exv10w5






Exhibit 10.5




FURNITURE BRANDS INTERNATIONAL, INC.

DEFERRED COMPENSATION PLAN



Restated Effective January 1, 2011





 









 









FURNITURE BRANDS INTERNATIONAL, INC.

DEFERRED COMPENSATION PLAN




Table of Contents



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Page
	1.	 	INTRODUCTION
	 	 	1	 
	 	 	1.1.	 	 	 	History of Plan and Adoption of Amendment
	 	 	1	 
	 	 	1.2.	 	 	 	Purposes of Plan
	 	 	1	 
	 	 	1.3.	 	 	 	“Top Hat” Plan
	 	 	1	 
	 	 	1.4.	 	 	 	Plan Unfunded
	 	 	1	 
	 	 	1.5.	 	 	 	Effect of Amendment and Restatement
	 	 	1	 
	2.	 	DEFINITIONS AND CONSTRUCTION
	 	 	2	 
	 	 	2.1.	 	 	 	Definitions
	 	 	2	 
	 

	 	 	 	 	 	2.1.1.	 	 	 	Account
	 	 	2	 
	 

	 	 	 	 	 	2.1.2.	 	 	 	Additions

	 	 	2	 
	 

	 	 	 	 	 	2.1.3.	 	 	 	Bonus Compensation

	 	 	2	 
	 

	 	 	 	 	 	2.1.4.	 	 	 	Base Salary Compensation

	 	 	2	 
	 

	 	 	 	 	 	2.1.5.	 	 	 	Beneficiary

	 	 	2	 
	 

	 	 	 	 	 	2.1.6.	 	 	 	Board

	 	 	2	 
	 

	 	 	 	 	 	2.1.7.	 	 	 	Business Day
	 	 	2	 
	 

	 	 	 	 	 	2.1.8.	 	 	 	Change in Control

	 	 	3	 
	 

	 	 	 	 	 	2.1.9.	 	 	 	Code

	 	 	3	 
	 

	 	 	 	 	 	2.1.10.	 	 	 	Committee

	 	 	3	 
	 

	 	 	 	 	 	2.1.11.	 	 	 	Company

	 	 	3	 
	 

	 	 	 	 	 	2.1.12.	 	 	 	Company Matching Credit

	 	 	3	 
	 

	 	 	 	 	 	2.1.13.	 	 	 	Deferral

	 	 	4	 
	 

	 	 	 	 	 	2.1.14.	 	 	 	Disabled

	 	 	4	 






i









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	2.1.15.	 	 	 	Effective Date

	 	 	4	 
	 

	 	 	 	 	 	2.1.16.	 	 	 	Election of Deferral/Distribution

	 	 	4	 
	 

	 	 	 	 	 	2.1.17.	 	 	 	Eligible Employee

	 	 	4	 
	 

	 	 	 	 	 	2.1.18.	 	 	 	Employee

	 	 	4	 
	 

	 	 	 	 	 	2.1.19.	 	 	 	ERISA

	 	 	4	 
	 

	 	 	 	 	 	2.1.20.	 	 	 	Participant

	 	 	4	 
	 

	 	 	 	 	 	2.1.21.	 	 	 	Plan

	 	 	5	 
	 

	 	 	 	 	 	2.1.22.	 	 	 	Plan Year

	 	 	5	 
	 

	 	 	 	 	 	2.1.23.	 	 	 	Separation from Service

	 	 	5	 
	 

	 	 	 	 	 	2.1.24. 	 	 	 	Specified Employee

	 	 	5	 
	 

	 	 	 	 	 	2.1.25.	 	 	 	Unforeseeable Emergency

	 	 	5	 
	 

	 	 	 	 	 	2.1.26.	 	 	 	Valuation Date

	 	 	5	 
	 	 	2.2.	 	 	 	Number and Gender
	 	 	5	 
	 	 	2.3.	 	 	 	Headings
	 	 	6	 
	3.	 	ELIGIBILITY AND PARTICIPATION
	 	 	6	 
	 	 	3.1.	 	 	 	Eligibility
	 	 	6	 
	 	 	3.2.	 	 	 	Participation
	 	 	6	 
	 	 	3.3.	 	 	 	Commencement of Participation
	 	 	6	 
	 	 	3.4.	 	 	 	Cessation of Active Participation
	 	 	6	 
	4.	 	DEFERRALS AND ADDITIONS
	 	 	6	 
	 	 	4.1.	 	 	 	Election of Deferral/Distribution
	 	 	6	 
	 	 	4.2.	 	 	 	Crediting to Account
	 	 	8	 
	 	 	4.3.	 	 	 	Additions
	 	 	8	 
	 	 	4.4.	 	 	 	Cancellation of deferral elections following a Hardship Distribution
	 	 	8	 
	5.	 	ACCOUNTS
	 	 	8	 






ii









 







