Exhibit 4(b)


 


E. I.
du Pont de Nemours and Company


Management Deferred Compensation
Plan


 


(Effective January 1, 2008)


(As Last Amended Effective December 31,
2009)


 


Article 1.                Purpose.  E. I. du Pont de Nemours and Company (“Company”)
desires to provide certain of its employees with an opportunity to accumulate
additional retirement savings through voluntary compensation deferral
contributions to a plan intended to constitute a non-qualified deferred
compensation plan which, in accordance with Sections  201(2), 301(a)(3) and 401(a)(1) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), is
unfunded and maintained by the Company primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees.  The Company intends that a participant’s
compensation deferrals, and the earnings thereon, will not be subject to
federal income tax until such amounts are paid or made available to the
participant.


 


Article 2.                Definitions


 


Section 2.01          “Account” means each account
established on the books of account of the Employer to reflect the balance of
Plan benefits attributable to a Participant. 
An Account shall be credited or debited, as applicable, with Deferral
Contributions, Credited Investment Return and Dividend Equivalent Units, and
any payments made by the Employer to the Participant or the Participant’s
Beneficiary pursuant to this Plan.  A
Participant’s Account shall be divided into Directed Investment Subaccounts,
with respect to which he/she shall be permitted to make Deemed Investment
Elections, and Stock Unit Subaccounts, with respect to which he/she shall not
be permitted to make Deemed Investment Elections.


 


Section 2.02          “Active Participant” means a
Participant on whose behalf a current Deferral Election is in effect.


 


Section 2.03          “Administrator” means the Company.


 


Section 2.04          “Affiliate” means any
corporation, organization or entity which is under common control with the
Company or which is otherwise required to be aggregated with the Company
pursuant to paragraphs (b), (c), (m), or (o) of Section 414 of the
Code.


 


Section 2.05          “Base Salary” means the basic
pay from the Employer (excluding LTI Awards and STI Awards, distributions from
nonqualified deferred compensation plans, commissions, overtime, severance,
fringe benefits, stock options and other equity awards, relocation expenses,


 


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incentive payments,
non-monetary awards, automobile and other allowances (whether or not such
allowances are included in the Employee’s gross income) and other non-regular
forms of compensation paid to a Participant for employment services rendered).
Base Salary shall be calculated before reduction for compensation voluntarily
deferred or contributed by the Participant pursuant to all qualified or
nonqualified plans of any Employer and shall be calculated to include amounts
not otherwise included in the Participant’s gross income under Code Sections
125, 132, 402(e)(3), 402(h), or 403(b) pursuant to plans or arrangements
established by any Employer; provided, however, that all such amounts will be
included in Base Salary only to the extent that had there been no such plan,
the amount would have been payable in cash to the Employee. Notwithstanding anything
in this Plan to the contrary, Base Salary shall not include any amount paid
pursuant to a disability plan or pursuant to a disability insurance policy.


 


Section 2.06          “Base Salary Deferral Eligible
Employee” means any U.S.-based employee of the Employer who is designated from
time to time by the Employer as eligible to defer the payment of Base Salary in
accordance with Article 4 hereof.


 


Section 2.07          “Beneficiary” means the person
or persons designated as such pursuant to Article 7 hereof.


 


Section 2.08          “Change of Control” means an
objectively determined event that occurs with respect to the Company or the
Employer for whom the Participant renders services and which constitutes both a
Change in Control for purposes of the Equity and Incentive Plan and change in
the ownership or effective control of the Company or Employer, as applicable,
or in the ownership of a substantial portion of the Company’s or Employer’s, as
applicable, assets for purposes of Code Section 409A.


 


Section 2.09          “Changed Personal Circumstances”
means an event or series of events beyond the control of the Participant which
were unforeseeable at the time a Deferral Election was made which will result
in a severe financial hardship for the Participant absent a cancellation of the
Deferral Election at issue.  A financial
hardship shall be deemed severe if the amount involved equals or exceeds the
annual Deferral otherwise resulting from the Deferral Election at issue.  Whether a Participant has experienced Changed
Personal Circumstances shall be determined on a facts-and-circumstances basis
in the sole discretion of the Administrator.


 


Section 2.10          “Code” means the Internal
Revenue Code of 1986, as amended, and the regulations and rulings issued
thereunder.


 


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Section 2.11          “Common Stock Unit” means a
notional unit representing one share of common stock of the Company.


 


Section 2.12          “Credited Investment Return”
means the hypothetical gain or loss credited to a Participant’s Directed
Investment Subaccounts pursuant to Article 5 hereof.


 


Section 2.13          “Deemed Investment Election”
means the selection by a Participant, pursuant to Article 5 hereof, of
Investment Options in which his/her Directed Investment Subaccounts shall be
deemed invested.


