Exhibit 10.04





Exhibit 10.04




FLEXTRONICS INTERNATIONAL USA, INC.

2010 DEFERRED COMPENSATION PLAN





1. Purpose.



Flextronics International USA, Inc. hereby adopts this 2010 Deferred Compensation Plan (the
“Plan”). The Plan sets forth the terms of an unfunded deferred compensation plan for a
select group of management, highly compensated employees, directors and persons who have been part
of a select group of management, highly compensated employees or directors of the Company (as
defined below). It is intended that the Plan constitute an unfunded “top hat plan” for purposes of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Each
Participant who is an employee of the Company or its Affiliates shall participate in the Plan in
the Participant’s capacity as an employee whether or not the Participant also serves as a member of
the Company’s board of directors; provided that a Participant who participates in the Plan pursuant
to both an employee arrangement and a director arrangement will be treated as participating in the
director arrangement in the Participant’s capacity as a director if the director arrangement is
substantially similar to arrangements providing benefits to non-employee directors.




2. Definitions.




The following terms used in the Plan shall have the meanings set forth below:



(a) “Affiliate” means, with respect to the Company, any entity directly or indirectly
controlling, controlled by, or under common control with the Company or any other entity designated
by the Board in which the Company or an Affiliate has an interest.




(b) “Arbitrable Dispute” shall have the meaning set forth in Section 9(f).



(c) “Award Agreement” shall mean an agreement between the Company and a Participant
for the payment to the Participant of compensation that is deferred under this Plan.



(d) “Beneficiary” shall mean any person, persons, trust or other entity designated by
a Participant to receive benefits, if any, under the Plan upon such Participant’s death in
accordance with Section 6(g).




(e) “Board” shall mean the Board of Directors of FIL.



(f) “Change in Control” shall mean a change in the ownership or effective control of
the Company, or in the ownership of a substantial portion of its assets, within the meaning of Code
Section 409A(a)(2)(A)(v) and Treasury Regulations thereunder.




(g) “Claimant” shall have the meaning set forth in Section 9(a).



(h) “Code” shall mean the Internal Revenue Code of 1986, as amended, and Treasury
Regulations issued thereunder.


 


 









 






(i) “Committee” shall mean the Compensation Committee appointed by the Board.



(j) “Company” shall mean Flextronics International USA, Inc. and, for purposes of
determining the benefits provided under the Plan or as applicable under ERISA or the Code, any
successor to all or a major portion of the Company’s assets or business that assumes the
obligations of the Company, and any other corporation or unincorporated trade or business that has
adopted the Plan with the approval of the Company, and is a member of the same controlled group of
corporations or the same group of trades or businesses under common control (within the meaning of
Code Sections 414(b) and 414(c) as modified by Code Section 415(h)) as the Company, or an
affiliated service group (as defined in Code Section 414(m)) which includes the Company, or any
other entity required to be aggregated with the Company pursuant to regulations under Code Sections
414(o) and 409A or any other affiliated entity that is designated by the Company as eligible to
adopt the Plan.



(k) “Deferral Account” shall mean the recordkeeping account, and any sub-accounts that
are determined by the Committee to be necessary or appropriate for the proper administration of the
Plan, that are established and maintained by the Company in the name of a Participant as provided
in Section 4(b) for compensation payable to a Participant pursuant to a Deferral Agreement. As the
context requires, a reference to a Deferral Account shall include, if applicable, any subaccount
thereof.



(l) “Deferral Agreement” shall mean an agreement executed by the Participant and the
Company, in such form as approved by the Committee, and as may be revised from time to time with
respect to any one or more Participants by or at the direction of the Committee, whereby (i) the
Participant (A) agrees to receive certain types of compensation in the future pursuant to the
provisions of this Plan, (B) elects to defer future compensation such Participant would otherwise
be entitled to receive in cash from the Company, expressed as an amount or percentage of
compensation to be deferred, and/or (C) makes such other elections as are permitted and provides
such other information as is required under the Plan, and (ii) the Participant specifies a time and
form of payment according to which the Participant will receive the payout of the compensation
subject to the Deferral Agreement. Each Deferral Agreement shall be consistent with this Plan and
shall incorporate by its terms the provisions of this Plan.



(m) “Deferral Day” shall mean, for each Participant, the day on which the Company is
required, by the terms of an applicable Deferral Agreement or any other agreement between the
Participant and the Company, to credit an amount to a Deferral Account under this Plan. In the
absence of any such requirement to the contrary, a Deferral Day for an amount deferred under the
Plan shall be a date as soon as practicable after such amount is deemed earned, or in the case of
elective deferrals, as soon as practicable after such amount would have been payable to the
Participant if the Participant had not elected to defer such amount, in each case as determined by
the Plan Administrator in its sole discretion.



(n) “Disabled” shall mean, with respect to a Participant, that the Social Security
Administration has determined that such Participant is totally disabled. This definition shall be
construed and administered in accordance with the requirements of Code Section 409A(a)(2)(C) and
Treasury Regulations thereunder.




(o) “ERISA” shall have the meaning set forth in Section 1.


 


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(p) “Fair Market Value” shall mean, on a given date of valuation, (i) with respect to
any mutual fund, the closing net asset value as reported in The Wall Street Journal with respect to
the date of valuation and (ii) with respect to a security traded on a national securities exchange
or the NASDAQ National Market, the closing price on the date of valuation as reported in The Wall
Street Journal.




(q) “FIL” shall mean Flextronics International Ltd



(r) “For Cause” shall mean (i) Participant shall have committed a felony, fraud,
theft, embezzlement involving the assets of the Company; (ii) Participant willfully violates or
causes the Company to violate, in a material respect, any statute, law, ordinance, rule or
regulation relating to, or written policy of, the Company, which violation results in a material
adverse effect to Company’s business or financial condition; (iii) Participant engages in any
activity which is outside the scope of Participant’s authority and can reasonably be expected to
have a material adverse effect on the Company’s business.




(s) “Hypothetical Investments” shall have the meaning set forth in Section 4(c)



(t) “Involuntary Separation from Service” shall mean any Separation from Service that
is either an Involuntary Termination Without Cause or a Voluntary Termination for Good Reason.



(u) “Involuntary Termination Without Cause” shall mean a Separation from Service due
to the independent exercise of the unilateral authority of the Company to terminate a Participant’s
services other than For Cause. A termination by the Company shall be presumed to be an Involuntary
Termination Without Cause unless the Company sets forth in a written notice of termination the
grounds for such termination to be For Cause.




(v) “Manager” shall have the meaning set forth in Section 4(c).




(w) “Officers” shall have the meaning set forth in Section 8(b)(ii).



(x) “Participant” shall mean a present or former employee or director of the Company
who participates in this Plan and any other present or former employee or director designated to
participate in the Plan from time to time by the Committee.




