.
3.2 Filing New Designation. The filing of a new beneficiary
designation form will cancel all beneficiary designations previously filed.
Any finalized divorce, dissolution or annulment of marriage or any new marriage
of a Participant subsequent to the date of filing of a beneficiary designation
form shall revoke such designation.
3.3 Failure to Designate. If a Participant fails to designate a
beneficiary as provided above, or if a Participant's beneficiary designation is
revoked by marriage, divorce, dissolution, annulment or otherwise without
execution of a new designation; or if all designated beneficiaries predecease
the Participant or die prior to complete distribution of the Participant's
benefits hereunder; then, the Plan Administration Committee shall direct the
distribution of such benefits to the Participant's estate.
3.4 Death of Beneficiary. At the death of the beneficiary who is
entitled to receive payments hereunder, the balance (if any) then remaining in
the Participant's Account shall be paid in a lump sum to the beneficiary's
estate. Such payment shall completely discharge the Company's obligations
under this Plan.
3.5 Change of Beneficiary. Notwithstanding any other provision of
this Plan, any beneficiary designation may be changed by a Participant at any
time by the written filing of such change on a form prescribed by the Plan
Administration Committee.
4. ACCOUNTS.
4.1 Separate Accounts. The Plan Administration Committee shall
establish a separate Account for each Participant, to which it will credit each
amount required to be credited hereunder. The Account thus established shall
be a bookkeeping Account, and shall not grant to any Participant any security
interest or other prior right in any assets of the Company by reason of such
credits.
4.2 Timing of Credit.
(a) Subject to Section 5.2(c), as of the first day of
each month, the Plan Administration Committee shall credit to each
Participant's Account that portion of such Participant's regular
monthly Compensation earned during the immediately preceding month for
which a deferral election under Section 2.1 is in effect.
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(b) Subject to Section 5.2(c), with respect to each
deferral election under Section 2.1 or 2.2 that defers any bonus,
commission, variable compensation or other element of Compensation
that is not regular monthly compensation, the Plan Administration
Committee shall credit to each Participant's Account the amount of the
deferral election as of the date the bonus, commission, variable
compensation or other Compensation, if any, is awarded by the Company
to the Participant.
4.3 Interest. As of the first day of each calendar quarter, the
Plan Administration Committee shall credit to each Participant's Account
interest on the average daily balance of such Account during the immediately
preceding calendar quarter, using the actual number of days in the calendar
quarter, at an interest rate determined as follows:
As of January 1 of each year, commencing with the Effective Date, the
Plan Administration Committee will determine the applicable interest
rate for the then commencing Plan Year by reference to the interest
rate which would be applicable as of such date to any unsecured junior
debt offering by Washington Mutual Bank or by a comparable financial
institution or public corporation. Such determination will be made by
the Committee, which shall request an estimate of such debt offering
interest rate from at least one nationally-recognized investment
banking firm. The interest rate so determined will be set forth in
writing and kept with the Plan records, and will be applicable to all
Compensation amounts deferred by Participants during the Plan Year.
5. PAYMENT OF ACCOUNT BALANCE.
5.1 Payment Method. Following the Participant's Termination Date,
the Company shall pay the Participant's Account balance under this Plan to such
Participant in accordance with the payment option designated by the Participant
pursuant to Section 2.4 hereof. In the event of the death of the Participant
prior to payment of the entire Account balance, payment shall be made to such
Participant's beneficiary or beneficiaries designated under Section 3 in
accordance with the payment method designated by the Participant pursuant to
Section 2 hereof, or in accordance with any accelerated method (including lump
sum) as the Plan Administration Committee shall determine in its sole
discretion.
5.2 Withholding and Offset.
(a) Any payment or other distribution of benefits under
this Plan may be reduced by any amount required to be withheld by the
Company under any applicable law, rule, regulation, order or other
requirement, now or hereafter in effect, of any governmental
authority.
(b) If a Participant becomes entitled to a distribution
of benefits under the Plan, and if at such time such Participant has
outstanding any debt, obligation or other liability representing an
amount owing to the Company, then the Company may offset such amount
owing it against the amount of benefits otherwise distributable. Such
determination shall be made by the Plan Administration Committee.
