ex_10-9.htm


     

    
      EXHIBIT 10.9



     

     SOLAR TURBINES INCORPORATED

    MANAGERIAL RETIREMENT

    OBJECTIVE PLAN

     

    (Amended
and Restated Effective as of July 16, 2009)

     

    


    Table of
Contents

     

    
       

      
          ARTICLE
I.  DEFINITIONS

      

       

      
        	
                 
      

              	
                1.1

              	
                General

              


      

       

      
        	
                 
      

              	
                1.2

              	
                Construction

              


      

       

      
          ARTICLE
II.  ELIGIBILITY; ADOPTION BY AFFILIATE

      

       

      
        	
                 
      

              	
                2.1

              	
                Eligible
      Employees

              


      

       

      
        	
                 
      

              	
                2.2

              	
                Existing
      Participants

              


      

       

      
        	
                 
      

              	
                2.3

              	
                New
      Participants

              


      

       

      
        	
                 
      

              	
                2.4

              	
                Discontinuance
      of Participation

              


      

       

      
        	
                 
      

              	
                2.5

              	
                Adoption by
      Affiliates

              


      

       

      
          ARTICLE
III.  DETERMINATION OF BENEFIT

      

       

      
        	
                 
      

              	
                3.1

              	
                General

              


      

       

      
        	
                 
      

              	
                3.2

              	
                Amount of
      Benefit Payable to Participant

              


      

       

      
        	
                 
      

              	
                3.3

              	
                Survivor
      Benefits

              


      

       

      
        	
                 
      

              	
                3.4

              	
                Early
      Retirement Reductions

              


      

       

      
        	
                 
      

              	
                3.5

              	
                Future
      Adjustments

              


      

       

      
          ARTICLE
IV.  VESTING

      

       

      
        	
                 
      

              	
                4.1

              	
                Vesting

              


      

       

      
          ARTICLE
V.  PAYMENT OF BENEFIT

      

       

      
        	
                 
      

              	
                5.1

              	
                Payments on
      or After Effective Date But Prior to January 1,
  2009

              


      

       

      
        	
                 
      

              	
                5.2

              	
                Payments on
      or After January 1, 2009

              


      

       

      
        	
                 
      

              	
                5.3

              	
                Withholding

              


      

       

      
        	
                 
      

              	
                5.4

              	
                Ban on
      Acceleration of Benefits

              


      

       

      
          ARTICLE
VI.  ADMINISTRATION OF THE PLAN

      

       

      
        	
                 
      

              	
                6.1

              	
                General
      Powers and Duties

              


      

       

      
        	
                 
      

              	
                6.2

              	
                Claims
      Procedures

              


      

       

      
          ARTICLE
VII.  AMENDMENT

      

       

      
        	
                 
      

              	
                7.1

              	
                Amendment

              


      

       

      
        	
                 
      

              	
                7.2

              	
                Effect of
      Amendment

              


      

       

      
        	
                 
      

              	
                7.3

              	
                Termination

              


      

       

      
          ARTICLE
VIII.  GENERAL PROVISIONS

      

       

      
        	
                 
      

              	
                8.1

              	
                Participant’s
      Rights Unsecured

              


      

       

      
        	
                 
      

              	
                8.2

              	
                No Guaranty
      of Benefits

              


      

       

      
        	
                 
      

              	
                8.3

              	
                No
      Enlargement of Employee Rights

              


      

       

      
        	
                 
      

              	
                8.4

              	
                Section 409A
      Compliance

              


      

       

      
        	
                 
      

              	
                8.5

              	
                Spendthrift
      Provision

              


      

       

      
        	
                 
      

              	
                8.6

              	
                Domestic
      Relations Orders

              


      

       

      
        	
                 
      

              	
                8.7

              	
                Incapacity of
      Recipient

              


      

       

      
        	
                 
      

              	
                8.8

              	
                Successors

              


      

       

      
        	
                 
      

              	
                8.9

              	
                Limitations
      on Liability

              


      

       

      
        	
                 
      

              	
                8.10

              	
                Overpayments

              


      

       

    

    
 

    
      
        

      



     

    SOLAR
TURBINES INCORPORATED

    MANAGERIAL
RETIREMENT OBJECTIVE PLAN

     

    PREAMBLE

     

    Effective May 14,
1981, Solar Turbines Incorporated (the “Company”) established the Solar Turbines
Incorporated Managerial (and Professional) Retirement Objective Plan for the
benefit of a select group of management or highly compensated employees of the
Company.  As a continuation of the plan, the Company formally adopted
the Solar Turbines Incorporated Managerial Retirement Objective Plan (the
“Plan”) effective as of January 1, 2005 to comply with the requirements of
Section 409A of the Code and other applicable law.   By execution
of this document, the Company hereby amends and restates the Plan in its
entirely, effective as of July 16, 2009.

