EX-10.2



 




EXHIBIT 10.2







	ADOPTION AGREEMENT
1.01 PREAMBLE
By the execution of this Adoption Agreement the Plan Sponsor

hereby [complete (a) or (b)]
(a) adopts a new plan as of  [month, day, year]
(b) amends and restates its existing plan as of 01/01/2008 
[month, day, year] which is the Amendment Restatement Date.
Original Effective Date: 07/27/2005 [month, day, year]
Pre-409A Grandfathering: Yes No
1.02 PLAN
—
Plan Name: King Pharmaceuticals, Inc. Deferred Compensation Plan
—
Plan Year: ends 12/31
—
1.03 PLAN SPONSOR
—
Name: King Pharmaceuticals, Inc.
—
Address: 501 Fifth Street, Bristol, TN 37620
—
Phone # : 423-989-8000
—
EIN: 54-1684963
—
Fiscal Yr: 12/31
—
Is stock of the Plan Sponsor, any Employer or any Related Employer publicly traded on an
established securities market?
Yes            No
1.04 EMPLOYER
The following entities have been authorized by the Plan Sponsor to participate in and have
adopted the Plan (insert “Not Applicable” if none have been authorized):
Entity Publicly Traded on Est. Securities Market
Yes            No
King Pharmaceuticals, Inc.
—
Monarch Pharmaceuticals, Inc.
—
King Pharmaceuticals Research and Development, Inc.
—
Parkedale Pharmaceuticals, Inc.
—
Meridian Medical Technologies, Inc.
—
Gentrac, Inc.
—
JMI-Daniels Pharmaceuticals, Inc.
—





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	ADMINISTRATOR
The Plan Sponsor has designated the following party or parties to be responsible for the
administration of the Plan:
Committee designated by the Compensation and Human Resources
Committee of the Board of Directors of the Company, by written
Name: resolution
—
Address: 501 Fifth Street, Bristol, TN 37620
—
Note: The Administrator is the person or persons designated by the Plan Sponsor to
be responsible for the administration of the Plan. Neither Fidelity Employer Services
Company nor any other Fidelity affiliate can be the Administrator.
1.05 KEY EMPLOYEE DETERMINATION DATES
The Employer has designated 09/30  as the Identification Date for
purposes of determining Key Employees.
In the absence of a designation, the Identification Date is December 31.
The Employer has designated 01/01  as the effective date for purposes
of applying the six month delay in distributions to Key Employees.
In the absence of a designation, the effective date is the first day of the fourth month
following the Identification Date.





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	2.01 PARTICIPATION
(a) Employees [complete (i), (ii) or (iii)]
(i) Eligible Employees are selected by the Employer.
(ii) Eligible Employees are those employees of the Employer who satisfy the
following criteria:
Employees who are Vice President or higher.
—
Employees who, regardless of whether they are Vice President or higher, have
actually participated in the Plan prior to the Amendment Restatement Date
—
(iii) Employees are not eligible to participate.
(b) Directors [complete (i), (ii) or (iii)]
(i) All Directors are eligible to participate.
(ii) Only Directors selected by the Employer are eligible to participate.
(iii) Directors are not eligible to participate.





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	3.01 COMPENSATION
For purposes of determining Participant contributions under Article 4 and Employer
contributions under Article 5, Compensation shall be defined in the following manner
[complete (a) or (b) and select (c) and/or (d), if applicable]:
(a) Compensation is defined as:
Base Salary
—
Performance Bonus
—
Sales Bonus
—
(b) Compensation as defined in [insert name of qualified plan]
without regard to the limitation in Section 401(a)(17) of the Code for
such Plan Year.
—
(c) Director Compensation is defined as:
(d) Compensation shall, for all Plan purposes, be limited to $ .
—
(e) Not Applicable.
3.02 BONUSES
Compensation, as defined in Section 3.01 of the Adoption Agreement, includes the following
type of bonuses:
| | |
Will be treated as Performance
Type            Based Compensation
——  —
| | |
Yes            No
Performance Bonus
Sales bonus
—
Not Applicable.






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	4.01 PARTICIPANT CONTRIBUTIONS
If Participant contributions are permitted, complete (a), (b), and (c). Otherwise

complete (d).
(a) Amount of Deferrals
A Participant may elect within the period specified in Section 4.01(b) of the
Adoption Agreement to defer the following amounts of remuneration. For each type of
remuneration listed, complete “dollar amount” and / or “percentage amount”.
(i) Compensation Other than Bonuses [do not complete if you
complete (iii)]
Type of Remuneration            Dollar Amount      % Amount            Increment
——  ——  ——  —
Min            Max            Min            Max
——  ——  ——  —
(a) Base Salary 0% 75% 1%
——   —  -—  —
(b)
—
(c)
—
Note: The increment is required to determine the permissible deferral amounts. For
example, a minimum of 0% and maximum of 20% with a 5% increment would allow an
individual to defer 0%, 5%, 10%, 15% or 20%.
(ii) Bonuses [do not complete if you complete (iii)]
Type of Bonus            Dollar Amount      % Amount            Increment
——  ——  ——  —
Min            Max            Min            Max
——  ——  ——  —
(a) Management
Bonus 0% 90% 1%
——   —  -—  —
(b) Sales Bonus 0% 90% 1%
——   —  -—  —
(c)
—
(iii) Compensation [do not complete if you completed (i) and (ii)]
Dollar Amount      % Amount            Increment
——  ——  —
Min            Max            Min            Max
——  ——  ——  —
(iv) Director Compensation
Type of Compensation            Dollar Amount      % Amount            Increment
——  ——  ——  —
Min            Min            Min            Max
——  ——  ——  —
Annual Retainer
—
Meeting Fees
—
Other:
—
Other:
—





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	(b) Election Period
(i) Performance Based Compensation
A special election period
Does            Does Not
apply to each eligible type of performance based compensation referenced in
Section 3.02 of the Adoption Agreement.
The special election period, if applicable, will be determined by the Employer.
(ii) Newly Eligible Participants
An employee who is classified or designated as an Eligible Employee during a
Plan Year
May            May Not
elect to defer Compensation that is Base Salary earned during the remainder of
the Plan Year by completing a deferral agreement within the 30 day period
beginning on the date he is eligible to participate in the Plan.
(c) Revocation of Deferral Agreement
A Participant’s deferral agreement
Will
Will Not
be cancelled for the remainder of any Plan Year during which he receives a hardship
distribution of elective deferrals from a qualified cash or deferred arrangement
maintained by the Employer. If cancellation occurs, the Participant may resume
participation in accordance with Article 4 of the Plan.
(d) No Participant Contributions
Participant contributions are not permitted under the Plan.





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	5.01 EMPLOYER CONTRIBUTIONS
If Employer contributions are permitted, complete (a) and/or (b). Otherwise

complete (c).
(a) Matching Contributions
(i) Amount
For each Plan Year, the Employer shall make a Matching Contribution on behalf of
each Participant who defers Compensation for the Plan Year and satisfies the
requirements of Section 5.01(a)(ii) of the Adoption Agreement equal to [complete
the ones that are applicable]:
(A)   [insert percentage] of the Compensation
the Participant has elected to defer for the Plan Year
(B) An amount determined by the Employer in its sole
discretion
(C) Matching Contributions for each Participant shall be
limited to $  and/or  % of Compensation.
(D) Other:
 

 
(E) Not Applicable [Proceed to Section 5.01(b)]
(ii) Eligibility for Matching Contribution
A Participant who defers Compensation for the Plan Year shall receive an
allocation of Matching Contributions determined in accordance with Section
5.01(a)(i) provided he satisfies the following requirements [complete the ones
that are applicable]:
(A) Describe requirements:
—
—
—
—
(B) Is selected by the Employer in its sole discretion to receive an
allocation of Matching Contributions
(C) No requirements





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	(iii) Time of Allocation
Matching Contributions, if made, shall be treated as allocated [select one]:
(A) As of the last day of the Plan Year
(B) At such times as the Employer shall determine in its sole
discretion
(C) At the time the Compensation on account of which the Matching
Contribution is being made would otherwise have been paid to the
Participant
(D) Other:
—
—
—
—
(b) Other Contributions
(i) Amount
The Employer shall make a contribution on behalf of each Participant who
satisfies the requirements of Section 5.01(b)(ii) equal to [complete the ones
that are applicable]:
(A) An amount equal to [insert number] % of the Participant’s
Compensation
—
(B) An amount determined by the Employer in its sole discretion
(C) Contributions for each Participant shall be limited to $
—
(D) Other:
—
—
—
—
—
—
(E) Not Applicable [Proceed to Section 6.01]





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	(ii) Eligibility for Other Contributions
A Participant shall receive an allocation of other Employer contributions
determined in accordance with Section 5.01(b)(i) for the Plan Year if he
satisfies the following requirements [complete the one that is applicable]:
(A) Describe requirements:
—
—
—
—
(B) Is selected by the Employer in its sole discretion to receive an
allocation of other Employer contributions
(C) No requirements
(iii) Time of Allocation
Employer contributions, if made, shall be treated as allocated [select one]:
(A) As of the last day of the Plan Year
(B) At such time or times as the Employer shall determine in its sole
discretion
(C) Other:
—
—
—
—
—
—
(c) No Employer Contributions
Employer contributions are not permitted under the Plan.