 


Section 2.14          “Deferral Contributions” means
the elective contributions made to the Plan by a Participant pursuant to Article 4
hereof.


 


Section 2.15          “Deferral Election” means an
election, pursuant to Article 4 hereof, to defer receipt of Base Salary or
STI Awards, or the settlement of LTI Awards. 
Deferral Elections shall be made in accordance with the procedures
established by the Administrator for that purpose.  A Deferral Election may be cancelled due to
an  “unforeseeable emergency” as defined
in Treasury Regulation Section 1.409A-3(i)(3) or a hardship
distribution pursuant to Section  1.401(k)-1(d)(3). The Deferral Election
must be cancelled, not merely postponed or otherwise delayed.  Any later Deferral Election will be subject
to the provisions of Article 4 of this Plan governing Deferral Elections.


 


Section 2.16          “Directed Investment Subaccount”
means that portion of a Participant’s Account to which a Participant’s Deferral
Contributions of Base Salary and STI Awards, and Credited Investment Return and
Dividend Equivalent Units attributable thereto, will be allocated and with
respect to which he/she may make Deemed Investment Elections in accordance with
Article 5 hereof.  A Participant may
maintain no more than five (5) Directed Investment Subaccounts under this
Plan.


 


Section 2.17          “Dividend Equivalent Units”
means additional Common Stock Units credited to a Participant’s Account
pursuant to Section 5.05.


 


Section 2.18          “Dividend Payment Date” means
each date on which the Company pays a dividend on its common stock.


 


Section 2.19          “Effective Date” means January 1,
2008.  Notwithstanding the foregoing to
the contrary, provisions of this Plan related


 


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to the deferral of Base
Salary and LTI Awards shall not be effective until January 1, 2009.


 


Section 2.20          “Eligible Employee” means any Base
Salary Deferral Eligible Employee, STI Deferral Eligible Employee or LTI Deferral
Eligible Employee.


 


Section 2.21          “Employer” means the Company
and any Affiliate which, with the consent of the Company, adopts this Plan.


 


Section 2.22          “Equity and Incentive Plan”
means the E.I. du Pont de Nemours and Company Equity and Incentive Plan.


 


Section 2.23          “Form of Payment” means
either (i) a lump sum or (ii) annual installments (for up to fifteen
(15) years).  Annual installments are
available only in connection with a Separation from Service or Change of
Control.  In the event of a Participant’s
death, his/her remaining Account balance will be distributable in a single lump
sum.


 


Section 2.24          “Identification Date” means
each December 31.


 


Section 2.25          “Investment Options” means one
or more alternatives designated from time to time, pursuant to Section 5.01
hereof, for purposes of crediting earnings or losses to Directed Investment Subaccounts.


 


Section 2.26          “LTI Award” means an award of RSUs
or PSUs.


 


Section 2.27          “LTI Deferral Eligible Employee”
means any U.S.-based employee of the Employer who is designated from time to
time by the Company as eligible to defer the settlement of an LTI Award in
accordance with Article 4 hereof.


 


Section 2.28          “Participant” means any
Eligible Employee who has elected to participate in the Plan by completing the
appropriate forms (including electronic forms) prescribed by the Administrator
for that purpose.


 


Section 2.29          “Payment Event” means any of
the following:


 


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(a)       Separation from Service


 


(b)       The earlier of (i) Separation
from Service or (ii) a specified date


 


(c)       Change of Control


 


Notwithstanding the foregoing,
(i) in the event of a Participant’s death, his/her remaining Account
balance will automatically be distributed to his/her Beneficiary in a single
lump sum within ninety days (90) thereafter and (ii) a Participant may
request that all or a portion of his/her Account be distributed on account of
an “unforeseeable emergency” as defined in Treasury Regulation Section 1.409A-3(i)(3) and
subject to the restrictions on such distributions set forth therein.


 


Section 2.30          “Plan” means the E.I du Pont de
Nemours and Company Management Deferred Compensation Plan.


 


Section 2.31          “Plan Year” means the twelve
(12) month period beginning January 1 and ending December 31.


 


Section 2.32          “PSU” means a performance-based
restricted stock unit granted under the Equity and Incentive Plan.


 


Section 2.33          “Qualified Leave” means
military leave, sick leave, or other bona fide leave of absence if the period
of such leave does not exceed six months, or if longer, so long as the
individual retains a right to reemployment with the service recipient under an
applicable statute or by contract. A leave of absence constitutes a bona fide
leave of absence only if there is a reasonable expectation that the employee
will return to perform services for the employer. If the period of leave
exceeds six months and the individual does not retain a right to reemployment
under an applicable statute or by contract, the employment relationship is
deemed to terminate on the first date immediately following such six-month
period.


