Document/Exhibit Description Pages Size
1: 10-Q Quarterly Report 16 77K
3: EX-10.10 Income Tax Sharing Agreement 8 30K
4: EX-10.11 Trade Name and Service Mark License Agreement 13 44K
5: EX-10.15 Esi Excess Savings Plan 15 57K
2: EX-10.9 Employee Benefits Agreement 9 38K
6: EX-11 Computation of Per Share Earnings 1 6K
7: EX-27 Financial Data Schedule 2 7K
Exhibit 10.15
ESI EXCESS SAVINGS PLAN
INTRODUCTION
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The ESI Excess Savings Plan (the "Plan") has been authorized and
adopted by the Board of Directors of ITT Educational Services, Inc., to take
effect as of the Offering Date.
The purpose of the Plan is to provide Eligible Employees participating
in the Savings Plan (1) a means of restoring the contributions lost under the
Savings Plan due to the application of the limitations imposed on qualified
plans by Section 415 of the Code, (2) a means for restoring the matching and
other employer contributions lost under the Savings Plan due to the application
of the limitations imposed on qualified plans by Sections 401(a)(17), 402(g)(1),
401(k)(3), and 401(m) of the Code; and a means of providing Eligible Employees
with an opportunity to defer a portion of their Salary.
TABLE OF CONTENTS
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Page
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Article 1. Definitions..................................................... 1
1.01. "Acceleration Event"............................................ 1
1.02. "Account"....................................................... 1
1.03. "Act"........................................................... 2
1.04. "Actual Contribution Percentage Limit".......................... 2
1.05. "Actual Deferral Percentage Limit".............................. 2
1.06. "Basic Savings"................................................. 2
1.07. "Beneficiary"................................................... 2
1.08. "Board of Directors"............................................ 2
1.09. "Code".......................................................... 2
1.10. "Committee"..................................................... 2
1.11. "Company"....................................................... 2
1.12. "Compensation Committee"........................................ 2
1.13. "Corporation"................................................... 2
1.14. "Deferral Account".............................................. 2
1.15. "Effective Date"................................................ 2
1.16. "Elective Deferral Limit"....................................... 2
1.17. "Eligible Employee"............................................. 3
1.18. "Employee"...................................................... 3
1.19. "ERISA"......................................................... 3
1.20. "Excess Matching Contributions"................................. 3
1.21. "Excess Retirement Contribution"................................ 3
1.22. "Highly Compensated Employee"................................... 3
1.23. "Matching Company Contribution"................................. 3
1.24. "Matching Contribution Account"................................. 3
1.25. "Offering Date"................................................. 3
1.26. "Participant"................................................... 3
1.27. "Participating Company"......................................... 3
1.28. "Plan".......................................................... 3
1.30. "Retirement Contribution"....................................... 4
1.31. "Retirement Contribution Account"............................... 4
1.32. "Salary"........................................................ 4
1.34. "Salary Reduction Agreement".................................... 4
1.35. "Savings Plan".................................................. 4
1.36. "Statutory Compensation Limitation"............................. 4
1.37. "Statutory Limitations"......................................... 4
Article 2. Participation................................................... 5
2.01. Eligibility..................................................... 5
2.02. Participation................................................... 5
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2.03. Termination of Participation.................................... 5
Article 3. Excess Savings Plan Contributions............................... 5
3.01. Amount of Contributions......................................... 5
3.02. Salary Deferrals................................................ 6
3.03. Excess Matching Contributions................................... 7
3.04. Excess Retirement Contributions................................. 7
3.05. Investment of Account........................................... 7
3.06. Vesting of Account.............................................. 7
3.07. Individual Accounts............................................. 8
Article 4. Payment of Contributions........................................ 8
4.01. Commencement of Payment......................................... 8
4.02. Method of Payment............................................... 8
4.03. Payment Upon the Occurrence of an Acceleration Event............ 8
Article 5. General Provisions.............................................. 8
5.01. Funding......................................................... 8
