Exhibit 10.1


 


FORCE PROTECTION, INC.


 


DEFERRED COMPENSATION PLAN


 


Effective Date


 


October 30, 2009


 

















 


	
  ARTICLE I.

  	
   

  	
  ESTABLISHMENT AND PURPOSE

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
   

  	
  DEFINITIONS

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
   

  	
  ELIGIBILITY AND PARTICIPATION

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
   

  	
  DEFERRALS

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
   

  	
  COMPANY CONTRIBUTIONS

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
   

  	
  BENEFITS

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
   

  	
  MODIFICATIONS TO PAYMENT SCHEDULES

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
   

  	
  VALUATION OF ACCOUNT BALANCES; INVESTMENTS

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
   

  	
  ADMINISTRATION

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
   

  	
  AMENDMENT AND TERMINATION

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI.

  	
   

  	
  INFORMAL FUNDING

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII.

  	
   

  	
  CLAIMS

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII.

  	
   

  	
  GENERAL PROVISIONS

  	
   

  	
  21

  



 


i

















 


ARTICLE I

Establishment and Purpose


 


Force Protection, Inc. (the “Company”) hereby establishes the
Force Protection, Inc. Deferred Compensation Plan (the “Plan”), effective October 30,
2009.  The purpose of the Plan is to
attract and retain key employees by providing Participants with an opportunity
to defer receipt of a portion of their salary, bonus, and other specified
compensation.  The Plan is not intended
to meet the qualification requirements of Code Section 401(a), but is
intended to comply with the requirements of Code Section 409A, and shall
be operated and interpreted consistent with that intent.


 


The Plan constitutes an unsecured promise by a Participating Employer
to pay benefits in the future. 
Participants in the Plan shall have the status of general unsecured
creditors of the Company or the Adopting Employer, as applicable.  Each Participating Employer shall be solely
responsible for payment of the benefits of its employees and their
beneficiaries.  The Plan is unfunded for
federal tax purposes and is intended to be an unfunded arrangement for eligible
employees who are part of a select group of management or highly compensated
employees of the Employer within the meaning of Sections 201(2), 301(a)(3) and
401(a)(1) of ERISA and therefore is intended to be exempt from Parts 2, 3 and
4 of Subtitle B of Title I of ERISA to the maximum extent permissible under the
provisions thereof.  Any amounts set
aside to defray the liabilities assumed by the Company or an Adopting Employer
will remain the general assets of the Company or the Adopting Employer and
shall remain subject to the claims of the Company’s or the Adopting Employer’s
creditors until such amounts are distributed to the Participants.


 


ARTICLE II

Definitions


 


2.1.                              Account.  Account means a bookkeeping account
maintained by the Committee to record the payment obligation of a Participating
Employer to a Participant as determined under the terms of the Plan.  The Committee may maintain an Account to
record the total obligation to a Participant and component Accounts to reflect
amounts payable at different times and in different forms.  Reference to an Account means any such
Account established by the Committee, as the context requires.  Accounts are intended to constitute unfunded
obligations within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA.


 


2.2.                              Account
Balance.  Account Balance means, with
respect to any Account, the total payment obligation owed to a Participant from
such Account as of the most recent Valuation Date.


 


2.3.                              Adopting
Employer.  Adopting Employer means an
Affiliate who, with the consent of the Company, has adopted the Plan for the
benefit of its eligible employees.


 


2.4.                              Affiliate.  Affiliate means a corporation, trade or
business that, together with the Company, is treated as a single employer under
Code Section 414(b) or (c).


 


2.5.                              Beneficiary.  Beneficiary means a natural person, estate,
or trust designated by a Participant to receive payments to which a Beneficiary
is entitled in accordance with


 

















 


provisions
of the Plan.  The Participant’s spouse,
if living, otherwise the Participant’s estate, shall be the Beneficiary if: (i) the
Participant has failed to properly designate a Beneficiary, or (ii) all
designated Beneficiaries have predeceased the Participant.


 


A former spouse shall have no interest under the Plan, as Beneficiary
or otherwise, unless the Participant designates such person as a Beneficiary
after dissolution of the marriage, except to the extent provided under the
terms of a domestic relations order as described in Code Section 414(p)(1)(B).


 


2.6.                              Business
Day.  Business Day means each day on
which the New York Stock Exchange is open for business.


 


2.7.                              Change
in Control.  Change in Control means,
with respect to a Participating Employer that is organized as a corporation,
any of the following events: (i) a change in the ownership of the
Participating Employer, (ii) a change in the effective control of the
Participating Employer, or (iii) a change in the ownership of a
substantial portion of the assets of the Participating Employer.


 


For purposes of this Section, a change in the ownership of the
Participating Employer occurs on the date on which any one person, or more than
one person acting as a group, acquires ownership of stock of the Participating
Employer that, together with stock held by such person or group constitutes
more than 50% of the total fair market value or total voting power of the stock
of the Participating Employer.  A change
in the effective control of the Participating Employer occurs on the date on
which either: (i) a person, or more than one person acting as a group,
acquires ownership of stock of the Participating Employer possessing 35% or
more of the total voting power of the stock of the Participating Employer,
taking into account all such stock acquired during the 12-month period ending
on the date of the most recent acquisition, or (ii) a majority of the
members of the Participating Employer’s Board of Directors is replaced during
any 12-month period by directors whose appointment or election is not endorsed
by a majority of the members of such Board of Directors prior to the date of
the appointment or election, but only if no other corporation is a majority
shareholder of the Participating Employer. 
A change in the ownership of a substantial portion of assets occurs on
the date on which any one person, or more than one person acting as a group,
other than a person or group of persons that is related to the Participating
Employer, acquires assets from the Participating Employer that have a total
gross fair market value equal to or more than 40% of the total gross fair
market value of all, of the assets of the Participating Employer immediately
prior to such acquisition or acquisitions, taking into account all such assets
acquired during the 12-month period ending on the date of the most recent
acquisition.


 


An event constitutes a Change in Control with respect to a Participant
only if the Participant performs services for the Participating Employer that
has experienced the Change in Control, or the Participant’s relationship to the
affected Participating Employer otherwise satisfies the requirements of
Treasury Regulation Section 1.409A-3(i)(5)(ii).


 


Notwithstanding anything to the contrary herein, with respect to a
Participating Employer that is a partnership, Change in Control means only a
change in the ownership of the 


 


3

















 


partnership or a change in the ownership of a substantial portion of
the assets of the partnership, and the provisions set forth above respecting
such changes relative to a corporation shall be applied by analogy.


 


The determination as to the occurrence of a Change in Control shall be
based on objective facts and in accordance with the requirements of Code Section 409A.


 


2.8.                              Claimant.  Claimant means a Participant or Beneficiary
filing a claim under Article XII of this Plan.


 


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


 


2.10.                        Code Section 409A.  Code Section 409A means section 409A of
the Code, and regulations and other guidance issued by the Treasury Department
and Internal Revenue Service thereunder.