 


Section 2.34          “RSU” means a time-vested
restricted stock unit granted under the Equity and Incentive Plan.


 


Section 2.35          “Section 16 Person” means
any employee who is subject to the reporting requirements of Section 16(a) or
the liability provisions of Section 16(b) of the Securities and
Exchange Act of 1934, as amended.


 


Section 2.36          “Separation from Service” means
a “separation from service” as defined in Treasury Regulation Section 1.409A-1(h).


 


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Section 2.37          “Similar Plan” means a plan
required to be aggregated with this Plan under Treasury Regulation Section 1.409A-1(c)(2)(i)(A).


 


Section 2.38          “Specified Employee” means an
officer of the Employer at any time during the 12-month period ending on an
Identification Date.  If a Participant is
a Specified Employee as of an Identification Date, such Participant is treated
as a Specified Employee for the 12-month period beginning on the first day of
the first month following the Identification Date.


 


Section 2.39          “STI Award” means a cash-based
award under the Equity and Incentive Plan.


 


Section 2.40          “STI Deferral Eligible Employee”
means any U.S.-based employee of the Employer who is designated from time to
time by the Employer as eligible to defer the payment of an STI Award in accordance
with Article 4 hereof.


 


Section 2.41          “Stock Unit Subaccount” means
that portion of a Participant’s Account to which a Participant’s Deferral
Contributions of LTI Awards, and Dividend Equivalent Units attributable
thereto, will be allocated and with respect to which he/she may not make Deemed
Investment Elections in accordance with Article 5 hereof.  A Participant may maintain no more than five (5) Stock
Unit Subaccounts under this Plan.


 


Section 2.42          “Triggering Event” means, with
respect to a Distribution Subaccount, the Payment Event elected by a
Participant pursuant to Section 4.03.


 


Article 3.                Eligibility.


 


 


Section 3.01          Procedure For and Effect of
Admission.  Each Eligible Employee
who desires to participate in this Plan shall complete such forms (including
electronic forms) and provide such data as is reasonably required by the Administrator.
By becoming a Participant, an Eligible Employee shall be deemed to have
consented to the provisions of this Plan and all amendments hereto.


 


Section 3.02          Cessation of Participation.  A Participant shall cease to be an Active
Participant on the earlier of:


 


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(a)       The date on which the Plan
terminates;


 


(b)       The date on which he/she
ceases to be an Eligible Employee; or


 


(c)       The date on which he/she
is permitted by the Administrator to terminate Deferral Contributions to the
Plan.


 


A former Active Participant
will be considered a Participant for all purposes, except with respect to the
right to make contributions, as long as he/she retains an Account.


 


Article 4.                Deferral Elections


 


Section 4.01          Annual Deferral Elections


 


(a)       Deferral Contributions
of Base Salary.  A Base Salary
Deferral Eligible Employee may elect to defer a percentage, not to exceed 60%,
of his/her Base Salary payable with respect to services performed during the
Plan Year; provided, however, that such Deferral Election shall be made (i) during
the open enrollment period established by the Administrator for that purpose
and (ii) on or before the last day of the calendar year preceding the
first day of the Plan Year to which such Deferral Election relates.  A Base Salary Deferral Eligible Employee may
elect to cancel a Deferral Election made pursuant to this section on account of
Changed Personal Circumstances provided such election is made on or before the
last day of the calendar year preceding the first day of the Plan Year to which
such Deferral Election relates.  Any
election made pursuant to this section shall remain in effect unless and until
changed by the Participant; provided, however, that with respect to Base Salary
earned in any future taxable year, such election becomes irrevocable on December 31
of the preceding calendar year.


 


(b)       Deferral Contributions
of STI Awards.  An STI Deferral
Eligible Employee may elect to defer a percentage, not to exceed 60%, of an STI
Award; provided, however, that (i) such STI Deferral Eligible Employee
performs services continuously from the later of the beginning of the
performance period or the date the performance criteria are established through
the date the election to defer is made and (ii) such Deferral Election is
made (A) during the open enrollment period established by the
Administrator for that purpose and (B) on or before the date that is six  months before the end of the performance
period over which the STI Award shall be determined.  An STI Deferral Eligible Employee may elect
to cancel a Deferral Election made pursuant to this section on account of
Changed Personal Circumstances provided such election is made on or before the
date that is six months before the end 


 


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of
the performance period over which the STI Award shall be determined.  Any election made pursuant to this section
shall remain in effect unless and until changed by the Participant; provided,
however, that with respect to any STI Award earned during any future taxable
year, such election becomes irrevocable on the date that is six months before
the end of the performance period over which the STI Award shall be determined.