5.02. Non-Contract Employment......................................... 8
5.03. Facility of Payment............................................. 9
5.04. Withholding Taxes............................................... 9
5.05. Nonalienation................................................... 9
5.06. Transfers....................................................... 9
5.07. Claims Procedure................................................ 10
5.08. Construction.................................................... 11
Article 6. Amendment or Termination........................................ 11
Article 7. Administration.................................................. 11
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ESI EXCESS SAVINGS PLAN
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Article 1. Definitions
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As used in the Plan, the following words and phrases, when
capitalized, have the following meanings, except when used in a context that
plainly requires a different meaning:
1.01. "Acceleration Event" means one of the following events:
(a) A report on Schedule 13D is filed with the Securities and Exchange
Commission pursuant to Section 13(d) of the Act disclosing that any person
(within the meaning of Section 13(d) of the Act), other than the Corporation, or
a subsidiary of the Corporation or any employee benefit plan sponsored by the
Corporation or a subsidiary of the Corporation, is the beneficial owner directly
or indirectly of 20% or more of the outstanding common stock of the Corporation;
(b) Any person (within the meaning of Section 13(d) of the Act), other
than the Corporation or a subsidiary of the Corporation or any employee benefit
plan sponsored by the Corporation or a subsidiary of the Corporation, purchases
shares pursuant to a tender offer or exchange offer to acquire any common stock
of the Corporation (or securities convertible into common stock of the
Corporation) for cash, securities, or any other consideration, provided that,
after consummation of the offer, the person in question is the beneficial owner
(as that term is defined in Rule 13(d)-3 under the Act), directly or indirectly,
of 15% or more of the outstanding common stock of the Corporation (calculated as
provided in paragraph (d) of Rule 13(d)-3 under the Act in the case of rights to
acquire common stock);
(c) The stockholders of the Corporation approve (i) any consolidation
or merger of the Corporation in which the Corporation is not the continuing or
surviving corporation or pursuant to which shares of common stock of the
Corporation would be converted into cash, securities, or other property, other
than a merger of the Corporation in which holders of common stock of the
Corporation immediately prior to the merger have the same proportionate
ownership of common stock of the surviving corporation immediately after the
merger as immediately before, or (2) any sale, lease, exchange, or other
transfer (in one transaction or a serious of related transactions) of all or
substantially all of the assets of the Corporation; or
(d) A change in the majority of the members of the Board of Directors
within a 12-month period, unless the election or nomination for election by the
Corporation's stockholders of each new director during the 12-month period was
approved by the vote of two-thirds of the directors then still in office who
were directors at the beginning of the 12-month period.
1.02. "Account" means, with respect to a Participant, the Deferral
Account, the Matching Contribution Account, and the Retirement Contribution
Account of that Participant.
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1.03. "Act" means the Securities Exchange Act of 1934, as amended
from time to time.
1.04. "Actual Contribution Percentage Limit" means the limitation set
forth in Section 401(m) of the Code as in effect each year for the Savings Plan.
1.05. "Actual Deferral Percentage Limit" means the limitation set
forth in Section 401(k)(3) of the Code as in effect each year for the Savings
Plan.
1.06. "Basic Savings" means, with respect to a Participant for a
calendar year, the Participant's "basic pre-tax savings," as defined in the
Savings Plan, under the Savings Plan for the calendar year.
1.07. "Beneficiary" means, with respect to a Participant, the
person or persons designated pursuant to the provisions of the Savings Plan to
receive benefits under the Savings Plan after the Participant's death.
1.08. "Board of Directors" means the Corporation's Board of
Directors.
1.09. "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
1.10. "Committee" means the ESI Benefits Plan Investment and
Administration Committee created pursuant to the Savings Plan.
1.11. "Company" means (1) the Corporation, with respect to its
employees; and (2) any Participating Company, with respect to its employees.
1.12. "Compensation Committee" means the Compensation Committee of
the Board of Directors.
1.13. "Corporation" means ITT Educational Services, Inc., or any
successor by merger, purchase, or otherwise.
1.14. "Deferral Account" means, with respect to a Participant, the
bookkeeping account maintained for the Participant to record the amounts
credited on his behalf under Section 3.02(a) and earnings on those amounts
pursuant to Section 3.05.