 


2.11.                        Committee.  Committee means the committee appointed by
the Board of Directors of the Company (or the appropriate committee of such
board) to administer the Plan.  If no
designation is made, the Chief Executive Officer of the Company or his delegate
shall have and exercise the powers of the Committee.


 


2.12.                        Company.  Company means Force Protection, Inc.


 


2.13.                        Company Contribution.  Company Contribution means a credit by a
Participating Employer to a Participant’s Account(s) in accordance with
the provisions of Article V of the Plan. 
Company Contributions are credited at the sole discretion of the
Participating Employer and the fact that a Company Contribution is credited in
one year shall not obligate the Participating Employer to continue to make such
Company Contribution in subsequent years. 
Unless the context clearly indicates otherwise, a reference to Company
Contribution shall include Earnings attributable to such contribution.


 


2.14.                        Compensation.  Compensation means a Participant’s base
salary, bonus and such other cash compensation (if any) approved by the
Committee as Compensation that may be deferred under this Plan.  Compensation shall not include any
compensation that has been previously deferred under this Plan or any other
arrangement subject to Code Section 409A.


 


2.15.                        Compensation Deferral
Agreement.  Compensation Deferral
Agreement means an agreement between a Participant and a Participating Employer
that specifies: (i) the amount of each component of Compensation that the
Participant has elected to defer to the Plan in accordance with the provisions
of Article IV, and (ii) the Payment Schedule applicable to one or
more Accounts.  The Committee may permit
different deferral amounts for each component of Compensation and may establish
a minimum or maximum deferral amount for each such component.  Unless otherwise specified by the Committee
in the Compensation Deferral Agreement, Participants may defer up to 85% of
their base salary and up to 85% of other types of Compensation for a Plan
Year.  A Compensation Deferral Agreement
may also specify the investment allocation described 


 


4

















 


in Section 8.4.  For the 2009 initial plan year, Participant’s
will be limited to deferring 85% of November and December salary and
16% of any 2009 annual bonus paid in 2010.


 


2.16.                        Death Benefit.  Death Benefit means the benefit payable under
the Plan to a Participant’s Beneficiary(ies) upon the Participant’s death as
provided in Section 6.1 of the Plan.


 


2.17.                        Deferral.  Deferral means a credit to a Participant’s
Account(s) that records that portion of the Participant’s Compensation
that the Participant has elected to defer to the Plan in accordance with the
provisions of Article IV.  Unless
the context of the Plan clearly indicates otherwise, a reference to Deferrals
includes Earnings attributable to such Deferrals.


 


Deferrals shall be calculated with respect to the gross cash
Compensation payable to the Participant prior to any deductions or
withholdings, but shall be reduced by the Committee as necessary so that it
does not exceed 100% of the cash Compensation of the Participant remaining
after deduction of all required income and employment taxes, 401(k) and
other employee benefit deductions, and other deductions required by law.  Changes to payroll withholdings that affect
the amount of Compensation being deferred to the Plan shall be allowed only to
the extent permissible under Code Section 409A.


 


2.18.                        Disability.  Disability means, except as otherwise
provided, a Participant is (1) unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
that is expected to result in death or that is expected to last for a
continuous period of not less than 12 months or (2) by reason of any
medically determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a period of not less
than three months under an accident and health plan provided by a Participating
Employer.  The Committee shall determine
if a Participant has a Disability in accordance with Code Section 409A.


 


2.19.                        Disability Benefit.  Disability Benefit means the benefit payable
under the Plan to Participant as provided in Section 6.1.  No Disability Benefit will be made to the
extent that the Participant’s Disability does not satisfy the requirements of
Treasury Regulation Section 1.409A-3(i)(4)(i).


 


2.20.                        Earnings.  Earnings means a positive or negative
adjustment to the value of an Account, based upon the allocation of the Account
by the Participant among deemed investment options in accordance with Article VIII.


 


2.21.                        Effective Date.  Effective Date means October 30, 2009.


 


2.22.                        Eligible Employee.  Eligible Employee means a member of a “select
group of management or highly compensated employees” of a Participating
Employer within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA, as determined by the Committee from time to time in its sole
discretion.  In the initial Plan Year,
all executives with the title of “vice president” and those executives with
titles considered of greater rank within the Company than “vice president”
shall be eligible to participate in the Plan. 



 


5

















 


Eligibility
begins upon written notification of eligibility issued by the Participating
Employer.


 


2.23.                        Employee.  Employee means a common-law employee of an
Employer.


 


2.24.                        Employer.  Employer means, with respect to Employees it
employs, the Company and each Affiliate.


 


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


 


2.26.                        Participant.  Participant means an Eligible Employee who
has received notification of his or her eligibility to defer Compensation under
the Plan under Section 3.1 and who has elected to participate in the Plan,
any other person with an Account Balance greater than zero, regardless of
whether such individual continues to be an Eligible Employee.  A Participant’s continued participation in
the Plan shall be governed by Section 3.2 of the Plan.


 


2.27.                        Participating Employer.  Participating Employer means the Company and
each Adopting Employer.


 


2.28.                        Payment Schedule.  Payment Schedule means the date as of which
payment of an Account under the Plan will commence and the form in which payment
of such Account will be made.


 


2.29.                        Plan.  Generally, the term Plan means the “Force
Protection, Inc. Deferred Compensation Plan” as documented herein and as
may be amended from time to time hereafter. 
However, to the extent permitted or required under Code Section 409A,
the term Plan may in the appropriate context also mean a portion of the Plan
that is treated as a single plan under Treasury Regulation Section 1.409A-1(c),
or the Plan or portion of the Plan and any other nonqualified deferred compensation
plan or portion thereof that is treated as a single plan under such section.


 


2.30.                        Plan Year.  The initial Plan Year is November 1- December 31,
2009.  Thereafter, Plan Year means January 1
through December 31.


 


2.31.                        Retirement.  Retirement means a Participant’s Separation
from Service after attainment of age 50.


 


2.32.                        Retirement Benefit.  Retirement Benefit means the benefit payable
to a Participant under the Plan following the Retirement of the Participant as
provided in Section 6.1.


 


2.33.                        Retirement/Termination
Account.  Retirement/Termination
Account means an Account established by the Committee to record the amounts
payable to a Participant upon Separation from Service.  Unless the Participant has established a
Specified Date Account, all Deferrals and Company Contributions shall be
allocated to a Retirement/Termination Account on behalf of the Participant.


 


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2.34.                        Separation from Service.  Separation from Service means an Employee’s
termination of employment with the Employer. 
Whether a Separation from Service has occurred shall be determined by
the Committee in accordance with Code Section 409A.


 


Except in the case of an Employee on a bona fide leave of absence as
provided below, an Employee is deemed to have incurred a Separation from
Service if the Employer and the Employee reasonably anticipate that the level
of services to be performed by the Employee after a date certain would be
reduced to 20% or less of the average services rendered by the Employee during
the immediately preceding 36-month period (or the total period of employment,
if less than 36 months) disregarding periods during which the Employee was on a
bona fide leave of absence.


