EX-10.18







Fidelity
National Financial, Inc.

 Deferred Compensation Plan




Amended
And Restated, Effective January 1, 2009




 











 





	 	 	 	 	 
	Fidelity National Financial, Inc. Deferred Compensation Plan
	 	 	 	 
	 
	 	 	 	 
	Article I
	 	 	 	 
	Establishment and Purpose
	 	 	1	 
	 
	 	 	 	 
	Article II
	 	 	 	 
	Definitions
	 	 	1	 
	 
	 	 	 	 
	Article III
	 	 	 	 
	Eligibility and Participation 
	 	 	7	 
	 
	 	 	 	 
	Article IV
	 	 	 	 
	Deferrals
	 	 	8	 
	 
	 	 	 	 
	Article V
	 	 	 	 
	Company Contributions
	 	 	10	 
	 
	 	 	 	 
	Article VI
	 	 	 	 
	Benefits
	 	 	11	 
	 
	 	 	 	 
	Article VII
	 	 	 	 
	Modifications to Payment Schedules
	 	 	15	 
	 
	 	 	 	 
	Article VIII
	 	 	 	 
	Valuation of Account Balances; Investments
	 	 	16	 
	 
	 	 	 	 
	Article IX
	 	 	 	 
	Administration
	 	 	17	 
	 
	 	 	 	 
	Article X
	 	 	 	 
	Amendment and Termination
	 	 	18	 
	 
	 	 	 	 
	Article XI
	 	 	 	 
	Informal Funding
	 	 	19	 
	 
	 	 	 	 
	Article XII
	 	 	 	 
	Claims
	 	 	19	 
	 
	 	 	 	 
	Article XIII
	 	 	 	 
	General Provisions
	 	 	24	 






 









 





Fidelity National Financial, Inc. Deferred Compensation Plan




Article I



Establishment and Purpose




Fidelity National Financial, Inc. (the “Company”) hereby amends and restates the Fidelity National
Financial, Inc. Deferred Compensation Plan (the “Plan”), effective January 1, 2009. This amendment
and restatement applies only to amounts deferred under the Plan on or after January 1, 2005, and to
amounts deferred prior to January 1, 2005 that were not vested as of December 31, 2004. Amounts
deferred under the Plan prior to January 1, 2005 that were vested as of December 31, 2004 (the
“Grandfathered Accounts”) shall be subject to the provisions of the Plan as in effect on October 3,
2004, as the same may be amended from time to time by the Company without material modification, it
being expressly intended that such Grandfathered Accounts are to remain exempt from the
requirements of Code Section 409A. The provisions of the Plan applicable to Grandfathered Accounts
are reflected in this document for ease of reference.



The purpose of the Plan is to attract and retain key employees and Directors by providing each
Participant with an opportunity to defer receipt of a portion of their salary, bonus, Directors’
Fees and other specified compensation. The Plan is not intended to meet the qualification
requirements of Code Section 401(a), but is intended to meet the requirements of Code Section 409A,
and shall be operated and interpreted consistent with that intent.



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



Article II



Definitions





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





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	2.2	 	Account Balance. Account Balance means, with respect to any Account, the total
payment obligation owed to a Participant from such Account as of the
most recent
Valuation Date.
	 
	2.3	 	Adopting Employer. Adopting Employer means an organization that, with the consent of
the Company, has adopted the Plan for the benefit of its eligible employees.
	 
	2.4	 	Affiliate. Affiliate means a corporation, trade or business that, together
with the
Company, is treated as a single employer under Code Section 414(b) or (c).
	 
	2.5	 	Beneficiary. Beneficiary means a natural person, estate, or trust designated by a
Participant to receive payments to which a Beneficiary is entitled in accordance with
provisions of the Plan. The Participant’s spouse, if living, otherwise the Participant’s
estate, shall be the Beneficiary if: (i) the Participant has failed to properly designate a
Beneficiary, or (ii) all designated Beneficiaries have predeceased the Participant. If the
Participant names someone other than his or her spouse as a Beneficiary, a spousal
consent, in the form designated by the Committee, must be signed by that Participant’s
spouse and returned to the Committee.
	 
	 	 	A former spouse shall have no interest under the Plan, as Beneficiary or otherwise, unless
the Participant designates such person as a Beneficiary after dissolution of the marriage,
except to the extent provided under the terms of a domestic relations order as described in
Code Section 414(p)(l)(B).
	 