	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	5.1.	 	 	 	
Establishment of Bookkeeping Accounts
	 	 	8	 
	 	 	5.2.	 	 	 	Hypothetical Nature of Accounts
	 	 	8	 
	6.	 	PAYMENT OF ACCOUNT
	 	 	9	 
	 	 	6.1.	 	 	 	Timing and Form of Distribution of Benefits
	 	 	9	 
	 	 	6.2.	 	 	 	Vesting
	 	 	10	 
	 	 	6.3.	 	 	 	Valuation
	 	 	10	 
	 	 	6.4.	 	 	 	Death
	 	 	10	 
	 	 	6.5.	 	 	 	Designation of Beneficiaries
	 	 	10	 
	 	 	6.6.	 	 	 	Unclaimed Benefits
	 	 	11	 
	 	 	6.7.	 	 	 	Hardship Withdrawals
	 	 	11	 
	 	 	6.8.	 	 	 	Actual Date of Payment
	 	 	11	 
	7.	 	ADMINISTRATION
	 	 	12	 
	 	 	7.1.	 	 	 	Committee
	 	 	12	 
	 	 	7.2.	 	 	 	General Powers of Administration
	 	 	12	 
	 	 	7.3.	 	 	 	Decisions
	 	 	12	 
	8.	 	DETERMINATION OF BENEFITS, CLAIMS PROCEDURE AND ADMINISTRATION
	 	 	12	 
	 	 	8.1.	 	 	 	Claims
	 	 	12	 
	 	 	8.2.	 	 	 	Claim Decision
	 	 	12	 
	 	 	8.3.	 	 	 	Request for Review
	 	 	13	 
	 	 	8.4.	 	 	 	Review of Decision
	 	 	13	 
	 	 	8.5.	 	 	 	Special Disability Time Limits and Procedures
	 	 	14	 
	 	 	8.6.	 	 	 	Discretionary Authority
	 	 	15	 
	9.	 	MISCELLANEOUS
	 	 	15	 
	 	 	9.1.	 	 	 	No Contract of Employment
	 	 	15	 
	 	 	9.2.	 	 	 	Non Assignability of Benefits
	 	 	16	 






iii









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	9.3.	 	 	 	Amendment and Termination
	 	 	16	 
	 	 	9.4.	 	 	 	Unsecured General Creditor Status Of Employee
	 	 	16	 
	 	 	9.5.	 	 	 	Severability
	 	 	17	 
	 	 	9.6.	 	 	 	Governing Laws
	 	 	17	 
	 	 	9.7.	 	 	 	Binding Effect
	 	 	17	 
	 	 	9.8.	 	 	 	Tax Consequences
	 	 	17	 
	 	 	9.9.	 	 	 	Obligor
	 	 	17	 







iv








 





FURNITURE BRANDS INTERNATIONAL, INC.

DEFERRED COMPENSATION PLAN





	1.	 	INTRODUCTION






	 	1.1.	 	History of Plan and Adoption of Amendment.





                       The Company previously adopted the Furniture Brands International, Inc. Deferred Compensation
Plan (the “Plan”). The Plan was amended from time to time, most recently in the form of a complete
amendment and restatement effective January 1, 2006 (the “2006 Restatement”) The 2006 Restatement
was subsequently amended by a First Amendment thereto to comply with the requirements of Section
409A of the Code and the regulations thereunder.



                       The Company now desires to amend and completely restate the Plan, effective January 1, 2011,
to incorporate the First Amendment to the 2006 Restatement, to change the types of compensation
that may be deferred under the plan, to change the options for electing the time and form of
payment for amounts deferral elections effective after December 31, 2010 and to make such other
changes as the Company finds necessary or desirable.




	 	1.2.	 	Purposes of Plan.





                       The purpose of the Plan is to provide deferred compensation for a select group of management
and/or highly compensated employees and directors in recognition of the valuable service performed
by such individuals and to encourage their continued service.




	 	1.3.	 	“Top Hat” Plan.





                       The Plan is an “employee pension benefit plan” within the meaning of ERISA Section 3(2). The
Plan is maintained, however, only for a select group of management and/or highly compensated
employees and, therefore, is exempt from Parts 2, 3 and 4 of Title I of ERISA. The Plan is not
intended to qualify under Code Section 401(a).




	 	1.4.	 	Plan Unfunded.





                       The Plan is unfunded. All benefits will be paid from the general assets of the Company, which
will continue to be subject to the claims of the Company’s creditors. No amounts will be set aside
for the benefit of Plan Participants or their Beneficiaries.




	 	1.5.	 	Effect of Amendment and Restatement.





The Plan as in effect on December 31, 2010, without regard to this amendment and restatement, is
referred to herein as the Prior Plan. The time and form of payment for a Participant’s Accounts as
of December 31, 2010, as adjusted for earnings or losses in accordance with Section 4.3 from time
to time, shall be governed by the Prior Plan. For these purposes, amounts credited to a
Participant’s Account after the Effective Date of this amendment and restatement on account of an
Election of Deferral/Distribution under the Prior Plan, shall be governed by the Prior Plan.




1









 









	2.	 	DEFINITIONS AND CONSTRUCTION






	 	2.1.	 	Definitions.





                       For purposes of the Plan, the following words and phrases shall have the respective meanings
set forth below, unless the context clearly requires a different meaning:




	 	2.1.1.	 	Account.






                       “Account” means the bookkeeping account maintained by the Company for each Participant
pursuant to Section 5.1.




	 	2.1.2.	 	Additions.






                       “Additions” means the amount of earnings and/or losses credited to a Account, as more
fully described in Section 4.3.




	 	2.1.3.	 	Bonus Compensation.






                       “Bonus Compensation” means amounts paid to an Employee under the annual incentive plan
of the Company. Bonus Compensation does not include long-term incentive pay or restricted
stock awards.




	 	2.1.4.	 	Base Salary Compensation.






                       “Base Salary Compensation” means any compensation paid by the Company to an Employee as
base salary pursuant to the Company’s normal payroll practices before reduction for amounts
deferred under the Company’s qualified retirement plans or 125 plans. In the case of a
Participant who is a member of the Board, “Base Salary Compensation” means any remuneration
paid as an annual retainer or other fee, but excludes any retainer or fee paid in the form
of restricted (or non-restricted) shares of the common stock of the Company.




	 	2.1.5.	 	Beneficiary.






                       “Beneficiary” means the person or entity designated by the Participant in accordance
with Section 6.5 or, in the absence of an effective designation, the person or entity
described in Section 6.5.




	 	2.1.6.	 	Board.






                       “Board” means the board of directors of Furniture Brands International, Inc.




	 	2.1.7.	 	Business Day.






                       “Business Day” means a day on which the New York Stock Exchange is open for trading
activity.