 


(c)       Deferral Contributions
of LTI Awards.


 


(i)            RSUs.  An
LTI Deferral Eligible Employee may elect to defer the settlement of RSUs
granted during a Plan Year; provided, however, that such Deferral Election shall
be made (i) during the open enrollment period established by the
Administrator for that purpose and (ii) on or before the last day of the
calendar year preceding the first day of the Plan Year to which such Deferral
Election relates.  An LTI Deferral Eligible
Employee may elect to cancel a Deferral Election made pursuant to this section
on account of Changed Personal Circumstances provided such election is made on
or before the last day of the calendar year preceding the first day of the Plan
Year to which such Deferral Election relates. 
Notwithstanding the foregoing, an LTI Deferral Eligible Employee may
elect to defer the settlement of RSUs that are subject to a vesting period of
at least 12 months, provided such election is made on or before the thirtieth
(30th) day after the LTI Deferral Eligible Employee is granted the RSUs and
further provided that the election is made at least 12 months in advance of the
earliest date on which the vesting period could expire.  In the event that a timely election to defer
the settlement of RSUs may not be made pursuant to either of the foregoing
sentences of this paragraph, an LTI Deferral Eligible Employee may elect to
defer the settlement of RSUs provided such election is made at least 12 months
in advance of the date on which the restrictions on such RSUs lapse and further
provided that such RSUs may not be settled until the fifth anniversary of the
date that the restrictions on the RSUs lapsed. 
Notwithstanding the foregoing to the contrary, an LTI Deferral Eligible
Employee shall not be permitted to elect to defer the settlement of RSUs unless
such election complies with Code Section 409A.  If a Participant elects to defer settlement
of RSUs, any restrictions on transferability and/or events of forfeiture
applicable to such RSUs under the Equity and Incentive Plan or the Award Terms
(as defined under the Equity and Incentive Plan) shall continue in full force
and effect.  Upon expiration of all
restrictions on transferability, the appropriate number of Common Stock Units
of the Company, including Dividend Equivalent Units attributable thereto, shall
be credited to the Participant’s applicable Stock Unit 


 


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Subaccount. 
Any election made pursuant to this Section shall remain in effect
unless and until changed by the Participant; provided, however, that with
respect to RSUs granted in any future taxable year, such election becomes
irrevocable on the last day of the calendar year preceding the Plan Year during
which the RSUs are granted or, if later, on the thirtieth (30th) day after the
LTI Deferral Eligible Employee is granted the RSUs and at least 12 months in
advance of the earliest date on which the vesting period could expire.


 


(ii)           PSUs.  An LTI
Deferral Eligible Employee may elect to defer the settlement of PSUs provided,
however, that (i) such LTI Deferral Eligible Employee performs services
continuously from the later of the beginning of the performance period or the
date the performance criteria are established through the date the election to
defer is made and (ii) such Deferral Election is made (A) during the
open enrollment period established by the Administrator for that purpose and (B) on
or before the date that is six  months
before the end of the performance period over which the PSU settlement shall be
determined.  An LTI Deferral Eligible
Employee may elect to cancel a Deferral Election made pursuant to this section
on account of Changed Personal Circumstances provided such election is made on
or before the date that is six  months
before the end of the performance period over which the PSU settlement shall be
determined.  Any election made pursuant
to this Section shall remain in effect unless and until changed by the
Participant; provided, however, that with respect to any PSUs earned during any
future taxable year, such election becomes irrevocable on the date that is
six  months before the end of the
performance period over which the PSU settlement shall be determined.


 


Section 4.02          Initial Distribution Elections.


 


(a)       Directed Investment
Subaccounts.  A Participant may elect
to establish up to five (5) Directed Investment Subaccounts under his/her
Account.  At the time a Participant
establishes a Directed Investment Subaccount, he/she must also elect a Payment
Event and Form of Payment with respect to such subaccount.  When making a Deferral Election with respect
to Base Salary or STI Awards, a Participant shall designate:  (i) to which Directed Investment Subaccounts
amounts deferred pursuant to that election, and Credited Investment Return and
Dividend Equivalent Units attributable thereto, shall be allocated; and (ii) how
those amounts shall be allocated among the designated Directed Investment Subaccounts.  If a Participant fails to establish a Directed
Investment Subaccount or fails to designate the Directed Investment Subaccount(s) to
which his/her Deferral Contributions of Base Salary or 


 


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STI
Awards should be allocated, such Deferral Contributions shall be allocated to
the default Directed Investment Subaccount established by the
Administrator.  The Payment Event with
respect to such default Directed Investment Subaccount shall be Separation of Service
and the Form of Payment shall be a lump sum.