1.15. "Effective Date" means the Offering Date.
1.16. "Elective Deferral Limit" means the limitation set forth in
Section 402(g)(1) of the Code.
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1.17. "Eligible Employee" means an Employee of the Company who is
eligible to participate in the Plan as provided in Section 2.01.
1.18. "Employee" means an "employee," as defined in the Savings Plan.
1.19. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
1.20. "Excess Matching Contributions" means the amount of
contributions credited on a Participant's behalf under Section 3.03.
1.21. "Excess Retirement Contribution" means the amount of
contributions credited on a Participant's behalf under Section 3.04.
1.22. "Highly Compensated Employee" means an Employee who, as of the
pertinent date, is a "highly compensated employee" as defined in Code Section
414(q).
1.23. "Matching Company Contribution" means a "matching company
contribution" as defined in the Savings Plan.
1.24. "Matching Contribution Account" means, with respect to a
Participant, the bookkeeping account maintained for the Participant to record
all amounts credited on his behalf under Section 3.03 and earnings on those
amounts pursuant to Section 3.05.
1.25. "Offering Date" means the date of the underwritten public
offering by the Corporation pursuant to a registration statement on Form S-3
filed with the Securities Exchange Commission February 13, 1998.
1.26. "Participant" means each Eligible Employee who participates in
the Plan pursuant to Section 2.02 and who has not ceased to be a Participant
pursuant to Section 2.03.
1.27. "Participating Company" means a Related Employer that, by
appropriate action of the Board of Directors, or by a designated officer of the
Corporation pursuant to authorization delegated to him by the Board of
Directors, has been designated as a Participating Company in the Plan as to all
of its Eligible Employees or as to the Eligible Employees of one or more of its
operating or other units, provided that the board of directors of that company
has taken appropriate action to adopt this Plan.
1.28. "Plan" means this ESI Excess Savings Plan.
1.29. "Related Employer" means any employer that, together with the
Corporation, is under common control or a member of an affiliated service group
as defined under Code Sections 414(b), (c), (m), and (o).
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1.30. "Retirement Contribution" means a "retirement contribution" as
defined in the Savings Plan.
1.31. "Retirement Contribution Account" means, with respect to a
Participant, the bookkeeping account maintained for the Participant to record
all amounts credited on his behalf under Section 3.04 and earnings on those
amounts pursuant to Section 3.05.
1.32. "Salary" means, with respect to an Eligible Employee, the
Eligible Employee's compensation from the Company at his base rate, excluding
any compensation deferred under a deferred compensation plan other than the
Plan, and determined prior to any election by the Participant to make salary
deferrals under the Savings Plan, prior to any election by the Participant to
make Salary Deferrals under this Plan, and prior to any election by the
Participant pursuant to Section 125 of the Code, excluding any overtime, bonus,
foreign service allowance, or any other form of compensation, except to the
extent otherwise deemed "Salary" for purposes of the Savings Plan under such
nondiscriminatory rules as are adopted by the Committee. For purposes of this
Plan, Salary shall be determined without regard to the Statutory Compensation
Limitation.
1.33. "Salary Deferrals" means, with respect to a Participant, the
amount the Participant has elected to defer pursuant to a Salary Reduction
Agreement in accordance with the provisions of Section 3.02(a).
1.34. "Salary Reduction Agreement" means, with respect to a
Participant, the agreement entered into by the Participant pursuant to Section
3.02 under which he elects to defer a portion of his salary under this Plan.
1.35. "Savings Plan" means the ESI 401(k) Plan.
1.36. "Statutory Compensation Limitation" means the limitation set
forth in Section 401(a)(17) of the Code as in effect each year for the Savings
Plan.
1.37. "Statutory Limitations" mean the Actual Contribution
Percentage Limit, the Actual Deferral Percentage Limit, the Elective Deferral
Limit, and the Statutory Compensation Limit.
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Article 2. Participation
-------------------------
2.01. Eligibility.
(a) The Plan is intended to be an unfunded plan of deferred
compensation for a select group of management and highly compensated Employees.