     

    ARTICLE
I.

    DEFINITIONS

     

    1.1           General.  When
a word or phrase appears in the Plan with the initial letter capitalized, and
the word or phrase does not begin a sentence, the word or phrase shall generally
be a term defined in this Article I.  The following words and
phrases used in the Plan with the initial letter capitalized shall have the
meanings set forth in this Article I, unless a clearly different meaning is
required by the context in which the word or phrase is used or the word or
phrase is defined for a limited purpose elsewhere in the Plan
document:

     

    (a)           “Adopting
Affiliate” means
any Affiliate that has been authorized by the Company to adopt the Plan and
which has adopted the Plan in accordance with Section 2.5.  All
Affiliates that adopted the Plan on or before the Effective Date and that had
not terminated such adoption shall continue to be Adopting Affiliates of the
Plan.

     

    (b)           “Affiliate” means a parent business that
controls, or a subsidiary business that is controlled by, the
Company.

     

    (c)           “Beneficiary” means, with respect to a
Participant, the person or persons entitled to receive distributions of the
Participant’s death benefits under SRP.

     

    (d)           “Benefit
Determination Date” means the following:

     

    (1)           On or
After Effective Date But Prior to January 1, 2009.  On or after
the Effective Date but prior to January 1, 2009, a Participant’s Benefit
Determination Date shall be the date as of which the Participant has elected to
commence benefits under SRP.

     

    (2)           On or
After January 1, 2009.  On or after January 1, 2009, a
Participant’s Benefit Determination Date shall be the date determined under (i)
or (ii) below:

     

    (i)           With
respect to (x) a Participant’s PEP Benefit (as defined in Section 3.2(b)) or (z)
a Participant’s Traditional Benefit (as defined in Section 3.2(a)) where the
Participant satisfies the requirements under Section 5.2(d)(1)(i) or (ii) as of
the Participant’s Separation from Service, the Participant’s Benefit
Determination Date shall be the first day of the month following the
Participant’s Separation from Service.

     

    (ii)           With
respect to a Participant's Traditional Benefit (as defined in Section 3.2(a))
where the Participant does not satisfy the requirements under Section
5.2(d)(1)(i) or (ii) as of the Participant’s Separation from Service, the
Participant’s Benefit Determination Date shall be the first day of the month
following the date that the Participant first satisfies the requirements under
Section 5.2(d)(1)(i) or (ii).

     

    (e)           “Benefit
Payment Date”
means the date as of which the Participant’s benefit amounts under the Plan
shall be payable, as determined in accordance with Section 5.2(d).

     

    (f)           “Board” means the Board of Directors
of the Company, or any authorized committee of the Board.

     

    (g)           “Code” means the Internal Revenue
Code of 1986, as amended from time to time, and any regulations promulgated
thereunder.

     

    (h)           “Company” means Solar Turbines
Incorporated, and, to the extent provided in Section 8.8 below, any
successor corporation or other entity resulting from a merger or consolidation
into or with the Company or a transfer or sale of substantially all of the
assets of the Company.

     

    (i)           “Disability”
or “Disabled”
means that a Participant is determined to be totally disabled by the United
States Social Security Administration.

     

    (j)           “Effective
Date” means
January 1, 2005.

     

    (k)           “ERISA” means the Employee
Retirement Income Security Act of 1974, as amended from time to time, and any
regulations promulgated thereunder.

     

    (l)           “MIP
Award” means a
cash award paid pursuant to the Solar Turbines Incorporated Management Incentive
Plan, as it may be amended from time to time.

     

    (m)           “Participant” means an employee of the
Company or any Adopting Affiliate who satisfies the eligibility requirements for
participation in the Plan.

     

    (n)           “Plan” means the Solar Turbines
Incorporated Managerial Retirement Objective Plan, as set forth herein and as it
may be amended from time to time.

     

    (o)           “Plan
Administrator”
means the Company.

     

    (p)           “Plan
Year” means the
calendar year.