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	6.01 DISTRIBUTIONS
The timing and form of payment of distributions made from the Participant’s vested Account
shall be made in accordance with the elections made in this Section 6.01 of the Adoption
Agreement except when Section 9.6 of the Plan requires a six month delay for certain
distributions to Key Employees of publicly traded companies.
(a) Timing of Distributions
(i) All distributions shall commence in accordance with the following [choose one]:
(A) As soon as administratively feasible following the distribution event
(B) Monthly on specified day [insert day]
—
(C) Annually on specified month and day [insert month and day]
—
(D) Calendar quarter on specified month and day [ month of quarter
(insert 1,2 or 3); ___day (insert day)]
—
(ii) The timing of distributions as determined in Section 6.01(a)(i) shall
be modified by the adoption of:
(A) Event Delay – Distribution events other than those
based on Specified Date or Specified Age will be
treated as not having occurred for 10 days.
—
(B) Hold Until Next Year – Distribution events other than
those based on Specified Date or Specified Age will
be treated as not having occurred for twelve months
from the date of the event if payment pursuant to
Section 6.01(a)(i) will thereby occur in the next
calendar year or on the first payment date in the
next calendar year in all other cases.
(C) Immediate Processing – The timing method selected by
the Plan Sponsor under Section 6.01(a)(i) shall be
overridden for the following distribution events
[insert events]:
—
—
—
—
(D) Not applicable.





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	(b) Distribution Events
If multiple events are selected, the earliest to occur will trigger payment. For
installments, insert the range of available periods (e.g., 5-15) or insert the periods
available (e.g., 5,7,9).
| | |
Lump Sum            Installments
——  —
(i) Specified Date            X 2-5 years
——  —
| | |
(ii) Specified Age ——  years
——  —
(iii) Separation from Service            X 2-10 years
——  —
(iv) Separation from Service plus 6 months ——  years
——  —
(v) Separation from Service plus ——  years
months [not to exceed            months]
——  ——  —
(vi) Retirement ——  years
——  —
(vii) Retirement plus 6 months ——  years
——  —
(viii) Retirement plus            months [not to ——  years
exceed            months]
——  ——  —
(ix) Later of Separation from Service or ——  years
Specified Age
——  —
(x) Later of Separation from Service or ——  years
Specified Date
——  —
(xi) Disability ——  years
——  —
(xii) Death ——  years
——  —
(xiii) Change in Control ——  years
——  —
The minimum deferral period for Specified Date or Specified Age event shall be 
 years.
Installments may be paid [select each that applies]
Monthly
Quarterly
Annually
(c) Specified Date and Specified Age elections may not extend beyond age Not
Applicable .





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	(d) Separation from Service Override
A Separation from Service override
Shall Apply. [If this is elected, “Separation from Service” cannot be selected
as a distribution event in Section 6.01(b)]
Shall Not Apply.




	A Separation from Service override provides that a Participant whose Separation from
Service occurs before Retirement shall receive the vested amount credited to his
Account as a lump sum payment.
(e) Involuntary Cashouts
If the Participant’s vested Account at the time of his Separation from Service
does not exceed $25,000 distribution of the vested Account shall automatically
be made in the form of a single lump sum in accordance with Section 9.5 of the
Plan.
—
There are no involuntary cashouts.
(f) Retirement
Retirement shall be defined as a Separation from Service that occurs on or
after the Participant [insert description of requirements]:
—
—
—
—
No special definition of Retirement applies.





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	(g) Distribution Election Change
A Participant
Shall
Shall Not
be permitted to modify a scheduled distribution date and/or payment option in
accordance with Section 9.2 of the Plan.
A Participant shall generally be permitted to elect such modification any
number of times.
Administratively, allowable distribution events will be modified to reflect all
options necessary to fulfill the distribution change election provision.
(h) Frequency of Elections
The Plan Sponsor
Has
Has Not
Elected to permit annual elections of a time and form of payment for amounts deferred
under the Plan.






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	7.01 VESTING
(a) Matching Contributions
The Participant’s vested interest in the amount credited to his Account attributable to
Matching Contributions shall be based on the following schedule:
Years of Service            Vesting %
0 ——  (insert ‘100’ if there is immediate vesting)
—
1 —
—
2 —
—
3 —
—
4 —
—
5 —
—
6 —
—
7 —
—
8 —
—
9 —
—
Other:
As determined by the Employer in its sole discretion
—
at the time amounts are credited to the account
—
Class year vesting applies.
Not applicable.
(b) Other Employer Contributions
The Participant’s vested interest in the amount credited to his Account attributable to
Employer contributions other than Matching Contributions shall be based on the following
schedule:
Years of Service            Vesting %
0 ——  (insert ‘100’ if there is immediate vesting)
—
1 —
—
2 —
—
3 —
—
4 —
—
5 —
—
6 —
—
7 —
—
8 —
—
9 —
—
Other:
As determined by the Employer in its sole discretion
—
at the time amounts are credited to the account
—
—
—
Class year vesting applies.
Not applicable.






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	(c) Acceleration of Vesting
A Participant’s vested interest in his Account will automatically be 100% upon the
occurrence of the following events: [select the ones that are applicable]:
(i) Death
(ii) Disability
(iii) Change in Control
(iv) Eligibility for Retirement
(v) Other:
—
—
—
(vi) Not applicable.
(d) Years of Service
(i) A Participant’s Years of Service shall include all service performed
for the Employer and
Shall
Shall Not
include service performed for the Related Employer.
(ii) Years of Service shall also include service performed for the following
entities:
(iii) Years of Service shall be determined in accordance with (select one)
(A) The elapsed time method in Treas. Reg. Sec.  1.410(a)-7
(B) The general method in DOL Reg. Sec. 2530.200b-1 through b-4
(C) The Participant’s Years of Service credited under [insert name of plan]
—
(D) Other:
—
—
—
—
—
(iv) Not applicable.






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	8.01 UNFORESEEABLE EMERGENCY
(a) A withdrawal due to an Unforeseeable Emergency as defined in Section 2.24:
Will
Will Not [if Unforeseeable Emergency withdrawals are not permitted, proceed to
Section 9.01]
be allowed.
(b) Upon a withdrawal due to an Unforeseeable Emergency, a Participant’s deferral
election for the remainder of the Plan Year:
Will
Will Not
be cancelled. If cancellation occurs, the Participant may resume participation in
accordance with Article 4 of the Plan.





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	9.01 INVESTMENT DECISIONS
Investment decisions regarding the hypothetical amounts credited to a Participant’s Account
shall be made by [select one]:
(a) The Participant or his Beneficiary
(b) The Employer






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	10.01 GRANTOR TRUST
The Employer [select one]:
Does
Does Not
intend to establish a grantor trust in connection with the Plan.





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	TERMINATION UPON CHANGE IN CONTROL
The Plan Sponsor
Reserves
Does Not Reserve
the right to terminate the Plan and distribute all vested amounts credited to Participant
Accounts upon a Change in Control as described in Section 9.7.

[Fidelity considers that this right is implied b/c of selection in 11.02. Could be
confusing to check the box to have an automatic distribution. B but need to consider: what
if CIC is not hostile?]
11.01 AUTOMATIC DISTRIBUTION UPON CHANGE IN CONTROL
Distribution of the remaining vested balance of each Participant’s Account
Shall
Shall Not
automatically be paid as a lump sum payment upon the occurrence of a Change in Control as
provided in Section 9.7.
11.02 CHANGE IN CONTROL
A Change in Control for Plan purposes includes the following [select each definition that
applies]:
(a) A change in the ownership of the Employer as described in Section 9.7(c) of the
Plan.
(b) A change in the effective control of the Employer as described in Section
9.7(d) of the Plan.
(c) A change in the ownership of a substantial portion of the assets of the
Employer as described in Section 9.7(e) of the Plan.
(d) Not Applicable.





- 19 -









 









	12.01	 	GOVERNING STATE LAW
	 
	 	 	The laws of Tennessee shall apply in the administration of the Plan to the extent
not preempted by ERISA.





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EXECUTION PAGE



The Plan Sponsor has caused this Adoption Agreement to be executed this ___ day
of ___, 20___.




	 	 	 	 	 
	PLAN SPONSOR:
	 	 	 	 
	 

	 	 	 	 
	By:
	 	 	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 







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APPENDIX A




SPECIAL EFFECTIVE DATES



Subject to the timing requirements of Section 6.01(a), the time and form of distribution of the In
Service Accounts established prior to the effective date of this amended and restated Plan shall be
made in accordance with the payment schedules established for those accounts.