An Employee shall be an Eligible Employee and thereby eligible to participate in
this Plan with respect to a calendar year only if (i) the Employee is a Highly
Compensated Employee for that calendar year; (ii) the Employee is eligible to
participate in the Savings Plan during the calendar year; and (iii) the Employee
is designated by the Compensation Committee as a key management employee who is
eligible to participate in the Plan. An Eligible Employee shall be notified of
his eligibility for participation in the Plan prior to the date the Eligible
Employee may first commence participation in the Plan.
(b) Upon reemployment by the Company, an Employee shall become an
Eligible Employee again only if and when he again meets the eligibility
requirements described in Section 2.01(a) after his reemployment date.
2.02. Participation. An Eligible Employee shall become a
Participant when contributions are credited on his behalf pursuant to Article 3.
2.03. Termination of Participation.
(a) A Participant shall cease to be a Participant when the vested
values of his accounts under the Plan are totally distributed to him or on his
behalf.
(b) If a former Participant is reemployed by the Company, he shall
become a Participant again only if and when he satisfies, subsequent to his
reemployment, the eligibility and participation requirements of Sections 2.01
and 2.02, respectively.
Article 3. Excess Savings Plan Contributions
---------------------------------------------
3.01. Amount of Contributions.
(a) For any calendar year, the amount of contributions to be recorded
on the books of the Company on behalf of a Participant pursuant to this Article
3 shall be equal to the sum of the Salary Deferrals, Excess Matching
Contributions, and Excess Retirement Contributions for the Participant
determined under Sections 3.02, 3.03, and 3.04.
(b) Notwithstanding any provisions of the Plan to the contrary, no
further Salary Deferrals by a Participant shall be permitted, and no further
Excess Matching Contributions or Excess Retirement Contributions shall be
credited on the Participant's behalf, once the Participant is no longer an
Eligible Employee.
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3.02. Salary Deferrals.
(a) Any Eligible Employee who has met the eligibility requirements of
Section 2.01 as of the Offering Date and who wishes to have Salary Deferrals
credited to his Deferral Account must, within 30 days of the Offering Date,
execute an irrevocable Salary Reduction Agreement for the remainder of the Plan
Year, authorizing Salary Deferrals under this Plan in accordance with the
provisions of this Section. Any Eligible Employee who has met the eligibility
requirements of Section 2.01 as of the beginning of a subsequent calendar year
and who wishes to have Salary Deferrals credited to his Deferral Account in that
calendar year must, prior to the beginning of that calendar year, execute an
irrevocable Salary Reduction Agreement for the Plan Year, authorizing Salary
Deferrals under this Plan in accordance with the provisions of this Section.
Notwithstanding any other provision of this Section, Salary Deferrals will not
be credited on behalf of a Participant with respect to a particular calendar
year until the Participant's Basic Savings under the Savings Plan for that
calendar year have been suspended due to the Statutory Limitations. Salary
Deferrals shall be credited to the Participant's Account at the same time they
would have been credited to his account under the Savings Plan if not for the
application of the Statutory Limitations.
(b) Subject to the following sentence, the amount of Salary Deferrals
credited to a Participant for a calendar year shall be equal to (1) 5% of the
Participant's Salary or (2) the percentage of Salary that the Participant has
elected to defer under the Savings Plan, whichever is elected by the Participant
is his Salary Reduction Agreement. Notwithstanding the preceding sentence, the
allocation under the Plan and the reduction in the Participant's Salary
corresponding to his election shall be made only with respect to Salary (A)
otherwise payable to the Participant during the calendar year in excess of the
Statutory Compensation Limitation or (B) otherwise payable to the Participant
after he has reached the Elective Deferral Limitation for the calendar year or
after he has reached the limit, if any, set by the Committee for the Plan Year
to ensure compliance by the Savings Plan with the Actual Deferral Percentage
Limitation. The total Salary Deferral amount elected shall reduce the
Participant's Salary and shall not be applied against any amount deferred under
any other non-qualified plan maintained by the Company.