     

    (q)           “Separation
from Service”
means separation from service as determined in accordance with any
regulations, rulings or other guidance issued by the Department of the Treasury
pursuant to Section 409A(a)(2)(A)(i) of the Code, as it may be amended or
replaced from time to time.

     

    (r)           “Specified
Employee” means a
“key employee” as defined in Section 416(i) of the Code without regard to
Section 416(i)(5) and determined in accordance with Section 409A(a)(2)(B)(i) of
the Code.

     

    (s)           “SRP” means the Solar Turbines
Incorporated Retirement Plan, as it may be amended from time to
time.

     

    (t)           “Unforeseeable
Emergency” means
a severe financial hardship to the Participant resulting from an illness or
accident of the Participant, the Participant’s spouse, or a “dependent” (as
defined in Section 152(a) of the Code) of the Participant, loss of the
Participant’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant.  For purposes of the Plan, an “Unforeseeable
Emergency” shall not include a Participant’s need to send his or her child to
college or a Participant’s desire to purchase a home.  Any
determination as to whether a Participant has incurred an Unforeseeable
Emergency shall be made in the sole discretion of the Plan Administrator in
accordance with rules prescribed pursuant to Section 409A of the
Code.

     

    1.2           Construction. The masculine gender,
when appearing in the Plan, shall include the feminine gender (and vice versa),
and the singular shall include the plural, unless the Plan clearly states to the
contrary.  Headings and subheadings are for the purpose of reference
only and are not to be considered in the construction of the Plan.  If
any provision of the Plan is determined to be for any reason invalid or
unenforceable, the remaining provisions shall continue in full force and
effect.  All of the provisions of the Plan shall be construed and
enforced according to the laws of the State of Illinois without regard to
conflict of law principles and shall be administered according to the laws of
such state, except as otherwise required by ERISA, the Code, or other Federal
law.

     

     

    ARTICLE
II.

    ELIGIBILITY;
ADOPTION BY AFFILIATES

     

    2.1           Eligible
Employees.  The purpose of the Plan is to provide supplemental
retirement benefits to a select group of management or highly compensated
employees.  This group of employees is sometimes referred to as a “top
hat group.”  The Plan constitutes an unfunded supplemental retirement
plan and is fully exempt from Parts 2, 3, and 4 of Title I of
ERISA.  The Plan shall be governed and construed in accordance with
Title I of ERISA.

     

    2.2           Existing
Participants. Each individual who was
a Participant in the Plan as of the date of execution of this plan document
shall continue as such, subject to the provisions hereof.

     

    2.3           New
Participants.  An employee shall participate in the Plan if he
(a) is in salary grade fifty-three (53) or higher pursuant to the Company’s
standard salary grades; (b) is a participant in SRP; (c) has received a MIP
Award; and (d) has been notified by the Plan Administrator of the employee’s
eligibility to participate in the Plan.

     

    2.4           Discontinuance
of Participation.  As a general rule, once an individual is a
Participant, he will continue as such for all future Plan Years until his
retirement or other termination of employment; provided that no payments will be
made by the Plan to any Participant who terminates his or her employment with
the Company prior to satisfying the requirements under Section 5.2(d)(1)(i) or
(ii). In addition, prior to retirement or other termination of employment, the
Plan Administrator shall discontinue an individual’s participation in the Plan
if the Plan Administrator concludes, in the exercise of its discretion, that the
individual is no longer properly included in the top hat group.  If an
individual’s participation is discontinued, the individual will no longer be
eligible to accrue a benefit under the Plan.  The individual will not
be entitled to receive a distribution, however, until the occurrence of another
event (e.g., death or Separation from Service) that entitles the individual to
receive a distribution.

     

    2.5           Adoption
by Affiliates.  An employee of an Affiliate may not become a
Participant in the Plan unless the Affiliate has previously adopted the
Plan.  An Affiliate of the Company may adopt the Plan only with the
approval of the Company.  By adopting the Plan, the Affiliate shall be
deemed to have agreed to assume the obligations and liabilities imposed upon it
by the Plan, agreed to comply with all of the other terms and provisions of the
Plan, delegated to the Plan Administrator the power and responsibility to
administer the Plan with respect to the Affiliate’s employees, and delegated to
the Company the full power to amend or terminate the Plan with respect to the
Affiliate’s employees.  Notwithstanding the foregoing, an Affiliate
that has previously adopted the Plan may terminate its participation in the Plan
in accordance with such rules and procedures that are promulgated by the
Company.

