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10-Q
Aug 6, 4:13 PM ET
BrightView Holdings, Inc. 10-Q
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Contents
45
ARTICLE I. DEFINITIONS AND CONSTRUCTION
1.1 Definitions. Whenever the following words and phrases are used in this Plan, with the first letter capitalized, they will have the meanings specified below.
1.2 Rules of Construction.
ARTICLE II. PARTICIPATION
2.1 In General. An Eligible Employee will become a Participant only after completing such forms (electronically or otherwise) and making such elections as the Plan Administrator (or its designee) may prescribe, including an agreement to be bound by the terms of the Plan and all determinations of the Plan Administrator.
2.2 Participation. An Eligible Employee will become a Participant by electing to defer Compensation in accordance with Section 3.1 and such procedures as may be established from time to time by the Plan Administrator (or its designee). An individual who, at any time, ceases to be an Eligible Employee will continue to defer Compensation until the end of the Plan Year in which he or she ceases to be an Eligible Employee, and no future Deferrals will be allowed until such time as the individual again becomes an Eligible Employee. In such a case, the individual will remain a Participant with respect to amounts already deferred but not yet withdrawn or distributed. A Participant will remain a Participant until all amounts to which he or she is entitled under the Plan have been paid.
ARTICLE III. DEFERRAL ELECTIONS
3.1 Elections to Defer Compensation and/or Performance Bonuses.
3.2 Elections as to Timing and Form of Payment of Benefits.
3.3 Deemed Investment Elections.
ARTICLE IV. PARTICIPANT ACCOUNTS AND UNFUNDED NATURE OF THE PLAN
4.1 Deferral Accounts. The Plan Administrator (or its designee) will establish and maintain a Deferral Account for each Participant under the Plan. As soon as administratively feasible after amounts are withheld and deferred from a Participant’s Base Salary and/or Performance Bonus, the Plan Administrator (or its designee) will credit the Participant’s Deferral Account with an amount equal to the Base Salary and/or Performance Bonus deferred by the Participant in accordance with the Participant’s election(s) pursuant to Section 3.1.
4.2 Company Matching Contribution Accounts. The Plan Administrator (or its designee) will establish and maintain a Company Matching Contribution Account for each Participant who was credited with a Company Matching Contribution Amount prior to January 1, 2018.
4.3 Adjustment for Earnings and Losses. Pursuant to rules and procedures acceptable to the Plan Administrator, for each day on which the securities markets in the United States are open for trading, the Plan Administrator’s designated record keeper for the Plan will adjust each Participant’s Account(s) to reflect investment returns or losses of the Measurement Funds selected by the Participant pursuant to Section 3.3
4.4 Accounts are Unfunded. The Plan is unfunded. The maintenance of individual accounts is for bookkeeping purposes only. The Company is not obligated to acquire, segregate, or set aside, in trust or otherwise, any assets of any kind for the discharge of its obligations under the Plan, nor will any Participant have any property rights in any particular assets held by the Company, whether or not held for the purpose of funding the Company’s obligations under the Plan. The Company may, in its sole discretion, establish a trust, pursuant to a trust agreement between the Company and the trust’s trustee, under which assets are held, administered, and managed, subject to the claims of the Company’s creditors in the event of the Company’s insolvency, until paid to Participants and their Beneficiaries as specified in the Plan.
ARTICLE V. VESTING
5.1 Participant Contributions. A Participant’s interest in his or her Deferral Account will be 100% Vested at all times.
5.2 Company Contributions. A Participant’s interest in his or her Company Matching Contribution Account will be 100% Vested at all times.