	2.6	 	Business Day. A Business Day is each day on which the New York Stock Exchange is
open for business.
	 
	2.7	 	Change in Control. Change in Control, with respect to a Participating Employer that is
organized as a corporation, occurs on the date on which any of the following events occur
(i) a change in the ownership of the Participating Employer; (ii) a change in the effective
control of the Participating Employer; (iii) a change in the ownership of a substantial
portion of the assets of the Participating Employer.
	 
	 	 	For purposes of this Section, a change in the ownership of the Participating Employer occurs
on the date on which any one person, or more than one person acting as a group, acquires
ownership of stock of the Participating Employer that, together with stock held by such
person or group constitutes more than 50% of the total fair market value or total voting
power of the stock of the Participating Employer. A change in the effective control of the
Participating Employer occurs on the date on which either (i) a person, or more than one
person acting as a group, acquires ownership of stock of the Participating Employer
possessing 30% or more of the total voting power of the stock of the Participating Employer,
taking into account all such stock acquired during the 12-month period ending on the date of
the most recent acquisition, or (ii) a majority of the members of the Participating
Employer’s Board of Directors is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the members of such Board of
Directors prior to the date of the appointment or election, but





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	 	 	only if no other corporation is a majority shareholder of the Participating Employer . A
change in the ownership of a substantial portion of assets occurs on the date on which any
one person, or more than one person acting as a group, other than a person or group of
persons that is related to the Participating Employer, acquires assets from the
Participating Employer that have a total gross fair market value equal to or more than 40%
of the total gross fair market value of all of the assets of the Participating Employer
immediately prior to such acquisition or acquisitions, taking into account all such assets
acquired during the 12-month period ending on the date of the most recent acquisition.
	 
	 	 	An event constitutes a Change in Control with respect to a Participant only if the
Participant performs services for the Participating Employer that has experienced the Change
in Control, or the Participant’s relationship to the affected Participating Employer
otherwise satisfies the requirements of Treasury Regulation Section 1.409A-3(i)(5)(ii).
	 
	 	 	The determination as to the occurrence of a Change in Control shall be based on
objective facts and in accordance with the requirements of Code Section 409A.
	 
	2.8	 	Claimant. Claimant means a Participant or Beneficiary filing a claim under Article
XII of
this Plan.
	 
	2.9	 	Code. Code means the Internal Revenue Code of 1986, as amended from time to time.
	 
	2.10	 	Code Section 409A. Code Section 409A means section 409A of the Code, and
regulations and other guidance issued by the Treasury Department and
Internal Revenue
Service thereunder.
	 
	2.11	 	Committee. Committee means the committee appointed by the Board of Directors of the
Company (or the appropriate committee of such board) to administer the Plan. If no
designation is made, the Chief Executive Officer of the Company or his delegate shall
have and exercise the powers of the Committee.
	 
	2.12	 	Company. Company means Fidelity National Financial, Inc.
	 
	2.13	 	Company Contribution. Company Contribution means a credit by a Participating
Employer to a Participant’s Account(s) in accordance with the provisions of Article V of
the Plan. Company Contributions are credited at the sole discretion of the Participating
Employer and the fact that a Company Contribution is credited in one year shall not
obligate the Participating Employer to continue to make such Company Contribution in
subsequent years. Unless the context clearly indicates otherwise, a reference to Company
Contribution shall include Earnings attributable to such contribution.
	 
	2.14	 	Compensation. Compensation means a Participant’s base salary, bonus, commission,
Directors’ Fees and such other cash or equity-based compensation (if any) approved by
the Committee as Compensation that may be deferred under this Plan. Compensation
shall not include any compensation that has been previously deferred under this Plan or
any other arrangement subject to Code Section 409A.





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National Financial, Inc. Deferred Compensation Plan





	2.15	 	Compensation Deferral Agreement. Compensation Deferral Agreement means an
agreement between a Participant and a Participating Employer that specifies (i) the amount of
each component of Compensation that the Participant has elected to defer to the Plan in
accordance with the provisions of Article IV, and (ii) the Payment Schedule applicable to one or
more Accounts. The Committee may permit different deferral amounts for each component of
Compensation and may establish a minimum or maximum deferral amount for each such component.
Unless otherwise specified by the Committee in the Compensation Deferral Agreement, Participants
may defer up to 75% of their Annual Base Salary, up to 100% of their Annual Bonus, up to 100% of
their quarterly bonuses, up to 75% of their Commissions, and up to 100% of Directors’ Fees for a
Plan Year. A Compensation Deferral Agreement may also specify the investment allocation
described in Section 8.4.
	 