(y) “Payment Subaccount” shall have the meaning set forth in Section 6(c)(ii).




(z) “Plan” has the meaning set forth in Section 1.



(aa) “Plan Administrator” shall mean the Plan Administrator, if any, appointed
pursuant to Section 3(c).



(bb) “Released Party” shall have the meaning set forth in Section 8(b)(iii).



(cc) “Relevant” shall have the meaning set forth in Section 9(c)(i).



(dd) “Separation from Service” shall mean a Participant’s separation from service from
the Company within the meaning of Code Section 409A(a)(2)(A)(i) and Treasury Regulations
thereunder.


 


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(ee) “Specified Employee” shall mean a key employee (as defined in Code Section 416(i)
without regard to paragraph 5 thereof) of the Company, including all persons with whom the Company
would be treated as a single employer under Code Section 414(b) or 414(c), for so long as any of
the stock of any such person is publicly traded on an established securities market or otherwise.
This definition shall be construed and administered in accordance with the requirements of Code
Section 409A(a)(2)(B)(i) and Treasury Regulations thereunder. For purposes of applying this
definition, the Committee may, at its discretion, specify a “specified employee effective date” in
accordance with the requirements of Treasury Regulation § 1.409A-1(i).



(ff) “Trust” shall mean any trust or trusts established or designated by the Company
pursuant to Section 5(a) to hold assets in connection with the Plan.




(gg) “Trustee” shall have the meaning set forth in Section 5(a).



(hh) “Unforeseeable Emergency” shall mean a severe financial hardship to a Participant
resulting from an illness or accident of the Participant, the Participant’s Spouse, the
Participant’s beneficiary, or a dependent (as defined in Section 152(a) of the Code) of the
Participant, loss of the Participant’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of the Participant.
This definition shall be construed and administered in accordance with the requirements of Code
Section 409A(a)(2)(B)(ii) and Treasury Regulations thereunder.



(ii) “USERRA” shall mean the Uniformed Service Employment and Reemployment Rights Act
of 1994, as amended, 38 U.S.C. 4301-4334.




(jj) “Valuation Date” shall have the meaning set forth in Section 6(c)(ii)



(kk) “Voluntary Termination for Good Reason” shall mean a Separation from Service due
to the independent exercise of the unilateral authority of a Participant to terminate his or her
employment with the Company due to one the following conditions arising without the consent of the
Participant:




	 	(i)	 	A material diminution in the authority, duties, or responsibilities of the
Participant or of the budget over which the Participant retains authority;
	 
	 	(ii)	 	A material reduction by the Company in the Participant’s base
salary or other compensation;
	 
	 	(iii)	 	A material diminution in the authority, duties, or
responsibilities of the supervisor to whom the Participant reports;
	 
	 	(iv)	 	A relocation of the Participant’s principal office to a
location more than 50 miles from the current location of the Participant’
principal office; and,
	 
	 	(v)	 	Any other action or inaction of the Company that constitutes a
material breach by the Company of any provision of this Agreement or any other
agreement under which the Participant provides services to the Company.





Notwithstanding anything to the contrary in this Agreement, no Voluntary Termination for Good
Reason shall occur unless (i) Participant has given written notice to the Company of the existence
of a condition described in this Section 2(kk) within ninety (90) days of the initial existence of
such condition and such condition has not been remedied by the Company within thirty (30) days
after the receipt of such notice.


 


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3. Authority and Administration of the Committee and Plan Administrator.



(a) In General. The Committee shall administer the Plan and may select one or more
persons to serve as the Plan Administrator. The Plan Administrator shall have authority to perform
any act that the Committee is entitled to perform under this Plan, except to the extent that the
Committee specifies limitations on the Plan Administrator’s authority. Any person selected to
serve as the Plan Administrator may, but need not, be a Committee member or an officer or employee
of the Company. However, if a person serving as Plan Administrator or a member of the Committee is
a Participant, such person may not decide or vote on a matter affecting his interest as a
Participant.



(b) Administration by Committee or Plan Administrator. The Committee or Plan
Administrator shall administer the Plan in accordance with its terms, and shall have all powers
necessary to accomplish such purpose, including the power and authority to reasonably construe and
interpret the Plan, to reasonably define the terms used herein, to reasonably prescribe, amend and
rescind rules and regulations, agreements, forms, and notices relating to the administration of the
Plan, and to make all other determinations reasonably necessary or advisable for the administration
of the Plan. The Committee or Plan Administrator may appoint additional agents and delegate
thereto powers and duties under the Plan



(c) Designation of Plan Administrator. The initial Plan Administrator shall be the
FIL’s Executive Vice President Worldwide HR and Management Systems. The Committee may from time to
time designate a different person to serve as Plan Administrator.




4. Deferral Agreements, Deferral Accounts and Share Award Deferrals.



(a) Deferral Agreement. The Company and any Participant may agree to defer all or a
portion of his or her compensation by executing a completed Deferral Agreement in the form, and
within the time period, specified by the Committee. The Committee shall determine for each
Participant the amount and type of compensation that may or shall be deferred pursuant to the Plan
and such determination will be reflected on
a Deferral Agreement form presented to the Participant. The Committee may establish maximum
or minimum amounts of aggregate deferrals that may be elected by a Participant. A Participant
shall not be entitled to vary any term set forth in a Deferral Agreement form except to the extent
that the Deferral Agreement form itself permits variations. As permitted by the Committee,
different components of compensation payable for a single service period, and different tranches of
compensation payable for different service periods, may be subject to different Deferral Agreements
that provide for different times and forms of payment. Deferrals of compensation may be made under
the Plan only within the time periods permitted by Code Section 409A and Treasury Regulations
thereunder.



(b) Establishment of Deferral Accounts. The Committee shall establish a Deferral
Account for each Participant. Each Deferral Account shall be maintained for the Participant solely
as a bookkeeping entry by the Company to evidence unfunded obligations of the Company. The
Participant shall be vested in the Participant’s Deferral Account to the extent specified in an
applicable Award Agreement, Deferral Agreement or in any other agreement between the Company and
the Participant. The provisions with respect to vesting in any such Deferral Agreement or other
agreement shall be incorporated in this Plan and given effect as if fully set forth herein. The
Committee is authorized in its sole and absolute discretion to waive vesting conditions, or
accelerate vesting, with respect to any portion of a Participant’s Deferral
Account. A
Participant’s Deferral Account shall be credited with the amounts required to be credited to the
Participant’s Deferral Account pursuant to an Award Agreement, the Participant’s initial Deferral
Agreement, or pursuant to any subsequent Deferral Agreement entered into by that Participant and
the Company, in each case, less the amount of federal, state or local tax required by law to be
withheld with respect to such amounts, unless such withholding is provided from another source, and
shall be adjusted for Hypothetical Investment earnings or losses as described herein.