2









 






	 	2.1.8.	 	Change in Control.






                       “Change in Control” means a change in control as defined in the Company’s 2010 Omnibus
Incentive Plan or successor plan. Notwithstanding the preceding, for purposes of Section
6.1(e), a Change in Control shall be deemed to have occurred only if such event satisfies
the above definition and such event is a change in the ownership or effective control of a
corporation or a change in the ownership of a substantial portion of the assets of a
corporation under Code Section 409A and the regulations promulgated thereunder.




	 	2.1.9.	 	Code.






                       “Code” means the Internal Revenue Code of 1986, as amended from time to time.




	 	2.1.10.	 	Committee.






                       “Committee” means the Human Resources Committee of the Board.




	 	2.1.11.	 	Company.






                       “Company” means Furniture Brands International, Inc., its subsidiaries and affiliates.




	 	2.1.12.	 	Company Matching Credit.






                       “Company Matching Credit” means an amount credited to a Participant’s Account for a
Plan Year equal to the matching contribution that would have been contributed to the
Furniture Brands International, Inc. Savings Plan (“Savings Plan”) (determined with respect
to Base Salary Compensation and Bonus Compensation without regard to any qualified plan
limitations) had the Deferrals of Base Salary Compensation and Bonus Compensation to this
Plan been contributed to the Savings Plan. Such determination of matching contributions
shall be made pursuant to the terms of, and taking into account, the Participant’s elective
deferrals and matching employer contributions under the Savings Plan so that the Participant
does not receive duplicative matching contributions with respect to deferrals under either
the Plan or the Savings Plan. However, if a Participant does not contribute the maximum
elective deferral amount permitted under the Savings Plan (taking into account all the
qualified plan limitations) the Participant will only receive as a Company Matching Credit
an amount equal to 100% of the first 3% of Base Salary Compensation and Bonus Compensation
plus 50% of the next 3% of Base Salary Compensation and Bonus Compensation contributed to
the Plan provided, however, that for purpose of determining such Company Matching Credit,
there shall only be taken into account deferrals with respect to Base Salary Compensation
and Bonus Compensation over the dollar limitation on compensation in effect for the year
under the Savings Plan ($245,000 in 2010).



3









 






	 	2.1.13.	 	Deferral.






                       “Deferral” means the amount of Base Salary Compensation and Bonus Compensation actually
deferred under the Plan pursuant to an Election of Deferral/Distribution.




	 	2.1.14.	 	Disabled.






                       “Disabled” means (i) a Participant’s inability 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 12 months; or (ii) a Participant’s receipt of income replacement benefits for a period
of at least three months, under an accident and health plan covering the employees of the
Company, due to a 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 at least 12 months.




	 	2.1.15.	 	Effective Date.






                       “Effective Date” means January 1, 2011.




	 	2.1.16.	 	Election of Deferral/Distribution.






                       “Election of Deferral/Distribution” means the written agreement (paper or electronic),
filed by the Participant with the Committee in which the Participant elects the amount of
his or her Base Salary Compensation and/or Bonus Compensation to be deferred, the time and
manner of distributions and such other matters as the Committee shall determine from time to
time.




	 	2.1.17.	 	Eligible Employee.






                       “Eligible Employee” means an Employee who has been selected by the Committee to
participate in the Plan.




	 	2.1.18.	 	Employee.






                       “Employee” means an individual who is (i) classified as a management or highly
compensated employee of the Company or (ii) a member of the Board.




	 	2.1.19.	 	ERISA.






                       “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time
to time.




	 	2.1.20.	 	Participant.






                       “Participant” means an Eligible Employee who is selected for participation in the Plan
and who becomes a Participant pursuant to Section 3.



4









 






	 	2.1.21.	 	Plan.






                       “Plan” means the Furniture Brands International, Inc. Deferred Compensation Plan, as
set forth herein and as amended from time to time.




	 	2.1.22.	 	Plan Year.






                       “Plan Year” means the calendar year.




	 	2.1.23.	 	Separation from Service.






                       “Separation from Service” means separation from service with Furniture Brands
International, Inc. and its affiliates (generally 50% common control with Furniture Brands
International, Inc.), as defined in IRS regulations under Section 409A of the Code
(generally, a decrease in the performance of services to no more than 20% of the average for
the preceding 36-month period, and disregarding leave of absences up to six months where
there is a reasonable expectation the Employee will return).




	 	2.1.24.	 	Specified Employee.






                       “Specified Employee” means any individual that the Company determines is a specified
employee within the meaning of Section 409A of the Code. The Company shall determine
whether an employee is a Specified Employee by applying reasonable, objectively determinable
identification procedures established by the Company.




	 	2.1.25.	 	Unforeseeable Emergency.






                       “Unforeseeable Emergency” means a severe financial hardship to a Participant resulting
from an illness or accident of the Participant, his or her spouse or a dependent (as defined
in Code Section 152(a)) 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.




	 	2.1.26.	 	Valuation Date.






             “Valuation Date” means each Business Day on which a calculation concerning a
Participant’s Account is performed, or as otherwise defined by the Committee.




	 	2.2.	 	Number and Gender.





                       Wherever appropriate, words used in the singular shall be considered to include the plural and
words used in the plural shall be considered to include the singular. The masculine gender, where
appearing in the Plan, shall be deemed to include the feminine gender.



5









 






	 	2.3.	 	Headings.





                       The headings are included solely for convenience, and if there is any conflict between any
heading and the text of the Plan, the Plan text shall control.




	3.	 	ELIGIBILITY AND PARTICIPATION






	 	3.1.	 	Eligibility.





                       The Committee shall have the authority to select those Eligible Employees who shall be
eligible to participate in the Plan and the date on which such individuals may commence
participation.