 


An Employee who is absent from work due to military leave, sick leave,
or other bona fide leave of absence shall incur a Separation from Service on
the first date immediately following the later of: (i) the six month
anniversary of the commencement of the leave, or (ii) the expiration of
the Employee’s right, if any, to reemployment under statute or contract.  Notwithstanding the preceding, however, an
Employee who is absent from work due to a physical or mental impairment that is
expected to result in death or last for a continuous period of at least six
months and that prevents the Employee from performing the duties of his or her
position of employment or a similar position shall incur a Separation from
Service on the first date immediately following the 130th business day
anniversary of the commencement of the leave.


 


For purposes of determining whether a Separation from Service has
occurred, the Employer means the Employer as defined in Section 2.24 of
the Plan, except that in applying Code Sections 1563(a)(1), (2) and (3) for
purposes of determining whether another organization is an Affiliate of the
Company under Code Section 414(b), and in applying Treasury Regulation Section 1.414(c)-2
for purposes of determining whether another organization is an Affiliate of the
Company under Code Section 414(c), “at least 50 percent” shall be used
instead of “at least 80 percent” each place it appears in those sections.


 


The Committee specifically reserves the right to determine whether a
sale or other disposition of substantial assets to an unrelated party constitutes
a Separation from Service with respect to a Participant providing services to
the seller immediately prior to the transaction and providing services to the
buyer after the transaction.  Such
determination shall be made in accordance with the requirements of Code Section 409A.


 


2.35.                        Specified Date Account.  Specified Date Account means an Account
established by the Committee to record the amounts payable at a future date as
specified in the Participant’s Compensation Deferral Agreement.  The Committee may limit the number of
Specified Date Accounts that a Participant may maintain concurrently.  A Specified Date Account may be identified in
enrollment materials as an “In-Service Account” or such other name as
established by the Committee without affecting the meaning thereof.


 


2.36.                        Specified Date Benefit.  Specified Date Benefit means the benefit
payable to a Participant under the Plan in accordance with Section 6.1(c).


 


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2.37.                        Substantial Risk of
Forfeiture.  Substantial Risk of
Forfeiture means the description specified in Treasury Regulation Section 1.409A-1(d).


 


2.38.                        Termination Benefit.  Termination Benefit means the benefit payable
to a Participant under Section 6.1 following the Participant’s Separation
from Service prior to Retirement.


 


2.39.                        Unforeseeable Emergency.  Unforeseeable Emergency means a severe
financial hardship to the Participant resulting from an illness or accident of
the Participant, the Participant’s spouse, the Participant’s dependent (as
defined in Code Section 152, without regard to section 152(b)(1), (b)(2),
and (d)(1)(B)), or a Beneficiary; loss of the Participant’s property due to
casualty (including the need to rebuild a home following damage to a home not
otherwise covered by insurance, for example, as a result of a natural
disaster); or other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant.  The types of events which may qualify as an
Unforeseeable Emergency may be limited by the Committee.


 


2.40.                        Valuation Date.  Valuation Date means each Business Day.


 


ARTICLE III

Eligibility and Participation


 


3.1.                              Eligibility
and Participation.  An Eligible
Employee becomes a Participant upon the earlier to occur of: (i) a credit
of Company Contributions under Article V, or (ii) notification of
eligibility to participate and a valid Deferral election.


 


3.2.                              Duration.  A Participant shall be eligible to defer
Compensation and receive allocations of Company Contributions, subject to the
terms of the Plan, for as long as such Participant remains an Eligible
Employee.  A Participant who is no longer
an Eligible Employee but has not Separated from Service may not defer
Compensation under the Plan beyond the Plan Year in which he or she became
ineligible but may otherwise exercise all of the rights of a Participant under
the Plan with respect to his or her Account(s). 
On and after a Separation from Service, a Participant shall remain a Participant
as long as his or her Account Balance is greater than zero (0), and during such
time may continue to make allocation elections as provided in Section 8.4.  An individual shall cease being a Participant
in the Plan when all benefits under the Plan to which he or she is entitled
have been paid.  The Committee may remove
any Participant from active participation in the Plan in its sole discretion,
it being understood that such removal will not affect such Participant’s
Deferral elections with respect to any performance period that commenced prior
to such removal or such Participant’s rights with respect to amounts previously
deferred hereunder.


 


ARTICLE IV

Deferrals


 


4.1.                              Deferral
Elections, Generally.


 


(a)                                  A
Participant may elect to defer Compensation by submitting a Compensation
Deferral Agreement during the enrollment periods established by 


 


8

















 


the
Committee and in the manner specified by the Committee, but in any event, in
accordance with Section 4.2.  A
Compensation Deferral Agreement that is not timely filed with respect to a
service period or component of Compensation shall be considered void and shall
have no effect with respect to such service period or Compensation.  The Committee may modify any Compensation
Deferral Agreement prior to the date the election becomes irrevocable under the
rules of Section 4.2.


 


(b)                                 The
Participant shall specify on his or her Compensation Deferral Agreement the
amount of Deferrals and whether to allocate Deferrals to a
Retirement/Termination Account or to a Specified Date Account.  If no designation is made or if an allocation
is made to a Specified Date Account whose distribution date occurs during the
same Plan Year as Deferrals which are allocated to the Account, such Deferrals
shall be allocated to the Retirement/Termination Account.  A Participant may also specify in his or her
Compensation Deferral Agreement the Payment Schedule applicable to his or her
Plan Accounts.  If the Payment Schedule
is not specified in a Compensation Deferral Agreement, the Payment Schedule
shall be the Payment Schedule specified in Section 6.2.


 


4.2.                              Timing
Requirements for Compensation Deferral Agreements.


 


(a)                                  First Year of Eligibility. 
In the case of the first year in which an Eligible Employee becomes
eligible to participate in the Plan, he or she has up to 30 days following his
or her initial eligibility to submit a Compensation Deferral Agreement with
respect to Compensation to be earned during such year.  The Compensation Deferral Agreement described
in this paragraph becomes irrevocable upon the end of such 30-day period.  The determination of whether an Eligible
Employee may file a Compensation Deferral Agreement under this paragraph shall
be determined in accordance with the rules of Code Section 409A,
including the provisions of Treas. 
Reg.  Section 1.409A-2(a)(7).


 


A Compensation Deferral Agreement filed under this paragraph applies to
Compensation earned on and after the date the Compensation Deferral Agreement
becomes irrevocable.


 


(b)                                 Prior Year Election. 
Except as otherwise provided in this Section 4.2, Participants may
defer Compensation by filing a Compensation Deferral Agreement no later than December 31
of the year prior to the year in which the Compensation to be deferred is
earned.  A Compensation Deferral
Agreement described in this paragraph shall become irrevocable with respect to
such Compensation as of January 1 of the year in which such Compensation
is earned.


