Amended and Restated Deferred Compensation Plan by WELLS FARGO & CO/MN

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Company: WELLS FARGO & CO/MN
SEC CIK: 72971
SEC Type: EX-10.F
SIC Code: 6021
SIC Industry: NATIONAL COMMERCIAL BANKS
Date Filed: 2010-02-26

Date Filed: 
02/26/2010
SKU: RDKD4B-A-DSL-4
exv10wf
Exhibit 10(f)
Amended and Restated Deferred Compensation Plan
WELLS FARGO & COMPANY
DEFERRED COMPENSATION PLAN
(As Amended and Restated Effective as of January 1, 2008)
          1.           Purpose, History and Effective Dates. On July 27, 1993, the Board of Directors of Norwest Corporation, a Delaware corporation now known as “Wells Fargo & Company” (the “Company”), authorized the creation of a nonqualified, unfunded, elective deferral plan known as the “Norwest Corporation Employees’ Deferred Compensation Plan” (the “Plan”) for the purpose of allowing a select group of management and highly compensated employees of the Company and its Affiliates to defer the receipt of compensation which would otherwise be paid to those employees. Effective July 1, 1999, the name of the Plan was changed to the “Wells Fargo & Company Deferred Compensation Plan.” The Company reserved the power to amend and terminate the Plan by action of the Human Resources Committee of the Company’s Board of Directors. The Human Resources Committee exercised that reserved power of amendment by the adoption of an amended and restated Plan document effective January 1, 2004, and by the adoption of this amended and restated Plan document (the “Restatement”) effective January 1, 2008 (the “Restatement Effective Date”).
          The terms of this Restatement are intended to comply with Internal Revenue Code §409A, as added by the American Jobs Creation Act of 2004 and applicable guidance thereunder. The terms of this Restatement shall apply to: (i) deferred compensation that relates all or in part to services performed on or after January 1, 2005, and (ii) deferred compensation that relates entirely to services performed on or before December 31, 2004 is such amounts were not earned or vested prior to January 1, 2005. This Restatement is not intended to materially modify the Plan with respect to any other amounts payable pursuant to the Plan. This Restatement shall be construed and administered accordingly.
          2.           Definitions. When the following terms are used herein with initial capital letters, they shall have the following meanings:
  (A)   Affiliate. Any entity other than the Company that is part of a “single employer” within the meaning of subsection (b) or (c) of Code §414 that includes the Company; subject, however, to such aggregation rules as may be provided in applicable guidance under Code §409A.
 
  (B)   CD Option. An earnings option based on a certificate of deposit in such denomination and for such duration as is determined from time to time by the Plan Administrator.
 
  (C)   Code. The Internal Revenue Code of 1986, as from time to time amended.
 
  (D)   Common Stock. Shares of Wells Fargo & Company common stock.
 
  (E)   Common Stock Earnings Option. An earnings option based on shares of Common Stock.
 
  (F)   Compensation. The following amounts earned by an Eligible Employee during a Deferral Year for services rendered to the Company or its Affiliates and payable (if not deferred) no

 




 

      later than March 15 of the Plan Year following the Deferral Year: base salary, incentives, commissions, and bonuses; provided, however, that Compensation shall not include:
  (1)   any award under the Company’s Long-Term Incentive Compensation Plan, or any successor to that plan;
 
  (2)   any amount if the right to receive that amount is conditioned on the Eligible Employee’s Separation from Service;
 
  (3)   compensation for a period of salary continuation leave; and
 
  (4)   bonus amounts payable after March 1 of the Plan Year following the Deferral Year in which the Employee’s Separation from Service occurs, unless the Eligible Employee elected payment in annual installments and Section 9(I) does not apply.
  (G)   Deferral Account. A bookkeeping account maintained for a Participant to which is credited the amounts deferred under a Deferral Election or a Stock Option Gain Deferral Election, together with any increase or decrease thereon based on the earnings option(s) selected by the Participant or mandated by the Plan.
 
  (H)   Deferral Election. An irrevocable election made by an Eligible Employee during an enrollment period specified by the Plan Administrator or the Plan to defer the receipt of Compensation for a given Deferral Year. The term Deferral Election does not include a Stock Option Gain Deferral Election.
 
  (I)   Deferral Year. The Plan Year for which a Deferral Election is made.
 
  (J)   Eligible Employee. Each employee of the Company or any of its Affiliates who has been selected for participation in this Plan for a given Plan Year pursuant to Section 3 of the Plan.
 
  (K)   ERISA. The Employee Retirement Income Security Act of 1974, as from time to time amended.
 