 


(b)       Stock Unit Subaccount.  A Participant may elect to establish up to
five (5) Stock Unit Subaccounts under his/her Account.  At the time a Participant establishes a Stock
Unit Subaccount, he/she must also elect a Payment Event and Form of
Payment with respect to such subaccount. 
When making a Deferral Election with respect to LTI Awards, a
Participant shall designate:  (i) to
which Stock Unit Subaccounts amounts deferred pursuant to that election, and
Dividend Equivalent Units attributable thereto, shall be allocated; and (ii) how
those amounts shall be allocated among the designated Stock Unit
Subaccounts.  If a Participant fails to
establish a Stock Unit Subaccount or fails to designate the Stock Unit
Subaccount(s) to which his/her Deferral Contributions of LTI Awards should
be allocated, such Deferral Contributions shall be allocated to the default
Stock Unit Subaccount established by the Administrator.  The Payment Event with respect to such
default Stock Unit Subaccount shall be Separation of Service and the Form of
Payment shall be a lump sum.


 


Section 4.03          Subsequent Distribution Elections.  A Participant may subsequently elect to
change the Payment Event or Form of Payment elected with respect to one or
more Directed Investment Subaccounts or Stock Unit Subaccounts in accordance
with procedures established by the Administrator for such purpose; provided,
however, that:  (i) such subsequent
election may not take effect until at least 12 months after the date on which
it is made; (ii) the payment with respect to which such election is made
must be deferred for a period of not less than five (5) years from the
date such payment would otherwise have been made; and (iii) any subsequent
election related to a payment at a specified time or in accordance with a fixed
schedule may not be made less than 12 months prior to the date of the first
scheduled payment.


 


Article 5.                Investment of Accounts


 


Section 5.01          Investment Options.  The Administrator shall designate from time
to time one or more Investment Options in which a Participant’s Directed
Investment Subaccounts may be deemed invested. The Administrator shall have the
sole discretion to determine the number of Investment Options to be designated
hereunder and the nature of the Investment Options and may change or eliminate
any of the Investment Options from time to time.  In the event of such change or elimination,
the Administrator shall give each Participant timely notice and opportunity to
make a new election. No such change or elimination of any Investment


 


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Options shall be considered to be an amendment to
the Plan pursuant to Section 9.01.


 


Section 5.02          Making Deemed Investment Elections.  A Participant shall select one or more
Investment Options in which his/her Directed Investment Subaccounts shall be
deemed invested.  Separate Deemed
Investment Elections may be made with respect to each Directed Investment
Subaccount.  Any such election shall be
made by filing with the Administrator the appropriate form prescribed for that
purpose.  The Administrator shall
establish procedures relating to Deemed Investment Elections.  Deemed Investment Elections shall remain in
affect until changed by a Participant pursuant to Section 5.03.


 


Section 5.03          Changes to Deemed Investment
Elections.  A Participant may request
a change to his/her Deemed Investment Elections for future amounts allocated to
his/her Directed Investment Subaccount and amounts already allocated to his/her
Directed Investment Subaccount.  Any such
change shall be made by filing with the Administrator the appropriate form (including
electronic forms) prescribed by the Administrator for that purpose. The
Administrator shall establish procedures relating to changes in Deemed
Investment Elections, which may include limiting the percentage, amount and
frequency of such changes and specifying the effective date for any such
changes.


 


Section 5.04          Crediting or Debiting of Investment
Experience.  Each Participant’s Directed
Investment Subaccount shall be credited or debited, as applicable, daily with
the amount which the Participant’s Directed Investment Subaccount would have
earned or lost, as applicable, if the amounts credited to such account had, in
fact, been invested in accordance with the Participant’s Deemed Investment
Elections.


 


Section 5.05          Dividend Equivalent Units.  If dividends on the Company’s common stock
are paid during any period that a Participant holds Common Stock Units in one
or more of his/her Directed Investment Subaccounts or Stock Unit Subaccounts,
as of the applicable Dividend Payment Date, a number of additional Common Stock
Units shall be credited to such Directed Investment Subaccount(s) or Stock
Unit Subaccount(s), as applicable.  The
number of such additional Common Stock Units to be credited shall be determined
by first multiplying: (a) the total number of Common Stock Units,
including fractional units, standing to the Participant’s credit in such
account on the day immediately preceding such Dividend Payment Date (including
all Dividend Equivalent Units credited to such account on all previous Dividend
Payment Dates); by (b) the per share dollar amount of the dividend paid on such
Dividend Payment 


 


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Date; and then (c) dividing
the resulting amount by the closing price of one share of the Company’s common
stock on such Dividend Payment Date.