	2.16	 	Death Benefit. Death Benefit means the benefit payable under the Plan to a
Participant’s Beneficiary(ies) upon the Participant’s death as provided in Section 6.1 of the
Plan.
	 
	2.17	 	Deferral. Deferral means a credit to a Participant’s Account(s) that records that
portion of the Participant’s Compensation that the Participant has elected to defer to the
Plan in accordance with the provisions of Article IV. Unless the context of the Plan clearly
indicates otherwise, a reference to Deferrals includes Earnings attributable to such
Deferrals.
	 
	 	 	Deferrals shall be calculated with respect to the gross cash Compensation payable to the
Participant prior to any deductions or withholdings, but shall be reduced by the Committee as
necessary so that it does not exceed 100% of the cash Compensation of the Participant remaining
after deduction of all required income and employment taxes, 401(k) and other employee benefit
deductions, and other deductions required by law. Changes to payroll withholdings that affect the
amount of Compensation being deferred to the Plan shall be allowed only to the extent permissible
under Code Section 409A.
	 
	2.18	 	Director. Director means a non-Employee member of the Board of Directors of
the Company or an Adopting Employer.
	 
	2.19	 	Earnings. Earnings means an adjustment to the value of an Account in accordance
with
Article VIII.
	 
	2.20	 	Effective Date. Effective Date means January 1, 2009.
	 
	2.21	 	Eligible Employee. Eligible Employee means a member of a “select group of
management or highly compensated employees” of a Participating Employer within the meaning
of Sections 201(2), 301(a)(3) and 401(a)(l) of ERISA, as determined by the Committee from
time to time in its sole discretion.
	 
	2.22	 	Employee. Employee means a common-law employee of an Employer.





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National Financial, Inc. Deferred Compensation Plan





	2.23	 	Employer. Employer means, with respect to Employees it employs, each
Participating Employer and any Affiliate of such Participating Employer.
	 
	2.24	 	ERISA. ERISA means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
	 
	2.25	 	Fiscal Year Compensation. Fiscal Year Compensation means Compensation earned
during one or more consecutive fiscal years of a Participating Employer, all of which is paid
after the last day of such fiscal year or years.
	 
	2.26	 	Grandfathered Account . Grandfathered Account means amounts deferred under the
Plan prior to January 1, 2005 that were vested as of December 31, 2004.
	 
	2.27	 	Participant. Participant means an Eligible Employee or a Director who has
received notification of his or her eligibility to defer Compensation under the Plan under
Section 3.1 and any other person with an Account Balance greater than zero, regardless of
whether such individual continues to be an Eligible Employee or a Director. A Participant’s
continued participation in the Plan shall be governed by Section 3.2 of the Plan.
	 
	2.28	 	Participating Employer . Participating Employer means the Company and each Adopting
Employer.
	 
	2.29	 	Payment Schedule . Payment Schedule means the date as of which payment of an Account
under the Plan will commence and the form in which payment of such Account will be made.
	 
	2.30	 	Performance-Based Compensation . Performance-Based Compensation means Compensation
where the amount of, or entitlement to, the Compensation is contingent on the satisfaction of
pre-established organizational or individual performance criteria relating to a performance
period of at least twelve consecutive months. Organizational or individual performance criteria
are considered pre-established if established in writing by not later than ninety (90) days after
the commencement of the period of service to which the criteria relate, provided that the outcome
is substantially uncertain at the time the criteria are established. The determination of whether
Compensation qualifies as “Performance-Based Compensation” will be made in accordance with Treas.
Reg. Section 1.409A-l(e) and subsequent guidance.
	 
	2.31	 	Plan. Generally, the term Plan means the “Fidelity National Financial, Inc. Deferred
Compensation Plan” as documented herein and as may be amended from time to time hereafter.
However, to the extent permitted or required under Code Section 409 A, the term Plan may in the
appropriate context also mean a portion of the Plan that is treated as a single plan under Treas.
Reg. Section 1.409A-l(c), or the Plan or portion of the Plan and any other nonqualified deferred
compensation plan or portion thereof that is treated as a single plan under such section. “Plan”,
in the appropriate context, refers to the





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National Financial, Inc. Deferred Compensation Plan





	 	 	portion of this Plan represented by each Adopting Employer’s liabilities with respect to its
Employees and Directors.
	 