     

     

    ARTICLE
III.

    DETERMINATION
OF BENEFIT

     

    3.1           General.  Benefit
amounts payable under the Plan shall be determined pursuant to Section 3.2 and,
if applicable, adjusted pursuant to Section 3.4.  Such determinations
shall be made by reference to (a) the benefit amounts that would be payable to
the Participant under SRP if MIP Awards were taken into account in determining
the Participant’s benefits thereunder and without regard to the applicable
limitations under Sections 401(a)(17) and 415 of the Code and (b) the monthly
benefit amounts actually payable to the Participant under the terms of
SRP.

     

    3.2           Amount of
Benefit Payable to Participant.  The monthly benefit payable to
the Participant by the Plan shall be equal to the sum of the Participant’s
“Traditional Benefit” and “PEP Benefit” amounts (both as defined below), if any,
determined under subsections (a) and (b) below as of the Participant’s Benefit
Determination Date:

     

    (a)           “Traditional
Benefit”.  Any benefit payable to the Participant by the Plan
under the “traditional benefit” provisions under Part C of SRP, as it may be
amended from time to time, shall be determined as follows:

     

    (1)           Step
One.  The Plan Administrator shall determine the benefit that
would be payable to the Participant pursuant to SRP if MIP Awards were taken
into account for the plan years used in determining the Participant’s final
average salary in accordance with the terms of Part C of SRP and without regard
to the applicable limitations under Sections 401(a)(17) and 415 of the
Code.

     

    (2)           Step
Two.  The Plan Administrator shall determine the benefit that
would be payable to the Participant pursuant to SRP by determining the
Participant’s final average salary in accordance with the terms of Part C of SRP
and subject to the applicable limitations under Sections 401(a)(17) and 415 of
the Code.

     

    (3)           Step
Three.  The amount determined pursuant to paragraph (2) above
shall be subtracted from the amount determined pursuant to paragraph (1) above
to determine the benefit payable to the Participant pursuant to this Section
3.2(a) of the Plan (herein referred to as a Participant’s “Traditional
Benefit”).

     

    (b)           “PEP
Benefit”.  Any benefit payable by the Plan to the Participant
under the “pension equity formula” provisions under Part E of SRP, as it may be
amended from time to time, shall be determined as follows:

     

    (1)           Step
One.  The Plan Administrator shall determine the single sum
amount that would be payable to the Participant pursuant to SRP if MIP Awards
were taken into account for the plan years used in determining the Participant’s
final average salary in accordance with the terms of Part E of SRP and without
regard to the applicable limitations under Sections 401(a)(17) and 415 of the
Code.

     

    (2)           Step
Two.  The Plan Administrator shall determine the single sum
amount that is payable to the Participant pursuant to SRP by determining the
Participant’s final average salary in accordance with the terms of Part E of SRP
and subject to the applicable limitations under Sections 401(a)(17) and 415 of
the Code.

     

    (3)           Step
Three.  The amount determined pursuant to paragraph (2) above
shall be subtracted from the amount determined pursuant to paragraph (1) above
to determine the single sum amount payable to the Participant pursuant to this
Section 3.2(b) of the Plan (herein referred to as a Participant’s “PEP
Benefit”).

     

    (c)           Timing of
MIP Awards.  For purposes of Section
3.2(a)(1) above, not more than three MIP Awards paid during any thirty-six
consecutive month period shall be considered for such period when determining
the benefit that would be payable to the Participant pursuant to SRP if MIP
Awards were taken into account. The Plan Administrator shall adopt uniform and
nondiscriminatory procedures for determining which MIP Award(s) will be
disregarded if more than three MIP Awards are paid in a thirty-six consecutive
month period.