 


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(c) Hypothetical Investments and Managers. The Committee shall select one or more
hypothetical investment options (“Hypothetical Investments”). Hypothetical Investments
shall be mutual funds or securities readily tradable on a U.S. securities exchange. At its sole
discretion, the Committee may (but shall not be required to) allow a Participant to designate one
or more investment managers approved by the Committee (each a “Manager”) and a Manager will
then select hypothetical investments that, if permitted by the Committee, may or may not be
Hypothetical Investments designated by the Committee, but which shall be mutual funds or securities
readily tradable on a U.S. securities exchange. Amounts invested with a Manager shall be deemed
Hypothetical Investments. The Committee may change or discontinue any Hypothetical Investment or
Manager if reasonably necessary to satisfy business objectives of the Company or its Affiliates;
provided that, following a Change in Control, the investment options existing immediately prior to
such Change in Control shall not be changed or modified in a manner that is reasonably likely to be
adverse to the Participants. The Committee may limit Hypothetical Investment choices to designated
alternative groups or portfolios of Hypothetical Investments. The Committee may designate
Hypothetical Investment (or groups or portfolios of Hypothetical Investments) as available only for
vested or unvested amounts in a Participant’s Deferral Account and
may require that any unvested amounts be invested only in Hypothetical Investments (or groups
or portfolios of Hypothetical Investments) of the Company’s choosing.



(d) Investment of Deferral Accounts. As provided in Section 4(c), each Deferral
Account shall be deemed to be invested in one or more Hypothetical Investments as elected by the
Participant in the manner designated by the Committee for such election. The amounts of
hypothetical gains and losses in value of the Hypothetical Investments shall be credited and
debited to, or otherwise reflected in, such Deferral Account from time to time in accordance with
procedures established by the Committee. In the event that a Participant fails to specify a
Hypothetical Investment for any portion of his or her Deferral Account, such portion shall be
deemed invested in the manner determined by the Committee. As permitted by the Committee, a
Participant shall be allowed to change his or her investment election no less frequently than once
per month. Unless otherwise determined by the Committee, amounts credited to a Deferral Account
(or to a subaccount) shall be deemed invested in Hypothetical Investments as of the date such
amount is credited to a Participant’s Deferral Account pursuant to an Award Agreement or Deferral
Agreement.



(e) No Actual Investment. Notwithstanding any other provision of this Plan that may
be interpreted to the contrary, the Hypothetical Investments are to be used for measurement
purposes only. A Participant’s election of any Hypothetical Investment, the allocation of any
deferred amounts to Hypothetical Investments, the calculation of additional amounts and the
crediting or debiting of any amounts to a Participant’s Deferral Account shall not be considered or
construed in any manner as an actual investment of his or her Deferral Account in any such
Hypothetical Investment. In the event that the Company in its own discretion, decides to invest
(or to cause the Trustee to invest) funds in any or all of the Hypothetical Investments, no
Participant shall have any rights in or to such investments themselves. Without limiting the
foregoing, a Participant’s Deferral Account shall at all times be a bookkeeping entry only and
shall not represent any investment made on his or her behalf by the Company or the Trust. The
Participant shall at all times remain an unsecured creditor of the Company.


 


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(f) Forfeiture of Unvested Portions of Deferral Accounts Upon Separation from Service.
Upon a Participant’s Separation from Service, any unvested portion of the Participant’s Deferral
Account (excluding the portion, if any, that vests as a result of such Separation from Service
pursuant to Section 4(g) or otherwise) shall be forfeited and terminated, except as otherwise
determined by the Committee in its sole and absolute discretion or as provided for in an applicable
Award Agreement.



(g) Special Vesting Upon an Involuntary Separation from Service following a Change in
Control. Notwithstanding Section 4(f), and unless the terms of this Section 4(g) are varied by
the terms of an applicable Award Agreement, any unvested portion of a Participant’s Deferral
Account shall vest immediately prior to an Involuntary Separation from Service within the two year
period that follows a Change in Control.



(h) Change in Law. If a future change in law would, in the judgment of the Committee, likely accelerate taxation to a Participant of amounts that would be credited to the
Participant’s Deferral Account in the future under the Participant’s
Deferral Agreement, the Company and the Participant will attempt to amend the Plan to satisfy
the requirements of the change in law and, unless and until such an amendment is agreed to, Company
shall cease deferrals under the Participant’s Deferral Agreement on the effective date of such
change in law; provided however, the Company shall not cease deferrals if such cessation would
violate the provisions of Code Section 409A.



(i) Separate Maintenance of Vested Subaccounts. Separate vested subaccounts shall be
established and maintained for each Participant with respect to each portion of the Participant’s
Deferral Account (a) that has vested, (b) that vests in accordance with a certain schedule, or (c)
that is payable to the Participant in accordance with a certain schedule. Except as otherwise
provided in an applicable Award Agreement or applicable Deferral Agreement, the entire amount of a
subaccount, as adjusted for Hypothetical Investment gains or losses immediately prior to vesting,
shall vest at the same time and pursuant to the same conditions as the amount initially credited to
the subaccount; and the amount of each vested subaccount, as adjusted for Hypothetical Investment
gains or losses, shall be subject to the same payout conditions as the amount initially credited to
the subaccount.



(j) USSERA Rights. The Committee shall make available to a Participant an initial
deferral election, and an election to change the time or form of payment of the Participant’s
Deferral Account, if and as required to satisfy the requirements of the USERRA and Treasury
Regulation 1.409-2(a)(15).


 


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5. Establishment of Trust.



(a) The Trust Agreement. The Company has entered or will enter into a Trust Agreement
for the Plan, providing for the establishment of a trust to be held and administered by a trustee
(the “Trustee”) designated in the Trust Agreement (the “Trust”). The Trustee shall
be the agent for purposes of such duties delegated to the Trustee by the Committee as set forth in
the Trust Agreement. The Trust shall be irrevocable; provided that, upon a Participant’s
Separation from Service, the Trustee Agreement shall require that the Trustee pay to the Company an
amount equal to the unvested portion of the Participant’s Deferral Account as determined under the
Plan.



(b) Funding the Trust. On each relevant Deferral Day, the Company shall deposit into
the Trust cash equal to the aggregate amount required to be credited to the Participant’s Deferral
Account for that Deferral Day, less applicable taxes withheld, if any. The assets of the Trust
shall remain subject to the claims of the general creditors of the Company in the event of an
insolvency of the Company. Assets of the Trust shall at all times be located within the United
States.