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(c) If any tax withholding is required with respect to
Compensation deferred hereunder, the Company shall withhold such
amounts as are required from Compensation paid to the Participant that
is not deferred; provided that if there is insufficient non-deferred
Compensation to allow for the required withholding the withholding
shall be taken from the deferred Compensation and the Participant's
credit under Section 4.2 shall be reduced accordingly.
5.3 Payment for Unforeseeable Emergency. A Participant shall not
be entitled to withdraw any portion of the balance of his or her Account except
that, in cases of an unforeseeable emergency, the Plan Administration Committee
may authorize, on a uniform and nondiscriminatory basis and taking into account
other resources reasonably available to the Participant, payment of so much of
the Participant's Account as is required to meet the need created by the
emergency. For the purposes hereof, an "unforeseeable emergency" is an
unanticipated emergency that is caused by an event beyond the control of the
Participant or the Participant's beneficiary and that would result in severe
financial hardship to the individual if early withdrawal were not permitted.
Without limiting the generality of the foregoing, an unforeseeable emergency
shall include a sudden and unexpected illness or accident of the Participant or
of a dependent (as defined in Code Section 152(a)) of the Participant, loss of
the Participant's property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
Participant's control. The circumstances that will constitute an unforeseeable
emergency will depend upon the facts of each case, as determined by the Plan
Administration Committee in its sole discretion, but, in any case, payment may
not be made to the extent that such hardship is or may be relieved:
(a) through reimbursement or compensation by insurance or
otherwise;
(b) by liquidation of the Participant's assets, to the
extent the liquidation of such assets would not itself cause severe
financial hardship, or
(c) by cessation of deferrals under this Plan.
For the purposes hereof, examples of what are not considered to be
unforeseeable emergencies shall include the need to send a Participant's child
to college or the desire to purchase a home.
5.4 Limitation on Liability. The Company's maximum liability to
make payments hereunder is limited to the amount of the Participant's Account
(including the interest thereon pursuant to Section 4.3 above).
6. ADMINISTRATION OF THE PLAN.
The Board shall from time to time appoint a committee, which shall be
designated the Plan Administration Committee, to administer the Plan. The
Board may fix or change the number of members of the Committee at any time at
its discretion. Each member of the Plan Administration Committee shall serve
until such member resigns or becomes unable to serve due to death or disability
or until such member is removed by the Board. The Plan Administration
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Committee shall administer and interpret the Plan and for that purpose may
make, amend or revoke rules and regulations at any time. The Committee also
shall make determinations about benefits hereunder. All decisions of the Plan
Administration Committee shall be by vote of a majority of its members eligible
to vote on a particular matter, and shall be final and binding on all parties.
The Plan Administration Committee shall have absolute discretion to carry out
its responsibilities hereunder. Members of the Plan Administration Committee
shall be eligible to participate in the Plan while serving as a member of the
Committee; provided, however, that no member shall be entitled to vote or take
any other action as part of the Committee with respect to such member's
benefits or any other matter affecting such member's rights as a Participant
under the Plan.
7. CLAIMS PROCEDURE.
7.1 Claims Procedure. Any person desiring a benefit under,
interpretation or construction of, ruling under or information regarding this
Plan shall submit a written request therefor to the Plan Administration
Committee. The Committee shall respond in writing to any such request as soon
as practicable. Any interpretation or construction of, and any ruling under,
this Plan by the Plan Administration Committee shall be final and binding on
all parties.
7.2 Denial of Claim. If a claim for benefits is denied in whole
or in part, the Plan Administration Committee shall notify the claimant of such
denial and of his or her right to a conference with an individual designated in
the notice for the purpose of explaining the denial. If the claimant does not
want such a conference, or is dissatisfied with its outcome, he or she shall be
furnished in writing, in a manner calculated to be understood by the claimant,
specific reasons for such denial, specific references to the Plan provisions on
which the denial is based, a description of any additional material necessary
for his or her to perfect his or her claim, an explanation of why such material
is necessary, and an explanation of this Plan's review procedure as described
in Section 7.3 below.