	 	3.2.	 	Participation.





                       The Committee shall notify each Eligible Employee of his or her selection to participate in
the Plan. Subject to the provisions of Section 3.4 and provided the Participant remains an
Employee, a Participant shall remain eligible to continue participation in the Plan for each Plan
Year following his or her initial year of selection to participate in the Plan.




	 	3.3.	 	Commencement of Participation.





                       Any Eligible Employee may elect to participate in the Plan by filing an Election of
Deferral/Distribution with the Committee in accordance with the provisions of Section 4.1. An
Eligible Employee shall become a Participant effective as of the date on which his or her Election
of Deferral/Distribution becomes effective.




	 	3.4.	 	Cessation of Active Participation.





                       Notwithstanding any provision of the Plan to the contrary, an individual who has become a
Participant in the Plan shall cease to be a Participant effective as of any date designated by the
Committee or the date on which the Participant ceases to be an Employee. Any such Committee action
shall be communicated to the Participant prior to the effective date of such action. Such
cessation shall have no effect upon amounts then credited to his Account and shall not preclude the
individual from subsequently being selected to be a Participant.



                       Notwithstanding any provision of the Plan to the contrary, the deferral election for an
individual who ceases to be a Participant in the Plan but who remains an Employee shall continue to
be honored until the earlier of the date upon which such individual ceases to be an Employee or the
end of the calendar year in which such individual ceases to be a Participant in this Plan.




	4.	 	DEFERRALS AND ADDITIONS






	 	4.1.	 	Election of Deferral/Distribution.





                       A Participant who wishes to make a Deferral must file with the Committee an Election of
Deferral/Distribution pursuant to which such Participant elects to make Deferrals.



6









 





                       (a)     Base Salary Compensation. With respect to Base Salary Compensation, an Election
of Deferral/Distribution must be filed with the Committee by the close of the calendar year
preceding the year in which the Eligible Employee performs the services giving rise to the Base
Salary Compensation to be deferred. Such election shall be irrevocable as of December 31 of the
calendar year preceding the calendar year to which such election applies. An Election of
Deferral/Distribution shall continue in effect for a subsequent calendar year unless revoked or
modified no later than the December 31 immediately preceding the subsequent calendar year. As of
each December 31, such Election of Deferral/Distribution shall be irrevocable with respect to Base
Salary Compensation payable with respect to services performed in the immediately following
calendar year.



                       (b)     Bonus Compensation. With respect to Bonus Compensation, an Election of
Deferral/Distribution must be filed with the Committee in accordance with the rules described under
Section 4.1(a) with respect to Base Salary Compensation.



                       (c)     First Year of Eligibility. In the case of the first year in which an Eligible
Employee becomes eligible to participate in the Plan (and all other plans required to be aggregated
with the Plan under Treasury Regulations issued under Code Section 409A), an Election of
Deferral/Distribution must be filed with the Committee within 30 days after the date he or she
becomes an Eligible Employee; provided that, such Election of Deferral/Distribution shall apply
only to Base Salary Compensation paid for services to be performed subsequent to the date the
Election of Deferral/Distribution is filed with the Committee and such election shall be
irrevocable for the remainder of such calendar year. With respect to Bonus Compensation, such
initial Election of Deferral/Distribution shall apply only 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 special election deferral timing provision described in this
Section 4.1(c) shall be available only (i) in the first year in which an Eligible Employee first
becomes eligible to participate in the Plan, and (ii) if the Participant does not participate in
any similar deferred compensation plans which would be aggregated with the Plan for 409A purposes.



                                 Notwithstanding the foregoing, a Participant who was previously a Participant in the Plan
shall be treated as first becoming eligible to participate in the Plan upon the first date
following either (i) the date the Participant has been paid all amounts under this Plan (and all
other plans aggregated with the Plan for 409A purposes), provided that on or before such last
payment the Participant was not eligible to participate in the Plan (and all other plans aggregated
with the Plan for 409A purposes) for periods after such last payment, (ii) twenty-four months
following the last date the Participant was last eligible to participate in the Plan (and all other
plans aggregated with the Plan for 409A purposes), or (iii) a hardship distribution made pursuant
to Section 6.7.



                       (d)     General Rules. At the discretion of the Committee, deferrals may be made in a
specified dollar amount and/or in whole percentages up to 90% of Base Salary Compensation and/or
Bonus Compensation. Any election shall be subject to rules prescribed by the Committee.



7









 






	 	4.2.	 	Crediting to Account.





                       Deferrals of Base Salary Compensation and Bonus Compensation and any associated Company
Matching Credits will be credited to the Account of each Participant at the time and in the manner
determined at the discretion of the Committee.




	 	4.3.	 	Additions.





                       The Company shall credit the Participant’s Account with earnings, losses and interest from and
after the dates Deferrals and any Matching Contributions are credited to the Account. Additions to
Accounts shall accrue commencing on the date the Account first has a positive balance and shall
continue on the balance in the Participant’s Account from time to time up to the date as of which
benefits are paid in full. Additions shall be calculated at the rate determined by the Committee
from time to time.




	 	4.4.	 	Cancellation of deferral elections following a Hardship Distribution.





                       Notwithstanding any provision in the Plan to the contrary, a Participant may choose to cancel
any otherwise applicable deferral election made pursuant to this Article 4 following a hardship
distribution made pursuant to Section 6.7.




	5.	 	ACCOUNTS






	 	5.1.	 	Establishment of Bookkeeping Accounts.





                       A separate bookkeeping Account shall be maintained for each Participant. Such account shall
reflect Deferrals, Company Matching Credits and Additions thereon, less any distributions. Within
each Participant’s bookkeeping Account, separate subaccounts shall be maintained to the extent
necessary for the administration of the Plan.