(c) Taxes and Expenses of the Trust. The Committee shall make all investment
decisions for the Trust, and no Participant shall be entitled to direct any investments of the
Trust. All taxes on any gains and losses from the investment of the assets of the Trust shall be
recognized by the Company and the taxes thereon shall be paid by the Company and shall not be
recovered from the Deferral Accounts or the Trust. The third-party administrative expenses of the
Plan and the Trust, including expenses charged by the Trustee to establish the Trust and the
Trustee’s annual fee per Deferral Account, shall be paid by the Company, and shall neither be
payable by Trustee from the Trust nor reduce any Deferral Accounts; provided that any Managers’
fees or other
expenses incurred with respect to particular Hypothetical Investment or any asset of the Trust
which corresponds to a particular Hypothetical Investment shall be charged to the Deferral Account
that is deemed invested in such Hypothetical Investment. No part of the Company’s internal
expenses to administer the Plan, including overhead expenses, shall be charged to the Trust or the
Deferral Accounts.




6. Settlement of Deferral Accounts.



(a) Payout Elections. The Company shall pay or direct the Trustee to pay the net
amount of the Participant’s vested Deferral Account as elected by the Participant in the
Participant’s Deferral Agreement in accordance with the provisions of this Plan or as provided in
an Award Agreement. A Participant shall be required to select one of the payout alternatives set
forth in the form of Deferral Agreements provided to the Participant by the Committee from time to
time. Except for payouts due to the death, Disability, Unforeseeable Emergency or Separation from
Service of the Participant, no payout of amounts credited to a Participant’s Deferral Account shall
occur prior to the first anniversary of the Deferral Agreement. The Committee may, in its sole
discretion, allow a Participant to redefer the payout of his Deferral Account, or of one or more
subaccounts of the Participant’s Deferral Account, one or more times; provided, that (i)
such redeferral may not take effect until at least 12 months after the date on which such election
is made; (ii) in the case of an election related to any payment other than a payment that would be
made upon the Participant’s death, Disability, or the occurrence of an Unforeseeable Emergency, the
first payment with respect to which such election is made must be deferred for a period of not less
than 5 years from the date such payment would otherwise have been made; and (iii) any election that
would affect a scheduled payout may be made not less than 12 months prior to the date of the first
scheduled payout date. The preceding restrictions on redeferrals shall be construed and
administered in accordance with the requirements of Code Section 409A(a)(4)(C) and Treasury
Regulations thereunder. No Participant shall be entitled to accelerate the time or schedule of any
payment under the Plan, except where an acceleration would not result in the imposition of
additional tax under Code Section 409A.


 


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(b) Form of Payment. Distributions from a Participant’s Deferral Account shall be
made in cash or, in the sole discretion of the Committee, in marketable securities selected by the
Committee, which shall be valued at their Fair Market Value on the date of such distribution. If a
Participant has elected a Hypothetical Investment that is in whole or in part not marketable or for
which a Fair Market Value cannot be determined, the actual security represented by such
Hypothetical Investment may be distributed to Participant in lieu of cash or marketable securities.
Any distributions to a Participant shall reduce the Company’s obligations under the Plan to such
Participant. The Company’s obligation under the Plan may be satisfied by distributions from the
Trust.




(c) Timing of Payments.




(i) Payments in settlement of a Participant’s Deferral Account shall be distributed no
earlier than the Participant’s Separation from Service, Disability, death, a specified time
(or pursuant to a fixed schedule) specified in the applicable Deferral Agreement, Change in
Control or the occurrence of an
Unforeseeable Emergency. If no date is specified for payment of a subaccount of a
Participant’ Deferral Account in an applicable Deferral Agreement, payment of such
subaccount shall made on the date that is six (6) months after the date of the Participant’s
Separation from Service (or, if earlier, the date of the Participant’s death). In the case
of a Participant who is a Specified Employee, a payment on account of Separation from
Service may not be made before the date which is 6 months after the date of Separation from
Service (or, if earlier, the date of the Participant’s death). In such event, any payment
(including a single lump sum payment or any installment payments) that otherwise would have
been payable within such six (6) month period will be accumulated and paid as soon as
administratively practicable after such six (6) month period, but no later than 90 days
after such 6 month period (with the Plan Administrator retaining discretion as to the
specific payment date within that 90 day period). Any payment election set forth in a
Participant’s Deferral Agreement shall be construed as prohibiting distributions that would
otherwise be payable within the six (6) month period following the Participant’s Separation
from Service to the extent, and only to the extent, required under the preceding two
sentences.




(ii) Payments in settlement of a Deferral Account shall be made as soon as practicable
after the date or dates (including upon the occurrence of specified events), but no later
than 90 days after the date or dates (with the Plan Administrator retaining discretion as to
the specific payment date within that 90 day period), and in such number of installments, as
directed by the Participant in the Participant’s Deferral Agreement, unless otherwise
provided in this Section 6. All amounts needed for a payment shall be deemed withdrawn from
the Hypothetical Investments on a date (a “Valuation Date”) that is prior to and
reasonably proximate to, but in no event shall be no more than 10 days prior to, the date of
a payment to a Participant and transferred to a separate subaccount (a “Payout
Subaccount”). Payout Subaccounts shall not be adjusted for any investment gains or
losses subsequent to the Valuation Date. If a Participant has elected to receive
installment payments, the amount of the distribution payable shall be based upon the value
of the Deferral Account on the Valuation Date, and Participant’s Hypothetical Investments
shall be reduced pro rata on the basis of the value of the Participant’s Hypothetical
Investments on the Valuation Date. If a Participant has elected to receive partial payments
of the amount in his or her Deferral Account, unpaid balances shall continue to be deemed to
be invested in the Hypothetical Investments as designated in the applicable Deferral
Agreement.


 


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(iii) If a Participant fails to designate a Beneficiary or if all designated
Beneficiaries predecease the Participant or die prior to complete distribution of the
Participant’s benefits, the Participant’s designated Beneficiary shall be the executor or
personal representative of the Participant’s estate, if a probate proceeding is open at the
time for the distribution(s), and otherwise shall be the person(s) who would be entitled to
the distribution(s) under the Participant’s last will and /or revocable trust (if such will
distributes the residuary estate to such trust) and otherwise to the person(s) who would
inherit the Participant’s property under the law of the Participant’s last domicile. The
payment of benefits under the Plan to a Beneficiary shall fully and completely
discharge the Company from all further obligations under this Plan with respect to the
Participant, and such Participant’s interest in the Plan shall terminate upon such full
payment of benefits.




(iv) Irrespective of any elections made by a Participant, if the Committee, acting in
good faith, determines that a Participant is Disabled, the net vested amount credited to a
Participant’s Deferral Account shall be paid out in a single lump sum to the Participant as
soon as practicable after the date that that the Participant is determined to be Disabled,
but in no event later than the 90th day after such date.