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King Pharmaceuticals, Inc. Deferred

Compensation Plan




IMPORTANT NOTE



This document has not been approved by the Department of Labor, Internal Revenue Service or any
other governmental entity. An adopting Employer must determine whether the Plan is subject to the
Federal securities laws and the securities laws of the various states. An adopting Employer may
not rely on this document to ensure any particular tax consequences or to ensure that the Plan is
“unfunded and maintained primarily for the purpose of providing deferred compensation to a select
group of management or highly compensated employees” under Title I of the Employee Retirement
Income Security Act of 1974, as amended, with respect to the Employer’s particular situation.
Fidelity Employer Services Company, its affiliates and employees cannot provide you with legal
advice in connection with the execution of this document. This document should be reviewed by the
Employer’s attorney prior to execution.




September 2007




 









 








TABLE OF CONTENTS




PREAMBLE




	 	 	 
	ARTICLE 1 – GENERAL
	1.1

	 	Plan
	1.2

	 	Effective Dates
	1.3

	 	Amounts Not Subject to Code Section 409A
	 
	 	 
	ARTICLE 2 – DEFINITIONS
	2.1

	 	Account
	2.2

	 	Administrator
	2.3

	 	Adoption Agreement
	2.4

	 	Beneficiary
	2.5

	 	Board or Board of Directors
	2.6

	 	Bonus
	2.7

	 	Change in Control
	2.8

	 	Code
	2.9

	 	Compensation
	2.10

	 	Director
	2.11

	 	Disabled
	2.12

	 	Eligible Employee
	2.13

	 	Employer
	2.14

	 	ERISA
	2.15

	 	Identification Date
	2.16

	 	Key Employee
	2.17

	 	Participant
	2.18

	 	Plan
	2.19

	 	Plan Sponsor
	2.20

	 	Plan Year
	2.21

	 	Related Employer
	2.22

	 	Retirement
	2.23

	 	Separation from Service
	2.24

	 	Unforeseeable Emergency
	2.25

	 	Valuation Date
	2.26

	 	Years of Service
	 
	 	 
	ARTICLE 3 – PARTICIPATION
	3.1

	 	Participation
	3.2

	 	Termination of Participation






i









 






	 	 	 
	ARTICLE 4 – PARTICIPANT ELECTIONS
	4.1

	 	Deferral Agreement
	4.2

	 	Amount of Deferral
	4.3

	 	Timing of Election to Defer
	4.4

	 	Election of Payment Schedule and Form of Payment
	 
	 	 
	ARTICLE 5 – EMPLOYER CONTRIBUTIONS
	5.1

	 	Matching Contributions
	5.2

	 	Other Contributions
	 
	 	 
	ARTICLE 6 – ACCOUNTS AND CREDITS
	6.1

	 	Establishment of Account
	6.2

	 	Credits to Account
	 
	 	 
	ARTICLE 7 – INVESTMENT OF CONTRIBUTIONS
	7.1

	 	Investment Options
	7.2

	 	Adjustment of Accounts
	 
	 	 
	ARTICLE 8 – RIGHT TO BENEFITS
	8.1

	 	Vesting
	8.2

	 	Death
	8.3

	 	Disability
	 
	 	 
	ARTICLE 9 – DISTRIBUTION OF BENEFITS
	9.1

	 	Amount of Benefits
	9.2

	 	Method and Timing of Distributions
	9.3

	 	Unforeseeable Emergency
	9.4

	 	Termination Before Retirement
	9.5

	 	Cashouts of Amounts Not Exceeding Stated Limit
	9.6

	 	Required Delay in Payment to Key Employees
	9.7

	 	Change in Control
	9.8

	 	Permissible Delays in Payment






ii









 






	 	 	 
	ARTICLE 10 – AMENDMENT AND TERMINATION
	10.1

	 	Amendment by Plan Sponsor
	10.2

	 	Plan Termination Following Change in Control or Corporate Dissolution
	10.3

	 	Other Plan Terminations
	 
	 	 
	ARTICLE 11 – THE TRUST
	11.1

	 	Establishment of Trust
	11.2

	 	Grantor Trust
	11.3

	 	Investment of Trust Funds
	 
	 	 
	ARTICLE 12 – PLAN ADMINISTRATION
	12.1

	 	Powers and Responsibilities of the Administrator
	12.2

	 	Claims and Review Procedures
	12.3

	 	Plan Administrative Costs
	 
	 	 
	ARTICLE 13 – MISCELLANEOUS
	13.1

	 	Unsecured General Creditor of the Employer
	13.2

	 	Employer’s Liability
	13.3

	 	Limitation of Rights
	13.4

	 	Anti-Assignment
	13.5

	 	Facility of Payment
	13.6

	 	Notices
	13.7

	 	Tax Withholding
	13.8

	 	Indemnification
	13.9

	 	Permitted Acceleration of Payment
	13.10

	 	Governing Law






iii









 






PREAMBLE



The Plan is intended to be a “plan which is unfunded and is maintained by an employer primarily for
the purpose of providing deferred compensation for a select group of management or highly
compensated employees” within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of the
Employee Retirement Income Security Act of 1974, as amended, or an “excess benefit plan” within the
meaning of Section 3(36) of the Employee Retirement Income Security Act of 1974, as amended, or a
combination of both. The Plan is further intended to conform with the requirements of Internal
Revenue Code Section 409A and the final regulations issued thereunder and shall be implemented and
administered in a manner consistent therewith.





 









 








ARTICLE 1 – GENERAL





	1.1	 	Plan. The Plan will be referred to by the name specified in the Adoption Agreement.
	 
	1.2	 	Effective Dates.






	 	(a)	 	Original Effective Date. The Original Effective Date is the date as
of which the Plan was initially adopted.
	 
	 	(b)	 	Amendment Effective Date. The Amendment Effective Date is the date
specified in the Adoption Agreement as of which the Plan is amended and restated.
Except to the extent otherwise provided herein or in the Adoption Agreement, the Plan
shall apply to amounts deferred and benefit payments made on or after the Amendment
Effective Date.
	 
	 	(c)	 	Special Effective Date. A Special Effective Date may apply to any
given provision if so specified in Appendix A of the Adoption Agreement. A Special
Effective Date will control over the Original Effective Date or Amendment Effective
Date, whichever is applicable, with respect to such provision of the Plan.






	1.3	 	Amounts Not Subject to Code Section 409A
	 
	 	 	Except as otherwise indicated by the Plan Sponsor in Section 1.01 of the Adoption
Agreement, amounts deferred before January 1, 2005 that are earned and vested on December
31, 2004 will be separately accounted for and administered in accordance with the terms of
the Plan as in effect on December 31, 2004






1-1









 








ARTICLE 2 – DEFINITIONS



Pronouns used in the Plan are in the masculine gender but include the feminine gender unless the
context clearly indicates otherwise. Wherever used herein, the following terms have the meanings
set forth below, unless a different meaning is clearly required by the context:





	2.1	 	“Account” means an account established for the purpose of recording amounts credited on
behalf of a Participant and any income, expenses, gains, losses or distributions included
thereon. The Account shall be a bookkeeping entry only and shall be utilized solely as a
device for the measurement and determination of the amounts to be paid to a Participant or to
the Participant’s Beneficiary pursuant to the Plan.
	 
	2.2	 	“Administrator” means the person or persons designated by the Plan Sponsor in Section 1.05 of
the Adoption Agreement to be responsible for the administration of the Plan. If no
Administrator is designated in the Adoption Agreement, the Administrator is the Plan Sponsor.
	 
	2.3	 	“Adoption Agreement” means the agreement adopted by the Plan Sponsor that establishes the
Plan.
	 
	2.4	 	“Beneficiary” means the persons, trusts, estates or other entities entitled under Section 8.2
to receive benefits under the Plan upon the death of a Participant.
	 
	2.5	 	“Board” or “Board of Directors” means the Board of Directors of the Plan Sponsor.
	 
	2.6	 	“Bonus” or “Performance Bonus” means an amount of incentive remuneration payable by the
Employer to a Participant, pursuant to an incentive plan established by Compensation Committee
of the Board of Directors, including but not limited to the Executive Management Incentive
Award Plan, the Management Incentive Award Plan, and the Team Based Employee Incentive Award
Plan.
	 
	2.7	 	“Change in Control” means the occurrence of an event involving the Plan Sponsor that is
described in Section 9.7.
	 
	2.8	 	“Code” means the Internal Revenue Code of 1986, as amended.
	 
	2.9	 	“Compensation” has the meaning specified in Section 3.01 of the Adoption Agreement.










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	2.10	 	“Director” means a non-employee member of the Board who has been designated by the Employer
as eligible to participate in the Plan.
	 
	2.11	 	“Disabled” means a determination by the Administrator that the Participant is either (a)
unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than twelve (12) months, or (b) is, by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or last for a continuous period of not less than twelve months, receiving income replacement
benefits for a period of not less than three (3) months under an accident and health plan
covering employees of the Employer. A Participant will be considered Disabled if he is
determined to be totally disabled by the Social Security Administration or the Railroad
Retirement Board.
	 