(c) A Participant may revoke or modify his Salary Reduction Agreement,
effective as of the beginning of any subsequent calendar year, by executing a
new Salary Deferral Agreement or a written revocation of the prior Salary
Reduction Agreement prior to the beginning of the calendar year for which the
modification or revocation is to be effective. Until a Salary Reduction
Agreement is so modified or revoked, it shall remain in effect for subsequent
calendar years, provided that the Participant continues to be an Eligible
Employee during the subsequent calendar year. Notwithstanding the foregoing,
Salary Deferrals for a subsequent calendar year shall not be credited to the
Participant until the Participant's Basic Savings under the Savings Plan for
that calendar year has been suspended due to the Statutory Limitations.
(d) Notwithstanding the foregoing, if any Participant receives a
hardship withdrawal of pre-tax contributions from the Savings Plan or any other
plan that is maintained by
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the Company and meets the requirements of Section 401(k) of the Code (or any
successor to that provision), and the Participant is precluded from making
contributions to that plan for at least 12 months after receipt of hardship
withdrawal, and the Participant's Salary Deferrals, if any, shall be suspended
during the 12 month period commencing on the date the Participant receives the
hardship withdrawal distribution from the Savings Plan or other 401(k) plan.
Any Salary Deferral that would have been made pursuant to the Participant's
Salary Reduction Agreement but for the application of this Section 3.02(d) shall
be paid to the Participant as if he had not entered into the Salary Reduction
Agreement.
(e) As a condition of making Salary Deferrals, a Participant may also
be required by the Committee to provide such other information as the Committee
may deem necessary properly to administer the Plan.
3.03. Excess Matching Contributions. A Participant's Account shall
be credited with Excess Matching Contributions for a calendar year in an amount
equal to 50% of that portion of the Salary Deferrals credited to the Participant
for the calendar year that does not exceed 5% of the Participant's Salary for
the calendar year. The Excess Matching Contributions shall be credited to the
Participant's Account at the same time as the Salary Deferrals to which they
relate.
3.04. Excess Retirement Contributions. Each month, a Participant's
Account shall be credited with an Excess Retirement Contribution equal to the
difference between (a) 1% of the Participant's Salary and (b) the Retirement
Contribution made on the Participant's behalf for that month under the Savings
Plan. The Excess Retirement Contribution shall be credited to the Participant's
Retirement Contribution Account as of the last day of the month for which it is
made.
3.05. Investment of Account. A Participant shall have no choice or
election with respect to the investment of his Accounts. A Participant's
Account shall be credited with earnings at the rate of eight percent (8%) per
annum. Earnings shall be credited as of the end of each month, based on the
balance of the Participant's Accounts on that date.
3.06. Vesting of Account. A Participant shall be at all times fully
vested in his Deferral Account and his Retirement Contribution Account. The
Participant shall vest in his Matching Contribution Account at the same rate and
under the same conditions in which Matching Company Contributions vest under the
Savings Plan. In the event a Participant terminates employment prior to vesting
in all or any part of his Matching Contribution Account, the nonvested portion
of that Account shall be forfeited and shall not be restored in the event the
Participant is subsequently reemployed by the Company.
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3.07. Individual Accounts. The Committee shall maintain, or cause
to be maintained, records showing the individual balances of each Participant's
Account. At least once a year, each Participant shall be furnished with a
statement setting forth the value of his Accounts.
Article 4. Payment of Contributions
------------------------------------
4.01. Commencement of Payment.
(a) The Participant shall be entitled to receive payment of his
Deferral Account and Retirement Contribution Account and the vested portion of
his Matching Contribution Account as determined under Section 3.03 upon his
termination of employment for any reason, other than death. The distribution of
the Participant's vested Accounts shall be made as soon as practicable following
the Participant's termination of employment.
(b) In the event of the death of a Participant prior to the full
payment of his Accounts, the unpaid portion of his vested Accounts shall be paid
to his Beneficiary as soon as practicable following his date of death.
4.02. Method of Payment. Payment of a Participant's Deferral
Account and Retirement Contribution Account and the vested portion of his
Matching Contribution Account shall be made in a single lump sum cash payment.
