EX-10(CV)



 






Exhibit 10 (cv)




THE KITCHEN COLLECTION, INC.

DEFERRED COMPENSATION PLAN FOR MANAGEMENT EMPLOYEES




(AS AMENDED AND RESTATED EFFECTIVE NOVEMBER 1, 2001)





 









 








THE KITCHEN COLLECTION, INC.

DEFERRED COMPENSATION PLAN FOR MANAGEMENT EMPLOYEES




     The Kitchen Collection, Inc. (the “Company”) does hereby adopt this amendment and restatement
of The Kitchen Collection, Inc. Deferred Compensation Plan for Management Employees, effective as
of November 1, 2001.



ARTICLE I

PREFACE




     Section 1.1 Effective Date. The effective date of this restatement of the Plan is
November 1, 2001.



     Section 1.2 Purpose of the Plan. The purpose of this Plan is to (a) allow certain
Employees to defer the receipt of certain long-term incentive compensation award payments, and (b)
provide for certain Employees of the Company the benefits they would have received under the
Savings Plan but for the limitations imposed under Sections 402(g), 401(a)(17), 401(k)(3), 401(m)
and 415.



     Section 1.3 Governing Law. This Plan shall be regulated, construed and administered
under the laws of the State of Ohio, except when preempted by federal law.



     Section 1.4 Gender and Number. For purposes of interpreting the provisions of this
Plan, the masculine gender shall be deemed to include the feminine, the feminine gender shall be
deemed to include the masculine, and the singular shall include the plural unless otherwise clearly
required by the context.



ARTICLE II

DEFINITIONS




          Except as otherwise provided in this Plan, terms defined in the Savings Plan as they may be
amended from time to time shall have the same meanings when used herein, unless a different meaning
is clearly required by the context of this Plan. In addition, the following words and phrases
shall have the following respective meanings for purposes of this Plan.




     Section 2.1 Account shall mean the record maintained in accordance with Section 3.4 by
the Company as the sum of the Participant’s Basic Excess 401(k) Sub-Account, Basic Excess Matching
Sub-Account, Additional Excess 401(k) Sub-Account, Additional Excess Matching Sub-Account, Excess
Profit Sharing Account, and LTIP Deferral Sub-Account.



     Section 2.2 Adjusted ROE.



          (a) For purposes of this Section, the following terms shall have the following meanings:




          (i) “Net Income (before extraordinary items)” is defined as consolidated net income,
as defined by general accepted accounting principles (“GAAP”), for NACCO Industries,




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Inc. and its subsidiaries for the subject year before extraordinary items, but including any
extraordinary items related to refinancings (net of tax);



          (ii) “Amortization of Goodwill” is defined as the consolidated amortization expense
related to the intangible asset goodwill for NACCO Industries, Inc. and its subsidiaries for the
subject year;




          (iii) “Weighted Average Stockholders’ Equity” is calculated by adding the consolidated
stockholders’ equity for NACCO Industries, Inc., as defined by GAAP, at the beginning of the
subject year and the end of each month of the subject year and dividing by thirteen;




          (iv) “Weighted Average Accumulated Amortization of Goodwill” is calculated by adding
consolidated accumulated amortization of goodwill, as defined by GAAP, at the beginning of the
subject year and the end of each month of the subject year and dividing by thirteen; and




          (v) “Weighted Average UMWA Adjustment” is calculated by adding the balance in the
Obligation to United Mine Workers of America Combined Benefit Fund, net of tax, for NACCO
Industries, Inc. at the beginning of the subject year and the end of each month of the subject year
and dividing by thirteen.




          (b) “Adjusted ROE” shall mean the average return on equity of NACCO Industries, Inc.
calculated for the applicable time period, based on A divided by B, where:





	 	A=  	 Net Income (before extraordinary items) + Amortization of
Goodwill; and
	 
	 	B=  	 Weighted Average (Stockholders’ Equity + Accumulated
Amortization of Goodwill + UMWA Adjustment).





          (c) Adjusted ROE shall be determined at least annually by the Company.




     Section 2.3 Beneficiary shall mean the person or persons designated by the Participant
as his Beneficiary under this Plan, in accordance with the provisions of Article VII hereof.



     Section 2.4 Company shall mean The Kitchen Collection, Inc. or any entity that
succeeds The Kitchen Collection, Inc. by merger, reorganization or otherwise.



     Section 2.5 Compensation shall have the same meaning as under the Savings Plan, except
that Compensation shall be deemed to include (a) the amount of compensation deferred by the
Participant under this Plan and (b) amounts in excess of the limitation imposed by Code Section
401(a)(17).



     Section 2.6 Excess Retirement Benefit or Benefit shall mean an LTIP Deferral Benefit,
a Basic or Additional Excess 401(k) Benefit, a Basic or Additional Excess Matching Benefit or an
Excess Profit Sharing Benefit (as described in Article III) which is payable to or with respect to
a Participant under this Plan.