	2.12	 	“Eligible Employee” means an employee of the Employer who satisfies the requirements in
Section 2.01 of the Adoption Agreement.
	 
	2.13	 	“Employer” means the Plan Sponsor and any other entity which is authorized by the Plan
Sponsor to participate in and, in fact, does adopt the Plan.
	 
	2.14	 	“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
	 
	2.15	 	“Identification Date” means the date as of which Key Employees are determined which is
specified in Section 1.05 of the Adoption Agreement.
	 
	2.16	 	“Key Employee” means an employee who satisfies the conditions set forth in Section 9.6.
	 
	2.17	 	“Participant” means an Eligible Employee or Director who commences participation in the Plan
in accordance with Article 3.
	 
	2.18	 	“Plan” means the unfunded plan of deferred compensation set forth herein, including the
Adoption Agreement and any trust agreement, as adopted by the Plan Sponsor and as amended from
time to time.
	 
	2.19	 	“Plan Sponsor” means the entity identified in Section 1.03 of the Adoption Agreement.
	 
	2.20	 	“Plan Year” means the period identified in Section 1.02 of the Adoption Agreement.
	 
	2.21	 	“Related Employer” means the Employer and (a) any corporation that is a member of a
controlled group of corporations as defined in Code Section 414(b) that includes the Employer
and (b) any trade or business





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	 	 	that is under common control as defined in Code Section 414(c) that includes the Employer.
	 
	2.22	 	“Retirement” has the meaning specified in 6.01(f) of the Adoption Agreement.
	 
	2.23	 	“Separation from Service” means the date that the Participant dies, retires or otherwise has
a termination of employment with respect to all entities comprising the Related Employer. A
Separation from Service does not occur if the Participant is on military leave, sick leave or
other bona fide leave of absence if the period of leave does not exceed six months or such
longer period during which the Participant’s right to re-employment is provided by statute or
contract. If the period of leave exceeds six months and the Participant’s right to
re-employment is not provided either by statute or contract, a Separation from Service will be
deemed to have occurred on the first day following the six-month period. If the period of
leave is 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, where the impairment causes the Participant to be unable to perform the duties of his
or her position of employment or any substantially similar position of employment, a 29 month
period of absence may be substituted for the six month period.
	 
	 	 	Whether a termination of employment has occurred is based on whether the facts and
circumstances indicate that the Related Employer and the Participant reasonably anticipated
that no further services would be performed after a certain date or that the level of bona
fide services the Participant would perform after such date (whether as an employee or as
an independent contractor) would permanently decrease to no more than fifty percent (50%)
of the average level of bona fide services performed (whether as an employee or an
independent contractor) over the immediately preceding 36 month period (or the full period
of services to the Related Employer if the employee has been providing services to the
Related Employer for less than 36 months).
	 
	 	 	An independent contractor is considered to have experienced a Separation from Service with
the Related Employer upon the expiration of the contract (or, in the case of more than one
contract, all contracts) under which services are performed for the Related Employer if the
expiration constitutes a good-faith and complete termination of the contractual
relationship.
	 
	 	 	If a Participant provides services as both an employee and an independent contractor of the
Related Employer, the Participant must separate from service both as an employee and as an
independent contractor to be treated as having incurred a Separation from Service. If a





2-3









 






	 	 	Participant ceases providing services as an independent contractor and begins providing
services as an employee, or ceases providing services as an employee and begins providing
services as an independent contractor, the Participant will not be considered to have
experienced a Separation from Service until the Participant has ceased providing services
in both capacities.
	 
	 	 	If a Participant provides services both as an employee and as a member of the board of
directors of a corporate Related Employer (or an analogous position with respect to a
noncorporate Related Employer), the services provided as a director are not taken into
account in determining whether the Participant has incurred a Separation from Service as an
employee for purposes of a nonqualified deferred compensation plan in which the Participant
participates as an employee that is not aggregated under Code Section 409A with any plan in
which the Participant participates as a director.
	 
	 	 	If a Participant provides services both as an employee and as a member of board of
directors of a corporate related Employer (or an analogous position with respect to a
noncorporate Related Employer), the services provided as an employee are not taken into
account in determining whether the Participant has experienced a Separation from Service as
a director for purposes of a nonqualified deferred compensation plan in which the
Participant participates as a director that is not aggregated under Code Section 409A with
any plan in which the Participant participates as an employee.
	 
	 	 	All determinations of whether a Separation from Service has occurred will be made in a
manner consistent with Code Section 409A and the final regulations thereunder.
	 
	2.24	 	“Unforeseeable Emergency” means a severe financial hardship of the Participant resulting from
an illness or accident of the Participant, the Participant’s spouse, the Participant’s
Beneficiary, or the Participant’s dependent (as defined in Code Section 152, without regard to
Code section 152(b)(i), (b)(2) and (d)(i)(B)); loss of the Participant’s property due to
casualty; or other similar extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant.
	 
	2.25	 	“Valuation Date” means each business day of the Plan Year.
	 
	2.26	 	“Years of Service” means each one year period for which the Participant receives service
credit in accordance with the provisions of Section 7.01(d) of the Adoption Agreement.






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ARTICLE 3 – PARTICIPATION





	3.1	 	Participation. The Participants in the Plan shall be those employees of the Employer who
satisfy the requirements of Section 2.01 of the Adoption Agreement.
	 
	3.2	 	Termination of Participation. The Administrator may terminate a Participant’s participation
in the Plan in a manner consistent with Code Section 409A.





3-1









 








ARTICLE 4 – PARTICIPANT ELECTIONS





	4.1	 	Deferral Agreement. If permitted by the Plan Sponsor in accordance with Section 4.01 of the
Adoption Agreement, each Eligible Employee may elect to defer his Compensation within the
meaning of Section 3.01 of the Adoption Agreement by executing in writing or electronically, a
deferral agreement in accordance with rules and procedures established by the Administrator
and the provisions of this Article 4.
	 
	 	 	A new deferral agreement must be timely executed for each Plan Year during which the
Eligible Employee desires to defer Compensation. An Eligible Employee who does not timely
execute a deferral agreement shall be deemed to have elected zero deferrals of Compensation
for such Plan Year.
	 
	 	 	A deferral agreement may be changed or revoked during the period specified by the
Administrator. Except as provided in Section 9.3 or in Section 4.01(c) of the Adoption
Agreement, a deferral agreement becomes irrevocable at the close of the specified period.
	 
	4.2	 	Amount of Deferral. An Eligible Employee may elect to defer Compensation in any amount
permitted by Section 4.01(a) of the Adoption Agreement.
	 
	4.3	 	Timing of Election to Defer. Each Eligible Employee who desires to defer Compensation
otherwise payable during a Plan Year must execute a deferral agreement within the period
preceding the Plan Year specified by the Administrator. Each Eligible Employee who desires to
defer Compensation that is a Bonus must execute a deferral agreement within the period
preceding the Plan Year during which the Bonus is earned that is specified by the
Administrator, except that if the Bonus can be treated as performance based compensation as
described in Code Section 409A(a)(4)(B)(iii), the deferral agreement may be executed within
the period specified by the Administrator, which period, in no event, shall end after the date
which is six months prior to the end of the period during which the Bonus is earned. In
addition, if the Compensation qualifies as ‘fiscal year compensation’ within the meaning of
Reg. Sec. 1.409A -2(a)(6), the deferral agreement may be made not later than the end of the
Employer’s taxable year immediately preceding the first taxable year of the Employer in which
any services are performed for which such Compensation is payable.










4-1









 












	 	 	Except as otherwise provided below, an employee who is classified or designated as an
Eligible Employee during a Plan Year may elect to defer Compensation otherwise payable
during the remainder of such Plan Year in accordance with the rules of this Section 4.3 by
executing a deferral agreement within the thirty (30) day period beginning on the date the
employee is classified or designated as an Eligible Employee, if permitted by Section 2.01
of the Adoption Agreement. If Compensation is based on a specified performance period that
begins before the Eligible Employee executes his deferral agreement, the election will be
deemed to apply to the portion of such Compensation equal to the total amount of
Compensation for the performance period multiplied by the ratio of the number of days
remaining in the performance period after the election over the total number of days in the
performance period. The rules of this paragraph shall not apply unless the Eligible
Employee can be treated as initially eligible in accordance with Reg. Sec. 1.409A-2(a)(7).
	 
	4.4	 	Election of Payment Schedule and Form of Payment.
	 
	 	 	All elections of a payment schedule and a form of payment will be made in accordance with
rules and procedures established by the Administrator and the provisions of this Section
4.4.
	 
	(a)	 	If the Plan Sponsor has elected to permit annual distribution elections in accordance
with Section 6.01(h) of the Adoption Agreement the following rules apply. At the time an
Eligible Employee completes a deferral agreement, the Eligible Employee must elect a
distribution event (which includes a specified time) and a form of payment for the
Compensation subject to the deferral agreement and for any Employer contributions that may
be credited to the Participant’s Account during the Plan Year from among the options the
Plan Sponsor has made available for this purpose and which are specified in 6.01(b) of the
Adoption Agreement. If an Eligible Employee fails to elect a distribution event, he shall
be deemed to have elected Separation from Service as the distribution event. If he fails
to elect a form of payment, he shall be deemed to have elected a lump sum form of payment.
	 