(v) Whenever a payment in settlement or partial settlement of a Participant’s Deferral
Account is required to be made within a specified period of time, the Participant shall have
no right to designate the taxable year of the payment (other than pursuant to a redeferral
election made in accordance with the requirements of Section 6(a).




(vi) Each separately identifiable payment under the Plan shall be treated as a separate
payment for purposes of Code Section 409A to the fullest extent permitted by Code Section
409A. For purposes of this Plan, a right to receive installment payments shall be treated as
a right to receive a series of separate payments.




(vii) The Company may delay a payment to a Participant to the extent that the Company
reasonably anticipates that if the payment were made as scheduled under the Plan and the
applicable Deferral Agreement, the Company’s deduction with respect to such payment would
not be permitted due to the application of Code Section 162(m), provided that the payment is
made either during the Company’s first taxable year in which the Company 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 application of Code Section 162(m) or
during the period beginning with the date of the Participant’s Separation from Service and
ending on the later of the last day of the taxable year of Company in which the service
provider separates from service or the 15th day of the third month following the
Participant’s Separation from Service, and provided further that where any scheduled payment
to a Participant in the Company’s taxable year is delayed in accordance with this paragraph,
all scheduled payments to that Participant that could be delayed in accordance with this
paragraph are also delayed. This paragraph shall be construed and administered in
accordance with the requirements of Treasury Regulation §1.409A-2(b)(7)(i).


 


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(d) Unforeseeable Emergency. Other provisions of the Plan notwithstanding, if the
Committee, acting in good faith, determines that the Participant has an Unforeseeable Emergency,
the Committee shall direct the immediate lump sum payment to the Participant of vested amounts that
the Committee determines to be necessary to satisfy such Unforeseeable Emergency plus amounts
necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into
account the extent to which such Unforeseeable Emergency is or may be relieved through
reimbursement or
compensation by insurance, any additional compensation that is available due to the
cancellation of a deferral election upon a payment due to an unforeseeable emergency, or otherwise
or by liquidation of the Participant’s assets (to the extent the liquidation of such assets would
not itself cause severe financial hardship). The preceding sentence shall be construed and
administered in accordance with the requirements of Code Section 409A(a)(2)(B)(ii) and Treasury
Regulations thereunder. If the Committee determines that a Participant has an Unforeseeable
Emergency, the Committee shall authorize the cessation of deferrals by such Participant under the
Plan.



(e) Distribution upon Income Inclusion under Code Section 409A or to Satisfy other Tax
Obligations. If the Committee determines that the Plan fails to meet the requirements of Code
Section 409A and Treasury Regulations thereunder, the Trustee shall distribute to the Participant
the portion of the Participant’s Deferral Account that is required to be included in income as a
result of the failure of the Plan to comply with the requirements of Code Section 409A and Treasury
Regulations thereunder. If the Committee determines that state, local or foreign tax obligations
(including employment taxes and income tax withholding at source on wages) arise from a
Participant’s participation in the Plan with respect to an amount deferred under the Plan before
the amount is paid or made available to the Participant, the Participant may receive a distribution
from the Participant’s Deferral Account (either in the form of withholding that is paid over to a
governmental entity pursuant to provisions of applicable law or by distributions directly to the
Participant) to reflect such tax obligation, provided the amount so distributed shall not exceed
the amount of such taxes due as a result of participation in the Plan. Additionally, a Participant
may receive a distribution from the Participant’s Deferral Account to pay income tax at source on
wages imposed under Code Section 3401 attributable to additional Section 3401 wages and taxes. Any
distribution made to a Participant pursuant to this Section 6(e) shall be paid, to the extent
possible, out of the vested portion of the Participant’s Deferral Account. The provisions of this
Section 6(e) shall be construed and administered in accordance with the requirements of Treasury
Regulation § 1.409A-3(j)(4)(vi), (vii), and (xi), as applicable, so as to prevent, to the extent
possible, the imposition of any tax pursuant to Code Section 409A.



(f) Effect on Deferral Account. A Participant’s Deferral Account shall be debited to
the extent of any distributions to, or the tax withholding for the benefit of, the Participant
pursuant to this Section 6.


 


11









 





(g) Designation of Beneficiary. Each Participant may from time to time designate any
individual, trust, charity or other person or persons to whom the value (or a portion of the value)
of the Participant’s Deferral Account shall be paid if the Participant dies before
receiving the full value of his or her Deferral Account (the Participant’s “Beneficiary”).
A Beneficiary designation shall be made in the manner required by the Plan Administrator for this
purpose. Primary, secondary, or contingent Beneficiaries are permitted. A married participant
designating a Beneficiary other than his or her spouse must obtain the consent of his or her spouse
to such designation (in accordance with procedures determined by the Plan Administrator). Payments
to the Participant’s Beneficiary(ies) shall be made in accordance with applicable provisions of
the Plan after the Plan Administrator has received proper notification of the Participant’s
death.



A Beneficiary designation shall be effective only when the Beneficiary designation is filed
with the Plan Administrator while the Participant is alive, and a subsequent Beneficiary
designation will cancel all of the Participant’s Beneficiary designations previously filed with the
Plan Administrator. Once received and acknowledged by the Plan Administrator, a Beneficiary
designation shall be effective as of the date the designation was executed, but without prejudice
to the Plan Administrator on account of any payment made before the change is received and
acknowledged by the Plan Administrator. If a deceased Participant failed to designate a
Beneficiary, or if a designated Beneficiary predeceases the Participant, the value of the
Participant’s Deferral Accounts shall be payable to the Participant’s spouse or, if there is none,
to the Participant’s estate, or in accordance with such other equitable procedures as determined by
the Plan Administrator.



(h) Reemployment. If a former Participant is rehired by the Company, or any person
with whom the Company would be considered a single employer under Code Section 414(b) and (c), and
regardless of whether such former Participant is designated as a Participant, or a former
Participant returns to service as a member of the Board, any payments being made to such former
Participant hereunder by reason of such former Participant’s previous Separation from Service shall
continue to be made without regard to such rehire or return to service.




7. Amendment and Termination.



(a) Amendment. The Plan Administrator may, with prospective or retroactive effect,
amend or alter the Plan (i) if the Internal Revenue Service determines that any amounts deferred
under the Plan are includible in the Participant’s gross income prior to being paid out to the
Participant, (ii) any time, if determined to be necessary, appropriate or advisable in response to
administrative guidance issued under Code Section 409A or to comply with the provisions of Code
Section 409A, or (iii) if no Participant is materially adversely affected by such action with
respect to amounts required to be credited to the Participant’s Deferral Account under any
previously executed Deferral Agreement; provided further that, following a Change in
Control, the Plan will not be subject to amendment, alteration, suspension, discontinuation or
termination without the prior written consent of each Participant who would be reasonable expected
to be materially adversely affected by such action; and provided further that, in each
case, the Company may accelerate distributions under this Plan only to the extent (if any) that
doing so will not result in the imposition of additional tax or interest under Code Section 409A.
Following a Change in Control, the Company will use commercially reasonable efforts to amend the
Plan without detriment to a Participant whenever necessary to avoid the imposition of additional
tax and interest under Section 409A.