 


(c)                                  Short-Term Deferrals. 
Compensation that meets the definition of a “short-term deferral”
described in Treas.  Reg.  Section 1.409A-1(b)(4) may be
deferred in accordance with the rules of Article VII, applied as if
the date the Substantial Risk of Forfeiture lapses is the date payments were
originally scheduled to 


 


9

















 


commence,
provided, however, that the provisions of Section 7.3 shall not apply to
payments attributable to a Change in Control.


 


(d)                                 Company Awards. 
Participating Employers may unilaterally provide for deferrals of
Company awards prior to the date of such awards.  Deferrals of Company awards (such as sign-on,
retention, or severance pay) may be negotiated with a Participant prior to the
date the Participant has a legally binding right to such Compensation.


 


(e)                                  “Evergreen “ Deferral Elections.  The Committee, in its discretion, may provide
in the Compensation Deferral Agreement that such Compensation Deferral
Agreement will continue in effect for each subsequent year or performance
period.  Such “evergreen” Compensation
Deferral Agreements will become effective with respect to an item of
Compensation on the date such election becomes irrevocable under this Section 4.2.  An evergreen Compensation Deferral Agreement
may be terminated or modified prospectively with respect to Compensation for
which such election remains revocable under this Section 4.2.


 


A Participant whose Compensation Deferral Agreement is cancelled in
accordance with Section 4.6 will be required to file a new Compensation Deferral
Agreement under this Article IV in order to recommence Deferrals under the
Plan.


 


4.3.                              Allocation
of Deferrals.  A Compensation
Deferral Agreement may allocate Deferrals to one or more Specified Date
Accounts and/or to the Retirement/Termination Account.  The Committee may, in its discretion,
establish a minimum deferral period for the establishment of a Specified Date
Account (for example, the third Plan Year following the year Compensation is
first allocated to such accounts).


 


4.4.                              Deductions
from Pay.  The Committee has the
authority to determine the payroll practices under which any component of
Compensation subject to a Compensation Deferral Agreement will be deducted from
a Participant’s Compensation.


 


4.5.                              Vesting.  Participant Deferrals shall be 100% vested at
all times.


 


4.6.                              Cancellation
of Deferrals.  The Committee may
cancel a Participant’s Deferrals: (i) for the balance of the Plan Year in
which an Unforeseeable Emergency occurs, (ii) if the Participant receives
a hardship distribution under the Employer’s qualified 401(k) plan,
through the end of the Plan Year in which the six month anniversary of the
hardship distribution falls, and (iii) during periods in which the
Participant is unable to perform the duties of his or her position or any
substantially similar position due to a mental or physical impairment that can
be expected to result in death or last for a continuous period of at least six
months, provided cancellation occurs by the later of the end of the taxable
year of the Participant or the 15th day of the third month following the date
the Participant incurs the disability (as defined in this paragraph).


 


10

















 


ARTICLE V

Company Contributions


 


5.1.                              Restoration
Contributions.


 


(a)                                  In
the initial Plan Year, the Participating Employer shall make a contribution to
each “restoration-eligible Participant’s Retirement/Termination Account equal
to three percent (3%) of “excess Compensation”. 
For purposes of this paragraph, “restoration-eligible Participant” shall
mean any Participant whose Compensation for the calendar year commencing January 1,
2009 exceeds the Code Section 401(a)(17) limit ($245,000 in 2009), and “excess
Compensation” shall mean Compensation in excess of the Code Section 401(a)(17)
limit for the 2009 calendar year.


 


(b)                                 In
Plan Years beginning in 2010 and thereafter, the Participating Employer may, in
its sole and absolute discretion, make a restoration contribution to the
Retirement/Termination Account of “restoration-eligible Participants” in an
amount equal to four percent (4%), or such other percentage as determined by
the Participating Employer, of “excess Compensation” For purposes of this
paragraph, “restoration-eligible Participant” shall mean any Participant whose
Compensation for the calendar year commencing Plan Years beginning in 2010 and
thereafter exceeds the Code Section 401(a)(17) limit, and “excess
Compensation” shall mean Compensation in excess of the Code Section 401(a)(17)
limit for the 2010 calendar year and thereafter.


 


5.2.                              Discretionary
Company Contributions.  The
Participating Employer may, from time to time in its sole and absolute
discretion, credit Company Contributions to any Participant in any amount
determined by the Participating Employer. 
Such contributions will be credited to a Participant’s
Retirement/Termination Account.


 


5.3.                              Vesting.  Company Contributions described in Sections
5.1 and 5.2, above (if any) and Earnings thereon shall vest in accordance with
the vesting schedule(s) established by the Committee at the time that the
Company Contribution is made.  All
Company Contributions shall become 100% vested upon the occurrence of the
earliest of: (i) the death of the Participant while actively employed; (ii) the
Disability of the Participant; (iii) Retirement; or (iv) Change in
Control.  The Participating Employer may,
at any time, in its sole discretion, increase a Participant’s vested interest
in a Company Contribution.  The portion
of a Participant’s Accounts that remains unvested upon his or her Separation
from Service after the application of the terms of this Section 5.2 shall
be forfeited.


 


ARTICLE VI

Benefits


 


6.1.                              Benefits,
Generally.  A Participant shall be
entitled to the following benefits under the Plan:


 


(a)                                  Retirement Benefit.  Upon
the Participant’s Separation from Service due to Retirement, he or she shall be
entitled to a Retirement Benefit.  The
Retirement 


 


11

















 


Benefit
shall be equal to the vested portion of the Retirement/Termination Account and (i) if
the Retirement/Termination Account is payable in a lump sum, the unpaid
balances of any Specified Date Accounts, or (ii) if the
Retirement/Termination Account is payable in installments, the vested portion
of any Specified Date Accounts with respect to which payments have not yet
commenced.  The Retirement Benefit shall
be based on the value of that Account(s) as of the end of the month in
which Separation from Service occurs or such later date as the Committee, in
its sole discretion, shall determine. 
Payment of the Retirement Benefit will be made or begin on the first
Business Day in the seventh month following the month in which such Separation
from Service occurs.


 


(b)                                 Termination Benefit. 
Upon the Participant’s Separation from Service for reasons other than
death, Disability or Retirement, he or she shall be entitled to a Termination
Benefit.  The Termination Benefit shall
be equal to the vested portion of the Retirement/Termination Account and the
unpaid balances of any Specified Date Accounts. 
The Termination Benefit shall be based on the value of that Account(s) as
of the end of the month in which Separation from Service occurs or such later
date as the Committee, in its sole discretion, shall determine.  Payment of the Termination Benefit will be
made on the first Business Day in the seventh month following the month in
which such Separation from Service occurs.


 


(c)                                  Specified Date Benefit. 
If the Participant has established one or more Specified Date Accounts,
he or she shall be entitled to a Specified Date Benefit with respect to each
such Specified Date Account.  The
Specified Date Benefit shall be equal to the vested portion of the Specified
Date Account, based on the value of that Account as of the end of the month designated
by the Participant at the time the Account was established.  Payment of the Specified Date Benefit will be
made or begin in the month following the designated month.