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     Section 2.7 Fixed Income Fund shall mean the Stable Asset Fund under the Savings Plan
or any equivalent fixed income fund thereunder which is designated by the NACCO Industries, Inc.
Retirement Funds Investment Committee as the successor to the Stable Asset Fund.



     Section 2.8 Insolvent. For purposes of this Plan, the Company shall be considered
Insolvent at such time as it (a) is unable to pay its debts as they mature, or (b) is subject to a
pending voluntary or involuntary proceeding as a debtor under the United States Bankruptcy Code.



     Section 2.9 LTIP Plan shall mean the Kitchen Collection, Inc. Long-Term Incentive
Compensation Plan, or any successor thereto.



     Section 2.10 Participant



          (a) For purposes of Sections 3.1 through 3.3 of the Plan, the term Participant shall mean a
participant in the Savings Plan (i) who is unable to make all of the Salary Deferral Contributions
that he has elected to make to the Savings Plan, or unable to receive the maximum amount of
Matching Company Contributions under the Savings Plan, or unable to receive the maximum amount of
Profit Sharing Contributions under the Savings Plan because of the limitations imposed under
Section 402(g), 401(a)(17), 401(k)(3), 401(m) or 415 of the Code, (ii) effective January 1, 2002,
whose total compensation from the Controlled Group for the year in which the deferral election is
required is at least $115,000; and(iii) who is designated as a Participant in this Plan by the
President of the Company.




          (b) For purposes of Section 3.4 of the Plan, the term “Participant” shall mean an Employee of
the Company who is a participant in the LTIP Plan and who is designated as a Participant by the
President of the Company and whose total compensation from the Controlled Group for the year in
which the deferral election is required is at least $115,000. In addition, the Employee must be an
active Employee (i.e., have not terminated employment or retired) at the time the LTIP Deferral
Benefit is deferred hereunder.




          (c) The term “Participant” shall also include any other person who, as of October 31, 2001,
was entitled to receive a Benefit under the Plan.




          (d) Notwithstanding the change in eligibility requirements which became effective on January
1, 2002, any Employee of the Company who (i) was eligible to participate in the Plan on December
31, 2001, and (ii) actually had amounts allocated to an Account under the Plan as of such date,
shall remain as an eligible Participant in the Plan on and after January 1, 2002.




     Section 2.11 Plan shall mean The Kitchen Collection, Inc. Deferred Compensation Plan
for Management Employees, as herein set forth or as duly amended.



     Section 2.12 Plan Administrator shall mean the Company.



     Section 2.13 Plan Year shall mean the calendar year.



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     Section 2.14 Savings Plan shall mean The Kitchen Collection, Inc. Retirement Savings
Plan (or any successor plan).



     Section 2.15 Unforeseeable Emergency shall mean an event which results (or will
result) in severe financial hardship to the Participant as a consequence of an unexpected illness
or accident or loss of the Participant’s property due to casualty or other similar extraordinary or
unforeseen circumstances out of the control of the Participant.



     Section 2.16 Valuation Date shall mean the last business day of each Plan Year and any
other date chosen by the Plan Administrator.



ARTICLE III

EXCESS RETIREMENT BENEFITS




     Section 3.1 Basic and Additional Excess 401(k) Benefits.



          (a) Amount of Excess 401(k) Benefits. Each Participant may, prior to the first day of
any Plan Year, by completing a “401(k) Deferral Election Form,” direct the Company to reduce his
Compensation for such Plan Year and, subject to Subsection (d) below, subsequent Plan Years, by the
difference between (i) a certain percentage, in 1% increments, with a maximum of 15%, of his
Compensation for the Plan Year, and (ii) the maximum Salary Deferral Contributions actually
permitted to be contributed for him to the Savings Plan by reason of the application of the
limitations under Sections 402(g), 401(a)(17), 401(k)(3) and 415 of the Code (which amounts shall
be referred to as the “Excess 401(k) Benefits”).




          (b) Classification of Excess 401(k) Benefits. The Excess 401(k) Benefits for a
particular Plan Year shall be calculated monthly and shall be further divided into the “Basic
Excess 401(k) Benefits” and the “Additional Excess 401(k) Benefits” as follows:





	 	(i)  	The Basic Excess 401(k) Benefits shall be determined by
multiplying each Excess 401(k) Benefit by a fraction, the numerator of which is
the lesser of the percentage of Compensation elected to be deferred in the
401(k) Deferral Election Form for such Plan Year or 7% and the denominator of
which is the percentage of Compensation elected to be deferred; and
	 
	 	(ii)  	The Additional Excess 401(k) Benefits (if any) shall be
determined by multiplying such Excess 401(k) Benefit by a fraction, the
numerator of which is the difference between (1) the percentage of Compensation
elected to be deferred in the 401(k) Deferral Election Form for such Plan Year
and (2) 7%, and the denominator of which is the percentage of Compensation
elected to be deferred.