	(b)	 	If the Plan Sponsor has elected not to permit annual distribution elections in
accordance with Section 6.01(h) of the Adoption Agreement the following rules apply. At
the time an Eligible Employee first completes a deferral agreement, the Eligible Employee
must elect a distribution event (which includes a specified time) and a form of payment for
amounts credited to his Account from among the options the Plan Sponsor has made available
for this purpose and which are specified in Section 6.01(b) of the Adoption Agreement. If
an Eligible Employee or Director fails to elect a distribution event, he shall be deemed to
have elected Separation from Service in the distribution event. If the fails to elect a
form of





4-2









 






	 	 	payment, he shall be deemed to have elected a lump sum form of payment.





4-3









 





ARTICLE 5 – EMPLOYER CONTRIBUTIONS





	5.1	 	Matching Contributions. If elected by the Plan Sponsor in Section 5.01(a) of the Adoption
Agreement, the Employer will credit the Participant’s Account with a matching contribution
determined in accordance with the formula specified in Section 5.01(a) of the Adoption
Agreement. The matching contribution will be treated as allocated to the Participant’s
Account at the time specified in Section 5.01(a)(iii) of the Adoption Agreement.
	 
	5.2	 	Other Contributions. If elected by the Plan Sponsor in Section 5.01(b) of the Adoption
Agreement, the Employer will credit the Participant’s Account with a contribution determined
in accordance with the formula or method specified in Section 5.01(b) of the Adoption
Agreement. The contribution will be treated as allocated to the Participant’s Account at the
time specified in Section 5.01(b)(iii) of the Adoption Agreement.






5-1









 








ARTICLE 6 – ACCOUNTS AND CREDITS





	6.1	 	Establishment of Account. For accounting and computational purposes only, the Administrator
will establish and maintain an Account on behalf of each Participant which will reflect the
credits made pursuant to Section 6.2, distributions or withdrawals, along with the earnings,
expenses, gains and losses allocated thereto, attributable to the hypothetical investments
made with the amounts in the Account as provided in Article 7. The Administrator will
establish and maintain such other records and accounts, as it decides in its discretion to be
reasonably required or appropriate to discharge its duties under the Plan.
	 
	6.2	 	Credits to Account. A Participant’s Account will be credited for each Plan Year with the
amount of his elective deferrals under Section 4.1 at the time the amount subject to the
deferral election would otherwise have been payable to the Participant and the amount of
Employer contributions treated as allocated on his behalf under Article 5.






6-1









 








ARTICLE 7 – INVESTMENT OF CONTRIBUTIONS





	7.1	 	Investment Options. The amount credited to each Account shall be treated as invested in the
investment options designated for this purpose by the Administrator.
	 
	7.2	 	Adjustment of Accounts. The amount credited to each Account shall be adjusted for
hypothetical investment earnings, expenses, gains or losses in an amount equal to the
earnings, expenses, gains or losses attributable to the investment options selected by the
party designated in Section 9.01 of the Adoption Agreement from among the investment options
provided in Section 7.1. If permitted by Section 9.01 of the Adoption Agreement, a
Participant (or the Participant’s Beneficiary after the death of the Participant) may, in
accordance with rules and procedures established by the Administrator, select the investments
from among the options provided in Section 7.1 to be used for the purpose of calculating
future hypothetical investment adjustments to the Account or future credits to the Account
under Section 6.2 effective as the Valuation Date coincident with or next following notice to
the Administrator. Each Account shall be adjusted as of each Valuation Date to reflect: (a)
the hypothetical earnings, expenses, gains and losses described above; (b) amounts credited
pursuant to Section 6.2; and (c) distributions or withdrawals. In addition, each Account may
be adjusted for its allocable share of the hypothetical costs and expenses associated with the
maintenance of the hypothetical investments provided in Section 7.1.





7-1









 





ARTICLE 8 – RIGHT TO BENEFITS





	8.1	 	Vesting. A Participant, at all times, has the 100% nonforfeitable interest in the amounts
credited to his Account attributable to his elective deferrals made in accordance with Section
4.1.
	 
	 	 	A Participant’s right to the amounts credited to his Account attributable to Employer
contributions made in accordance with Article 5 shall be determined in accordance with the
relevant schedule specified in Section 7.01 of the Adoption Agreement.
	 
	8.2	 	Death. The balance or remaining balance credited to a Participant’s vested Account shall be
paid to his Beneficiary at the time specified in Section 6.01(a) of the Adoption Agreement in
a single lump sum payment following the date of death, unless additional forms of payment have
been made available for this purpose in Section 6.01(b) of the Adoption Agreement and the
Participant has made a valid election (or valid elections) of a form of payment in accordance
with the provisions of Article 4. If additional forms have been made available, payment to
the Beneficiary shall be made at the time specified in Section 6.01(a) of the Adoption
Agreement in the form elected by the Participant in accordance with the provisions of Article
4. If multiple Beneficiaries have been designated, each Beneficiary shall receive payment of
his specified portion of the Account at the time specified in Section 6.01(a) of the Adoption
Agreement in the form elected by the Participant.
	 
	 	 	A Participant may designate a Beneficiary or Beneficiaries, or change any prior designation
of Beneficiary or Beneficiaries in accordance with rules and procedures established by the
Administrator.
	 
	 	 	A copy of the death notice or other sufficient documentation must be filed with and
approved by the Administrator. If upon the death of the Participant there is, in the
opinion of the Administrator, no designated Beneficiary for part or all of the
Participant’s vested Account, such amount will be paid to his estate (such estate shall be
deemed to be the Beneficiary for purposes of the Plan) in a single lump sum payment.





8-1









 






	8.3	 	Disability. The balance or remaining balance credited to a Participant’s vested Account
shall be paid to the Participant at the time specified in Section 6.01(a) of the Adoption
Agreement in a single lump sum cash payment following the date a Participant incurs a
Disability as defined in Section 2.11, unless additional forms of payment have been made
available for this purpose in Section 6.01(b) of the Adoption Agreement and the Participant
has made a valid election of a different form of payment. If additional forms have been made
available, payment shall be made at the time specified in Section 6.01(a) of the Adoption
Agreement and in the form elected by the Participant in accordance with the provisions of
Article 4. The Administrator, in its sole discretion, shall determine whether a Participant
has experienced a Disability for purposes of this Section 8.3. If the payment of all or any
portion of the Participant’s vested Account is being delayed in accordance with Section 9.6 at
the time he incurs a Disability, the amount being delayed shall not be subject to the
provisions of this Section 8.3 until the expiration of the six month period of delay required
by Section 9.6.






8-2









 








ARTICLE 9 – DISTRIBUTION OF BENEFITS





	9.1	 	Amount of Benefits. The vested amount credited to a Participant’s Account as determined
under Articles 6, 7 and 8 shall determine and constitute the basis for the value of benefits
payable to the Participant under the Plan.
	 
	9.2	 	Method and Timing of Distributions. Except as otherwise provided in this Article 9,
distributions under the Plan shall be made in accordance with the elections made or deemed
made by the Participant under Article 4. Subject to the provisions of Section 9.6 requiring a
six month delay for certain distributions to Key Employees, distributions following a payment
event shall commence at the time specified in Section 6.01(a) of the Adoption Agreement. If
permitted by Section 6.01(g) of the Adoption Agreement, a Participant may elect, at least
twelve months before a scheduled distribution event, to delay the payment date for a minimum
period of sixty months from the originally scheduled date of payment. The distribution
election change must be made in accordance with procedures and rules established by the
Administrator. The Participant may, at the same time the date of payment is deferred, change
the form of payment but such change in the form of payment may not effect an acceleration of
payment in violation of Code Section 409A or the provisions of Reg. Sec. 1.409A-2(b). For
purposes of this Section 9.2, a series of installment payments is always treated as a single
payment and not as a series of separate payments.
	 
	9.3	 	Unforeseeable Emergency. A Participant may request a distribution due to an Unforeseeable
Emergency if the Plan Sponsor has elected to permit Unforeseeable Emergency withdrawals under
Section 8.01(a) of the Adoption Agreement. The request must be in writing and must be
submitted to the Administrator along with evidence that the circumstances constitute an
Unforeseeable Emergency. The Administrator has the discretion to require whatever evidence it
deems necessary to determine whether a distribution is warranted. Whether a Participant has
incurred an Unforeseeable Emergency will be determined by the Administrator on the basis of
the relevant facts and circumstances in its sole discretion, but, in no event, will an
Unforeseeable Emergency be deemed to exist if the hardship can be relieved: (a) through
reimbursement or compensation by insurance or otherwise, (b) by liquidation of the
Participant’s assets to the extent such liquidation would not itself cause severe financial
hardship, or (c) by cessation of deferrals under the Plan. A distribution due to an
Unforeseeable Emergency must be limited to the amount reasonably necessary to satisfy the
emergency need and may include any amounts necessary to pay any federal, state, local, or
foreign income taxes and










9-1









 












	 	 	penalties reasonably anticipated to result from the distribution. The distribution will be
made in the form of a single lump sum cash payment. If permitted by Section 8.01(b) of the
Adoption Agreement, a Participant’s deferral elections for the remainder of the Plan Year
will be cancelled upon a withdrawal due to Unforeseeable Emergency. If the payment of all
or any portion of the Participant’s vested Account is being delayed in accordance with
Section 9.6 at the time he experiences an Unforeseeable Emergency, the amount being delayed
shall not be subject to the provisions of this Section 9.3 until the expiration of the six
month period of delay required by section 9.6.
	 