ARTICLE VI. DISTRIBUTIONS
6.1. Distribution of Participant Accounts.
6.2. Designation of Beneficiary. A Participant may, in a time and manner determined by the Plan Administrator, designate a Beneficiary (including one or more contingent Beneficiaries) to receive any benefits payable under the Plan in the event of the Participant’s death. No Beneficiary designation with respect to the Plan will become effective until it is filed with the Plan Administrator (or its designee). Any Beneficiary designation will be revocable at any time through a written instrument filed by the Participant with the Plan Administrator (or its designee) with or without the consent of the previous Beneficiary; provided, however, that the Plan does require spousal consent for married Participants to designate a non-spouse beneficiary. If a Participant fails to designate a Beneficiary or contingent Beneficiary, or if there is no surviving designated Beneficiary, then the Participant’s surviving spouse will be the Participant’s Beneficiary. If there is no surviving spouse to receive any benefits payable in accordance with the preceding sentence, then the Participant’s estate will be the Participant’s Beneficiary. Payment by the Company pursuant to any unrevoked Beneficiary designation, or to the Participant’s estate if no such designation exists, of all benefits owed under the Plan will terminate any and all liability of the Company with respect to the deceased Participant.
6.3. Unforeseeable Emergency Withdrawal. In the event of an Unforeseeable Emergency, a Participant will be permitted to elect an Unforeseeable Emergency Withdrawal from his or her Vested Accounts prior to his or her Payment Date, subject to the following restrictions:
6.4. Distribution Upon Adverse Finding by the Internal Revenue Service. If the Internal Revenue Service asserts that amounts deferred by a Participant pursuant to the Plan are included in the Participant’s income for federal income taxes before distribution, the Plan Administrator (or its designee) will cause to be distributed to the Participant from his or her Vested Account an amount equal to all taxes, interest and penalties owed by the Participant as a result of that inclusion in taxable income.
ARTICLE VII. ADMINISTRATION
7.1. Plan Administrator. The Plan Administrator will be the administrator of the Plan and will have full discretionary power and authority to administer the Plan in all its details.
7.2. Plan Administrator Action. The Plan Administrator may act at meetings by affirmative vote of a majority of the members of the Plan Administrator. Any action permitted to be taken at a meeting may be taken without a meeting if, prior to the action, a written consent to the action is executed (manually or electronically) by all members of the Plan Administrator and filed with the minutes of the proceedings of the Plan Administrator. A member of the Plan Administrator cannot vote or act upon any matter that relates solely to himself or herself as a Participant. Any member or members of the Plan Administrator may execute any certificate or other written direction on behalf of the Plan Administrator.
7.3. Powers of the Plan Administrator.
7.4. Construction and Interpretation. The Plan Administrator will have full discretionary authority to construe and interpret the terms and provisions of the Plan, and the Plan Administrator’s interpretations or construction will be final and binding on all parties, including but not limited to the Company and any Participant or Beneficiary. The Plan Administrator will administer the Plan’s terms and provisions in a uniform and nondiscriminatory manner and in full accordance with any and all applicable laws.
7.5. Information. To enable the Plan Administrator to perform its functions, the Company will supply full and timely information to the Plan Administrator or its designee on all matters relating to the Compensation of all Participants, their death or other events that cause termination of their participation in this Plan, and such other pertinent facts as the Plan Administrator may require.
7.6. Compensation, Expenses and Indemnity.
7.7. Account Statements. At least once each year, each Participant will be furnished (electronically or otherwise) a statement setting forth the value of his or her Accounts.