The Basic Excess 401(k) Benefits shall be credited to the Basic Excess 401(k) Sub-Account under
this Plan and the Additional Excess 401(k) Benefits shall be credited to the Additional Excess
401(k) Sub-Account hereunder. The Basic and Additional Excess 401(k) Sub-Accounts shall be
referred to collectively as the “Excess 401(k) Sub-Account.”



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          (c) Excess 401(k) Deferral Period. The 401(k) Deferral Election Form shall also
contain such Participant’s irrevocable election regarding the time of the commencement of payment
of the Excess 401(k) Benefits to which such Form relate. Payment elections made prior to the
Effective Date shall continue to govern the timing of the payment of amounts credited to the
Participant’s Excess 401(k) Sub-Account as of the Effective Date. In the 401(k) Deferral Election
Form, the Participant may elect to commence payment of his Excess 401(k) Sub-Account on (i) the
date on which he ceases to be an Employee of the Controlled Group, (ii) the date on which he
attains an age specified in the Deferral Election Form, or (iii) the earlier or later of such
dates.




          (d) Effect and Duration of Deferral Election. Any direction by a Participant to make
deferrals of Excess 401(k) Benefits hereunder shall be effective with respect to Compensation
otherwise payable to the Participant during the Plan Year for which the 401(k) Deferral Election
Form is in effect, and the Participant shall not be eligible to receive such Basic Excess 401(k)
Benefits. Instead, such amounts shall be credited to the Participant’s Basic and Additional Excess
401(k) Sub-Accounts (as applicable) as provided in Section 3.5. Any directions made in accordance
with Subsection (a) above shall be irrevocable and shall remain in effect for subsequent Plan Years
unless changed or terminated by the Participant for Plan Years commencing after such change or
termination, on the appropriate form provided by the Plan Administrator, prior to the first day of
such subsequent Plan Year.




          (e) Automatic Termination/Suspension of Deferral Election.




          (i) A Participant’s direction to make deferrals of Excess 401(k) Benefits shall automatically
terminate on the earlier of the date on which (1) the Participant ceases employment with the
Company, (2) the Company is deemed Insolvent, (3) the Participant is no longer eligible to make
deferrals of Excess 401(k) Benefits hereunder or (4) the Plan is terminated.




          (ii) Any Participant whose eligibility to make Salary Deferral Contributions to the Savings
Plan has been suspended because he has taken a hardship withdrawal from such plan shall not be
eligible to defer Excess 401(k) Benefits under this Plan for the period of his suspension from the
Savings Plan.




          (iii) The Plan Administrator may, in its sole and absolute discretion, pursuant to
nondiscriminatory rules adopted by the Plan Administrator, reduce and/or cease the deferral of
Excess 401(k) Benefits being made by one or more Participants, to the extent deemed necessary or
desirable in order to satisfy the requirements of any applicable law (including, without
limitation, federal securities laws).




     Section 3.2 Excess Matching Benefits.



          (a) Amount. A Participant shall have credited to his Basic or Additional Excess
Matching Sub-Account (as applicable) an amount equal to the Matching Company Contributions that he
is prevented from receiving under the Savings Plan because of the limitations imposed under Code
Sections 402(g), 401(a)(17), 401(k)(3), 401(m) and 415 of the Code and which are attributable to
the Basic or Additional Excess 401(k) Benefits (collectively, the “Excess Matching Benefits”).




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          (b) Time of Payment. The Excess Matching Benefits, to the extent vested, shall be
paid (or commence to be paid) at the same time as the Excess 401(k) Benefits to which they relate
(as specified in the 401(k) Deferral Election Form applicable to such Benefits).




     Section 3.3 Excess Profit Sharing Benefits.



          (a) In General. At the time described in Section 3.5(e), a Participant shall have
credited to his Excess Profit Sharing Sub-Account an amount equal to the excess, of any, of (i) the
Profit Sharing Contribution which would have been made to the Savings Plan if such Plan did not
contain the limitations imposed under Code Sections 401(a)(17) and 415 of the Code and the term
“Compensation” (as defined in Section 2.5 of this Plan) were used for purposes of determining the
amount of Profit Sharing Contributions under the Savings Plan, over (ii) the amount of Profit
Sharing Contributions which are actually made to the Savings Plan on behalf of the Participant for
such Plan Year (collectively, the “Excess Profit Sharing Benefits”).




          (b) Time of Payment. The Excess Profit Sharing Benefits, to the extent vested, shall
be paid (or commence to be paid) at the time the Profit Sharing benefits payable to the Participant
under the Savings Plan commence to be paid.