	 	5.2.	 	Hypothetical Nature of Accounts.





                       The Account established under this Section 5 shall be hypothetical in nature and shall be
maintained for bookkeeping purposes only, so that Deferrals and Company Matching Credits can be
credited to the Participant and so that Additions on such amounts so credited or debited can be
reflected. Neither the Plan nor any of the Accounts (or subaccounts) shall hold any actual funds
or assets. The right of any person to receive one or more payments under the Plan shall be an
unsecured claim against the general assets of the Company. Any liability of the Company to any
Participant, former Participant, or Beneficiary with respect to a right to payment shall be based
solely upon contractual obligations created by the Plan. Neither the Company, the Board, the
Committee, nor any other person shall be deemed to be a trustee of any amounts to be paid under the
Plan. Nothing contained in the Plan, and no action taken pursuant to its provisions, shall create
or be construed to create a trust of any kind, or a fiduciary relationship, between the Company and
a Participant, former Participant, Beneficiary, or any other person.




8











 






	6.	 	PAYMENT OF ACCOUNT






	 	6.1.	 	Timing and Form of Distribution of Benefits.





                            (a)     The vested portion of a Participant’s Account shall be payable upon his or her Separation
from Service in the form of a lump sum. Notwithstanding the preceding sentence, a Participant may
elect on the Election of Deferral/Distribution described in Section 4.1 to have Deferrals, Company
Matching Credits and Additions thereon for a given year payable:




                        (1)     In a single lump sum on January 1st of a specified year; or




                        (2)     In monthly installments over a period of three, five or ten years upon his or her
Separation from Service.



For purposes of this section, a series of installment payments shall be treated as a single payment
pursuant to Treas. Reg. §1.409A-2(b)(2). The amount of each installment payment shall be
determined under the declining balance accounting method. For example, a ten year installment
payout would be payable as follows: 1/120th of the balance of the Account in the first month;
1/119th of the remaining balance of the Account in the second month; 1/118th of the remaining
balance of the Account in the third month; and so on, with the balance of the remaining balance of
the Account in the 120th month. In the event a Participant makes an election under this
Section 6.1(a), the remainder of his or her vested Account which is not subject to such election
shall be payable upon his or her Separation from Service in the form of a lump sum.




                            (b)     A Participant may elect to change the time and/or form of payment, only one time with
respect to each separately identified amount, if such election is filed in accordance with
procedures established by the Committee, and:




                        (1)     such election shall not take effect until at least 12 months after the date on
which the election is filed,




                        (2)     the first payment with respect to which such election is made shall be deferred for
a period of not less than 5 years from the date such payment would otherwise have been made,
and




                        (3)     any election related to a payment that was otherwise to be made at a specified time
may not be made less than 12 months prior to the date of the first scheduled payment.



                            (c)     Distributions from a Participant’s Account shall be in cash.



                            (d)     Notwithstanding Sections 6.1(a) and (b), payment of benefits by reason of Separation from
Service shall not be made or commence prior to the date which is 6 months after the date of a
Participant’s Separation from Service (for any reason other than death or Disability) in the case
of a Participant who is determined to be a Specified Employee. Any payments (with interest
calculated in accordance with the provisions governing Additions to the Account) that would have
been paid during such 6-month period absent this Section 6.1(d) shall be payable in a lump sum to
the Participant as of the day after the last day of such 6-month period, and all other



9









 





payments following such 6-month period shall be payable in accordance with the terms of the
Plan and the Participant’s election.




                           (e)     Notwithstanding any other provision of the Plan or an Election of Deferral/Distribution,
the vested balance in a Participant’s Accounts shall be payable to him or her in a single lump sum
upon a Change in Control.



                           (f)     Notwithstanding any other provision of the Plan, a distribution may be made to an
individual other than a Participant as necessary to fulfill a court order, as described in the
regulations promulgated under Code Section 409A.




	 	6.2.	 	Vesting.





                            A Participant is fully vested in all Deferrals, Company Matching Credits and Additions thereon
under the Plan.




	 	6.3.	 	Valuation.





                            At any time during which a distributable event will take place under Section 6.1, the balance
of a Participant’s Account shall be determined as of the Valuation Date coinciding with or
immediately following the date of such event.




	 	6.4.	 	Death.





                            If a Participant dies before receiving the full amount of his or her Account, the balance of
the Account shall be payable in a lump sum to his or her Beneficiary upon the Participant’s death;
provided that a Participant may elect on his or her Election of Deferral/Distribution described in
Section 4.1(a) to have distribution of his or her Account continue in accordance with an election
in effect at the time of his or her death, with the exception that such distribution shall occur
upon the later of Separation from Service or the specified payout date, or (b) to have his or her
Account paid in the form of monthly installments over a period of three, five or ten years, such
installments to be payable pursuant to the terms of Section 6.1(a) with respect to installment
payments as if the date of the Participant’s death was his or her date of Separation from Service.




	 	6.5.	 	Designation of Beneficiaries.





                            Each Participant shall, subject to applicable community property laws, have the right, at any
time, to designate one or more persons or an entity as Beneficiary (both primary as well as
secondary) to whom benefits under this Plan shall be paid in the event of a Participant’s death
prior to complete distribution of the Participant’s Account. Each Beneficiary designation shall be
in a written form (paper or electronic) prescribed by the Committee and will be effective only when
filed with the Committee during the Participant’s lifetime. Any designation of Beneficiary may be
changed by a Participant without the consent of such Beneficiary by the filing of a new designation
with the Committee. The filing of a new designation shall cancel all designations previously
filed.



10









 





                            If any Participant fails to designate a Beneficiary in the manner provided above, or if the
Beneficiary designated by a deceased Participant dies before the Participant or before complete
distribution of the Participant’s benefits, the Participant’s Beneficiary shall be the person in
the first of the following classes in which there is a survivor:



                            (a)     The Participant’s surviving spouse;



                            (b)     The Participant’s children in equal shares, except that if any of the children predeceases
the Participant but leaves issue surviving, then such issue shall take by right of representation
the share the parent would have taken if living;



                            (c)     The Participant’s estate.