(b) Termination. Notwithstanding any other provision to the contrary and except as
may otherwise be provided by the Committee, the Plan shall terminate as
soon as possible following the payment of all amounts in respect of all Deferral Accounts.


 


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8. General Provisions.



(a) Limits on Transfer of Awards. Other than by will, the laws of descent and
distribution, or by appointing a Beneficiary, no right, title or interest of any kind in the Plan
shall be transferable or assignable by a Participant (or the Participant’s Beneficiary) or be
subject to alienation, anticipation, encumbrance, garnishment, attachment, levy, execution or other
legal or equitable process, nor subject to the debts, contracts, liabilities or engagements, or
torts of any Participant or the Participant’s Beneficiary. Any attempt to alienate, sell,
transfer, assign, pledge, garnish, attach or take any other action subject to legal or equitable
process or encumber or dispose of any interest in the Plan shall be void.




(b) Waiver, Receipt and Release.




(i) As between the Participant and the Company, a Participant and the Participant’s
Beneficiary shall assume all risk (other than for the gross negligence of the Company or the
Committee or Plan Administrator, or breach by the Company of the terms of this Plan) in
connection with the Plan, Trust design, implementation or administration, decisions made by
the Participant’s Manager and the resulting value of the Participant’s Deferral Account, the
selection and actions of the Trustee or any other third party providing services to the
Company or the Trust in connection with the Plan or Trust (including their administrative
and investment expenses), including any income taxes of the Participant or Participant’s
Beneficiary relating to or arising out of his or her participation in the Plan, and neither
the Company nor the Committee or Plan Administrator shall be liable or responsible therefor
other than as provided in Section 5(c). Notwithstanding the foregoing sentence, the Company
shall indemnify a Participant for any additional tax and interest imposed pursuant to Code
Section 409A as a result of any action of the Company in administering or operating the
Plan; provided, however, that the foregoing indemnity shall not apply to additional
tax and interest that could have been avoided by any action or inaction of the Participant
reasonably requested by the Company that would have had the effect of reducing such
additional tax or interest. In addition, the Company shall indemnify each Participant for
reasonable defense costs, including reasonable attorneys’ fees and other professional fees,
incurred by that Participant as a result of any audit by a taxing authority and subsequent
appeals and litigation with respect any matter for which the Participant is indemnified
pursuant to this Section 8(b)(i). An amount for which a Participant is indemnified under
the preceding two sentences (“Indemnified Amount”) shall be computed on an after-tax basis,
so that after the payment by the Participant of any and all taxes (including any interest on
such taxes, additions to tax, and penalties) and amounts payable pursuant to Code Section
409A(a)(1)(B)) with respect to matters for which Participant is indemnified, including any
Indemnified Amount, the Participant will retain an amount equal to the amount that the
Participant would have had if the Participant had not been subject to Code Section
409A(a)(1)(B) with respect to matters for which the Participant is indemnified hereunder.
Any
Indemnified Amount with respect to taxes, additions to tax or interest shall be paid no
later than the end of the Participant’s taxable year following the taxable year of the
Participant in which the Participant remits the related taxes; and any Indemnified Amount
with respect to fees, expenses or costs of conducting a tax controversy shall be paid no
later than the end of the Participant’s taxable year following the taxable year of the
Participant in which the taxes that are the subject of the audit or litigation are remitted
to the applicable taxing authority, or, where as a result of such audit or litigation no
taxes are remitted, no later than the end of the Participant’s taxable year following the
taxable year of the Participant in which the audit is completed or there is a final and
nonappealable settlement or other resolution of the audit or litigation.


 


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(ii) As a condition of being a Participant in the Plan, each Participant must sign a
waiver (which may be a part of the Deferral Agreement) releasing the Company and its
Affiliates, the Committee, the Plan Administrator, officers of the Company or its Affiliates
(the “Officers”) and the Board from any claims and liabilities regarding the matters
to which the Participant has assumed the risk as set forth in this Section. Payments (in
any form) to any Participant or Beneficiary in accordance with the provisions of the Plan
shall, to the extent thereof, be in full satisfaction of all claims for compensation
deferred and relating to the Deferral Account to which the payments relate against the
Company or any Affiliate or the Committee or Plan Administrator, and the Committee or Plan
Administrator may require such Participant or Beneficiary, as a condition to such payments,
to execute a waiver, receipt and release to such effect.




(iii) As a condition of being a Participant in the Plan, each Participant must sign a
waiver releasing the Trustee and each of its Affiliates (each, a “Released Party”)
against any and all loss, claims, liability and expenses imposed on or incurred by any
Released Party as a result of any acts taken or any failure to act by the Trustee, where
such act or failure to act is in accordance with the directions from the Committee or Plan
Administrator or any designee of the Committee or Plan Administrator.




(iv) Subject to the Company’s indemnification of Participants described in Section
8(b)(i), each Participant agrees to pay any taxes, penalties and interest such Participant
or Beneficiary may incur in connection with his or her participation in this Plan, and
further agrees to indemnify the Company and its Affiliates, the Committee, the Plan
Administrator, Officers, the Board and the Company’s agents for such taxes, penalties and
interest the Participant or Participant’s Beneficiary incurs and fails to pay and for which
the Company is made liable by the appropriate tax authority.



(c) Unfunded Status of Awards, Creation of Trusts. The Plan is intended to constitute
an unfunded plan for deferred compensation and each Participant shall rely solely on the unsecured
promise of the Company for payment hereunder. With respect to any payment not yet made to a
Participant under the Plan, nothing contained in the Plan shall give a Participant any rights that
are greater than those of a general unsecured creditor of the Company.



(d) Participant Rights. No provision of the Plan or transaction hereunder shall
confer upon any Participant any right or impose upon any Participant any obligation to be employed
by the Company or an Affiliate, or to interfere in any way with the right of the Company or an
Affiliate to increase or decrease the amount of any compensation payable to such Participant.
Subject to the limitations set forth in Section 8(c) hereof, the Plan shall inure to the benefit
of, and be binding upon, the parties hereto and their successors and assigns.


 


14









 





(e) Tax Withholding. The Company shall have the right to deduct from amounts
otherwise credited to or paid from a Deferral Account any sums that federal, state, local or
foreign tax law requires to be withheld.



(f) Governing Law. The validity, construction, and effect of the Plan and any rules
and regulations relating to the Plan shall be determined in accordance with the laws of the State
of California, without giving effect to principles of conflicts of laws to the extent not
pre-empted by federal law.