     Section 3.4 LTIP DEFERRAL BENEFITS.



          (a) Amount. Each Participant (as defined in Section 2.10(b)) may, with the consent of
the Company, by completing an approved election form, direct the Company to (i) reduce an Award (as
that term is defined in the LTIP Plan) payable under the LTIP Plan by a specific dollar amount or
percentage and (ii) to credit the amount of the reduction (the “LTIP Deferral Benefit”) to the LTIP
Deferral Sub-Account hereunder.




          (b) Deferral Election. A Participant may elect to make a separate deferral election
with respect to each Award under the LTIP Plan. Except as specifically permitted by the Company,
each such election must be made no later than one year prior to the date such Award would otherwise
be payable to the Participant under the LTIP Plan.




          (c) Deferral Period/Payment Date. The initial deferral election made by a Participant
shall also contain the Participant’s election regarding the time of the commencement of payment of
the Participant’s entire LTIP Deferral Sub-Account hereunder. The Participant may elect to
commence payment of his LTIP Deferral Sub-Account as soon as practicable following (1) the date on
which he ceases to be an Employee of the Controlled Group, (2) the date on which he attains an age
specified in the LTIP deferral election form, or (3) the earlier or later of such dates. A
Participant who does not timely and properly file such an election form shall be deemed to have
elected to receive his LTIP Deferral Sub-Account as soon as practicable following the date on which
he ceases to be an Employee of a Controlled Group Member.




          (d) Effect and Duration of LTIP Deferral Election. Any direction by a Participant to
defer receipt of all or part of an Award under the LTIP Plan and to receive LTIP Deferral Benefits
in lieu of such Award shall be irrevocable with respect to such Award.




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          (e) Automatic Termination/Suspension of LTIP Deferral Election.




          (i) A Participant’s direction to make deferrals of LTIP Deferral Benefits shall automatically
terminate on the earlier of the date on which (1) the Participant ceases employment with the
Controlled Group, (2) the Company is deemed Insolvent,(3) the Participant ceases to satisfy the
requirements of Section 2.10(b) or (4) the Plan is terminated.




          (ii) The Plan Administrator may, in its sole and absolute discretion, pursuant to
nondiscriminatory rules adopted by the Plan Administrator, reduce and/or cease the deferral of LTIP
Deferral Benefits being made by one or more Participants, to the extent deemed necessary or
desirable in order to satisfy the requirements of any applicable law (including, without
limitation, federal securities laws).




     Section 3.5 Participant’s Accounts. The Company shall establish and maintain on its
books an Account for each Participant which shall contain the following entries:



          (a) Credits to a Basic Excess 401(k) Sub-Account for the Basic Excess 401(k) Benefits
described in Section 3.1(b)(i), which shall be credited to the Sub-Account when a Participant is
prevented from making a Salary Deferral Contribution under the Savings Plan.




          (b) Credits to a Basic Excess Matching Sub-Account for the Basic Excess Matching Benefits
described in Section 3.2, which shall be credited to the Sub-Account when a Participant is
prevented from receiving Matching Company Contributions under the Savings Plan.




          (c) Credits to an Additional Excess 401(k) Sub-Account for the Additional Excess 401(k)
Benefits described in Section 3.1(b)(ii), which shall be credited to the Sub-Account when a
Participant is prevented from making a Salary Deferral Contribution under the Savings Plan.




          (d) Credits to an Additional Excess Matching Sub-Account for the Additional Excess Matching
Benefits described in Section 3.2, which shall be credited to the Sub-Account when a Participant is
prevented from receiving Matching Company Contributions under the Savings Plan.




          (e) Credits to an Excess Profit Sharing Sub-Account for the Excess Profit Sharing Benefits
described in Section 3.3, which shall be credited to the Sub-Account at the time the Profit Sharing
Contributions are otherwise credited to the Participant’s accounts under the Savings Plan.




          (f) Credits to all Sub-Accounts for the earnings described in Article IV, which shall continue
until the vested portions of such Sub-Accounts have been distributed to the Participant or his
Beneficiary.




          (g) Credits to an LTIP Deferral Sub-Account for the LTIP Deferral Benefits described in
Section 3.4, which shall be credited to the Sub-Account at the time the Award would otherwise be
payable to the Participant under the LTIP Plan.




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          (h) Debits for any distributions made from the Sub-Accounts and for any amounts forfeited
under Section 6.1(e).




     Section 3.6 Effect on other Benefits. Benefits payable to or with respect to a
Participant under the Savings Plan or any other Company-sponsored (qualified or nonqualified) plan,
if any, are in addition to those provided under this Plan.



ARTICLE IV

EARNINGS




     Section 4.1 Earnings on Basic 401(k) and Matching and Profit Sharing Sub-Accounts.