	9.4	 	Termination Before Retirement. If the Plan Sponsor has elected a Separation from Service
override in accordance with Section 6.01(d) of the Adoption Agreement, the following
provisions apply. A Participant who experiences a Separation from Service before Retirement
for any reason other than death shall receive the vested amount credited to his Account at the
time specified in Section 6.01(a) of the Adoption Agreement in a single lump sum payment
following such termination or cessation of service regardless of whether the Participant had
made different elections of time or form of payment as to the vested amounts credited to his
Account or whether the Participant was receiving installment payouts at the time of such
termination.
	 
	9.5	 	Cashouts Of Amounts Not Exceeding Stated Limit. If the vested amount credited to the
Participant’s Account does not exceed the limit established for this purpose by the Plan
Sponsor in Section 6.01(e) of the Adoption Agreement at the time of his Separation from
Service with the Related Employer for any reason, the Employer shall distribute such amount to
the Participant at the time specified in Section 6.01(a) of the Adoption Agreement in a single
lump sum cash payment following such termination regardless of whether the Participant had
made different elections of time or form of payment as to the vested amount credited to his
Account or whether the Participant was receiving installments at the time of such termination.
A Participant’s Account, for purposes of this Section 9.5, shall include any amounts
described in Section 1.3.
	 
	9.6	 	Required Delay in Payment to Key Employees. Except as otherwise provided in this Section
9.6, a distribution made because of Separation from Service (or Retirement, if applicable) to
a Participant who is a Key Employee as of the date of his Separation from Service (or
Retirement, if applicable) shall not occur before the date which is six months after the
Separation from Service (or Retirement, if applicable).






(a) A Participant is treated as a Key Employee if (i) he is employed by a Related Employer
any of whose stock is publicly traded on an established securities market, and (ii) he
satisfies the requirements of Code Section



9-2









 






416(i)(1)(A)(i), (ii) or (iii), determined without regard to Code Section 416(i)(5), at any
time during the twelve month period ending on the Identification Date.




(b) A Participant who is a Key Employee on an Identification Date shall be treated as a Key
Employee for purposes of the six month delay in distributions for the twelve month period
beginning on the first day of a month no later than the fourth month following the
Identification Date. The Identification Date and the effective date of the delay in
distributions shall be determined in accordance with Section 1.06 of the Adoption
Agreement.




(c) The Plan Sponsor may elect to apply an alternative method to identify Participants who
will be treated as Key Employees for purposes of the six month delay in distributions if
the method satisfies each of the following requirements. The alternative method is
reasonably designed to include all Key Employees, is an objectively determinable standard
providing no direct or indirect election to any Participant regarding its application, and
results in either all Key Employees or no more than 200 Key Employees being identified in
the class as of any date. Use of an alternative method that satisfies the requirements of
this Section 9.6(c ) will not be treated as a change in the time and form of payment for
purposes of Reg. Sec. 1.409A-2(b).




(d) The six month delay does not apply to payments described in Section 13.9 or to payments
that occur after the death of the Participant.




	9.7	 	Change in Control. If the Plan Sponsor has elected to permit distributions upon a Change in
Control, the following provisions shall apply. A distribution made upon a Change in Control
will be made at the time specified in Section 6.01(a) of the Adoption Agreement in the form
elected by the Participant in accordance with the procedures described in Article 4.
Alternatively, if the Plan Sponsor has elected in accordance with Section 11.02 of the
Adoption Agreement to require distributions upon a Change in Control, the Participant’s
remaining vested Account shall be paid to the Participant or the Participant’s Beneficiary at
the time specified in Section 6.01(a) of the Adoption Agreement as a single lump sum payment.
A Change in Control, for purposes of the Plan, will occur upon a change in the ownership of
the Plan Sponsor, a change in the effective control of the Plan Sponsor or a change in the
ownership of a substantial portion of the assets of the Plan Sponsor, but only if elected by
the Plan Sponsor in Section 11.02 of the Adoption Agreement. The Plan Sponsor, for this
purpose, includes any corporation identified in this Section 9.7. All distributions made in
accordance with this Section 9.7 are subject to the provisions of Section 9.6.




9-3









 












	 	 	If a Participant continues to make deferrals in accordance with Article 4 after he has
received a distribution due to a Change in Control, the residual amount payable to the
Participant shall be paid at the time and in the form specified in the elections he makes
in accordance with Article 4 or upon his death or Disability as provided in Article 8.
	 
	 	 	Whether a Change in Control has occurred will be determined by the Administrator in
accordance with the rules and definitions set forth in this Section 9.7. A distribution to
the Participant will be treated as occurring upon a Change in Control if the Plan Sponsor
terminates the Plan in accordance with Section 10.2 and distributes the Participant’s
benefits within twelve months of a Change in Control as provided in Section 10.3.






	 	(a)	 	Relevant Corporations. To constitute a Change in Control for purposes of the
Plan, the event must relate to (i) the corporation for whom the Participant is
performing services at the time of the Change in Control, (ii) the corporation that is
liable for the payment of the Participant’s benefits under the Plan (or all
corporations liable if more than one corporation is liable) but only if either the
deferred compensation is attributable to the performance of services by the
Participant for such corporation (or corporations) or there is a bona fide business
purpose for such corporation (or corporations) to be liable for such payment and, in
either case, no significant purpose of making such corporation (or corporations)
liable for such payment is the avoidance of federal income tax, or (iii) a corporation
that is a majority shareholder of a corporation identified in (i) or (ii), or any
corporation in a chain of corporations in which each corporation is a majority
shareholder of another corporation in the chain, ending in a corporation identified in
(i) or (ii). A majority shareholder is defined as a shareholder owning more than
fifty percent (50%) of the total fair market value and voting power of such
corporation.
	 
	 	(b)	 	Stock Ownership. Code Section 318(a) applies for purposes of determining
stock ownership. Stock underlying a vested option is considered owned by the
individual who owns the vested option (and the stock underlying an unvested option is
not considered owned by the individual who holds the unvested option). If, however, a
vested option is exercisable for stock that is not substantially vested (as defined by
Treasury Regulation Section 1.83-3(b) and (j)) the stock underlying the option is not
treated as owned by the individual who holds the option.
	 
	 	(c)	 	Change in the Ownership of a Corporation. A change in the ownership of a
corporation occurs on the date that any one person or more than one person acting as a
group, acquires ownership of





9-4









 






	 	 	 	stock of the corporation that, together with stock held by such person or group,
constitutes more than fifty percent (50%) of the total fair market value or total
voting power of the stock of such corporation. If any one person or more than one
person acting as a proxy is considered to own more than fifty percent (50%) of the
total fair market value or total voting power of the stock of a corporation, the
acquisition of additional stock by the same person or persons is not considered to
cause a change in the ownership of the corporation (or to cause a change in the
effective control of the corporation as discussed below in Section 9.7(d)). An
increase in the percentage of stock owned by any one person, or persons acting as a
group, as a result of a transaction in which the corporation acquires its stock in
exchange for property will be treated as an acquisition of stock. Section 9.7(c)
applies only when there is a transfer of stock of a corporation (or issuance of
stock of a corporation) and stock in such corporation remains outstanding after the
transaction. For purposes of this Section 9.7(c), persons will not be considered to
be acting as a group solely because they purchase or own stock of the same
corporation at the same time or as a result of a public offering. Persons will,
however, be considered to be acting as a group if they are owners of a corporation
that enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. If a person, including an
entity, owns stock in both corporations that enter into a merger, consolidation,
purchase or acquisition of stock, or similar transaction, such shareholder is
considered to be acting as a group with other shareholders in a corporation prior to
the transaction giving rise to the change and not with respect to the ownership
interest in the other corporation.
	 