 


Article 6.                Payment of Accounts


 


Section 6.01          Payment in General.  Upon the occurrence of a Triggering Event
that is a Separation from Service or a Change of Control, the Employer shall,
within 90 days thereafter, commence payment of the applicable Distribution
Subaccount(s) to the Participant, or his/her Beneficiary, as applicable,
in the Form of Payment elected by the Participant with respect thereto.  Upon the occurrence of a Triggering Event
that is a specified date or a fixed schedule of payments, the Employer shall
commence payment of the applicable Subaccount to the Participant on such
specified date or in accordance with such fixed schedule of payments.  The amount of each payment made pursuant to
this section shall be based upon the fair market value of the Participant’s
Account as of the latest practicable date preceding the payment date and the
number of remaining scheduled payments due.


 


Section 6.02          Specified Employees.  Notwithstanding Section 6.01, upon the
occurrence of a Triggering Event that is a Separation from Service (other than
on account of death), the Employer shall commence payment of the applicable Distribution
Subaccount(s) to the Participant in the Form of Payment elected by
the Participant with respect thereto on the later of: (1) the date that is
six months and one day after such Triggering Event; or (2) the date on
which such payment was otherwise scheduled to commence.


 


Section 6.03          Medium of Payments.  Payments attributable to that portion of a
Participant’s Directed Investment Subaccount which is deemed to be invested in
Common Stock Units shall be paid in shares of the Company’s common stock for
each whole unit and cash for each fraction of a unit.  Payments attributable to the remaining
portion of a Participant’s Directed Investment Subaccount shall be paid in cash.  Payments attributable to a Participant’s
Stock Unit Subaccounts shall be delivered in shares of the Company’s common
stock for each whole unit and cash for each fraction of a unit.


 


Article 7.                Beneficiary
Designation


 


Section 7.01          Right to Designate Beneficiary.  The Participant will have the right, at any
time, to designate any person or persons as Beneficiary (both primary and
contingent) to whom payment under the Plan will be made in the event of the
Participant’s death. The Beneficiary designation will be effective when it is
submitted in writing or electronically to


 


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the Administrator during the
Participant’s lifetime on a form prescribed by the Administrator.


 


Section 7.02          Cancellation/Revocation of
Beneficiary Designation.  The
submission of a new Beneficiary designation will cancel all prior Beneficiary
designations.


 


Section 7.03          Failure to Designate Beneficiary or
Death of Beneficiary.  If a
Participant fails to designate a Beneficiary as provided above, or if every
person designated as Beneficiary predeceases the Participant, then the
Administrator will direct the distribution of the benefits to the Participant’s
estate. If a primary Beneficiary dies after commencement the Participant’s
death but prior to completion of benefits under this Plan, and no contingent
Beneficiary has been designated by the Participant, any remaining payments will
be paid to the Beneficiary’s estate.


 


Article 8.                Plan
Administration


 


Section 8.01          Administrator’s Responsibilities.  The Administrator is responsible for the day
to day administration of the Plan.  The
Administrator may appoint other persons or entities to perform certain of its
functions. Such appointment shall be made and accepted by the appointee in
writing and shall be effective upon the written approval of the Company.  The Administrator and any such appointee may
employ advisors and other persons necessary or convenient to help him/her carry
out his/her duties.  The Administrator
shall have the right to remove any such appointee from his/her position. Any
person, group of persons or entity may serve in more than one capacity.


 


Section 8.02          Records and Accounts.  All individual and group records relating to
Participants and Beneficiaries, and all other records necessary for the proper
operation of the Plan, shall be made available to the Employer and to each
Participant and Beneficiary for examination during business hours except that a
Participant or Beneficiary shall examine only such records as pertain
exclusively to the examining Participant or Beneficiary and those records and
documents relating to all Participants generally.


 


Section 8.03          Administrator’s Specific Powers and
Duties.  In addition to any powers,
rights and duties set forth elsewhere in the Plan, the Administrator shall have
the following powers and duties:


 


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(a)       to adopt such rules and
regulations consistent with the provisions of the Plan;


 


(b)       to enforce the Plan in
accordance with its terms and any rules and regulations it establishes;


 


(c)       to maintain records
concerning the Plan sufficient to prepare reports, returns and other information
required by the Plan or by law;


 


(d)       to construe and interpret
the Plan and to resolve all questions arising under the Plan;


 


(e)       to direct the Employer to
pay benefits under the Plan, and to give such other directions and instructions
as may be necessary for the proper administration of the Plan;


 


(f)        to engage assistants and
professional advisors.