          (a) Subject to Subsection (b) and Section 4.4, at the end of each calendar month during a Plan
Year, the Basic Excess 401(k) Sub-Account, Basic Excess Matching Sub-Account and Excess Profit
Sharing Sub-Account of each Participant shall be credited with earnings in an amount determined by
multiplying such Participant’s average Sub-Account balance during such month by the blended rate
earned during such month by the Fixed Income Fund. Notwithstanding the foregoing, in the event
that the Adjusted ROE determined for such Plan Year exceeds the rate credited to the Participant’s
Sub-Accounts under the preceding sentence, the Participant’s Sub-Accounts shall retroactively be
credited with the difference between (i) the amount determined under the preceding sentence, and
(ii) the amount determined by multiplying such Participant’s average Sub-Account balance during
each month of such Plan Year by the Adjusted ROE determined for such Plan Year, compounded monthly.




          (b) The Adjusted ROE calculation described in Subsection (a) shall be made during the month in
which the Participant terminates employment and shall be based on the year-to-date Adjusted ROE for
the month ending prior to the date the Participant terminated employment, as calculated by the
Company. For any subsequent month, such Adjusted ROE calculation shall not apply. The Fixed
Income Fund calculation described above for the month in which the Participant receives a
distribution from his Sub-Account shall be based on the blended rate earned during the preceding
month by the Fixed Income Fund.




     Section 4.2 Earnings on Additional 401(k) and Matching Sub-Account. Subject to
Section 4.2, at the end of each calendar month during a Plan Year, the Additional Excess 401(k)
Sub-Account and Additional Excess Matching Sub-Account of each Participant shall be credited with
earnings in an amount determined by multiplying such Participant’s average Sub-Account balance
during such month by the blended rate earned by the Fixed Income Fund. The earnings calculation
for the month in which the Participant receives a distribution from his Sub-Account will be based
on the blended rate earned during the preceding month by the Fixed Income Fund.



     Section 4.3 Earnings on LTIP Deferral Sub-Accounts. Subject to Section 4.4, at the
end of each calendar month during a Plan Year, the LTIP Deferral Sub-Account of each Participant
shall be credited with an amount determined by multiplying such Participant’s average Sub-Account
balance during such month by the “10-Year U.S. Treasury Yield” plus 2.0%. For purposes hereof, the
10-Year U.S. Treasury Yield shall be the 10 year yield on US Treasury issues as listed in the Bond
Market Data Bank for the last day of the preceding calendar quarter as printed in the Wall Street
Journal. In the event that a yield is not listed for a maturity



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exactly 10 years from the calendar quarter end, the next preceding chronological treasury bond
issue yield shall be used.



     Section 4.4 Changes in/Limitations on Earnings Assumptions.



          (a) The NACCO Industries, Inc. Benefits Committee (the “Committee”) may change (but not
suspend) the earnings rate credited on Accounts hereunder at any time upon at least 30 days notice
to Participants.




          (b) Notwithstanding any provision of the Plan to the contrary, in no event will earnings on
Accounts for a Plan Year be credited at a rate which exceeds 14%.




ARTICLE V

VESTING




     Section 5.1 Vesting. All Participants who are employed on or after December 31, 1999
shall be immediately 100% vested in all amounts credited to their Account hereunder.



ARTICLE VI

DISTRIBUTION OF BENEFITS TO PARTICIPANTS




     Section 6.1 Time and Manner of Payment.



          (a) Timing. The Excess 401(k) and vested Matching Benefits/LTIP Deferral Benefits
shall be paid (or commence to be paid) to the Participant at the time specified in the applicable
election form pursuant to Section 3.1(c)or 3.4(b). The Excess Profit Sharing Benefits shall be
paid to the Participant at the time the Profit Sharing Contributions are paid to the Participant
under the Savings Plan.




          (b) Form. The Excess 401(k), LTIP Deferral, and Excess Matching and Excess Profit
Sharing Benefits shall be distributed to the Participant in the form of ten annual installments
with each installment being based on the vested value of the applicable Sub-Account on the
Valuation Date immediately preceding the date such installment is to be paid and being a fraction
of such value in which the numerator is one and the denominator is the total number of remaining
installments to be paid. Notwithstanding the foregoing, the Participant may elect to receive his
Excess Retirement Benefits in the form of a single lump sum payment or in annual installments for a
period of less than 10 years by filing a notice in writing, signed by the Participant and filed
with the Plan Administrator while the Participant is alive and at least one year prior to the time
such payments are to begin. Any such election of the form of benefit may be changed at any time
and from time to time, without the consent of any other person, by filing a later election in
writing that is signed by the Participant and filed with the Plan Administrator while the
Participant is alive and at least one year prior to the time such payments are to begin.