7.3 Review Procedure. Any person, or his or her duly authorized
representative, whose claim for benefits under this Plan has been denied in
whole or in part, may appeal from such denial to the Plan Administration
Committee by submitting to the Committee a written request for review within 75
days after receiving notice of denial. The Plan Administration Committee shall
give the claimant an opportunity to review pertinent documents relating to the
denial in preparing his or her request for review. The request must set forth
all the grounds upon which it is based, supporting facts and documents, and any
other matters which the claimant deems pertinent, and the relief sought. The
Committee may require the claimant to submit such additional facts, documents
or other material as it deems necessary or advisable in making its review. The
Plan Administration Committee shall act upon a request for review within 60
days after receipt thereof unless special circumstances require further time,
but in no event later than 120 days after such receipt. If the Plan
Administration Committee confirms the denial in whole or in part, the Committee
shall give written notice to the claimant setting forth, in a manner calculated
to be understood by the claimant, the specific reasons for denial and specific
reference to the Plan provisions on which the decision was based. The
determination of the Plan Administration Committee upon such review shall be
final and conclusive and shall
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be binding upon the claimant and all persons claimed by, through or under him
or her, subject, however, to any right of appeal under applicable law.
8. AMENDMENT AND TERMINATION OF PLAN.
8.1 Amendment. The Board may at any time amend this Plan,
provided that no amendment shall deny or reduce any amounts previously credited
to any Participant's Account.
8.2 Termination.
(a) The Board may at any time terminate this Plan, if in
its judgment the continuance of the Plan, or the tax, accounting or
other effects thereof would not be in the best interest of the
Company.
(b) Upon any termination of the Plan under this Section
8.2, the Participant will be deemed to have withdrawn from the Plan as
of the date of such termination, the remaining deferred Compensation
for the balance of the calendar quarter shall prospectively cease to
be deferred for such calendar quarter, and the Company will pay to
Participant the then balance in the Participant's Account at such
times and pursuant to such terms and conditions as the Board in its
sole discretion shall determine.
9. MISCELLANEOUS.
9.1 Unsecured General Creditor; Unfunded Plan. A Participant and
such Participant's beneficiaries, heirs, successors and assigns shall have no
legal or equitable rights, interest or claims in any property or assets of the
Company. Such assets of the Company shall not be held under any trust for the
benefit of Participant, Participant's beneficiaries, heirs, successors or
assigns, or held in any way as collateral security for the fulfilling of the
obligations of the Company under this Plan. Any and all assets of the Company
shall be, and remain, the general, unpledged, unrestricted assets of the
Company. The Company's obligation hereunder shall be merely that of an
unfunded and unsecured promise of the Company to pay money in the future. It
is the intention of the parties hereto that this Plan be unfunded for tax
purposes and for purposes of Title I of ERISA.
9.2 Plan Administrator. With respect to ERISA, the Plan
Administration Committee shall be the plan administrator and named fiduciary as
to this Plan and the corporate secretary of WM, Inc. shall be the agent for
purposes of receiving legal process.
9.3 No Right to Employment. This Plan shall not confer upon any
person the right to be retained in the employ of the Company, interfere with
the right of the Company to discharge or otherwise deal with any person without
regard to the existence of this Plan or otherwise be interpreted or construed
as creating or modifying any employment or other contract between the Company
and any person.
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9.4 Alienation. No right, interest or benefit under this Plan
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, security interest, encumbrance, charge, execution,
attachment, garnishment or legal process by the creditors of the Participant or
the Participant's beneficiary, and any attempt to do so shall be void.
9.5 Information. Participants and their beneficiaries under this
Plan shall provide such authorizations, elections, designations and other
information as the Plan Administration Committee shall deem necessary for the
proper administration of this Plan. All such authorizations, elections,
designations and other information shall be in form approved by the Committee.
The Plan Administration Committee shall not be obligated to determine the
accuracy or authenticity of any information provided by any Participant or
beneficiary under this Plan and any payment or other distribution of benefits
based thereon shall be binding on such person, or on anyone claiming by,
through or under such person, and shall completely discharge any liability
under this Plan to the extent of any payment made.
9.6 Headings. Headings of sections and paragraphs of this Plan
are inserted for convenience of reference only and shall not constitute a part
of this Plan.
9.7 Applicable Law. This Plan shall be interpreted, construed and
enforced in accordance with the laws of the State of Washington, except insofar
as state law has been preempted by ERISA.
9.8 Validity. In the event any provision of this Plan is held
invalid, void or unenforceable, the same shall not affect in any respect
whatsoever, the remainder of this Plan.
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