(g) Limitation. A Participant and the Participant’s Beneficiary shall assume all risk
in connection with (i) the performance of the Managers, (ii) the performance of the Hypothetical
Investments, and (iii) the tax treatment of amounts deferred under or paid pursuant to the Plan,
and the Company, the Committee, the Plan Administrator, and the Board shall not be liable or
responsible therefor.



(h) Construction. The captions and numbers preceding the sections of the Plan are
included solely as a matter of convenience of reference and are not to be taken as limiting or
extending the meaning of any of the terms and provisions of the Plan. Whenever appropriate, words
used in the singular shall include the plural or the plural may be read as the singular.



(i) Severability. In the event that any provision of the Plan shall be declared
illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining
provisions of the Plan but shall be fully severable, and the Plan shall be construed and enforced
as if said illegal or invalid provision had never been inserted herein.



(j) Status. The establishment and maintenance of, or allocations and credits to, the
Deferral Account of any Participant shall not vest in any Participant any right, title or interest
in or to any Plan or Company assets or benefits except at the time or times and upon the terms and
conditions and to the extent expressly set forth in the Plan and in accordance with the terms of
any Trust.



(k) Spouse’s Interest. The interest in the benefits hereunder of a Participant’s
spouse who has predeceased the Participant shall automatically pass to the Participant and shall
not be transferable by such spouse in any manner, including but not limited to such spouse’s will,
nor shall such interest pass under the laws of intestate succession.




(l) Successors. The provisions of the Plan shall bind the Company and its successors.


 


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9. Claims Procedures.




The procedures for filing claims for payments under the Plan are described below:



(a) Presentation of Claim. It is the intent of the Company to make payments under the
Plan without the Participant having to complete or submit any claim forms. However, any
Participant or Beneficiary who believes he or she is entitled to a payment under the Plan may
submit a claim for payment to the Plan Administrator. Any claim for payments under the Plan must
be made by the Participant or his Beneficiary in writing and state the Claimant’s name and nature
of benefits payable under the Plan. The Claimant’s claim shall be deemed to be filed when
delivered to the Plan Administrator which shall make all determinations as to the right of any
person(s) to benefits hereunder. Claims for benefits under this Plan shall be made by the
Participant, his or her Beneficiary or a duly authorized representative thereof
(“Claimant”). If such a claim relates to the contents of a notice received by the Claimant,
the claim must be made within sixty (60) days after such notice was received by the Claimant. All
other claims must be made within one hundred eighty (180) days of the date on which the event that
caused the claim to arise occurred. The claim must state with particularity the benefit or other
determination desired by the Claimant. The claim must be accompanied with sufficient supporting
documentation for the benefit or other determination requested by the Claimant.




(b) Notification of Decision.



(i) Claim for benefits other than upon Disability. If the claim is wholly or
partially denied, the Plan Administrator shall provide written or electronic notice thereof to the
Claimant within a reasonable period of time, but not later than 90 days after receipt of the claim.
An extension of time for processing the claim for benefits is allowable if special circumstances
require an extension, but such an extension shall not extend beyond 180 days from the date the
claim for benefits is received by the Plan Administrator. Written notice of any extension of time
shall be delivered or mailed within 90 days after receipt of the claim and shall include an
explanation of the special circumstances requiring the extension and the date by which the Plan
Administrator expects to render the final decision.



(ii) Claim for benefits upon Disability. If the claim is wholly or partially denied,
the Plan Administrator shall provide written or electronic notice thereof to the Claimant within a
reasonable period of time, but not later than 45 days after receipt of the claim. An initial
extension of time for processing the claim for benefits is allowable if necessary due to
circumstances beyond the Plan Administrator’s control, but such an initial extension shall not
extend beyond 30 days from the date the claim for benefits is received by the Plan Administrator.
Written notice of the initial extension of time shall be delivered or mailed within 45 days after
receipt of the claim and shall include an explanation of the circumstances requiring the extension,
the date by which the Plan Administrator expects to render the final decision, the standards on
which entitlement to a benefit is based, unresolved issues that prevent a decision and any
additional information needed to resolve these issues. If prior to the end of the initial
extension, the Plan Administrator determines that, due to matters beyond its control, a decision
cannot be rendered within the first 30 day extension period, the period for
making the determination may be extended for up to an additional 30 days. Written notice of
the additional extension of time shall be delivered or mailed within the initial extension period
and shall include an explanation of the circumstances requiring the extension, the date by which
the Plan Administrator expects to render the final decision, the standards on which entitlement to
a benefit is based, unresolved issues that prevent a decision and any additional information needed
to resolve these issues. The Claimant shall have 45 days to provide such additional information.




(iii) Required content of the Notice of Adverse Benefit Determination.




	 	(1)	 	In general. The notice of adverse benefit determination shall:






	 	(A)	 	specify the reason or reasons the
claim was denied;
	 
	 	(B)	 	reference the pertinent Plan
provisions upon which the decision was based;




 


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	 	(C)	 	describe any additional material
or information necessary for the Claimant to perfect the claim,
and an explanation of why such material or information is
necessary;
	 
	 	(D)	 	indicate the steps to be taken by
the Claimant if a review of the denial is desired, including the
time limits applicable thereto; and
	 
	 	(E)	 	contain a statement of the
Claimant’s right to bring a civil action under ERISA in the
event of an adverse determination on review.






If notice of the adverse benefit determination is not furnished in
accordance with the preceding provisions of this Section, the claim shall be
deemed accepted and payment shall be made to the Claimant in accordance with
the claim.




(2) Claim for disability benefits. The notice of adverse benefit
determination shall, in addition to the information specified in (1) above,
disclose any internal rule, guidelines, protocol or similar criterion relied
on in making the adverse determination or a statement that such information
will be provided free of charge upon request.



(c) Review of a Denied Claim.



(i) Claim for benefits other than upon disability. If a claim is denied and a review
is desired, the Claimant shall notify the Committee in writing within 60 days after receipt of
written notice of a denial of a claim. In requesting a review, the Claimant may submit any written
comments, documents, records, and other information relating to the claim, the Claimant feels are
appropriate. The Claimant shall, upon request and free of charge, be provided reasonable access
to, and copies of, all documents, records and other information that, with respect to the
Claimant’s claim for benefits (A) was relied upon in making the benefit determination, (B) was
submitted, considered, or generated in the course of making the benefit determination, whether or
not actually relied upon in making the determination; or (C) demonstrates compliance with the
administrative processes and safeguards of this claims procedure (sometimes referred to for
purposes of this Section 9 as “Relevant”). The Committee shall review the claim taking
into account all comments, documents, records and other information submitted by the Claimant,
without regard to whether such information was submitted or considered in the initial benefit
determination.