          (c) Unforeseeable Emergency Distributions. Notwithstanding the foregoing, the
Company may at any time, upon written request of the Participant, cause to be paid to such
Participant an amount equal to all or any part of the Participant’s Account if the Company
determines, in its absolute discretion based on such reasonable evidence that it shall require,
that




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such a payment or payments is necessary for the purpose of alleviating the consequences of an
Unforeseeable Emergency occurring with respect to the Participant. Payments of amounts because of
an Unforeseeable Emergency shall be permitted only to the extent reasonably necessary to satisfy
the emergency need.



          (d) Small Accounts. Notwithstanding the foregoing, in the event that a Participant’s
Account does not exceed $10,000 at the time of the Participant’s termination of employment with the
Controlled Group, his Account shall automatically be paid to him in a single lump sum payment as
soon as practicable following his termination of employment.




          (e) Withdrawals Subject to a 10% Penalty.




          (i) The provisions of this Subsection shall apply notwithstanding any other provision of the
Plan to the contrary.




          (ii) A Participant who is an Employee may, at any time (and from time to time) elect in
writing to receive a withdrawal from one or more of the following Sub-Accounts:





	 	(A)  	the Additional Excess 401(k) Sub-Account;
	 
	 	(B)  	the Additional Matching Sub-Account; and
	 
	 	(C)  	the LTIP Deferral Sub-Account





          (iii) In addition to the amounts described in (ii) above, Participants who have ceased to be
Employees of the Controlled Group may also elect in writing to receive a withdrawal from one or
more of the following Sub-Accounts:





	 	(A)  	the Basic Excess 401(k) Sub-Account;
	 
	 	(B)  	the Basic Excess Matching Sub-Account; and
	 
	 	(C)  	the Excess Profit Sharing Sub-Account.





          (iv) Withdrawals under this Subsection shall be equal to the entire amount credited to any
such Sub-Account, less 10%. Such 10% reduction shall be treated as a forfeiture hereunder and
shall immediately be subtracted from the applicable Sub-Account, never to be restored.




          (f) Payment Restriction. Notwithstanding any provision of the Plan to the contrary,
the payment of all or any portion of the amounts payable hereunder will be deferred to the extent
that any amount payable, when added to any other compensation received or to be received by the
Participant in the same calendar year, would not be deductible by the Company by reason of section
162(m) of the Code. The amount deferred will equal the amount that otherwise would not be
deductible by the Company by reason of Section 162(m) of the Code, but in no event greater than the
total amount otherwise payable hereunder. The deferred amount shall become payable on December 31
of the first succeeding calendar year in which such amount, when added to all other compensation
received or to be received by the Participant in


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such calendar year, would not be non-deductible by the Company by reason of section 162(m) of
the Code. The Nominating Organization and Compensation Committee of the Board of Directors, in its
sole and absolute discretion, shall have the authority to waive this payment restriction (in whole
or in part) upon the written request of the participant.



     Section 6.2 Liability for Payment/Expenses. The Company shall be liable for the
payment of the Excess Retirement Benefits which are payable hereunder. Expenses of administering
the Plan shall be paid by the Company.



ARTICLE VII

BENEFICIARIES




     Section 7.1 Beneficiary Designations. A designation of a Beneficiary hereunder may be
made only by an instrument (in form acceptable to the Plan Administrator) signed by the Participant
and filed with the Plan Administrator prior to the Participant’s death. Separate Beneficiary
designations may be made for each Benefit under the Plan. In the absence of such a designation and
at any other time when there is no existing Beneficiary designated hereunder, the Beneficiary of a
Participant for his Excess Retirement Benefits shall be his Beneficiary under the Savings Plan. A
person designated by a Participant as his Beneficiary who or which ceases to exist shall not be
entitled to any part of any payment thereafter to be made to the Participant’s Beneficiary unless
the Participant’s designation specifically provided to the contrary. If two or more persons
designated as a Participant’s Beneficiary are in existence with respect to a single Excess
Retirement Benefit, the amount of any payment to the Beneficiary under this Plan shall be divided
equally among such persons unless the Participant’s designation specifically provided to the
contrary. Any change in Beneficiary shall be made by giving written notice thereof to the Plan
Administrator and any change shall be effective only if received by the Plan Administrator prior to
the death of the Participant.



     Section 7.2 Distributions to Beneficiaries.



          (a) Amount of Benefits.




          (1) Amount of Excess 401(k) Benefit. The Excess 401(k) Benefit payable to a
Participant’s Beneficiary under this Plan shall be equal to the sum of such Participant’s Basic
Excess 401(k) Sub-Account balance and Additional Excess 401(k) Sub-Account balance on the date of
the distribution of the Sub-Accounts to the Beneficiary.




          (2) Amount of Excess Matching and Profit Sharing Benefits. The Excess Matching and
Profit Sharing Benefit payable to a Participant’s Beneficiary under this Plan shall be equal to the
Participant’s Basic Excess Matching Sub-Account, Additional Excess Matching Sub-Account and Excess
Profit Sharing Sub-Account on the date of the distribution of the Sub-Account to the Beneficiary.