 


(d)                                 Death Benefit.  In the
event of the Participant’s death, his or her designated Beneficiary(ies) shall
be entitled to a Death Benefit.  The
Death Benefit shall be equal to the vested portion of the
Retirement/Termination Account and the unpaid balances of any Specified Date
Accounts.  The Death Benefit shall be
based on the value of the Accounts as of the end of the month in which death
occurred, with payment made in the following month.


 


(e)                                  Disability Benefit. 
In the event of the Participant’s Disability, he or she shall be
entitled to a Disability Benefit.  The
Disability Benefit shall be equal to the vested portion of the
Retirement/Termination Account and the unpaid balances of any Specified Date
Accounts.  The Disability Benefit shall
be based on the value of the Accounts as of the end of the month in which
Disability occurred, with payment made in the following month.


 


(f)                                    Unforeseeable Emergency Payments.  A Participant who experiences an
Unforeseeable Emergency may submit a written request to the Committee to 


 


12

















 


receive
payment of all or any portion of his or her vested Accounts.  Whether a Participant or Beneficiary is faced
with an Unforeseeable Emergency permitting an emergency payment shall be
determined by the Committee based on the relevant facts and circumstances of each
case, but, in any case, a distribution on account of Unforeseeable Emergency
may not be made to the extent that such emergency is or may be reimbursed
through insurance or otherwise, by liquidation of the Participant’s assets, to
the extent the liquidation of such assets would not cause severe financial
hardship, or by cessation of Deferrals under this Plan.  If an emergency payment is approved by the
Committee, the amount of the payment shall not exceed the amount reasonably
necessary to satisfy the need, taking into account the additional compensation
that is available to the Participant as the result of cancellation of deferrals
to the Plan, including amounts necessary to pay any taxes or penalties that the
Participant reasonably anticipates will result from the payment.  The amount of the emergency payment shall be
subtracted first from the vested portion of the Participant’s
Retirement/Termination Account until depleted and then from the vested
Specified Date Accounts, beginning with the Specified Date Account with the
latest payment commencement date. 
Emergency payments shall be paid in a single lump sum within the 90-day
period following the date the payment is approved by the Committee.


 


6.2.                              Form of
Payment.


 


(a)                                  Retirement Benefit.  A
Participant who is entitled to receive a Retirement Benefit shall receive
payment of such benefit in a single lump sum, unless the Participant elects on
his or her initial Compensation Deferral Agreement to have such benefit paid in
one of the following alternative forms of payment (i) substantially equal
annual installments over a period of two (2) to ten (10) years, as
elected by the Participant, or (ii) a lump sum payment of a percentage of
the balance in the Retirement/Termination Account, with the balance paid in
substantially equal annual installments over a period of two (2) to ten (10) years,
as elected by the Participant.


 


(b)                                 Termination Benefit. 
A Participant who is entitled to receive a Termination Benefit shall
receive payment of such benefit in a single lump sum elected by the
Participant.


 


(c)                                  Specified Date Benefit. 
The Specified Date Benefit shall be paid in a single lump sum, unless
the Participant elects on the Compensation Deferral Agreement with which the
account was established to have the Specified Date Account paid in
substantially equal annual installments over a period of two (2) to five (5) years,
as elected by the Participant.


 


Notwithstanding any election of a form of payment by the Participant,
upon a Separation from Service the unpaid balance of a Specified Date Account
with respect to which payments have not commenced shall be paid in accordance
with the form of payment applicable to the Retirement Benefit, Termination
Benefit, Disability Benefit or Death Benefit, as applicable.  If such benefit is payable in a 


 


13

















 


single lump sum, the unpaid balance of all Specified Date Accounts
(including those in pay status) will be paid in a lump sum.


 


(d)                                 Death Benefit.  A
designated Beneficiary who is entitled to receive a Death Benefit shall receive
payment of such benefit in a single lump sum


 


(e)                                  Disability Benefit.  A
Participant who is entitled to receive shall receive payment of such benefit in
a single lump sum.


 


(f)                                    Change in Control.  A
Participant will receive his or her Retirement Benefit in a single lump sum
payment equal to the unpaid balance of all of his or her Accounts if Retirement
occurs within 24 months following a Change in Control.


 


(g)                                 Small Account Balances. 
The Committee shall pay the value of the Participant’s Accounts in a
single lump sum if the balance of such Accounts is not greater than the
applicable dollar amount under Code Section 402(g)(1)(B), provided the
payment represents the complete liquidation of the Participant’s interest in
the Plan.


 


Notwithstanding any Participant election or other provisions of the
Plan, a Participant’s Accounts will be paid in a single lump sum if, upon the
commencement of his or her Retirement Benefit, the combined value of his or her
Accounts is not greater than $50,000.


 


(h)                                 Rules Applicable to Installment Payments.  If a Payment Schedule specifies installment
payments, annual payments will be made beginning as of the payment commencement
date for such installments and shall continue on each anniversary thereof until
the number of installment payments specified in the Payment Schedule has been
paid.  The amount of each installment
payment shall be determined by dividing (a) by (b), where (a) equals
the Account Balance as of the Valuation Date and (b) equals the remaining
number of installment payments.


 


For purposes of Article VII, installment payments will be treated
as a single form of payment.  If a lump
sum equal to less than 100% of the Retirement/Termination Account is paid, the
payment commencement date for the installment form of payment will be the first
anniversary of the payment of the lump sum.


 


Notwithstanding anything to the contrary in this Plan, in the event a
Participant dies during the period in which installment payments under a
Payment Schedule have commenced, the remaining installment payments will
continue to be paid to the Beneficiary in accordance with their original
Payment Schedule.


 


6.3.                              Acceleration
of or Delay in Payments.  The
Committee, in its sole and absolute discretion, may elect to accelerate the
time or form of payment of a benefit owed to the Participant hereunder,
provided such acceleration is permitted under Treas.  Reg.  Section 1.409A-3(j)(4).  The Committee may also, in its sole and
absolute discretion, delay the 


 


14

















 


time
for payment of a benefit owed to the Participant hereunder, to the extent
permitted under Treas.  Reg.  Section 1.409A-2(b)(7).  If the Plan receives a domestic relations
order (within the meaning of Code Section 414(p)(1)(B)) directing that all
or a portion of a Participant’s Accounts be paid to an “alternate payee,” any
amounts to be paid to the alternate payee(s) shall be paid in a single
lump sum, subject to 1.409A-3(j)(4)(ii).


 


ARTICLE VII

Modifications to Payment Schedules


 


7.1.                              Participant’s
Right to Modify.  A Participant may
modify any or all of the alternative Payment Schedules with respect to an
Account, consistent with the permissible Payment Schedules available under the
Plan, provided such modification complies with the requirements of this Article VII.