	 	6.6.	 	Unclaimed Benefits.





                            In the case of a benefit payable on behalf of such Participant, if the Committee is unable to
locate the Participant or Beneficiary to whom such benefit is payable, such benefit may be
forfeited to the Company, upon the Committee’s determination. Notwithstanding the foregoing, if
subsequent to any such forfeiture the Participant or Beneficiary to whom such benefit is payable
makes a valid claim for such benefit, such forfeited benefit shall be paid by the Company.




	 	6.7.	 	Hardship Withdrawals.





                            A Participant may apply in writing to the Committee for, and the Committee may permit, a
hardship withdrawal from a Participant’s Account if the Committee, in its sole discretion,
determines that the Participant has incurred a severe financial hardship resulting from an
Unforeseeable Emergency. The amount that may be withdrawn shall be limited to the amount
reasonably necessary to relieve the hardship or financial emergency upon which the request is
based, plus the federal and state taxes due on the withdrawal, as determined by the Committee. In
determining such amount, the Committee shall consider amounts available to the Participant through
insurance or otherwise, through cancellation of deferral elections under this Plan, and/or
liquidations of the Participant’s assets. The Committee may require a Participant who requests a
hardship withdrawal to submit such evidence as the Committee, in its sole discretion, deems
necessary or appropriate to substantiate the circumstances upon which the request is based.




	 	6.8.	 	Actual Date of Payment.





                            An amount payable on a date specified in Section 6.1 or 6.4 shall be paid as soon as
administratively feasible after such date; but no later than the later of the end of the calendar
year in which the specified date occurs or the 15th day of the third calendar month following such
specified date. The payment date may be postponed further if calculation of the amount of the
payment is not administratively practicable due to events beyond the control of the Committee. The
amount due the Participant shall be the balance credited to the Account of the Participant (or
portion thereof with respect to installment payments) on the actual date of payment.



11









 






	7.	 	ADMINISTRATION






	 	7.1.	 	Committee.





                            The Plan shall be administered by the Committee. The Committee may delegate to others certain
aspects of the management and operational responsibilities of the Plan including the employment of
advisors and the delegation of ministerial duties to qualified individuals, provided that such
delegation is in writing.




	 	7.2.	 	General Powers of Administration.





                            The Committee shall have all powers necessary or appropriate to enable it to carry out its
administrative duties. Not in limitation, but in application of the foregoing, the Committee shall
have discretionary authority to construe and interpret the Plan and determine all questions that
may arise hereunder as to the status and rights of Employees, Participants, and Beneficiaries. The
Committee may exercise the powers hereby granted in its sole and absolute discretion. The
Committee may promulgate such regulations as it deems appropriate for the operation and
administration of the Plan.




	 	7.3.	 	Decisions.





                            If two or more persons are serving as the Committee, any decision of the Committee may be made
by a written document signed by a majority of such persons or by majority vote at a meeting. No
person serving as the Committee shall make any decision or take any action affecting exclusively
his or her own Accrued Benefits under the Plan, if any; all such matters shall be decided by a
majority of the remaining persons serving as the Committee or, if none, by the Board of Directors
of the Company or its duly authorized delegate. All determinations and decisions made by the
Committee shall be final, conclusive and binding on all persons including the Company, Participants
and their beneficiaries hereunder.




	8.	 	DETERMINATION OF BENEFITS, CLAIMS PROCEDURE AND ADMINISTRATION






	 	8.1.	 	Claims.





                            A person who believes that he or she is being denied a benefit to which he or she is entitled
under the Plan (“Claimant”), or his or her duly authorized representative, may file a written
request for such benefit with the Committee, at the Company’s then principal place of business,
setting forth his or her claim.




	 	8.2.	 	Claim Decision.





                            Upon receipt of a claim, the Committee shall advise the Claimant that a reply will be
forthcoming within a reasonable period of time, but ordinarily not later than 90 days, and shall,
in fact, deliver such reply within such period. However, the Committee may extend the reply period
for an additional 90 days for reasonable cause. If the reply period will be extended, the
Committee shall advise the Claimant in writing during the initial 90-day period indicating the



12









 





special circumstances requiring an extension and the date by which the Committee expects to
render the benefit determination.




                            If the claim is denied in whole or in part, the Committee will render a written opinion, using
language calculated to be understood by the Claimant, setting forth (i) the specific reason or
reasons for the denial, (ii) the specific references to pertinent Plan provisions on which the
denial is based, (iii) a description of any additional material or information necessary for the
Claimant to perfect the claim and an explanation as to why such material or such information is
necessary, (iv) appropriate information as to the steps to be taken if the Claimant wishes to
submit the claim for review, including a statement of the Claimant’s right to bring a civil action
under Section 502(a) of ERISA following an adverse benefit determination on review, and (v) the
time limits for requesting a review of the denial and for the actual review of the denial.




	 	8.3.	 	Request for Review.





                            Within 60 days after the receipt by the Claimant of the written opinion described above, the
Claimant may file a request with the Committee in writing, at the Company’s then principal place of
business, that the Committee review its prior determination. The Claimant or his or her duly
authorized representative may submit written comments, documents, records or other information
relating to the denied claim, which such information shall be considered in the review under this
subsection without regard to whether such information was submitted or considered in the initial
benefit determination.