     

    3.3           Survivor
Benefits.  In the event a Participant dies after becoming
vested under the Plan pursuant to Section 4.1 but prior to commencing his
benefits under the Plan pursuant to Article V, a survivor benefit shall be
payable as follows:

     

    (a)           Traditional
Benefit.  With respect to a Participant’s Traditional Benefit,
if any, determined under Section 3.2(a) (and, if applicable, adjusted under
Section 3.4), the Participant’s surviving spouse, if any, shall be entitled to a
monthly survivor benefit payable during the spouse’s lifetime and terminating
with the payment for the month in which such spouse’s death
occurs.  The monthly benefit payable to the surviving spouse shall be
the portion of the amount determined under Section 3.2(a) (and, if applicable,
adjusted under Section 3.4) as of the Participant’s Benefit Determination Date
that the surviving spouse would have been entitled to receive under this Plan if
the Participant had separated from service on the date of his death, commenced
benefits in accordance with Article V in the form of a 60% (55% in the case of a
Participant in benefit class code B as of the date the Participant first
commenced participation under this Plan) joint and survivor annuity (as
determined in accordance with the applicable assumptions in effect under SRP as
of the date the Participant first commenced participation under this Plan), and
then died immediately thereafter.  A surviving spouse who was not
married to the deceased Participant for at least one year at the date of death
shall not be eligible for the monthly survivor benefit pursuant to this Section
3.3.

     

    (b)           PEP
Benefit.  With respect to a Participant’s PEP Benefit, if any,
determined under Section 3.2(b), such benefit shall be paid to the Participant’s
Beneficiary in a single sum amount as soon as administratively feasible after
the Benefit Determination Date.

     

    3.4           Early
Retirement Reductions.  Any benefits determined pursuant to
this Article III shall be subject to the same reductions for early retirement as
applicable under SRP.

     

    3.5           Future
Adjustments.  Any benefit amounts payable under this Plan may
be adjusted to take into account future amendments to SRP and increases in
retirement income that are granted under SRP due to cost-of-living
increases.  Any benefit amounts payable under this Plan shall be
adjusted to take into account future factors and adjustments made by the
Secretary of the Treasury (in regulations or otherwise) to the limitations under
Sections 401(a)(17) and 415 of the Code.

     

     

    ARTICLE
IV.

    VESTING

     

    4.1           Vesting. Subject to Section 8.1,
each Participant shall be vested in his or her benefit, if any, that becomes
payable under Article V of the Plan to the same extent that the Participant is
vested in his or her benefit accrued under SRP.

     

     

    ARTICLE
V.

    PAYMENT
OF BENEFIT

     

    5.1           Payments
on or After Effective Date But Prior to January 1, 2009.  In
accordance with the transitional guidance issued by the Internal Revenue Service
and the Department of Treasury in Section 3 of IRS Notice 2007-86, any payment
of benefits to a Participant or his Beneficiary commencing on or after the
Effective Date but prior to January 1, 2009 shall be made pursuant to the
Participant’s applicable payment election or the applicable pre-retirement
survivor provisions under SRP.

     

    5.2           Payments
on or After January 1, 2009.  Any payment of benefits to a
Participant commencing on or after January 1, 2009 shall be determined in
accordance with this Section 5.2.

     

    (a)           Limitation
on Right to Receive Distribution. A Participant shall not
be entitled to receive a distribution prior to the first to occur of the
following events:

     

    (1)           The
Participant’s Separation from Service, or in the case of a Participant who is a
Specified Employee, the date which is six months after the Participant’s
Separation from Service;

     

    (2)           The
date the Participant becomes Disabled;

     

    (3)           The
Participant’s death;

     

    (4)           A
specified time (or pursuant to a fixed schedule) specified at the date of
deferral of compensation;

     

    (5)           An
Unforeseeable Emergency; or

     

    (6)           To
the extent provided by the Secretary of the Treasury, a change in the ownership
or effective control of the Company or an Adopting Affiliate or in the ownership
of a substantial portion of the assets of the Company or an Adopting
Affiliate.

     

    This Section 5.2(a)
restates the restrictions on distributions set forth in Section 409A of the Code
and is intended to impose restrictions on distributions pursuant to the Plan
accordingly.  This Section 5.2(a) does not describe the instances in
which distributions will be made.  Rather, distributions will be made
only if and when permitted both by this Section 5.2(a) and another provision of
the Plan.

     

    (b)           General
Right to Receive Distribution.  Following a Participant’s
termination of employment or death, the Participant’s benefit amounts will be
paid to the Participant in the manner and at the time provided in Sections
5.2(c) and 5.2(d), as applicable.  A transfer of a Participant from
the Company or any Affiliate to any other Affiliate or the Company shall not be
deemed to be a termination of employment for purposes of this Section
5.2(b).

     

    (c)           Form of
Payment.