 


7.2.                              Time
of Election.  The date on which a
modification election is submitted to the Committee must be at least 12 months
prior to the date on which payment is scheduled to commence under the Payment
Schedule in effect prior to the modification.


 


7.3.                              Date
of Payment under Modified Payment Schedule. 
Except with respect to modifications that relate to the payment of a
Death Benefit or a Disability Benefit, the date payments are to commence under
the modified Payment Schedule must be no earlier than five years after the date
payment would have commenced under the original Payment Schedule.  Under no circumstances may a modification
election result in an acceleration of payments in violation of Code Section 409A.


 


7.4.                              Effective
Date.  A modification election
submitted in accordance with this Article VII is irrevocable upon receipt
by the Committee and becomes effective 12 months after such date.


 


7.5.                              Effect
on Accounts.  An election to modify a
Payment Schedule is specific to the Account or payment event to which it
applies, and shall not be construed to affect the Payment Schedules of any
other Accounts.


 


ARTICLE VIII

Valuation of Account Balances; Investments


 


8.1.                              Valuation.  Deferrals shall be credited to appropriate
Accounts on the date such Compensation would have been paid to the Participant
absent the Compensation Deferral Agreement. 
Company Contributions shall be credited to the Retirement/Termination
Accounts at the times determined by the Committee.  Valuation of Accounts shall be performed
under procedures approved by the Committee.


 


8.2.                              Adjustment
for Earnings.  Each Account will be
adjusted to reflect Earnings on each Business Day.  Adjustments shall reflect the net earnings,
gains, losses, expenses, appreciation and depreciation associated with an
investment option for each portion of the Account allocated to such option (“investment
allocation”).


 


15
















 


8.3.                              Investment
Options.  Investment options will be
determined by the Committee.  The
Committee, in its sole discretion, shall be permitted to add or remove
investment options from the Plan menu from time to time, provided that any such
additions or removals of investment options shall not be effective with respect
to any period prior to the effective date of such change.  Notwithstanding anything in the Plan to the
contrary, the investment options shall not include Participating Employer
stock.


 


8.4.                              Investment
Allocations.  A Participant’s
investment allocation constitutes a deemed, not actual, investment among the
investment options comprising the investment menu.  At no time shall a Participant have any real
or beneficial ownership in any investment option included in the investment
menu, nor shall the Participating Employer or any trustee acting on its behalf
have any obligation to purchase actual securities as a result of a Participant’s
investment allocation.  A Participant’s
investment allocation shall be used solely for purposes of adjusting the value
of a Participant’s Account Balances.


 


A Participant shall specify an investment allocation for each of his or
her Accounts in accordance with procedures established by the Committee.  Allocation among the investment options must
be designated in increments of 1%.  The
Participant’s investment allocation will become effective on the same Business
Day or, in the case of investment allocations received after a time specified
by the Committee, the next Business Day.


 


A Participant may change an investment allocation on any Business Day,
both with respect to future credits to the Plan and with respect to existing
Account Balances, in accordance with procedures adopted by the Committee.  Changes shall become effective on the same
Business Day or, in the case of investment allocations received after a time
specified by the Committee, the next Business Day, and shall be applied
prospectively.


 


8.5.                              Unallocated
Deferrals and Accounts.  If the
Participant fails to make an investment allocation with respect to an Account,
such Account shall be invested in an investment option, the primary objective
of which is the preservation of capital, as determined by the Committee.


 


ARTICLE IX

Administration


 


9.1.                              Plan
Administration.  This Plan shall be
administered by the Committee (which shall also be the “plan administrator” for
purposes of other related documentation) and which shall have discretionary
authority to make, amend, interpret and enforce all appropriate rules and
regulations for the administration of this Plan and to utilize its discretion
to decide or resolve any and all questions, including but not limited to
eligibility for benefits and interpretations of this Plan and its terms, as may
arise in connection with the Plan. 
Claims for benefits shall be filed with the Committee and resolved in
accordance with the claims procedures in Article XII.


 


9.2.                              Withholding.  The Participating Employer shall have the
right to withhold from any payment due under the Plan (or with respect to any
amounts credited to the Plan) any 


 


16

















 


taxes
the Participating Employers determines are required by law to be withheld in
respect of such payment (or credit). 
Withholdings with respect to amounts credited to the Plan shall be
deducted from Compensation that has not been deferred to the Plan.


 


9.3.                              Indemnification.  The Participating Employers shall indemnify
and hold harmless each employee, officer, director, agent or organization, to
whom or to which are delegated duties, responsibilities, and authority under
the Plan or otherwise with respect to administration of the Plan, including,
without limitation, the Committee and its agents, against all claims,
liabilities, fines and penalties, and all expenses reasonably incurred by or
imposed upon him or her or it (including but not limited to reasonable
attorneys’ fees) which arise as a result of his or her or its actions or
failure to act in connection with the operation and administration of the Plan
to the extent lawfully allowable and to the extent that such claim, liability,
fine, penalty, or expense is not paid for by liability insurance purchased or
paid for by the Participating Employer. 
Notwithstanding the foregoing, the Participating Employer shall not
indemnify any person or organization if his or her or its actions or failure to
act are due to gross negligence or willful misconduct or for any such amount
incurred through any settlement or compromise of any action unless the Participating
Employer consents in writing to such settlement or compromise.


 


9.4.                              Delegation
of Authority.  In the administration
of this Plan, the Committee may, from time to time, employ agents and delegate
to them such administrative duties as it sees fit, and may from time to time
consult with legal counsel who shall be legal counsel to the Company.


 


9.5.                              Binding
Decisions or Actions.  The decision
or action of the Committee in respect of any question arising out of or in
connection with the administration, interpretation and application of the Plan
and the rules and regulations thereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.


 


ARTICLE X

Amendment and Termination


 


10.1.                        Amendment and Termination.  The Company may at any time and from time to
time amend the Plan or may terminate the Plan as provided in this Article X.  Each Participating Employer may also
terminate its participation in the Plan.


 


10.2.                        Amendments.  The Company, by action taken by its Board of
Directors, may amend the Plan at any time and for any reason, provided that any
such amendment shall not reduce the vested Account Balances of any Participant
accrued as of the date of any such amendment or restatement (as if the
Participant had incurred a voluntary Separation from Service on such date) or
reduce any rights of a Participant under the Plan or other Plan features with
respect to Deferrals made prior to the date of any such amendment or
restatement without the consent of the Participant.  The Board of Directors of the Company may
delegate to the Committee the authority to amend the Plan without the consent
of the Board of Directors for the purpose of: (i) conforming the Plan to
the requirements of law; (ii) facilitating the administration of the Plan;
(iii) clarifying 


 


17

















 


provisions
based on the Committee’s interpretation of the document; and (iv) making
such other amendments as the Board of Directors may authorize.