  (L)   Fund Option. An earnings option based on a selection of registered investment companies, collective investment funds, private portfolios, or other comparable investment media chosen from time to time by the Company’s Employee Benefits Review Committee.
 
  (M)   Initial Deferral Election. The special Deferral Election described in Section 6(C) that is available only to certain Eligible Employees who have not previously participated in an account balance nonqualified deferred compensation plan maintained by the Company or an Affiliate.
 
  (N)   Key Employee. If the Plan Administrator determines that the Participant is a “Key Employee” for purposes of Code section 409A, no lump sum or monthly annuity payment shall be paid to the Participant prior to the date that is six months after the date the Participant’s Separation from Service occurred.
  (1)   For purposes of this Plan, a Key Employee means:
  (a)   any Participant who is a “key employee” under Code section 416(i)(1)(A)(i), (ii) or (iii) (applied in accordance with the regulations thereunder and disregarding Code section 416(i)(5)) at any time during the 12-month period ending on the key employee identification date. For purposes of determining “key employee”

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      status under Code section 416(i)(1)(A)(i), except as required under such provision and the regulations thereunder, the term “officer” shall refer to an employee of the Company or an Affiliate with the title Senior Vice President or above, and
 
  (b)   any Participant who served as a member of the Company’s Management Committee at any time during the 12-month period ending on the key employee identification date.
  (2)   For purposes of applying Code section 409A, the “key employee identification date” is each December 31st. Any person described in paragraph (A) on a key employee effective date shall be treated as a Key Employee for the entire 12-month period beginning on the following April 1st.
 
  (3)   Notwithstanding paragraphs (1) and (2) of this Section 2(N), in the event of a corporate transaction to which the Company or an Affiliate is a party, the Plan Administrator may, in his her or discretion, establish a method for determining Specified Employees pursuant to Treasury Regulation Section 1.409A-1(i)(6).
  (O)   Participant. Each Eligible Employee who enters into a Deferral Election, who prior to 2004 entered into a Stock Option Gain Deferral Election, or who has a Transferred Account set up under the Plan. An employee who has become a Participant shall remain a Participant in the Plan until the date of the Participant’s death or, if earlier, the date the Participant no longer has any accounts under the Plan.
 
  (P)   Plan Administrator. For purposes of Section 3(16)(A) of ERISA, the Human Resources Committee of the Company’s Board of Directors has designated that the Plan Administrator shall be the Company’s Director of Human Resources.
 
  (Q)   Plan Year. The twelve-month period beginning on any January 1 and ending the following December 31.
 
  (R)   Separation from Service. For purposes of this Plan, a participant’s “Separation from Service” occurs upon his or her death, retirement or other termination of employment or other event that qualifies as a “separation from service” under Code section 409A and the applicable regulations thereunder as in effect from time to time. The Plan Administrator shall determine in each case when a participant’s Separation from Service has occurred, which determination shall be made in a manner consistent with Treasury Regulation Section 1.409A-1(h). The Plan Administrator shall determine that a Separation from Service has occurred as of a certain date when the facts and circumstances indicate that the Company (or an Affiliate, if applicable) and the participant reasonably anticipate that, after that date, the participant will render no further services, or the participant’s level of bona fide services (either as an employee or independent contractor) will permanently decrease to a level that is 20% or less than the average level of the participant’s bona fide services (either as an employee or independent contractor) previously in effect for such participant over the immediately preceding 36-month period (or the participant’s entire period of service, if the participant has been providing services for less than 36 months). If the Participant incurs a Separation from Service as determined by the Plan Administrator, a subsequent rehire will not impact the prior Separation from Service determination and distribution will commence pursuant to Section 9.
 
      The following presumptions shall also apply to all such determinations:

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  (1)   Transfers. A Separation from Service has not occurred upon the participant’s transfer of employment from the Company to an Affiliate or vice versa, or from an Affiliate to another Affiliate.
 
  (2)   Medical leave of absence. Where the participant has a medical leave of absence due to any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than six months, and he or she has not returned to employment with the Company or an Affiliate, a Separation from Service has occurred on the earlier of: (A) the first day on which the participant would not be considered “disabled” under any disability policy of the Company or Affiliate under which the participant is then receiving a benefit; or (B) the first day on which the participant’s medical leave of absence period exceeds 29 months.
 
  (3)   Military leave of absence. Where the participant has a military leave of absence, and he or she has not returned to employment with the Company or an Affiliate, a Separation from Service has occurred on the day next following the last day on which the participant is entitled to reemployment rights under USERRA.
 