          (3) Amount of LTIP Deferral Benefit. The LTIP Deferral Benefits payable to a
Participant’s Beneficiary under this Plan shall be equal to such Participant’s LTIP Deferral
Sub-Account balance on the date of distribution.




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          (b) Time of Payment. The Excess Retirement Benefits payable to a Beneficiary under
this Plan shall be paid as soon as practicable following the death of the Participant.




          (c) Manner of Payment. All Excess Retirement Benefits payable to a Beneficiary
hereunder shall be paid in the form of a lump sum payment.




ARTICLE VIII

MISCELLANEOUS




     Section 8.1 Liability of Company. Nothing in this Plan shall constitute the creation
of a trust or other fiduciary relationship between the Company and any Participant, Beneficiary or
any other person.



     Section 8.2 Limitation on Rights of Participants and Beneficiaries — No Lien. The
Plan is designed to be an unfunded, nonqualified plan. Nothing contained herein shall be deemed to
create a trust or lien in favor of any Participant or Beneficiary on any assets of the Company.
The Company shall have no obligation to purchase any assets that do not remain subject to the
claims of the creditors of the Company for use in connection with the Plan. No Participant or
Beneficiary or any other person shall have any preferred claim on, or any beneficial ownership
interest in, any assets of the Company prior to the time that such assets are paid to the
Participant or Beneficiary as provided herein. Each Participant and Beneficiary shall have the
status of a general unsecured creditor of the Company.



     Section 8.3 No Guarantee of Employment. Nothing in this Plan shall be construed as
guaranteeing future employment to Participants. A Participant continues to be an Employee of the
Company solely at the will of the Company subject to discharge at any time, with or without cause.



     Section 8.4 Payment to Guardian. If a benefit payable hereunder is payable to a
minor, to a person declared incompetent or to a person incapable of handling the disposition of his
property, the Plan Administrator may direct payment of such benefit to the guardian, legal
representative or person having the care and custody of such minor, incompetent or person. The
Plan Administrator may require such proof of incompetency, minority, incapacity or guardianship as
it may deem appropriate prior to distribution of the benefit. Such distribution shall completely
discharge the Company from all liability with respect to such benefit.



     Section 8.5 Assignment. No right or interest under this Plan of any Participant or
Beneficiary shall be assignable or transferable in any manner or be subject to alienation,
anticipation, sale, pledge, encumbrance or other legal process or in any manner be liable for or
subject to the debts or liabilities of the Participant or Beneficiary. Notwithstanding the
foregoing, the Plan Administrator shall honor a judgment, order or decree from a state domestic
relations court which requires the payment of part or all or a Participant’s or Beneficiary’s
vested interest under this Plan to an “alternate payee” as defined in Code Section 414(p).



     Section 8.6 Severability. If any provision of this Plan or the application thereof to
any circumstance(s) or person(s) is held to be invalid by a court of competent jurisdiction, the



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remainder of the Plan and the application of such provision to other circumstances or persons
shall not be affected thereby.



ARTICLE IX

ADMINISTRATION OF PLAN




     Section 9.1 Administration. (a) In general. The Plan shall be administered
by the Plan Administrator. The Plan Administrator shall have sole and absolute discretion to
interpret where necessary all provisions of the Plan (including, without limitation, by supplying
omissions from, correcting deficiencies in, or resolving inconsistencies or ambiguities in, the
language of the Plan), to make factual findings with respect to any issue arising under the Plan,
to determine the rights and status under the Plan of Participants, or other persons, to resolve
questions (including factual questions) or disputes arising under the Plan and to make any
determinations with respect to the benefits payable under the Plan and the persons entitled thereto
as may be necessary for the purposes of the Plan. Without limiting the generality of the
foregoing, the Plan Administrator is hereby granted the authority (i) to determine whether a
particular employee is a Participant, and (ii) to determine if a person is entitled to Excess
Retirement Benefits hereunder and, if so, the amount and duration of such Benefits. The Plan
Administrator’s determination of the rights of any person hereunder shall be final and binding on
all persons, subject only to the claims procedures outlined in Section 9.3 hereof.



          (b) Delegation of Duties. The Plan Administrator may delegate any of its
administrative duties, including, without limitation, duties with respect to the processing,
review, investigation, approval and payment of Excess Retirement Benefits, to a named administrator
or administrators.




     Section 9.2 Regulations. The Plan Administrator shall promulgate any rules and
regulations it deems necessary in order to carry out the purposes of the Plan or to interpret the
provisions of the Plan; provided, however, that no rule, regulation or interpretation shall be
contrary to the provisions of the Plan. The rules, regulations and interpretations made by the
Plan Administrator shall, subject only to the claims procedure outlined in Section 9.3 hereof, be
final and binding on all persons.