                            The Claimant or his or her duly authorized representative shall be provided, upon request and
free of charge, reasonable access to, and copies of, all documents, records and other information
which (i) was relied upon by the Committee in making the initial claims decision, (ii) was
submitted, considered or generated in the course of the Committee making the initial claims
decision, without regard to whether such instrument was actually relied upon by the Committee in
making the decision or, (iii) demonstrates compliance by the Committee with administrative
processes and safeguards designed to ensure and to verify that benefit claims determinations are
made in accordance with governing Plan documents and that, where appropriate, the Plan provisions
have been applied consistently with respect to similarly situated Claimants. If the Claimant does
not request a review of the Committee’s determination within such 60-day period, he or she shall be
barred and estopped from challenging such determination.




	 	8.4.	 	Review of Decision.





                            Within a reasonable period of time, ordinarily not later than 60 days, after the Committee’s
receipt of a request for review, it will review its prior determination. If special circumstances
require that the 60-day time period be extended, the Committee will so notify the Claimant within
the initial 60-day period indicating the special circumstances requiring an extension and the date
by which the Committee expects to render its decision on review, which shall be as soon as possible
but not later than 120 days after receipt of the request for review.



                            The Committee has discretionary authority to determine a Claimant’s eligibility for benefits
and to interpret the terms of the Plan. Benefits under the Plan will be paid only if the Committee
decides in its discretion that the Claimant is entitled to such benefits. The decision of



13









 





the Committee shall be final and non-reviewable, unless found to be arbitrary and capricious
by a court of competent review. Such decision will be binding upon the Company and the Claimant.




                             If the Committee makes an adverse benefit determination on review, the Committee will render a
written opinion, using language calculated to be understood by the Claimant, setting forth (i) the
specific reason or reasons for the denial, (ii) the specific references to pertinent Plan
provisions on which the denial is based, (iii) a statement that the Claimant is entitled to
receive, upon request and free of charge, reasonable access to, and copies of, all documents,
records and other information which (A) was relied upon by the Committee in making its decision,
(B) was submitted, considered or generated in the course of the Committee making its decision,
without regard to whether such instrument was actually relied upon by the Committee in making its
decision, or (C) demonstrates compliance by the Committee with administrative processes and
safeguards designed to ensure and to verify that benefit claims determinations are made in
accordance with governing Plan documents, and that, where appropriate, the Plan provisions have
been applied consistently with respect to similarly situated claimants, and (iv) a statement of the
Claimant’s right to bring a civil action under Section 502(a) of ERISA following the adverse
benefit determination on such review.



                            To the extent permitted by law, a decision on review by the Committee shall be binding and
conclusive upon all persons whomsoever. Completion of the claims procedure described in this
Section shall be a mandatory precondition that must be complied with prior to commencement of a
legal or equitable action in connection with the Plan by a person claiming rights under the Plan,
or by another person claiming rights through such person,




	 	8.5.	 	Special Disability Time Limits and Procedures.





                            Notwithstanding anything herein, if a Claimant is denied a benefit because he or she is
determined not to be Disabled and he or she makes a claim pursuant to such denial, the provisions
of this Section 8.5 shall apply. Upon receipt of a claim, the reply period shall be forty-five
(45) days. If, prior to the end of such 45-day period, the claims reviewer determines that, due to
matters beyond the control of the Plan, a decision cannot be rendered, the period for making the
determination may be extended for up to thirty (30) days, and the claims reviewer shall notify the
Claimant, prior to the expiration of such 45-day period, of the circumstances requiring an
extension and the date by which the Plan expects to render a decision. If, prior to the end of the
first 30-day extension period, the claims reviewer determines that, due to matters beyond the
control of the Plan, a decision cannot be rendered within that extension period, the period for
making the determination may be extended for up to an additional thirty (30) days, and the claims
reviewer shall notify the Claimant, prior to the expiration of the first 30-day extension period,
of the circumstances requiring the extension and the date by which the Plan expects to render a
decision. In the case of any extension described in this paragraph, the notice of extension shall
specifically explain the standards on which entitlement to a benefit is based, the unresolved
issues that prevent a decision on the claim and the additional information needed to resolve those
issues, and the Claimant shall be afforded forty-five (45) days within which to provide the
specified information. If information is requested, the period for making the benefit
determination shall be tolled from the date on which notification of an extension is sent to the
Claimant until the date on which the Claimant responds to the request for information.



14









 





                            Within one hundred eighty (180) days after receiving the written notice of an adverse
disposition of the claim, the Claimant may request in writing, and shall be entitled to, a review
of the benefit determination. In deciding an appeal of any adverse benefit determination that is
based in whole or in part on a medical judgment, the Plan shall consult with a health care
professional who has appropriate training and experience in the field of medicine involved in the
medical judgment. Such health care professional shall be an individual who is neither an
individual who was consulted in connection with the adverse benefit determination that is the
subject of the appeal nor the subordinate of any such individual. The medical or vocational
experts whose advice was obtained on behalf of the Plan in connection with the Claimant’s adverse
benefit determination will be identified to the Claimant. If the Claimant does not request a
review within one hundred eighty (180) days after receiving written notice of the original’s
disposition of the claim, the Claimant shall be deemed to have accepted the original written
disposition.



                            A decision on review shall be rendered in writing by the Plan within a reasonable period of
time, but ordinarily not later than forty-five (45) days after receipt of the Claimant’s request
for review by the Plan, unless the Plan determines that special circumstances require an extension
of time for processing the claim. If the Plan determines that an extension of time for processing
is required, written notice of the extension shall be furnished to the Claimant prior to the
termination of the initial forty-five (45) period. In no event shall such extension exceed a
period of forty-five (45) days from the end of the initial period. The extension notice shall
indicate the special circumstances requiring an extension of time and the date by which the Plan
expects to render the determination on review. In the event the extension is due to a Claimant’s
failure to submit information necessary to decide the claim, the Claimant shall be afforded
forty-five (45) days within which to provide the specified information, and the period for making
the benefit determination on review shall be tolled from the date on which notification of the
extension is sent to the Claimant until the date on which the Claimant responds to the request for
additional information.