  (4)   Salary continuation leave. A Separation from Service has occurred on the first day of the Participant’s salary continuation leave taken under the Company’s salary continuation leave program.
 
  (5)   Other leaves of absence. In the event that the participant is on a bona fide leave of absence, not otherwise described in this Sec. 2(R), from which he or she has not returned to employment with the Company or an Affiliate, the participant’s Separation from Service has occurred on the first day on which the participant’s leave of absence period exceeds six months or, if earlier, upon the participant’s termination of employment (provided that such termination of employment constitutes a Separation from Service in accordance with the last sentence of the first paragraph of this section):
 
  (6)   Asset purchase transaction. If, in connection with the sale or other disposition of substantial assets (such as a division or substantially all assets of a trade or business) of the Company or an Affiliate to an unrelated buyer, the participant becomes an employee of the buyer or an affiliate of the buyer upon the closing of or in connection with such transaction, a Separation from Service has not occurred if the Company and the buyer have specified that such transaction will not, with respect to any individual affected by such transaction who becomes an employee of the buyer or an affiliate, be considered a “separation from service” under Treasury Regulation Section 1.409A-1(h), and such specification meets the requirements of Treasury Regulation Section 1.409A-1(h)(4).
  (S)   Stock Option Gain Compensation. Gain realized from the exercise of specified Common Stock option grants under the Company’s Long-Term Incentive Compensation Plan, or any other stock option plan approved by the Plan Administrator, using the stock-for-stock swap (“stock swap”) method of exercise. Stock option gains derived from either a cash exercise or a same day sale are not Stock Option Gain Compensation.
 
  (T)   Stock Option Gain Deferral Election. An irrevocable election to defer the receipt of Stock Option Gain Compensation made by an Eligible Employee prior to January 1, 2004.
 
  (U)   Transferred Account. A bookkeeping account maintained for a Participant to which is credited the Participant’s interest in any nonqualified deferred compensation plan transferred

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      to this Plan, together with any increase or decrease thereon based on the earnings option(s) selected by the Participant or mandated by the Plan.
          3.           Eligibility. Each employee of the Company or an Affiliate who has been selected for participation in this Plan by the Plan Administrator, or by such officers of the Company to whom the Plan Administrator has delegated its authority, shall be considered an Eligible Employee and shall be eligible to make Deferral Elections under the Plan until such time as the employee’s selection is revoked. Selection of an employee for participation in this Plan shall be deemed to occur on the date notice of the employee’s selection is sent to the employee in accordance with the notice procedures established by the Plan Administrator. In the event an employee’s selection is revoked and the employee ceases to be an Eligible Employee, such revocation shall have no effect on any outstanding deferral elections.
          4.           Transferred Accounts. Transferred Accounts created following a merger or transfer described in Appendix A shall be subject to the terms and conditions described in Appendix A. To the extent, if any, Appendix A makes distribution of a Transferred Account subject to the rules of this Plan without specifying whether the distribution rules of Section 8 or Section 9 will apply, the rules of this Plan applicable to distribution of the Transferred Account shall be (a) the rules in Section 8, if the Transferred Accounts are attributable to amounts earned and vested prior to January 1, 2005, and (b) the rules in Section 9, if the Transferred Accounts are attributable to amounts not earned and vested prior to January 1, 2005. Individuals for whom a Transferred Account is maintained shall be considered Participants in this Plan with respect to their Transferred Accounts from the date indicated in Appendix A through the date their Transferred Accounts are fully distributed. Such Participants shall not, however, be entitled to enter into Deferral Elections unless they are also Eligible Employees within the meaning of the Plan. The right of such Participants to make Deferral Elections shall be subject to any additional limitations described in Appendix A.
          5.           Deferral of Compensation.
  (A)   Deferral Elections for Deferral Years Beginning On or After January 1, 2008. An Eligible Employee may elect to defer all or any part of his or her Compensation for a Deferral Year beginning on or after January 1, 2008, by making a Deferral Election in accordance with Section 6 below.
 
  (B)   Deferral Elections for Deferral Years Beginning Prior to January 1, 2008. Deferral Elections for Deferral Years beginning prior to January 1, 2008, were made pursuant to the terms of the Plan in effect at the time of the Deferral Election.
 