     

    (1)           Traditional
Benefit.  Any monthly benefit payable to a Participant under
Section 3.2(a) (and, if applicable, adjusted under Section 3.4) shall be paid in
the form of annuity payments as follows:

     

    (i)           Unmarried
Participants.  The benefits of an unmarried Participant shall
be paid in the form of a single life annuity for the Participant’s
life.  No payments shall be made after the Participant
dies.  Notwithstanding the foregoing, in accordance with uniform rules
and procedures as may be adopted by the Plan Administrator from time to time, an
unmarried Participant may elect, in lieu of a single life annuity, to have his
or her benefits paid in any actuarially equivalent form of annuity permitted
under SRP.

     

    (ii)           Married
Participants.  Subject to Section 3.3, the benefits of a
married Participant shall be paid in the form of a joint and survivor annuity in
a monthly benefit for the Participant’s life and then, if the Participant’s
spouse is still alive, a benefit equal to 60% (55% in the case of a Participant
in benefit class code B as of the date the Participant first commenced
participation under this Plan) of the Participant’s monthly benefit is paid to
the spouse for the remainder of his or her life (as determined in accordance
with the applicable assumptions in effect under SRP as of the date the
Participant first commenced participation under this Plan).  If the
Participant’s spouse is not alive when the Participant dies, no further payments
shall be made.  Notwithstanding the foregoing, in accordance with
uniform rules and procedures as may be adopted by the Plan Administrator from
time to time, a married Participant may, with the written consent of the
Participant’s spouse, elect to waive the joint and survivor annuity of this
subparagraph (ii) and instead elect a single life annuity or any actuarially
equivalent form of annuity permitted under SRP.

     

    In addition, if the
Participant’s Benefit Payment Date, as described in clauses (i) or (ii) of
Section 5.2(d)(1), is delayed pursuant to the last sentence of Section
5.2(d)(1), then any monthly benefit amounts that would have been paid if not for
such last sentence will be credited with interest at five percent (5%) per annum
through the Participant’s Benefit Payment Date.  Such delayed monthly
benefit amounts and interest shall be paid in a single sum amount as soon as
administratively feasible after such Benefit Payment Date.

     

    (2)           PEP
Benefit.  Any benefit payable to a Participant determined under
Section 3.2(b) shall be paid in a single sum amount.  In addition, if
the Participant’s Benefit Payment Date, as described in Section 5.2(d)(2), is
delayed pursuant to the first sentence of Section 5.2(d)(2), then any single sum
amount that would have been paid if not for such first sentence will be credited
with interest at five percent (5%) per annum through the Participant’s Benefit
Payment Date.  Such interest shall be paid in a single sum amount as
soon as administratively feasible after such Benefit Payment Date.

     

    (d)           Timing of
Payment.

     

    (1)           Traditional
Benefit.  Except as
provided below, any benefit determined under Section 3.2(a) (and, if applicable,
adjusted under Section 3.4) that becomes payable to the Participant following
Separation from Service shall commence on the first day of the month following
the earliest of the following:

     

    (i)           the
Participant’s attainment of age 65 or, if later, the Participant’s fifth
anniversary of the date he or she commenced participation under SRP;
or

     

    (ii)           the
Participant’s attainment of age 55 after completing at least 10 years of
credited service.

     

    For purposes of
(ii) above, the Plan Administrator shall determine the Participant’s “years of
credited service” by reference to the applicable terms under SRP in existence as
of the date the Participant first commenced participation under this
Plan.

     

    Notwithstanding the
foregoing provisions of this Section 5.2(d)(1), in no event shall any benefit
payable to a Participant under Section 3.2(a) (and, if applicable, adjusted
under Section 3.4) commence earlier than the first day of the month coincident
with or next following a date that is at least six months after the
Participant’s Separation from Service, except in the event of the Participant’s
death, in which case any benefit payable to the Participant’s Beneficiary shall
commence as of the applicable date specified in Section 3.3(a).

     

    For avoidance of
doubt, and notwithstanding any provision of the Plan to the contrary, no
payments will be made by the Plan to any Participant who terminates his or her
employment with the Company prior to satisfying the requirements under
subparagraphs (i) or (ii) above.

     

    (2)           PEP
Benefit.  Subject to the
last paragraph of Section 5.2(d)(1), any benefit determined under Section 3.2(b)
that becomes payable to the Participant following Separation from Service shall
be paid on the first day of the month that is at least six months after the
Participant’s Separation from Service.  Notwithstanding the foregoing,
in the event of the Participant’s death, any benefit payable to the
Participant’s Beneficiary will be paid as soon as administratively feasible
after the date of the Participant’s death.