 


10.3.                        Termination.  The Company, by action taken by its Board of
Directors, may terminate the Plan and pay Participants and Beneficiaries their
vested Account Balances in a single lump sum at any time or on a schedule
determined by the Committee, to the extent and in accordance with Treas.  Reg.  Section 1.409A-3(j)(4)(ix).  If a Participating Employer terminates its
participation in the Plan, the benefits of affected Employees shall be paid at
the time provided in Article VI.


 


10.4.                        Accounts Taxable Under Code Section 409A.  The Plan is intended to constitute a plan of
deferred compensation that complies with the requirements for deferral of
income taxation under Code Section 409A and shall be administered,
interpreted and construed in accordance with such intent.  The Committee, pursuant to its authority to
interpret the Plan, may sever from the Plan or any Compensation Deferral
Agreement any provision or exercise of a right that otherwise would result in a
violation of Code Section 409A.  The
Participating Employers shall have no liability to any Participant, Beneficiary
or otherwise if the Plan or any amount paid hereunder are subject to the
additional tax and penalties under Code Section 409A.


 


ARTICLE XI

Informal Funding


 


11.1.                        General Assets.  Obligations established under the terms of
the Plan may be satisfied from the general funds of the Participating
Employers, or a trust described in this Article XI.  No Participant, spouse or Beneficiary shall
have any right, title or interest whatever in assets of the Participating
Employers.  Nothing contained in this
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 Participating Employers and any Employee, spouse, or Beneficiary.  To the extent that any person acquires a
right to receive payments hereunder, such rights are no greater than the right
of an unsecured general creditor of the Participating Employer.


 


11.2.                        Rabbi Trust.  A Participating Employer may, in its sole
discretion, establish a grantor trust, commonly known as a rabbi trust, as a
vehicle for accumulating assets to pay benefits under the Plan; provided,
however, that no assets shall be contributed to any such trust if such
contribution would violate applicable law or result in the imposition of the
additional tax and penalties under Section 409A.  Payments under the Plan may be paid from the
general assets of the Participating Employer or from the assets of any such
rabbi trust.  Payment from any such
source shall reduce the obligation owed to the Participant or Beneficiary under
the Plan.


 


ARTICLE XII

Claims


 


12.1.                        Filing a Claim.  Any controversy or claim arising out of or
relating to the Plan shall be filed in writing with the Committee which shall
make all determinations concerning such 


 


18

















 


claim.  Any claim filed with the Committee and any
decision by the Committee denying such claim shall be in writing and shall be
delivered to the Participant or Beneficiary filing the claim (the “Claimant”).


 


(a)                                  In General.  Notice of
a denial of benefits (other than Disability benefits) will be provided within
90 days of the Committee’s receipt of the Claimant’s claim for benefits.  If the Committee determines that it needs
additional time to review the claim, the Committee will provide the Claimant
with a notice of the extension before the end of the initial 90-day
period.  The extension will not be more
than 90 days from the end of the initial 90-day period and the notice of extension
will explain the special circumstances that require the extension and the date
by which the Committee expects to make a decision.


 


(b)                                 Disability Benefits. 
Notice of denial of Disability benefits will be provided within
forty-five (45) days of the Committee’s receipt of the Claimant’s claim for
Disability benefits.  If the Committee
determines that it needs additional time to review the Disability claim, the
Committee will provide the Claimant with a notice of the extension before the
end of the initial 45-day period.  If the
Committee determines that a decision cannot be made within the first extension
period due to matters beyond the control of the Committee, the time period for
making a determination may be further extended for an additional 30 days.  If such an additional extension is necessary,
the Committee shall notify the Claimant prior to the expiration of the initial
30-day extension.  Any notice of
extension shall indicate the circumstances necessitating the extension of time,
the date by which the Committee expects to furnish a notice of decision, the
specific standards on which such entitlement to a benefit is based, the
unresolved issues that prevent a decision on the claim and any additional
information needed to resolve those issues. 
A Claimant will be provided a minimum of 45 days to submit any necessary
additional information to the Committee. 
In the event that a 30-day extension is necessary due to a Claimant’s
failure to submit information necessary to decide a claim, the period for furnishing
a notice of decision shall be tolled from the date on which the notice of the
extension is sent to the Claimant until the earlier of the date the Claimant
responds to the request for additional information or the response deadline.


 


(c)                                  Contents of Notice. 
If a claim for benefits is completely or partially denied, notice of
such denial shall be in writing and shall set forth the reasons for denial in
plain language.  The notice shall: (i) cite
the pertinent provisions of the Plan document, and (ii) explain, where
appropriate, how the Claimant can perfect the claim, including a description of
any additional material or information necessary to complete the claim and why
such material or information is necessary. 
The claim denial also shall include an explanation of the claims review
procedures and the time limits applicable to such procedures, including a
statement of the Claimant’s right to bring a civil action under Section 502(a) of
ERISA following an adverse decision on review.


 


19

















 


12.2.                        Appeal of Denied Claims.  A Claimant whose claim has been completely or
partially denied shall be entitled to appeal the claim denial by filing a
written appeal with a committee designated to hear such appeals (the “Appeals
Committee”).  A Claimant who timely
requests a review of the denied claim (or his or her authorized representative)
may review, upon request and free of charge, copies of all documents, records
and other information relevant to the denial and may submit written comments,
documents, records and other information relevant to the claim to the Appeals
Committee.  All written comments,
documents, records, and other information shall be considered “relevant” if the
information: (i) was relied upon in making a benefits determination, (ii) was
submitted, considered or generated in the course of making a benefits decision
regardless of whether it was relied upon to make the decision, or (iii) demonstrates
compliance with administrative processes and safeguards established for making
benefit decisions.  The Appeals Committee
may, in its sole discretion and if it deems appropriate or necessary, decide to
hold a hearing with respect to the claim appeal.


 


(a)                                  In General.  Appeal of
a denied benefits claim (other than a Disability benefits claim) must be filed
in writing with the Appeals Committee no later than 60 days after receipt of
the written notification of such claim denial. 
The Appeals Committee shall make its decision regarding the merits of
the denied claim within 60 days following receipt of the appeal (or within 120
days after such receipt, in a case where there are special circumstances
requiring extension of time for reviewing the appealed claim).  If an extension of time for reviewing the
appeal is required because of special circumstances, written notice of the
extension shall be furnished to the Claimant prior to the commencement of the
extension.  The notice will indicate the
special circumstances requiring the extension of time and the date by which the
Appeals Committee expects to render the determination on review.  The review will take into account comments,
documents, records and other information submitted by the Claimant relating to
the claim without regard to whether such information was submitted or
considered in the initial benefit determination.