7.8. Claims and Appeals Procedures. Any person who believes that he or she is being denied a benefit to which he or she is entitled under the Plan must file a written claim for the benefit with the Plan Administrator (or its designee). If the Plan Administrator (or its designee) denies the claim in whole or in part, it will issue to the claimant a written notice explaining the reason(s) for the denial (with specific reference to the Plan provisions on which the denial is based), and describing any additional information or documentation that might enable the claimant to perfect his or her claim (with an explanation of why the information or documentation is necessary). The written notice will also include appropriate information as to the steps to be taken if the claimant wishes to request a review of the claim denial (including the time limits for requesting a review). Within sixty (60) days after receiving a written notice of denial, the claimant may submit a written request for a review of the initial denial to the Plan Administrator (or its designee), together with a written explanation of the basis for the request. The claimant or his or her duly authorized representative may, but need not, review pertinent documents and submit issues and comments in writing for consideration by the Plan Administrator (or its designee). If the claimant does not request a review within that sixty (60) day period, he or she will be barred from challenging the Plan Administrator’s (or its designee’s) determination. Within sixty (60) days after the Plan Administrator’s (or its designee’s) receipt of a request for review, the Plan Administrator (or its designee) will consider the request and provide the claimant with a written decision, which will include a written explanation of the reasons for the decision (with reference to the specific Plan provisions on which the decision is based). If special circumstances require an extension of the sixty (60) day time period for considering the claimant’s request for review, the Plan Administrator (or its designee) may extend that period by up to an additional sixty (60) days by notifying the claimant in writing, before the end of the original sixty day decision period, of the extension, the reasons for it, and when a decision can be expected. All interpretations, determinations, and decisions of the Plan Administrator (or its designee) with respect to any claim will be final and conclusive in the absence of clear and convincing evidence that the interpretation, determination, or decision was made arbitrarily or capriciously. A Participant must use and exhaust the Plan’s administrative claim and appeal procedure described above before filing a lawsuit or taking other legal action of any kind against the Plan. Further, no lawsuit or legal action related to a benefit decision may be filed in any court of law or any other forum unless it is commenced within two years of the Plan’s final decision on the claim. If the Plan Administrator determines an appeal is untimely, the Plan’s latest decision on the claim is the final decision date.
ARTICLE VIII. MISCELLANEOUS
8.1. Unsecured General Creditor. Participants and their Beneficiaries, heirs, successors, and assigns will have no legal or equitable rights, claims, or interest in any specific property or assets of the Company. No assets of the Company will be held in any way as collateral security for fulfilling the Company’s obligations under the Plan. Any and all of the Company’s assets will be, and remain, the general unpledged, unrestricted assets of the Company. The Company’s obligations under the Plan are merely an unfunded and unsecured promise of the Company to pay money in the future, and the rights of the Participants and Beneficiaries will be no greater than those of unsecured general creditors. It is the Company’s intention the Plan be unfunded for
purposes of the Code and for purposes of Title I of ERISA, and the Plan will be interpreted to effectuate this result.
8.2. Restriction Against Assignment. The Company will pay all amounts payable under the Plan only to the person or persons designated by the Plan and not to any other person or corporation. No part of a Participant’s Accounts will be liable for the debts, contracts, or engagements of any Participant, his or her Beneficiary, or successors in interest, nor will a Participant’s Accounts be subject to execution by levy, attachment, or garnishment or by any other legal or equitable proceeding, nor will any Participant or Beneficiary have any right to alienate, anticipate, sell, transfer, commute, pledge, encumber, or assign any benefits or payments under the Plan in any manner whatsoever (including, without limitation, under a domestic relations order). Any attempt to anticipate, alienate, sell, transfer, commute, assign, pledge, encumber or charge any distribution or payment from the Plan, voluntarily or involuntarily, will be null and void in all respects.
8.3. Withholding. Notwithstanding any other provision of the Plan to the contrary, all payments under the Plan will be subject to reduction for all applicable tax withholdings and other legally or contractually required withholdings. To the extent that amounts credited under the Plan are includable in “wages” for purposes of Chapter 21 of the Code, or are otherwise includable in taxable income, prior to distribution the Company may deduct the required withholding with respect to the wages or income from compensation currently payable to the Participant, or the Plan Administrator or its designee may reduce the Participant’s Accounts under the Plan or require the Participant to make other arrangements satisfactory to the Company for the satisfaction of the Company’s withholding obligations.