 


Section 8.04          Construction of the Plan.  The Administrator shall have the sole and
absolute discretion to interpret the Plan and shall resolve all questions arising
in the administration, interpretation and application of the Plan. The
Administrator shall correct any defect, reconcile any inconsistency, or supply
any omission with respect to this Plan. All such corrections, reconciliations,
interpretations and completions of Plan provisions shall be final and binding
upon the parties.


 


Section 8.05          Employer’s Responsibility to
Administrator.  Each Employer shall
furnish the Administrator such data and information as it may require.  The records of the Employer shall be
determinative of each Participant’s period of employment, termination of
employment and the reason therefor, leave of absence, reemployment, years of
service, personal data, and compensation reductions.  Participants and their Beneficiaries shall furnish
to the Administrator such evidence, data, or information, and execute such
documents, as the Administrator requests.


 


Section 8.06          Engagement of Assistants and
Advisers; Plan Expenses.  The
Administrator shall have the right to hire such professional assistants and
consultants as it, in its sole discretion, deems necessary or advisable,
including, but not limited to:


 


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(a)       investment managers and/or
advisers;


 


(b)       accountants;


 


(c)       actuaries;


 


(d)       attorneys;


 


(e)       consultants; and


 


(f)        clerical and office
personnel.


 


Section 8.07          Liability.  Neither the Administrator nor the Employer
shall be liable to any person for any action taken or omitted in connection
with the administration of this Plan unless attributable to its own fraud or
willful misconduct; nor shall the Employer be liable to any person for such
action unless attributable to fraud or willful misconduct on the part of a
director, officer or employee of the Employer.


 


Section 8.08          Payment of Expenses.  If directed by the Company, expenses of the
Administrator incurred in the operation or administration of this Plan shall be
charged against the Participant’s Accounts to which the expense relates. If an
expense is applicable to more than one Participant’s Accounts, the expense
shall be allocated among such Participants’ Accounts in a non-discriminatory
manner as determined by the Company.


 


Section 8.09          Indemnity of Administrator.  The Employer shall indemnify the
Administrator (including any individual who is a member of a committee serving
as the Administrator) or any individual who is a delegate of the Administrator
against any and all claims, loss, damage, expense or liability arising from any
action or failure to act, except when due to gross negligence or willful
misconduct.


 


Article 9.                Amendment
or Termination


 


Section 9.01          Amendment.  The Board of Directors of the Company, or its
delegate, may amend the Plan at any time and from time to time and any
amendment may have retroactive effect, including, without limitation,
amendments to the amount of contributions; provided, however, that no amendment
shall (i) reduce the value of a Participant’s Account or (ii) change
the form or timing of payment of an amount contributed prior to the date of amendment.


 


Section 9.02          Termination.  While the Plan is intended to be permanent,
the Board of Directors of the Company, or its delegate, may at any time
terminate or partially terminate the Plan, provided that upon such 


 


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termination, except to the
extent otherwise permitted under Code Section 409A, all Accounts will be
distributed in accordance with the terms of the Plan as in effect on the date
of termination.  Written notice of such
termination or partial termination, setting forth the date and terms thereof,
shall be given to the Administrator.


 


Article 10.              Miscellaneous


 


Section 10.01        Section 16 Person.  With respect to Section 16 Persons, the
Administrator may establish, in writing, such rules, regulations, policies or
practices hereunder which it deems, in its sole discretion, to be necessary and
appropriate.


 


Section 10.02        Claims Review.  In any case in which a claim for Plan
benefits of a Participant or Beneficiary is denied or modified, the Administrator
shall furnish written notice to the claimant within 90 days (or within 180 days
if additional information requested by the Administrator necessitates an
extension of the 90-day period), which notice shall:


 


(a)       State the specific reason
or reasons for the denial or modification;


 


(b)       Provide specific reference
to pertinent Plan provisions on which the denial or modification is based;


 


(c)       Provide a description of
any additional material or information necessary for the Participant, his/her Beneficiary,
or representative to perfect the claim and an explanation of why such material
or information is necessary; and


 


(d)       Explain the Plan’s claim
review procedure as contained herein, including the claimant’s right to bring a
civil action under Section 502(a) of ERISA following an adverse
review determination.