 


(b)                                 Disability Benefits. 
Appeal of a denied Disability benefits claim must be filed in writing
with the Appeals Committee no later than 180 days after receipt of the written
notification of such claim denial.  The
review shall be conducted by the Appeals Committee (exclusive of the person who
made the initial adverse decision or such person’s subordinate).  In reviewing the appeal, the Appeals
Committee shall: (i) not afford deference to the initial denial of the
claim, (ii) consult a medical professional who has appropriate training
and experience in the field of medicine relating to the Claimant’s disability
and who was neither consulted as part of the initial denial nor is the
subordinate of such individual, and (iii) identify the medical or
vocational experts whose advice was obtained with respect to the initial
benefit denial, without regard to whether the advice was relied upon in making
the decision.  The Appeals Committee shall
make its decision regarding the merits of the denied claim within 45 days
following receipt of the appeal (or within 90 days after such receipt, in a
case where there are special circumstances requiring extension of time for
reviewing the appealed claim).  If an extension
of time for reviewing the appeal is required because of 


 


20

















 


special
circumstances, written notice of the extension shall be furnished to the
Claimant prior to the commencement of the extension.  The notice will indicate the special
circumstances requiring the extension of time and the date by which the Appeals
Committee expects to render the determination on review.  Following its review of any additional information
submitted by the Claimant, the Appeals Committee shall render a decision on its
review of the denied claim.


 


(c)                                  Contents of Notice. 
If a benefits claim is completely or partially denied on review, notice
of such denial shall be in writing and shall set forth the reasons for denial
in plain language.


 


The decision on review shall set forth: (i) the specific reason or
reasons for the denial, (ii) specific references to the 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, or other information relevant
(as defined above) to the Claimant’s claim, and (iv) a statement
describing any voluntary appeal procedures offered by the plan and a statement
of the Claimant’s right to bring an action under Section 502(a) of
ERISA.


 


12.3.                        Legal Action.  A Claimant may not bring any legal action,
including commencement of any arbitration, relating to a claim for benefits
under the Plan unless and until the Claimant has followed the claims procedures
under the Plan and exhausted his or her administrative remedies under such
claims procedures.  Any such legal action
must be commenced within one year of a final determination hereunder with
respect to such claim.


 


If a Participant or Beneficiary prevails in a legal proceeding brought
under the Plan to enforce the rights of such Participant or any other similarly
situated Participant or Beneficiary, in whole or in part, the Participating
Employer shall reimburse such Participant or Beneficiary for all legal costs,
expenses, attorneys’ fees and such other liabilities incurred as a result of
such proceedings.  If the legal
proceeding is brought in connection with a Change in Control, the Participant
or Beneficiary may file a claim directly with the trustee of the rabbi trust
for reimbursement of such costs, expenses and fees.  For purposes of the preceding sentence, the
amount of the claim shall be treated as if it were an addition to the
Participant’s or Beneficiary’s Account Balance.


 


12.4.                        Discretion of Appeals
Committee.  All interpretations,
determinations and decisions of the Appeals Committee with respect to any claim
shall be made in its sole discretion, and shall be final and conclusive.


 


ARTICLE XIII

General Provisions


 


13.1.                        Assignment.  No interest of any Participant, spouse or
Beneficiary under this Plan and no benefit payable hereunder shall be assigned
as security for a loan, and any such purported assignment shall be null, void
and of no effect, nor shall any such interest or any such 


 


21

















 


benefit
be subject in any manner, either voluntarily or involuntarily, to anticipation,
sale, transfer, assignment or encumbrance by or through any Participant, spouse
or Beneficiary.  Notwithstanding anything
to the contrary herein, however, the Committee has the discretion to make
payments to an alternate payee in accordance with the terms of a domestic
relations order (as defined in Code Section 414(p)(1)(B)).


 


The Company may assign any or all of its liabilities under this Plan in
connection with any restructuring, recapitalization, sale of assets or other
similar transactions affecting a Participating Employer without the consent of
the Participant.


 


13.2.                        No Legal or Equitable Rights
or Interest.  No Participant or other
person shall have any legal or equitable rights or interest in this Plan that
are not expressly granted in this Plan. 
Participation in this Plan does not give any person any right to be
retained in the service of the Participating Employer.  The right and power of a Participating
Employer to dismiss or discharge an Employee is expressly reserved.  The Participating Employers make no
representations or warranties as to the tax consequences to a Participant or a
Participant’s beneficiaries resulting from a deferral of income pursuant to the
Plan.


 


13.3.                        No Employment Contract.  Nothing contained herein shall be construed
to constitute a contract of employment between an Employee and a Participating
Employer.


 


13.4.                        Notice.  Any notice or filing required or permitted to
be delivered to the Committee under this Plan shall be delivered in writing, in
person, or through such electronic means as is established by the Committee.  Notice shall be deemed given as of the date
of delivery or, if delivery is made by mail, as of the date shown on the
postmark on the receipt for registration or certification.  Written transmission shall be sent by
certified mail to:


 


FORCE PROTECTION INDUSTRIES, INC.

ATTN: DIRECTOR OF HUMAN RESOURCES

9801 HIGHWAY 78

LADSON, SC 29456


 


Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing or hand-delivered, or sent by
mail to the last known address of the Participant.


 


13.5.                        Headings.  The headings of Sections are included solely
for convenience of reference, and if there is any conflict between such
headings and the text of this Plan, the text shall control.


 


13.6.                        Invalid or Unenforceable
Provisions.  If any provision of this
Plan shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions hereof and the Committee
may elect in its sole discretion to construe such invalid or unenforceable
provisions in a manner that conforms to applicable law or as if such
provisions, to the extent invalid or unenforceable, had not been included.


 


13.7.                        Lost Participants or
Beneficiaries.  Any Participant or
Beneficiary who is entitled to a benefit from the Plan has the duty to keep the
Committee advised of his or her current 


 


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mailing
address.  If benefit payments are
returned to the Plan or are not presented for payment after a reasonable amount
of time, the Committee shall presume that the payee is missing.  The Committee, after making such efforts as
in its discretion it deems reasonable and appropriate to locate the payee,
shall stop payment on any uncashed checks and may discontinue making future
payments until contact with the payee is restored.


 


13.8.                        Facility of Payment to a
Minor.  If a distribution is to be
made to a minor, or to a person who is otherwise incompetent, then the
Committee may, in its discretion, make such distribution: (i) to the legal
guardian, or if none, to a parent of a minor payee with whom the payee
maintains his or her residence, or (ii) to the conservator or committee
or, if none, to the person having custody of an incompetent payee.  Any such distribution shall fully discharge
the Committee, the Company, and the Plan from further liability on account
thereof.


 


13.9.                        Governing Law.  To the extent not preempted by ERISA, the
laws of the State of South Carolina shall govern the construction and
administration of the Plan without regard to principles of conflicts of laws.


 


IN WITNESS WHEREOF, the undersigned executed this Plan as of the 3rd day of November, 2009, to be effective as of
the Effective Date.


 


	
  FORCE PROTECTION, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Lenna Ruth Macdonald

  	
  (Print Name)

  
	
   

  	
   

  	
   

  
	
  Its:

  	
  Chief Strategy Officer, General Counsel & Corporate Secretary

  	
  (Title)

  
	
   

  	
   

  	
   

  
	
  /s/ Lenna Ruth Macdonald

  	
  (Signature)

  
					



 


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