8.4. Amendment, Modification, Suspension or Termination. The Board (or its designee), in its sole discretion, may amend or terminate the Plan at any time, in whole or in part, except that no amendment or termination will operate (a) to reduce or deprive a Participant or Beneficiary of any benefit accrued prior to the time of the amendment or termination, (b) to result in an acceleration of the distribution of benefits under the Plan (due to a termination of the Plan or any other reason), unless the acceleration complies with Code section 409A and its interpretive regulations, or (c) to cause any other violation of Code section 409A or the guidance thereunder. Notwithstanding anything in the Plan to the contrary or any election of a Participant to the contrary, in the event that the Company, by action of the Board or its designee, terminates the Plan and all other agreements, methods, programs, and other arrangements sponsored by the Company with respect to which deferrals of compensation are treated as having been deferred under a single plan with this Plan under Treasury regulation section 1.409A-1(c)(2), the Company will have the discretion to accelerate the time of payment under the Plan, provided that no payments occur within twelve (12) months of the termination of those plans or agreements (other than payments that would be payable under the plans or agreements absent termination), all payments are made within twenty-four (24) months of termination of the plans or agreements, and for three (3) years following the date of termination of the Plan the Company does not adopt a new plan or agreement that would be aggregated with the Plan if the same participants participated in the new plan or agreement.
8.5. Rules and Procedures Relating to Payments. Any payment to a Participant or Beneficiary in accordance with the provisions of the Plan will, to the extent of that payment, be in
full satisfaction of all claims against the Plan Administrator and the Company. Prior to paying any benefit under the Plan, the Plan Administrator (or its designee) may require a Participant or Beneficiary to provide such information or documentation as the Plan Administrator (or its designee), in its sole discretion, deems necessary for it to make any determination required under the Plan. To the extent permitted under Code section 409A, the Plan Administrator or its designee may delay payment until satisfied as to the correctness of the payment or the person to receive the payment or to allow the filing in any court of competent jurisdiction for a legal determination of the benefits to be paid and the person to receive them. The Plan Administrator specifically reserves the right to correct errors of every sort, and each Participant agrees, on his or her own behalf and on behalf of any Beneficiary, to any method of error correction specified by the Plan Administrator or its designee. The Plan Administrator is authorized to recover any payment made in error.
8.6. Limitation of Rights and Employment Relationship. Neither the establishment of the Plan, nor any amendment of it, nor the creating of any fund or account, nor the payment of any benefits will be construed as giving to any Participant, Beneficiary, or other person any legal or equitable right against the Company except as provided in the Plan; and in no event will the terms of employment of any employee or Participant be modified or in any way be affected by the provisions of the Plan.
8.7. Code Section 409A. The Company intends that all benefits and payments to be made to a Participant or Beneficiary under the Plan will be provided or paid in compliance with all applicable provisions of Code section 409A and its interpretive regulations, and the rulings, notices and other guidance issued by the Internal Revenue Service interpreting Code section 409A, and the Plan will be construed and administered in accordance with this intent. The Plan may be modified to the extent necessary to comply with all applicable requirements of, and to avoid the imposition of any additional tax, interest and penalties under, Code section 409A in connection with, or the benefits and payments to be provided or paid to a Participant or Beneficiary under, the Plan. Any such modification will maintain the original intent and benefit to the Company and the Participant of the applicable Plan provision, to the maximum extent possible without violating Code section 409A. All payments to be made upon a termination of employment under the Plan may only be made upon a “separation from service” under Code section 409A. Any payments that qualify for the “short-term deferral” exception or another exception under Code section 409A will be paid under the applicable exception. Further, for purposes of the limitations on nonqualified deferred compensation under Code section 409A, each payment of compensation under the Plan will be treated as a separate payment. In no event may a Participant, directly or indirectly, designate the calendar year of a payment, other than when making their deferral election. Although the Plan Administrator intends to administer the Plan in accordance with Code section 409A, the Company
and the Plan Administrator make no guarantee of the tax consequences of participating in the Plan and will not be liable for income tax, interest, or additional taxes or penalties assessed against a Participant or Beneficiary for any reason.
8.8. Attachment for Certain Prior Funds. The Company has completed a Superseding Provisions Addendum that reflects the provisions of the Plan that supersede certain of the above provisions of the Plan. Such Superseding Provisions Addendum is reflected in Attachment A.
Attachment A