	2.32	 	Plan Year. Plan Year means January 1 through December 31.
	 
	2.33	 	Retirement. Retirement means a Participant’s Separation from Service after
attainment of age 60.
	 
	2.34	 	Retirement Benefit. Retirement Benefit means the benefit payable to a Participant
under the Plan following the Retirement of the Participant.
	 
	2.35	 	Retirement/Termination Account. Retirement/Termination Account means an Account
established by the Committee to record the amounts payable to a Participant upon
Separation from Service.
	 
	2.36	 	Separation from Service. An Employee incurs a Separation from Service upon
termination of employment with the Employer. A Director incurs a Separation from Service when he
or she no longer serves on the Board of Directors of the Company. Whether a Separation from
Service has occurred shall be determined by the Committee in accordance with Code Section 409 A.
	 
	 	 	Except in the case of an Employee on a bona fide leave of absence as provided below, an
Employee is deemed to have incurred a Separation from Service if the Employer and the Employee
reasonably anticipated that the level of services to be performed by the Employee after a date
certain would be reduced to 20% or less of the average services rendered by the Employee during
the immediately preceding 36-month period (or the total period of employment, if less than 36
months), disregarding periods during which the Employee was on a bona fide leave of absence.
	 
	 	 	An Employee who is absent from work due to military leave, sick leave, or other bona fide leave
of absence shall incur a Separation from Service on the first date immediately following the
later of (i) the six-month anniversary of the commencement of the leave or (ii) the expiration
of the Employee’s right, if any, to reemployment under statute or contract.
	 
	 	 	For purposes of determining whether a Separation from Service has occurred, the Employer
means the Employer as defined in Section 2.23 of the Plan, except that for purposes of
determining whether another organization is an Affiliate of the Company, common ownership of
at least 50% shall be determinative.
	 
	 	 	The Committee specifically reserves the right to determine whether a sale or other disposition
of substantial assets to an unrelated party constitutes a Separation from Service with respect
to a Participant providing services to the seller immediately prior to the transaction and
providing services to the buyer after the transaction. Such determination shall be made in
accordance with the requirements of Code Section 409A.





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National Financial, Inc. Deferred Compensation Plan





	2.37	 	Specified Date Account. A Specified Date Account means an Account established
by the Committee to record the amounts payable at a future date as specified in the
Participant’s Compensation Deferral Agreement. Unless otherwise determined by the Committee, a
Participant may maintain no more than five Specified Date Accounts. A Specified Date Account may
be identified in enrollment materials as an “In-Service Account” or such other name without
affecting the meaning of this Section.
	 
	2.38	 	Specified Date Benefit. Specified Date Benefit means the benefit payable to a
Participant under the Plan in accordance with Section 6.1(c).
	 
	2.39	 	Substantial Risk of Forfeiture. Substantial Risk of Forfeiture shall have
the meaning specified in Treas. Reg. Section 1.409A-l(d).
	 
	2.40	 	Termination Benefit. Termination Benefit means the benefit payable to a
Participant under the Plan following the Participant’s Separation from Service prior to
Retirement.
	 
	2.41	 	Unforeseeable Emergency. An Unforeseeable Emergency means a severe financial
hardship to the Participant resulting from an illness or accident of the Participant, the
Participant’s spouse, the Participant’s dependent (as defined in Code section 152, without regard
to section 152(b)(l), (b)(2), and (d)(l)(B)) or a Beneficiary; loss of the Participant’s property
due to casualty (including the need to rebuild a home following damage to a home not otherwise
covered by insurance, for example, as a result of a natural disaster); or other similar
extraordinary and unforeseeable circumstances arising as a result of events beyond the control of
the Participant. The types of events which may qualify as an Unforeseeable Emergency may be
limited by the Committee.
	 
	2.42	 	Valuation Date. Valuation Date shall mean each Business Day.





Article III



Eligibility and Participation





	3.1	 	Eligibility and Participation. An Eligible Employee or a Director becomes a
Participant upon the earlier to occur of (i) a credit of Company Contributions under Article V
or (ii) receipt of notification of eligibility to participate.
	 