     

    5.3           Withholding. All distributions will
be subject to all applicable tax and withholding requirements.

     

    5.4           Ban on
Acceleration of Benefits.  Neither the time nor the schedule of
any payment under the Plan may be accelerated except as permitted in regulations
or other guidance issued by the Internal Revenue Service or the Department of
the Treasury and as incorporated herein.

     

     

    ARTICLE
VI.

    ADMINISTRATION
OF THE PLAN

     

    6.1           General
Powers and Duties. The following list of
powers and duties is not intended to be exhaustive, and the Plan Administrator
shall, in addition, exercise such other powers and perform such other duties as
he may deem advisable in the administration of the Plan, unless such powers or
duties are expressly assigned to another pursuant to the provisions of the
Plan.

     

    (a)           General.  The
Plan Administrator shall perform the duties and exercise the powers and
discretion given to it in the Plan document and by applicable law and its
decisions and actions shall be final and conclusive as to all persons affected
thereby.  The Company and the Adopting Affiliates shall furnish the
Plan Administrator with all data and information that the it may reasonably
require in order to perform its functions.  The Plan Administrator may
rely without question upon any such data or information.

     

    (b)           Disputes.  Any
and all disputes that may arise involving Participants or beneficiaries shall be
referred to the Plan Administrator and its decision shall be
final.  Furthermore, if any question arises as to the meaning,
interpretation or application of any provisions of the Plan, the decision of the
Plan Administrator shall be final.

     

    (c)           Agents.  The
Plan Administrator may engage agents, including recordkeepers, to assist it and
it may engage legal counsel who may be counsel for the Company.  The
Plan Administrator shall not be responsible for any action taken or omitted to
be taken on the advice of such counsel, including written opinions or
certificates of any agent, counsel, actuary or physician.

     

    (d)           Insurance.  The
Company may purchase liability insurance to cover its activities as the Plan
Administrator.

     

    (e)           Allocations.  The
Plan Administrator is given specific authority to allocate responsibilities to
others and to revoke such allocations.  When the Plan Administrator
has allocated authority pursuant to this paragraph, the Plan Administrator is
not to be liable for the acts or omissions of the party to whom such
responsibility has been allocated.

     

    (f)           Records.  The
Plan Administrator shall supervise the establishment and maintenance of records
by its agents, the Company and each Adopting Affiliate containing all relevant
data pertaining to any person affected hereby and his or her rights under the
Plan.

     

    (g)           Interpretations.  The
Plan Administrator, in its sole discretion, shall interpret and construe the
provisions of the Plan (and any underlying documents or policies).

     

    (h)           Electronic
Administration.  The Plan Administrator shall have the
authority to employ alternative means (including, but not limited to,
electronic, internet, intranet, voice response or telephonic) by which
Participants may submit elections, directions and forms required for
participation in, and the administration of, the Plan.  If the Plan
Administrator chooses to use these alternative means, any elections, directions
or forms submitted in accordance with the rules and procedures promulgated by
the Plan Administrator will be deemed to satisfy any provision of the Plan
calling for the submission of a written election, direction or
form.

     

    (i)           Delegation.  The
Plan Administrator may delegate its authority hereunder, in whole or in part, in
its sole and absolute discretion.

     

    6.2           Claims
Procedures.  Benefit claims under the Plan shall be resolved in
accordance with Code Section 409A and uniform and nondiscriminatory procedures
adopted by the Plan Administrator in accordance with Section 503 of
ERISA.

     

     

    ARTICLE
VII.

    AMENDMENT

     

    7.1           Amendment. The Company shall have
the right at any time to amend, in whole or in part, any or all of the
provisions of this Plan by action of the Board of Directors of the
Company.

     

    7.2           Effect of
Amendment. Any amendment of the
Plan shall not directly or indirectly reduce the benefits previously accrued by
the Participant.

     

    7.3           Termination. The Company expressly
reserves the right to terminate the Plan.  In the event of
termination, the Company shall specify whether termination will change the time
at which distributions are made; provided that any acceleration of a
distribution is consistent with Section 409A of the Code.  In the
absence of such specification, the timing of distributions shall be unaffected
by termination.

     

     

    ARTICLE
VIII.