4.03. Payment Upon the Occurrence of an Acceleration Event. Upon
the occurrence of an Acceleration Event, all Participants shall automatically
receive the balance of their Accounts in a single lump sum payment. The payment
shall be made as soon as practicable on or after the Acceleration Event. If a
Participant dies after the Acceleration Event, or before receiving payment of
his Accounts, the payment shall be made to his Beneficiary.
Article 5. General Provisions
------------------------------
5.01. Funding. The Plan shall be unfunded. All amounts payable in
accordance with this Plan shall constitute a general unsecured obligation of the
Company. Plan benefits, as well as any administrative costs relating to the
Plan, shall be paid out of the general assets of the Company.
5.02. Non-Contract Employment. This Plan is not a contract of
employment, and the terms of employment of any Participant shall not be affected
in any way by this Plan or related instruments, except as specifically provided
therein. The establishment of the Plan shall not be construed as conferring any
legal rights upon any person or a continuation of employment, nor shall it
interfere with the rights of the Company to discharge any person and to treat
him without regard to the effect that such treatment might have upon him under
this Plan. Each Participant and all persons who may have or claim a right by
reason of his participation in the Plan shall be bound by the terms of the Plan
and all agreements entered into pursuant to those terms.
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5.03. Facility of Payment. In the event that the Committee finds
that a Participant is unable to care for his affairs because of illness or
accident or because he is a minor or has died, the Committee may direct that any
benefit payment due him under the Plan be paid on his behalf to his spouse, a
child, a parent, or other blood relative, or to a person with whom he resides,
unless a duly appointed legal representative makes claim for the payment, in
which case it shall be made to the duly appointed legal representative. Any
payment made on behalf of a Participant pursuant to the preceding sentence shall
be a complete discharge of the liabilities of the Plan with respect to the
Participant.
5.04. Withholding Taxes. The Company shall have the right to deduct
from each payment to be made under the Plan any withholding taxes required by
federal, state, local, or other applicable law.
5.05. Nonalienation. Subject to any applicable law, no benefit
under the Plan shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, or charge, and any attempt to do so
shall be void. Similarly, except as otherwise required by applicable law, no
benefit under the Plan shall be in any manner liable or subject to garnishment,
attachment, execution, or levy, or liable or subject to the debts, contracts,
liabilities, engagements, or torts of a person entitled to those benefits.
5.06. Transfers.
(a) Notwithstanding any plan provision to the contrary, in the event
the Corporation (i) sells, causes the sale of, or sold the stock or assets of
any Related Employer to a third party, or (ii) distributes or distributed to the
holders of shares of the Corporation's stock, all of the outstanding shares of
common stock of a subsidiary or subsidiaries of the Corporation, and, as a
result of the sale or distribution, that company or its Employees are no longer
eligible to participate under the Plan, the liabilities with respect to the
benefits accrued under the Plan for a Participant who, as a result of the sale
or distribution, is no longer eligible to participate in the Plan, shall, at the
discretion and direction of the Corporation (and approval by the new employer),
be transferred to a similar plan of the new employer and become a liability
under that plan. Upon the transfer and acceptance of the liabilities for the
transferred benefits, those liabilities shall become the obligations of the new
employer, and the liability under this Plan for those benefits shall cease.
(b) Notwithstanding any other Plan provision to the contrary, at the
discretion and direction of the Corporation, liabilities with respect to
benefits accrued by a Participant under a plan maintained by the Participant's
former employer may be transferred to this Plan and upon that transfer become
the obligation of the Company.
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5.07. Claims Procedure.
(a) Submission of Claims. Claims for benefits under the Plan should
be submitted in writing to the Committee or to an individual designated by the
Committee for that purpose.
(b) Denial of Claim. If any claim for benefits is denied, in whole
or in part, the claimant shall be given written notice of the denial within 90
days time following the date on which the claim is filed. The notice shall set
forth the following:
(i) the specific reason or reasons for the denial;
(ii) the specific reference to the pertinent Plan provision upon
which the denial was based;
(iii) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why that material or information is necessary;
and
(iv) an explanation of the Plan's claim review procedure.