 


In the event a claim for
Plan benefits is denied or modified, if the Participant, his/her Beneficiary,
or a representative of such Participant or Beneficiary desires to have such
denial or modification reviewed, he/she must, within 60 days following receipt
of the notice of such denial or modification, submit a written request for
review by the Administrator of its initial decision.  In connection with such request, the
Participant, his/her Beneficiary, or the representative of such Participant or Beneficiary
may review any pertinent documents upon which such denial or modification was
based and may submit issues and comments in writing.  Within 60 days following such request for
review the Administrator shall, after providing a full and fair review, render
its final decision in writing to the Participant, his/her beneficiary or the
representative of such Participant or Beneficiary stating specific reasons for
such decision, making specific references to pertinent Plan provisions upon
which the decision is based and stating that the claimant is entitled to
receive, upon request and free of charge, 


 


16

















 


reasonable access to, and copies of, all documents,
records, and other information relevant to the claim.  If special circumstances require an extension
of such 60-day period, the Administrator’s decision shall be rendered as soon
as possible, but not later than 120 days after receipt of the request for
review.  If an extension of time for
review is required, written notice of the extension shall be furnished to the
Participant, Beneficiary, or the representative of such Participant or Beneficiary
prior to the commencement of the extension period.


 


Section 10.03        Limitation of Participant’s Rights.  Nothing in this Plan shall be construed as
conferring upon any Participant any right to continue in the employment of an
Employer, nor shall it interfere with the rights of an Employer to terminate
the employment of any Participant and/or take any personnel action affecting
any Participant without regard to the effect which such action may have upon
such Participant as a recipient or prospective recipient of benefits under the
Plan.


 


Section 10.04        Obligations to Employer.  If a Participant becomes entitled to a
distribution of benefits under the Plan, and if at such time the Participant
has outstanding any debt, obligation, or other liability representing an amount
owing to an Employer, then such Employer may offset such amount owed to it
against the amount of benefits otherwise distributable. Such determination
shall be made by the Administrator.


 


Section 10.05        Nonalienation of Benefits.  Except as expressly provided herein, no
Participant or Beneficiary shall have the power or right to transfer (otherwise
than by will or the laws of descent and distribution), alienate, or otherwise
encumber the Participant’s interest under the Plan.  Any such attempted assignment shall be
considered null and void.  The interest
of any Participant or any beneficiary receiving payments hereunder shall not be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors of the Participant
or the Participant’s Beneficiary.  An
Employer’s obligations under this Plan are not assignable or transferable
except to (a) a business entity which acquires all or substantially all of
an Employer’s assets or (b) any business entity into which an Employer may
be merged or consolidated.


 


Section 10.06        Unfunded Status of Plan.  The Plan is intended to constitute an “unfunded”
plan of deferred compensation for Participants for tax and for purposes of
Title I of ERISA.  The Plan constitutes a
mere promise by the Employer to make benefit payments in the future. Each
Employer shall not be liable for any benefit payments to any other Employer’s
Eligible Employees who are Participant is this Plan. Benefits payable hereunder
shall be payable out of the general assets of the applicable Employer, and no
segregation of any assets whatsoever for such benefits shall be made.  With respect to any payments not yet made to
a 


 


17

















 


Participant, nothing
contained herein shall give any such Participant any rights that are greater
than those of a general creditor of his/her Employer.


 


Section 10.07        Severability.  If any provision of this Plan is held
unenforceable, the remainder of the Plan shall continue in full force and
effect without regard to such unenforceable provision and shall be applied as
though the unenforceable provision were not contained in the Plan.


 


Section 10.08        Gender, Singular & Plural.  All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, or neuter, as the identity of
the person or persons may require. As the context may require, the singular may
be read as the plural and the plural as the singular.


 


Section 10.09        Notice.  Any notice or filing required or permitted to
be given to the Administrator under the Plan shall be sufficient if in writing
and hand delivered, or sent by registered or certified mail, to the
Administrator or to such representatives as the Administrator may designate
from time to time.  Such notice shall be
deemed given as to 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.


 


Section 10.10        Governing Law.  The Plan shall be governed and construed
under the laws of the State of Delaware to the extent not preempted by Federal
law which shall otherwise control.


 


Section 10.11        Binding Terms.  The provisions of the Plan shall be binding
upon and inure to the benefit of the parties hereto, their respective heirs,
executors, administrators and successors.


 


Section 10.12        Headings.  All headings preceding the text of the
several Sections hereof are inserted solely for reference and shall not
constitute a part of this Plan, nor affect its meaning, construction or effect.


 


Section 10.13        Representations.  The Employer does not represent or guarantee
that any particular federal or state income, payroll, personal property or
other tax consequence will result from participation in the Plan.  A Participant should consult with
professional tax advisors to determine the tax consequences of his/her
participation.  In addition, the Company
does not represent or guarantee positive Credited Investment Return and shall
not be required to restore any negative Credited Investment Return.


 


Section 10.14        Compliance with Section 409A.  The Company intends that this Plan provide
for the deferral of compensation as permitted 


 


18

















 


under Code Section 409A.  If any provision of this Plan is determined
to be inconsistent with such intent, it shall be severable and the balance of
this Plan shall remain in full force and effect.


 


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