     Section 9.3 Claims Procedures. The Plan Administrator shall determine the rights of
any person to any Excess Retirement Benefits hereunder. Any person who believes that he has not
received the Excess Retirement Benefits to which he is entitled under the Plan may file a claim in
writing with the Plan Administrator. The Plan Administrator shall, no later than 90 days after the
receipt of a claim (plus an additional period of 90 days if required for processing, provided that
notice of the extension of time is given to the claimant within the first 90 day period), either
allow or deny the claim in writing. If a claimant does not receive written notice of the Plan
Administrator’s decision on his claim within the above-mentioned period, the claim shall be deemed
to have been denied in full.



          A denial of a claim by the Plan Administrator, wholly or partially, shall be written in a
manner calculated to be understood by the claimant and shall include:





	 	(a)  	the specific reasons for the denial;




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	 	(b)  	specific reference to pertinent Plan provisions on which the
denial is based;
	 
	 	(c)  	a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of why such
material or information is necessary; and
	 
	 	(d)  	an explanation of the claim review procedure.





          A claimant whose claim is denied (or his duly authorized representative) may within 60 days
after receipt of denial of a claim file with the Plan Administrator a written request for a review
of such claim. If the claimant does not file a request for review of his claim within such 60-day
period, the claimant shall be deemed to have acquiesced in the original decision of the Plan
Administrator on his claim. If such an appeal is so filed within such 60 day period, the Company
(or its delegate) shall conduct a full and fair review of such claim. During such review, the
claimant shall be given the opportunity to review documents that are pertinent to his claim and to
submit issues and comments in writing. For this purpose, the Company (or its delegate) shall have
the same power to interpret the Plan and make findings of fact thereunder as is given to the Plan
Administrator under Section 9.1(a) above.




          The Company shall mail or deliver to the claimant a written decision on the matter based on
the facts and the pertinent provisions of the Plan within 60 days after the receipt of the request
for review (unless special circumstances require an extension of up to 60 additional days, in which
case written notice of such extension shall be given to the claimant prior to the commencement of
such extension). Such decision shall be written in a manner calculated to be understood by the
claimant, shall state the specific reasons for the decision and the specific Plan provisions on
which the decision was based and shall, to the extent permitted by law, be final and binding on all
interested persons. If the decision on review is not furnished to the claimant within the
above-mentioned time period, the claim shall be deemed to have been denied on review.




     Section 9.4 Revocability of Plan Administrator/ Company Action. Any action taken by
the Plan Administrator or the Company with respect to the rights or benefits under the Plan of any
person shall be revocable by the Plan Administrator or the Company as to payments not yet made to
such person, and acceptance of any Excess Retirement Benefits under the Plan constitutes acceptance
of and agreement to the Plan Administrator’s or the Company’s making any appropriate adjustments in
future payments to such person (or to recover from such person) any excess payment or underpayment
previously made to him.



     Section 9.5 Amendment. The Committee may at any time amend any or all of the
provisions of this Plan, except that (a) no such amendment may adversely affect any Participant’s
vested Excess Retirement Benefit as of the date of such amendment, without the prior written
consent of such Participant, and (b) no such amendment may suspend the crediting of earnings on the
balance of a Participant’s Account, until the entire balance of such Account has been distributed.
Any amendment shall be in the form of a written instrument executed by an officer of the Company on
the order of the Committee. Subject to the foregoing provisions of



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this Section, such amendment shall become effective as of the date specified in such
instrument or, if no such date is specified, on the date of its execution.



     Section 9.6 Termination.



          (a) The Committee, in its sole discretion, may terminate this Plan at any time and for any
reason whatsoever, except that, subject to Subsection (b) hereof, (i) no such termination may
adversely affect any Participant’s vested Excess Retirement Benefit as of the date of such
termination, without the prior written consent of such Participant, and (ii) no such termination
may suspend the crediting of earnings on the balance of a Participant’s Account, until the entire
balance of such Account has been distributed. Any such termination shall be expressed in the form
of a written instrument executed by an officer of the Company on the order of the Committee.
Subject to the foregoing provisions of this Section, such termination shall become effective as of
the date specified in such instrument or, if no such date is specified, on the date of its
execution. Written notice of any termination shall be given to the Participants as soon as
practicable after the instrument is executed.




          (b) Notwithstanding anything in the Plan to the contrary, in the event of a termination of the
Plan, the Company, in its sole and absolute discretion, shall have the right to change the time and
form of distribution of Participants’ Excess Retirement Benefits.




     Executed, this 26th day of October, 2001.



	 	 	 	 	 
	 	 	THE KITCHEN COLLECTION, INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/ Charles A. Bittenbender
	

	 	 	 	 
	

	 	 	 	Title: Assistant Secretary







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