	3.2	 	Duration. A Participant shall be eligible to defer Compensation and receive
allocations of Company Contributions, subject to the terms of the Plan, for as long as such
Participant remains an Eligible Employee or a Director. A Participant who is no longer an
Eligible Employee or a Director but has not Separated from Service may not file a
Compensation Deferral Agreement under Article IV, but may otherwise exercise all of the
rights of a Participant under the Plan with respect to his or her Account(s). On and after a
Separation from Service, a Participant shall remain a Participant as long as his or her
Account Balance is greater than zero and during such time may continue to make allocation
elections as provided in Section 8.4. An individual shall cease being a Participant in the
Plan when all benefits under the Plan to which he or she is entitled have been paid.





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National Financial, Inc. Deferred Compensation Plan




Article IV



Deferrals





	4.1	 	Deferral Elections, Generally.






	 	(a)	 	A Participant may elect to defer Compensation by submitting a Compensation
Deferral Agreement during the enrollment periods established by the Committee
and in the manner specified by the Committee, but in any event, in accordance
with Section 4.2. A Compensation Deferral Agreement that is not timely filed
with respect to a service period or component of Compensation shall be
considered void and shall have no effect with respect to such service period or
Compensation. The Committee may modify or cancel any Compensation Deferral
Agreement prior to the date the election becomes irrevocable under the rules of
Section 4.2.
	 
	 	(b)	 	The Participant shall specify on his or her Compensation Deferral Agreement the
amount of Deferrals and whether to allocate Deferrals to a
Retirement/Termination Account or to a Specified Date Account. If no
designation is made, Deferrals shall be allocated to the Retirement/Termination
Account. A Participant may also specify in his or her Compensation Deferral
Agreement the Payment Schedule applicable to his or her Plan Accounts. If the
Payment Schedule is not specified in a Compensation Deferral Agreement, the
Payment Schedule shall be the Payment Schedule specified in Section 6.2.






	4.2	 	Timing Requirements for Compensation Deferral Agreements.






	 	(a)	 	First Year of Eligibility. In the case of the first year in which an Eligible
Employee or a Director becomes eligible to participate in the Plan, he has up to 30
days following his initial eligibility to submit a Compensation Deferral
Agreement with respect to Compensation to be earned during such year. The
Compensation Deferral Agreement described in this paragraph becomes
irrevocable upon the end of such 30-day period. The determination of whether an
Eligible Employee or a Director may file a Compensation Deferral Agreement
under this paragraph shall be determined in accordance with the rules of Code
Section 409A, including the provisions of Treas. Reg. Section 1.409A-2(a)(7).
	 
	 	 	 	A Compensation Deferral Agreement filed under this paragraph applies to Compensation
earned on and after the date the Compensation Deferral Agreement becomes
irrevocable.
	 
	 	(b)	 	Prior Year Election. Except as otherwise provided in this Section 4.2,
Participants
may defer Compensation by filing a Compensation Deferral Agreement no later
than December 31 of the year prior to the year in which the Compensation to be
deferred is earned. A Compensation Deferral Agreement described in this
paragraph shall become irrevocable with respect to such Compensation as of
January 1 of the year in which such Compensation is earned.





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	 	(c)	 	Performance-Based Compensation. Participants may file a Compensation Deferral
Agreement with respect to Performance-Based Compensation no later than the date that is
six months before the end of the performance period, provided that:






	 	(i)	 	the Participant performs services continuously from the later of the
beginning of the performance period or the date the criteria are established
through the date the Compensation Deferral Agreement is submitted; and
	 
	 	(ii)	 	the Compensation is not readily ascertainable as
of the date the Compensation Deferral Agreement is filed.






	 	 	 	A Compensation Deferral Agreement becomes irrevocable with respect to
Performance-Based Compensation as of the day immediately following the latest date
for filing such election. Any election to defer Performance-Based Compensation that
is made in accordance with this paragraph and that becomes payable as a result of
the Participant’s death or disability (as defined in Treas. Reg. Section
1.409A-l(e)) or upon a change in control (as defined in Treas. Reg. Section
1.409A-3(i)(5)) prior to the satisfaction of the performance criteria, will be void.
	 
	 	(d)	 	Sales Commissions. Sales commissions (as defined in Treas. Reg. Section
1.409A-2(a)(12)(i)) are considered to be earned in the taxable year of the Participant
in which the sale occurs. The Compensation Deferral Agreement must be filed before the
last day of the year preceding the year in which the sales commissions are earned and
becomes irrevocable after that date.
	 