    GENERAL
PROVISIONS

     

    8.1           Participant’s
Rights Unsecured. The Plan at all times
shall be entirely unfunded and no provision shall at any time be made with
respect to segregating any assets of the Company for payment of any
distributions hereunder.  The right of a Participant or his or her
Beneficiary to receive benefits hereunder shall be an unsecured claim against
the general assets of the Company, and neither the Participant nor his
Beneficiary shall have any rights in or against any specific assets of the
Company.  All amounts accrued by Participants hereunder shall
constitute general assets of the Company and may be disposed of by the Company
at such time and for such purposes as it may deem
appropriate.  Nothing in this Section shall preclude the Company from
establishing a “Rabbi Trust,” but the assets in the Rabbi Trust must be
available to pay the claims of the Company’s general creditors in the event of
the Company’s insolvency.

     

    8.2           No
Guaranty of Benefits. Nothing contained in the
Plan shall constitute a guaranty by the Company or any other person or entity
that the assets of the Company will be sufficient to pay any benefit
hereunder.

     

    8.3           No
Enlargement of Employee Rights. No Participant shall
have any right to receive a distribution from the Plan except in accordance with
the terms of the Plan.  Participation in the Plan shall not be
construed to give any Participant the right to be retained in the service of the
Company or an Adopting Affiliate.

     

    8.4           Section
409A Compliance.  The Company intends that the Plan meet the
requirements of Section 409A of the Code and the guidance issued
thereunder.  The Plan shall be administered, construed and interpreted
in a manner consistent with that intention.

     

    8.5           Spendthrift
Provision. No interest of any
person or entity in, or right to receive a distribution under, the Plan shall be
subject in any manner to sale, transfer, assignment, pledge, attachment,
garnishment, or other alienation or encumbrance of any kind; nor shall any such
interest or right to receive a distribution be taken, either voluntarily or
involuntarily, for the satisfaction of the debts of, or other obligations or
claims against, such person or entity, including claims in bankruptcy
proceedings.  This Section shall not preclude arrangements for the
withholding of taxes from deferrals, credits, or benefit payments, arrangements
for the recovery of benefit overpayments, arrangements for the transfer of
benefit rights to another plan, or arrangements for direct deposit of benefit
payments to an account in a bank, savings and loan association or credit union
(provided that such arrangement is not part of an arrangement constituting an
assignment or alienation).

     

    8.6           Domestic
Relations Orders. Notwithstanding any
provision of the Plan to the contrary, and to the extent permitted by law, the
amounts payable pursuant to the Plan may be assigned or alienated pursuant to a
“Domestic Relations Order” (as such term is defined in Section 414(p)(1)(B) of
the Code), subject to such uniform rules and procedures as may be adopted by the
Plan Administrator from time to time.

     

    8.7           Incapacity
of Recipient. If the Plan
Administrator is served with a court order holding that a person entitled to a
distribution under the Plan is incapable of personally receiving and giving a
valid receipt for such distribution, the Plan Administrator shall postpone
payment until such time as a claim therefore shall have been made by a duly
appointed guardian or other legal representative of such person.  The
Plan Administrator is under no obligation to inquire or investigate as to the
competency of any person entitled to a distribution.  Any payment to
an appointed guardian or other legal representative under this Section shall be
a payment for the account of the incapacitated person and a complete discharge
of any liability of the Company and the Plan therefor.

     

    8.8           Successors. The Plan shall be
binding upon the successors and assigns of the Company and upon the heirs,
beneficiaries and personal representatives of the individuals who become
Participants hereunder.

     

    8.9           Limitations
on Liability. Notwithstanding any of
the preceding provisions of the Plan, neither the Plan Administrator, the
Company, nor any individual acting as the Plan Administrator’s, or the Company’s
employee, agent, or representative shall be liable to any Participant, former
Participant, Beneficiary or other person for any claim, loss, liability or
expense incurred in connection with the Plan.

     

    8.10           Overpayments.  If
it is determined that the benefits under the Plan should not have been paid or
should have been paid in a lesser amount, written notice thereof shall be given
to the recipient of such benefits (or his legal representative) and he shall
repay the amount of overpayment to the Company.  If he fails to repay
such amount of overpayment promptly, the Company shall arrange to recover for
the Plan the amount of the overpayment by making an appropriate deduction or
deductions from any future benefit payment or payments payable to that person
(or his survivor or beneficiary) under the Plan or from any other benefit plan
of the Company.