                            In the case of an adverse benefit determination on review, in addition to the information
described above, the notice shall state: “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.”




	 	8.6.	 	Discretionary Authority.





                            The Committee shall have discretionary authority to determine a Claimant’s entitlement to
benefits upon his claim or his request for review of a denied claim, respectively.




	9.	 	MISCELLANEOUS






	 	9.1.	 	No Contract of Employment.





                            The adoption and maintenance of the Plan shall not be or be deemed to be a contract between
the Company and any person or to be consideration for the employment of any person. Nothing herein
contained shall give or be deemed to give any person the right to be



15









 





retained in the employ of the Company or to restrict the right of the Company to discharge any
person at any time; nor shall the Plan give or be deemed to give the Company the right to require
any person to remain in the employ of the Company or to restrict any person’s right to terminate
his employment at any time.





	 	9.2.	 	Non Assignability of Benefits.





                            No Participant, Beneficiary or distributee of benefits under the Plan shall have, subject to
Section 6.1(f), any power or right to transfer, assign, anticipate, hypothecate or otherwise
encumber any part or all of the amounts payable hereunder, which are expressly declared to be
unassignable and non-transferable. Any such attempted assignment or transfer shall be void.
Subject to Section 6.1(f), no amount payable hereunder shall, prior to actual payment thereof, be
subject to seizure by any creditor of any such Participant, Beneficiary or other distributee for
the payment of any debt, judgment, or other obligation, by a proceeding at law or in equity, nor
transferable by operation of law in the event of the bankruptcy, insolvency or death of such
Participant, Beneficiary or other distributee hereunder.




	 	9.3.	 	Amendment and Termination.





                            The Committee may from time to time, in its discretion, amend, in whole or in part, any or all
of the provisions of the Plan; provided, that no amendment may be made which would materially
increase the benefits accruing to Participants under the Plan, without the prior approval of the
Board. However, no amendment may impair the rights of a Participant with respect to amounts
already allocated to his or her Account. The Board may terminate the Plan at any time, subject to
any restrictions or requirements applicable under Code Section 409A and the regulations promulgated
thereunder. In the event that the Plan is terminated, the balance in a Participant’s Account shall
be paid to such Participant or his or her Beneficiary in a lump sum or in equal monthly
installments as the Committee determines.




	 	9.4.	 	Unsecured General Creditor Status Of Employee.





                            The payments to Participant, his Beneficiary or any other distributee hereunder shall be made
from assets which shall continue, for all purposes, to be a part of the general, unrestricted
assets of the Company; no person shall have nor acquire any interest in any such assets by virtue
of the provisions of this Agreement. The Company’s obligation hereunder shall be an unfunded and
unsecured promise to pay money in the future. To the extent that the Participant, a Beneficiary,
or other distributee acquires a right to receive payments from the Company under the provisions
hereof, such right shall be no greater than the right of any unsecured general creditor of the
Company; no such person shall have nor require any legal or equitable right, interest or claim in
or to any property or assets of the Company. In the event that, in its discretion, the Company
purchases an insurance policy or policies insuring the life of the Participant (or any other
property) to allow the Company to recover the cost of providing the benefits, in whole, or in part,
hereunder, neither the Participant, his Beneficiary or other distributee shall have nor acquire any
rights whatsoever therein or in the proceeds therefrom. The Company shall be the sole owner and
beneficiary of any such policy or policies and, as such, shall possess and may exercise all
incidents of ownership therein. No such policy, policies or



16









 





other property shall be held in any trust for a Participant, Beneficiary or other distributee
or held as collateral security for any obligation of the Company hereunder.





	 	9.5.	 	Severability.





                            If any provision of this Plan shall be held illegal or invalid for any reason, said illegality
or invalidity shall not affect the remaining provisions hereof; instead, each provision shall be
fully severable and the Plan shall be construed and enforced as if said illegal or invalid
provision had never been included herein.




	 	9.6.	 	Governing Laws.





                            The terms and provisions of this Plan shall be construed according to the principles, and in
the priority, as follows: first, in accordance with the meaning under, and which will bring the
Plan into conformity with, section 409A of the Code; and secondly, in accordance with the laws of
the State of Missouri except to the extent preempted by federal law. The Plan shall be deemed to
contain the provisions necessary to comply with such laws.




	 	9.7.	 	Binding Effect.





                            This Plan shall be binding on each Participant and his heirs and legal representatives and on
the Company and its successors and assigns.




	 	9.8.	 	Tax Consequences.





                            The Participant shall be responsible for all tax obligations (including, without limitation,
any income, employment, excise or other tax obligations) incurred by Participant in connection with
his or her participation in the Plan. While the Company has established, will maintain the Plan,
and has done and will do so in a manner intended to satisfy the requirements of Section 409A of the
Code, notwithstanding any provision herein to the contrary, the Company makes no representation,
warranty, commitment, or guaranty concerning the income, employment, or other tax consequences of
participation in the Plan under federal, state, or local law. The Company shall have the right to
deduct from any distribution or Participant’s other taxable compensation, such amounts as the
Company, in its discretion, deems necessary to satisfy the Company’s obligation to withhold for
federal, state and local taxes.




	 	9.9.	 	Obligor.





                            The Company shall be the obligor with respect to Plan benefits that are owed to a Participant
which arise by virtue of the contributions made by the Company or the Participant’s employment by
the Company.



17









 




          IN WITNESS WHEREOF, the Committee has caused this Plan to be executed on the 3rd day of
November, 2010.



	 	 	 	 	 
	 	Furniture Brands International, Inc.



 	 
	 	By:	     /s/ Beth Sweetman
 	 
	 	
Title: Senior Vice President- Human Resources 	 
	 	 	 	 
	 




18