If special circumstances require an extension of time for processing
the claim, written notice of an extension shall be furnished to the claimant
prior to the end of the initial period of ninety days following the date on
which the claim is filed. The extension may not extend the period of more than
90 days beyond the end of the initial 90 day period.
If the claim has not been granted, and a written notice of the denial
of the claim is not furnished within ninety days following the date on which the
claim is filed, the claim should be deemed denied for the purpose of proceeding
to the claim review procedure.
(c) Claim Review Procedure. A claimant or his authorized
representative shall have 60 days after receipt of written notification of
denial of a claim to request review of the denial by making written request to
the Committee. In connection with the request for review, the claimant or his
authorized representative may review pertinent documents in the Committee's
possession or control and submit issues and comments in writing within the 60
day period following receipt of written notification of the claim denial.
Not later than 60 days after receipt of the request for review, the
Committee shall render and furnish to the claimant a written decision, which
shall include specific reasons for the decision and shall make specific
reference to the pertinent Plan provisions on which the decision is based. If
special circumstances require an extension of time for processing, the decision
shall be rendered as soon as possible, but not later than 120 days after receipt
of the request for review, provided that written notice and explanation of the
delay are given to the claimant prior to
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commencement of the extension. The Committee's decision shall not be subject to
further review. If a decision on review is not furnished to a claimant within
the specified time period, the claim shall be deemed to have been denied on
review.
(d) Exhaustion of Remedy. No claimant shall institute any action or
proceeding in any state or federal court of law or equity or before any
administrative tribunal or arbitrator for a claim for benefits under the Plan
until the claimant has first exhausted the procedures set forth in this Section.
5.08. Construction.
(a) The Plan is intended to constitute an unfunded deferred
compensation arrangement maintained for a select group of management or highly
compensated employees within the meaning of Section 2.01(2), Section 301(a)(3),
and Section 401(a)(1) of ERISA, and all rights under this Plan shall be governed
by ERISA. Subject to the preceding sentence, the Plan shall be construed,
regulated, and administered in accordance with the internal laws of the State of
Indiana, subject to the provisions of applicable federal law.
(b) The masculine pronoun shall mean the feminine wherever
appropriate.
(c) The illegality of any particular provision of this document shall
not affect the other provisions, and the document shall be construed in all
respects as if the invalid provision were omitted.
Article 6. Amendment or Termination
------------------------------------
The Corporation, by action of its Board of Directors, reserves the
right to modify, amend, or terminate, in whole or in part, this Plan at any
time. However, no modification, amendment, or termination of the Plan shall
adversely affect the right of any Participant to receive the benefits granted
under the Plan in respect of the Participant as of the date of modification,
amendment, or termination.
Article 7. Administration
--------------------------
The Committee shall have exclusive responsibility and complete
discretionary authority to control the operation, management, and administration
of the Plan, with all powers necessary to enable it properly to carry out those
responsibilities, including, but not limited to, the following powers:
(a) To interpret the Plan and any related documents, with
discretionary authority;
(b) To establish procedures for making an election called for under
the Plan;
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(c) To make factual determinations regarding any and all known matters
arising under the Plan;
(d) The power to determine eligibility for benefits, with
discretionary authority;
(e) The right to construe, with discretionary authority, the terms of
the Plan and to remedy possible ambiguities, inequities, inconsistencies, or
omissions; and
(f) The right to resolve, with discretionary authority, all
interpretive, equitable, or other questions arising under the Plan.
All decisions of the Committee in all matters shall be final and
binding and conclusive on all persons.
This ESI Excess Savings Plan is executed on behalf of ITT Educational
Services, Inc., by its duly authorized officer, as of the 9th day of June,
1998.
ITT EDUCATIONAL SERVICES, INC.
By /s/ Clark D. Elwood
--------------------------------------
Signature
Clark D. Elwood
-----------------------------------------
Printed Name
Senior Vice President, General Counsel
and Secretary
-----------------------------------------
Office
-12-
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘10-Q’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 7/27/98 |
| For Period End: | | 6/30/98 |
| | 2/13/98 | | 6 | | | | | 10-K, S-3 |
| List all Filings |
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Filing Submission 0000950131-98-004428 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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