(ii) Claim for benefits upon disability. The review procedures in Section 9(c)(i)
above shall apply, except the Claimant shall notify the Committee in writing within 180 days after
receipt of written notice of a denial of a claim, and no deference shall be given to the initial
benefit determination. The review shall be conducted by a different individual than the person who
made the initial benefit determination or a subordinate of that person. The following procedures
will apply to the review of an adverse benefit determination:




(1) In the case of a claim denied on the grounds of a medical judgment, the
Committee will consult with a health professional with appropriate training
and experience. The health care professional who is consulted on review
will not be the same individual who was consulted, if any, regarding the
initial benefit determination or a subordinate of that individual.


 


17









 






(2) A Claimant shall, on request and free of charge, be given reasonable
access to, and copies of, all documents, records, and other information
Relevant to the Claimant’s claim for benefits. If the advice of a medical
or vocational expert was obtained in connection with the initial benefit
determination, the names of each such expert shall be provided on request by
the Claimant, regardless of whether the advice was relied on by the Plan
Administrator.




(d) Decision on Review.



(i) Claim for benefits other than upon disability. The Committee shall provide the
Claimant with written notice of its decision on review within a reasonable period of time, but not
later than 60 days after receipt of a request for a review. An extension of time for making the
decision on the request for review is allowable if special circumstances shall occur, but such an
extension shall not extend beyond 120 days from the date the request for review is received by the
Committee.
Written notice of the extension of time shall be delivered or mailed within 60 days after
receipt of the request for review, indicating the special circumstances requiring an extension and
the date by which the Committee expects to render a determination.



(ii) Claim for benefits upon disability. The Committee shall provide the Claimant
with written notice of its decision on review within a reasonable period of time, but not later
than 45 days after receipt of a request for a review. An extension of time for making the decision
on the request for review is allowable if special circumstances shall occur, but such an extension
shall not extend beyond 90 days from the date the request for review is received by the Committee.
Written notice of the extension of time shall be delivered or mailed within 45 days after receipt
of the request for review, indicating the special circumstances requiring an extension and the date
by which the Committee expects to render a determination.




(iii) Required content of the Notice of Adverse Benefit Determination.




(1) In general. In the event of an adverse benefit determination on
review, the notice thereof shall (A) specify the reason or reasons for the
adverse determination; (B) reference the specific provisions of this Plan on
which the benefit determination is based; (C) contain a statement that the
Claimant is entitled to receive, upon request and free of charge, reasonable
access to, and copies of all records and other information Relevant to the
Claimant’s claim for benefits; (D) a statement describing any voluntary
appeal procedures offered by the Plan, including the arbitration procedures
in Section 9(f); and (E) inform the Claimant of the right to bring a civil
action under the provisions of ERISA. If notice of the adverse benefit
determination is not furnished in accordance with the preceding provisions
of this Section, the claim shall be deemed accepted and payment shall be
made to the Claimant in accordance with the claim.


 


18









 






(2) Claim for disability benefits. The notice of adverse benefit
determination shall, in addition to the information specified in (1) above,
(A) disclose any internal rule, guidelines, protocol or similar criterion
relied on in making the adverse determination or a statement that such
information will be provided free of charge upon request, and (B) include
the following statement: “You and your Plan may have other voluntary
alternative dispute resolution options, such as mediation. One way to find
out what may be available is to contact your local U.S. Department of Labor
Office and your State insurance regulatory agency.”



(e) Preservation of Remedies. After exhaustion of the claims procedure as provided
herein, nothing shall prevent the Claimant from pursuing any other legal or equitable remedy
otherwise available, including the right to bring a civil action under Section 502(a) of ERISA, if
applicable.



(f) Elective Arbitration. If a Claimant’s claim described in Section 9(a) is denied
pursuant to Sections 9(b) and 9(d) (an “Arbitrable Dispute”), the Claimant may, in lieu of
the Claimant’s right to bring a civil action under Section 502(a) of ERISA, and as the Claimant’s
only further recourse, submit the claim to final and binding arbitration in the city of San Jose,
State of California, before an experienced employment arbitrator selected in accordance with the
Employment Dispute Resolution Rules of the American Arbitration Association. Except as otherwise
provided in this Section 9(f) or Section 9(h), each party shall pay the fees of their respective
attorneys, the expenses of their witnesses and any other expenses connected with the arbitration,
but all other costs of the arbitration, including the fees of the arbitrator, costs of any record
or transcript of the arbitration, administrative fees and other fees and costs shall be paid in
equal shares by each party (or, if applicable, each group of parties) to the arbitration. In any
Arbitrable Dispute in which the Claimant prevails, the Company shall reimburse the Claimant’s
reasonable attorneys fees and related expenses. Related expenses shall include, but not be limited
to, witness expenses, fees of the arbitrator, costs of any record or transcript of the arbitration,
administrative fees and other fees and expenses connected with the arbitration. Arbitration in
this manner shall be the exclusive remedy for any Arbitrable Dispute for which an arbitration is
elected. The arbitrator’s decision or award shall be fully enforceable and subject to an entry of
judgment by a court of competent jurisdiction. Should any party attempt to resolve an Arbitrable
Dispute for which an arbitration is elected by any method other than arbitration pursuant to this
Section, the responding party shall be entitled to recover from the initiating party all damages,
expenses and attorneys fees incurred as a result.



(g) Legal Action. Prior to a Change in Control, except to enforce an arbitrator’s
award, no actions may be brought by a Claimant in any court with respect to an Arbitrable Dispute
that is arbitrated.


 


19









 





(h) Following a Change in Control. Upon the occurrence of a Change in Control, an
independent party selected jointly by the Participants in the Plan prior to the Change in Control
and the Committee or the Plan Administrator or other appropriate person shall assume all duties and
responsibilities of the Committee or Plan Administrator under this Section 9 and actions may be
brought by a Claimant in any appropriate court with respect to an Arbitrable Dispute that is
arbitrated. After a Change in Control, if any person or entity has failed to comply (or is
threatening not to comply) with any of its obligations under the Plan, or takes or threatens to
take any action to deny, diminish or to recover from any Participant the benefits intended to be
provided thereunder, the Company shall reimburse the Participant for reasonable attorneys fees and
related costs incurred in the pursuance or defense of the Participant’s rights. If the Participant
does not prevail, attorneys fees shall also be payable under the preceding sentence to the extent
the Participant had reasonable justification for pursuing its claim, but only to the extent that
the scope of such representation was reasonable.




10. Effective Date.



The Plan shall be effective as of July 1, 2010.



	 	 	 	 	 
	Flextronics International USA, Inc.	 	 
	 
	 	 	 	 
	By:

	 	/s/ Paul J. Humphries
 

Paul J. Humphries
	 	 
	 

	 	Executive VP WW HR & Management Systems	 	 






Date Signed: October 8, 2010




 


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