	 	(d)	 	Change in the effective control of a corporation. A change in the effective
control of a corporation occurs on the date that either (i) any one person, or more
than one person acting as a group, acquires (or has acquired during the twelve month
period ending on the date of the most recent acquisition by such person or persons)
ownership of stock of the corporation possessing thirty (30%) or more of the total
voting power of the stock of such corporation, or (ii) a majority of members of the
corporation’s board of directors is replaced during any twelve month period by
directors whose appointment or election is not endorsed by a majority of the members
of the corporation’s board of directors prior to the date of the appointment or
election, provided that for purposes of this paragraph (ii), the term corporation
refers solely to the relevant corporation identified in Section 9.7(a) for which no
other corporation is a majority shareholder for purposes of Section 9.7(a). In the
absence of an event described in Section 9.7(d)(i) or (ii), a change in the effective
control of a corporation will not have occurred. A change in effective control may
also occur in




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	 	 	 	any transaction in which either of the two corporations involved in the transaction
has a change in the ownership of such corporation as described in Section 9.7(c) or
a change in the ownership of a substantial portion of the assets of such corporation
as described in Section 9.7(e). If any one person, or more than one person acting
as a group, is considered to effectively control a corporation within the meaning of
this Section 9.7(d), the acquisition of additional control of the corporation by the
same person or persons is not considered to cause a change in the effective control
of the corporation or to cause a change in the ownership of the corporation within
the meaning of Section 9.7(c). For purposes of this Section 9.7(d), persons will or
will not be considered to be acting as a group in accordance with rules similar to
those set forth in Section 9.7(c) with the following exception. If a person,
including an entity, owns stock in both corporations that enter into a merger,
consolidation, purchase or acquisition of stock, or similar transaction, such
shareholder is considered to be acting as a group with other shareholders in a
corporation only with respect to the ownership in that corporation prior to the
transaction giving rise to the change and not with respect to the ownership interest
in the other corporation.
	 
	 	(e)	 	Change in the ownership of a substantial portion of a corporation’s assets.
A change in the ownership of a substantial portion of a corporation’s assets occurs on
the date that any one person, or more than one person acting as a group (as determined
in accordance with rules similar to those set forth in Section 9.7(d)), acquires (or
has acquired during the twelve month period ending on the date of the most recent
acquisition by such person or persons) assets from the corporation that have a total
gross fair market value equal to or more than forty percent (40%) of the total gross
fair market value of all of the assets of the corporation immediately prior to such
acquisition or acquisitions. For this purpose, gross fair market value means the
value of the assets of the corporation of the value of the assets being disposed of
determined without regard to any liabilities associated with such assets. There is no
Change in Control event under this Section 9.7(e) when there is a transfer to an
entity that is controlled by the shareholders of the transferring corporation
immediately after the transfer. A transfer of assets by a corporation is not treated
as a change in ownership of such assets if the assets are transferred to (i) a
shareholder of the corporation (immediately before the asset transfer) in exchange for
or with respect to its stock, (ii) an entity, fifty percent (50%) or more of the total
value or voting power of which is owned, directly or indirectly, by the corporation,
(iii) a person, or more than one person acting as a group, that owns, directly or
indirectly, fifty percent (50%) or more of the total value or voting power of all the
outstanding stock of the corporation, or (iv) an entity, at least fifty (50%) of the
total value or





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	 	 	 	voting power of which is owned, directly or indirectly, by a person described in
Section 9.7(e)(iii). For purposes of the foregoing, and except as otherwise
provided, a person’s status is determined immediately after the transfer of assets.






	9.8	 	Permissible Delays in Payment. Distributions may be delayed beyond the date payment would
otherwise occur in accordance with the provisions of Articles 8 and 9 in any of the following
circumstances as long as the Employer treats all payments to similarly situated Participants
on a reasonably consistent basis.






	 	(a)	 	The Employer may delay payment if it reasonably anticipates that its
deduction with respect to such payment would be limited or eliminated by the
application of Code Section 162(m). Payment must be made during the Participant’s
first taxable year in which the Employer reasonably anticipates, or should reasonably
anticipate, that if the payment is made during such year the deduction of such payment
will not be barred by the application of Code Section 162(m) or during the period
beginning with the Participant’s Separation from Service and ending on the later of
the last day of the Employer’s taxable year in which the Participant separates from
service or the 15th day of the third month following the Participant’s Separation from
Service. If a scheduled payment to a Participant is delayed in accordance with this
Section 9.8(a), all scheduled payments to the Participant that could be delayed in
accordance with this Section 9.8(a) will also be delayed.
	 
	 	(b)	 	The Employer may also delay payment if it reasonably anticipates that the
making of the payment will violate federal securities laws or other applicable laws
provided payment is made at the earliest date on which the Employer reasonably
anticipates that the making of the payment will not cause such violation.
	 
	 	(c)	 	The Employer reserves the right to amend the Plan to provide for a delay in
payment upon such other events and conditions as the Secretary of the Treasury may
prescribe in generally applicable guidance published in the Internal Revenue Bulletin.





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ARTICLE 10 – AMENDMENT AND TERMINATION





	10.1	 	Amendment by Plan Sponsor. The Plan Sponsor reserves the right to amend the Plan (for itself
and each Employer) through action of the Compensation and Human Resources Committee of the
Board of Directors, or any successor committee to same. No amendment can directly or
indirectly deprive any current or former Participant or Beneficiary of all or any portion of
his Account which had accrued prior to the amendment.
	 
	10.2	 	Plan Termination Following Change in Control or Corporate Dissolution. If so elected by the
Plan Sponsor in 11.01 of the Adoption Agreement, the Plan Sponsor reserves the right to
terminate the Plan and distribute all amounts credited to all Participant Accounts within the
30 days preceding or the twelve months following a Change in Control as determined in
accordance with the rules set forth in Section 9.7. For this purpose, the Plan will be treated
as terminated only if all agreements, methods, programs and other arrangements sponsored by
the Related Employer immediately after the Change in Control which are treated as a single
plan under Reg. Sec. 1.409A-1(c)(2) are also terminated so that all participants under the
Plan and all similar arrangements are required to receive all amounts deferred under the
terminated arrangements within twelve months of the date the Plan Sponsor irrevocably takes
all necessary action to terminate the arrangements. In addition, the Plan Sponsor reserves the
right to terminate the Plan within twelve months of a corporate dissolution taxed under Code
Section 331 or with the approval of a bankruptcy court pursuant to 11 U. S. C. Section
503(b)(1)(A) provided that amounts deferred under the Plan are included in the gross incomes
of Participants in the latest of (a) the calendar year in which the termination occurs, (b)
the first calendar year in which the amount is no longer subject to a substantial risk of
forfeiture, or (c) the first calendar year in which payment is administratively practicable.
	 
	10.3	 	Other Plan Terminations. The Plan Sponsor retains the discretion to terminate the Plan if
(a) all arrangements sponsored by the Plan Sponsor that would be aggregated with any
terminated arrangement under Code Section 409A and Reg. Sec. 1.409A-1(c)(2) are terminated,
(b) no payments other than payments that would be payable under the terms of the arrangements
if the termination had not occurred are made within twelve months of the termination of the
arrangements, (c) all payments are made within twenty-four months of the termination of the
arrangements, (d) the Plan Sponsor does not adopt a new arrangement that would be aggregated
with any terminated arrangement under Code Section 409A and the regulations thereunder at any
time within the three year period following the date of termination of the arrangement, and
(e) the










10-1









 












	 	 	termination does not occur proximate to a downturn in the financial health of the Plan
sponsor. The Plan Sponsor also reserves the right to amend the Plan to provide that
termination of the Plan will occur under such conditions and events as may be prescribed by
the Secretary of the Treasury in generally applicable guidance published in the Internal
Revenue Bulletin.





10-2









 





ARTICLE 11 – THE TRUST





	11.1	 	Establishment of Trust. The Plan Sponsor may but is not required to establish a trust to
hold amounts which the Plan Sponsor may contribute from time to time to correspond to some or
all amounts credited to Participants under Section 6.2. If the Plan Sponsor elects to
establish a trust in accordance with Section 10.01 of the Adoption Agreement, the provisions
of Sections 11.2 and 11.3 shall become operative.
	 
	11.2	 	Grantor Trust. Any trust established by the Plan Sponsor shall be between the Plan Sponsor
and a trustee pursuant to a separate written agreement under which assets are held,
administered and managed, subject to the claims of the Plan Sponsor’s creditors in the event
of the Plan Sponsor’s insolvency. The trust is intended to be treated as a grantor trust
under the Code, and the establishment of the trust shall not cause the Participant to realize
current income on amounts contributed thereto. The Plan Sponsor must notify the trustee in
the event of a bankruptcy or insolvency.
	 
	11.3	 	Investment of Trust Funds. Any amounts contributed to the trust by the Plan Sponsor shall be
invested by the trustee in accordance with the provisions of the trust and the instructions of
the Administrator. Trust investments need not reflect the hypothetical investments selected
by Participants under Section 7.1 for the purpose of adjusting Accounts and the earnings or
investment results of the trust need not affect the hypothetical investment adjustments to
Participant Accounts under the Plan.