  (C)   Stock Option Gain Deferral Elections. Effective January 1, 2004, the Plan no longer permits Eligible Employees to enter into Stock Option Gain Deferral Elections. Stock Option Gain Deferral Elections made prior to that date were made pursuant to the terms of the Plan in effect at the time of the Stock Option Gain Deferral Election. Notwithstanding anything in those terms or in this Plan to the contrary, Stock Option Gain Deferral Elections with respect to options that were not earned and vested as of December 31, 2004, and Stock Option Gain Deferral Elections with respect to options that have not been exercised before the Participant’s employment termination, shall be void and have no effect.
          6.           Deferral Elections. Deferral Elections made with respect to Deferral Years beginning on or after January 1, 2008 shall be subject to the following:

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  (A)   Time. Except as otherwise provided in (C) below, an Eligible Employee who wishes to defer Compensation for a Deferral Year must file an irrevocable Deferral Election with respect to that Compensation during the enrollment period specified by the Plan Administrator for that Deferral Year, but no later than December 31 of the Plan Year preceding that Deferral Year. A Deferral Election shall be effective only for the Deferral Year specified in the Deferral Election. A new Deferral Election must be filed for each Deferral Year.
 
  (B)   Content. An Eligible Employee’s Deferral Election shall indicate the amount of Compensation deferred, the earnings option(s) that will determine earnings on the deferred Compensation (see Section 7(A)), and the time and form of distribution (see Section 9). The Eligible Employee shall specify for each Compensation category the amount to be deferred per pay period, expressed either as a percentage or a dollar amount.
 
  (C)   Initial Deferral Elections. An employee who:
  (1)   has not previously been eligible to participate in any “account balance plan” (as defined in Treas. Reg. §31.3121(v)(2)-1(c)(1)(ii)(A)) maintained by the Company or any Affiliate, other than a plan described in paragraph (c)(2)(i)(D), (E), (F), (G) or (H) of Treas. Reg. §1.409A-1, including any arrangement that would have been such an account balance plan if the person had been an employee at the time of his or her participation, and
 
  (2)   becomes an Eligible Employee on or before the one-month anniversary of the employee’s date of hire,
      may make a special Deferral Election (“Initial Deferral Election”) within thirty (30) days after the date on which he or she became an Eligible Employee. An Initial Deferral Election shall apply only to Compensation earned from the beginning of the first full payroll period that starts after the Eligible Employee’s Initial Deferral Election is received by the Plan Administrator or the person designated by the Plan Administrator to receive such elections. (For example, if a person is hired on April 2nd, becomes an Eligible Employee on April 10th, and files a Deferral Election on May 3rd, the Compensation deferred by that election will be the Eligible Employee’s Compensation for the period beginning with the first full payroll period starting after May 3rd and ending on December 31st of that same year.) The portion of bonus or incentive Compensation deferred by an Initial Deferral Election will be determined by multiplying the total amount earned during the Deferral Year by a fraction, the numerator of which is the number of days in the Deferral Year during and after such first full payroll period over which the bonus or incentive was earned and the denominator of which is the total number of days in the Deferral Year over which the bonus or incentive was earned, but disregarding any days prior to the Eligible Employee’s date of hire. If an Eligible Employee is eligible to make an Initial Deferral Election during an enrollment period described in Section 6(A), any election made during the enrollment period will be treated as an election pursuant to Section 6(A), and not as an election pursuant to this Section 6(C), unless the election form clearly indicates that it is intended to be an Initial Deferral Election pursuant to this Section 6(C) or the Eligible Employee has previously filed an election pursuant to Section 6(A) during that enrollment period.
 
  (D)   Reduced by Payroll Deductions. The amount of Compensation actually deferred shall be reduced to the extent necessary (1) to pay the Federal Insurance Contributions Act (“FICA”) taxes imposed under §3101 and §3111 of the Code and any other payroll deductions determined by the

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      Plan Administrator prior to the beginning of the Deferral Year, or (2) to satisfy any limitations established by the Plan Administrator prior to the beginning of the Deferral Year.
  7.   Deferral Account Valuation.
 
  (A)   Earnings Options. At the time of his or her Deferral Election, a Participant must choose to allocate the amounts that will be credited to the Participant’s Deferral Account among the following earnings options in increments of one (1) percent:
  (1)   Common Stock Earnings Option
 
  (2)   CD Option
 
  (3)   Fund Options
      A minimum of twenty (20) percent of the amounts credited pursuant to each Deferral Election must be allocated to the Common Stock Earnings Option. All deferred Stock Option Gain Compensation will automatically be allocated to the Common Stock Earnings Option. Except with respect to amounts allocated to the Common Stock Earnings Option, a Participant shall be entitled to change the earnings options for the Participant’s Deferral Accounts with such frequency (but no more than twice each year), and effective as of such dates, as determined by the Plan Administrator by making a reallocation election with the Plan Administrator pursuant to a procedure established by the Plan Administrator. A reallocation election will not

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