11-1









 








ARTICLE 12 – PLAN ADMINISTRATION





	12.1	 	Powers and Responsibilities of the Administrator. The Administrator has the full power and
the full responsibility to administer the Plan in all of its details, subject, however, to the
applicable requirements of ERISA. The Administrator’s powers and responsibilities include,
but are not limited to, the following:






	 	(a)	 	To make and enforce such rules and procedures as it deems necessary or proper
for the efficient administration of the Plan;
	 
	 	(b)	 	To interpret the Plan, its interpretation thereof to be final, except as
provided in Section 12.2, on all persons claiming benefits under the Plan;
	 
	 	(c)	 	To decide all questions concerning the Plan and the eligibility of any person
to participate in the Plan;
	 
	 	(d)	 	To administer the claims and review procedures specified in Section 12.2;
	 
	 	(e)	 	To compute the amount of benefits which will be payable to any Participant,
former Participant or Beneficiary in accordance with the provisions of the Plan;
	 
	 	(f)	 	To determine the person or persons to whom such benefits will be paid;
	 
	 	(g)	 	To authorize the payment of benefits;
	 
	 	(h)	 	To comply with the reporting and disclosure requirements of Part 1 of
Subtitle B of Title I of ERISA;
	 
	 	(i)	 	To appoint such agents, counsel, accountants, and consultants as may be
required to assist in administering the Plan;
	 
	 	(j)	 	By written instrument, to allocate and delegate its responsibilities,
including the formation of an Administrative Committee to administer the Plan.





12-1









 






	12.2	 	Claims and Review Procedures.






	 	(a)	 	Claims Procedure.
	 
	 	 	 	If any person believes he is being denied any rights or benefits under the Plan,
such person may file a claim in writing with the Administrator. If any such claim
is wholly or partially denied, the Administrator will notify such person of its
decision in writing. Such notification will contain (i) specific reasons for the
denial, (ii) specific reference to pertinent Plan provisions, (iii) a description
of any additional material or information necessary for such person to perfect such
claim and an explanation of why such material or information is necessary, and (iv)
a description of the Plan’s review procedures and the time limits applicable to
such procedures, including a statement of the person’s right to bring a civil
action following an adverse decision on review. Such notification will be given
within 90 days (45 days in the case of a claim regarding Disability) after the
claim is received by the Administrator. The Administrator may extend the period
for providing the notification by 90 days (30 days in the case of a claim regarding
Disability) if special circumstances require an extension of time for processing
the claim and if written notice of such extension and circumstance is given to such
person within the initial 90 day period (45 day period in the case of a claim
regarding Disability). If such notification is not given within such period, the
claim will be considered denied as of the last day of such period and such person
may request a review of his claim.
	 
	 	(b)	 	Review Procedure.
	 
	 	 	 	Within 60 days (180 days in the case of a claim regarding Disability) after the
date on which a person receives a written notification of denial of claim (or, if
written notification is not provided, within 60 days (180 days in the case of a
claim regarding Disability) of the date denial is considered to have occurred),
such person (or his duly authorized representative) may (i) file a written request
with the Administrator for a review of his denied claim and of pertinent documents
and (ii) submit written issues and comments to the Administrator. The
Administrator will notify such person of its decision in writing. Such
notification will be written in a manner calculated to be understood by such person
and will contain specific reasons for the decision as well as specific references
to pertinent Plan provisions. The notification will explain that the person is
entitled to receive, upon request and free of charge,





12-2









 






	 	 	 	reasonable access to and copies of all pertinent documents and has the right to
bring a civil action following an adverse decision on review. The decision on
review will be made within 60 days (45 days in the case of a claim regarding
Disability). The Administrator may extend the period for making the decision on
review by 60 days (45 days in the case of a claim regarding Disability) if special
circumstances require an extension of time for processing the request such as an
election by the Administrator to hold a hearing, and if written notice of such
extension and circumstances is given to such person within the initial 60-day
period (45 days in the case of a claim regarding Disability). If the decision on
review is not made within such period, the claim will be considered denied.






	12.3	 	Plan Administrative Costs. All reasonable costs and expenses (including legal, accounting,
and employee communication fees) incurred by the Administrator in administering the Plan shall
be paid by Plan to the extent not paid by the Employer.






12-3









 








ARTICLE 13 – MISCELLANEOUS





	13.1	 	Unsecured General Creditor of the Employer. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interests or claims in any
property or assets of the Employer. For purposes of the payment of benefits under the Plan,
any and all of the Employer’s assets shall be, and shall remain, the general, unpledged,
unrestricted assets of the Employer. Each Employer’s obligation under the Plan shall be
merely that of an unfunded and unsecured promise to pay money in the future.
	 
	13.2	 	Employer’s Liability. Each Employer’s liability for the payment of benefits under the Plan
shall be defined only by the Plan and by the deferral agreements entered into between a
Participant and the Employer. An Employer shall have no obligation or liability to a
Participant under the Plan except as provided by the Plan and a deferral agreement or
agreements. An Employer shall have no liability to Participants employed by other Employers.
	 
	13.3	 	Limitation of Rights. Neither the establishment of the Plan, nor any amendment thereof, nor
the creation of any fund or account, nor the payment of any benefits, will be construed as
giving to the Participant or any other person any legal or equitable right against the
Employer, the Plan or the Administrator, except as provided herein; and in no event will the
terms of employment or service of the Participant be modified or in any way affected hereby.
	 
	13.4	 	Anti-Assignment. Except as may be necessary to fulfill a domestic relations order within the
meaning of Code Section 414(p), none of the benefits or rights of a Participant or any
Beneficiary of a Participant shall be subject to the claim of any creditor. In particular, to
the fullest extent permitted by law, all such benefits and rights shall be free from
attachment, garnishment, or any other legal or equitable process available to any creditor of
the Participant and his or her Beneficiary. Neither the Participant nor his or her
Beneficiary shall have the right to alienate, anticipate, commute, pledge, encumber, or assign
any of the payments which he or she may expect to receive, contingently or otherwise, under
the Plan, except the right to designate a Beneficiary to receive death benefits provided
hereunder. Notwithstanding the preceding, the benefit payable from a Participant’s Account
may be reduced, at the discretion of the administrator, to satisfy any debt or liability to
the Employer.
	 
	13.5	 	Facility of Payment. If the Administrator determines, on the basis of medical reports or
other evidence satisfactory to the Administrator, that the recipient of any benefit payments
under the Plan is incapable of handling his affairs by reason of minority, illness, infirmity
or other incapacity, the Administrator may










13-1









 












	 	 	direct the Employer to disburse such payments to a person or institution designated by a
court which has jurisdiction over such recipient or a person or institution otherwise
having the legal authority under State law for the care and control of such recipient. The
receipt by such person or institution of any such payments therefore, and any such payment
to the extent thereof, shall discharge the liability of the Employer, the Plan and the
Administrator for the payment of benefits hereunder to such recipient.
	 
	13.6	 	Notices. Any notice or other communication to the Employer or Administrator in connection
with the Plan shall be deemed delivered in writing if addressed to the Plan Sponsor at the
address specified in Section 1.03 of the Adoption Agreement to the attention of the Plan
Administrator, care of Human Resources and if either actually delivered at said address or, in
the case or a letter, 5 business days shall have elapsed after the same shall have been
deposited in the United States mails, first-class postage prepaid and registered or certified.
	 
	13.7	 	Tax Withholding. If the Employer concludes that tax is owing with respect to any deferral or
payment hereunder, the Employer shall withhold such amounts from any payments due the
Participant, as permitted by law, or otherwise make appropriate arrangements with the
Participant or his Beneficiary for satisfaction of such obligation. Tax, for purposes of this
Section 13.7 means any federal, state, local or any other governmental income tax, employment
or payroll tax, excise tax, or any other tax or assessment owing with respect to amounts
deferred, any earnings thereon, and any payments made to Participants under the Plan.
	 
	13.8	 	Indemnification. Each Employer shall indemnify and hold harmless each employee, officer, or
director of an Employer to whom is delegated duties, responsibilities, and authority with
respect to the Plan against all claims, liabilities, fines and penalties, and all expenses
reasonably incurred by or imposed upon him (including but not limited to reasonable attorney
fees) which arise as a result of his actions or failure to act in connection with the
operation and administration of the Plan to the extent lawfully allowable and to the extent
that such claim, liability, fine, penalty, or expense is not paid for by liability insurance
purchased or paid for by an Employer. Notwithstanding the foregoing, an Employer shall not
indemnify any person for any such amount incurred through any settlement or compromise of any
action unless the Employer consents in writing to such settlement or compromise.
Indemnification under this Section 13.8 shall not be applicable to any person if the cost,
loss, liability, or expense is due to the person’s gross negligence, fraud or willful
misconduct or if the person refuses to assist in the defense of the claim against him.










13-2









 












	13.9	 	Permitted Acceleration of Payment. The Plan may permit acceleration of the time or schedule
of any payment or amount scheduled to be paid pursuant to a payment under the Plan provided
such acceleration would be permitted by the provisions of Reg. Sec. 1.409A-3(j)(4).
	 
	13.10	 	Governing Law. The Plan will be construed, administered and enforced according to the laws
of the State specified by the Plan Sponsor in Section 12.01 of the Adoption Agreement.






13-3