	 	(e)	 	Short-Term Deferrals. Compensation that meets the definition of a “short-term
deferral” described in Treas. Reg. Section 1.409A-l(b)(4) may be deferred in accordance
with the rules of Article VII, applied as if the date the Substantial Risk of
Forfeiture lapses is the date payments were originally scheduled to commence, provided,
however, that the provisions of Section 7.3 shall not apply to payments attributable to
a change in control (as defined in Treas. Reg. Section 1.409A- 3(i)(5)).
	 
	 	(f)	 	Certain Forfeitable Rights. With respect to a legally binding right to a
payment in a subsequent year that is subject to a forfeiture condition requiring the
Participant’s continued services for a period of at least twelve months from the date
the Participant obtains the legally binding right, an election to defer such
Compensation may be made on or before the 30th day after the Participant obtains the
legally binding right to the Compensation, provided that the election is made at least
twelve months in advance of the earliest date at which the forfeiture condition could
lapse. The Compensation Deferral Agreement described in this paragraph becomes
irrevocable after such 30th day. If the forfeiture condition applicable to the payment
lapses before the end of the required service period as a result of the Participant’s
death or disability (as defined in Treas. Reg. Section






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	 	 	 	1.409A-3(i)(4)) or upon a change in control (as defined in Treas. Reg. Section
1.409A-3(i)(5)), the Compensation Deferral Agreement will be void unless it would be
considered timely under another rule described in this Section.
	 
	 	(g)	 	Company Awards. Participating Employers may unilaterally provide for
deferrals of Company awards prior to the date of such awards. Deferrals of Company
awards (such as sign-on, retention, or severance pay) may be negotiated with a
Participant prior to the date the Participant has a legally binding right to such
Compensation.






	4.3	 	Allocation of Deferrals. A Compensation Deferral Agreement may allocate Deferrals to
one or more Specified Date Accounts and/or to the Retirement/Termination Account. The
Committee may, in its discretion, establish a minimum deferral period for Specified Date
Accounts (for example, the fourth Plan Year following the year Compensation subject to the
Compensation Deferral Agreement is earned).
	 
	4.4	 	Deductions from Pay. The Committee has the authority to determine the payroll
practices under which any component of Compensation subject to a Compensation Deferral
Agreement will be deducted from a Participant’s Compensation.
	 
	4.5	 	Vesting. Participant Deferrals shall be 100% vested at all times.
	 
	4.6	 	Cancellation of Deferrals. The Committee may cancel a Participant’s Deferrals (i) for
the balance of the Plan Year in which an Unforeseeable Emergency occurs, (ii) if the
Participant receives a hardship distribution under the Employer’s qualified 401(k) plan,
through the end of the Plan Year in which the six-month anniversary of the hardship
distribution falls, and (iii) during periods in which the Participant is unable to perform the
duties of his or her position or any substantially similar position due to a mental or
physical impairment that can be expected to result in death or last for a continuous period of
at least six months (a “Disability”), provided cancellation occurs by the later of the end of
the taxable year of the Participant or the 15th day of the third month following
the date the Participant incurs the Disability.





Article V




Company Contributions





	5.1	 	Discretionary Company Contributions. The Participating Employer may, from time to
time in its sole and absolute discretion, credit Company Contributions to any Participant in
any amount determined by the Participating Employer. Such contributions will be credited to a
Participant’s Retirement/Termination Account.
	 
	5.2	 	Vesting. Company Contributions described in Section 5.1, above, and the Earnings
thereon, shall vest in accordance with the vesting schedule(s) established by the Committee at
the time that the Company Contribution is made. All Company Contributions shall become 100%
vested upon the occurrence of the earliest of: (i) the death of the Participant while actively
employed; (ii) the disability of the Participant, (iii)





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	 	 	Retirement of the Participant, or (iv) a Change in Control (except to the extent vesting
would result in tax under Code Section 280G). The Participating Employer may, at any time,
in its sole discretion, increase a Participant’s vested interest in a Company Contribution.
The portion of a Participant’s Accounts that remains unvested upon his or her Separation
from Service after the application of the terms of this Section 5.2 shall be forfeited.
	 
	5.3	 	Company Make-Up Contributions. For each year a Participant is entitled to a
matching contribution under the Company’s 401(k) Plan, the Company shall credit at the end of
the Plan Year to such Participant’s Retirement/Termination Account under this Plan an amount
equal to (a) minus (b) plus (c):






	 	(a)	 	The amount of matching contribution that would have been made by the Company to
a Participant’s account in the Company 401(k) plan for the 401(k) Plan Year if the
Participant had made no deferrals into this Plan (assuming Deferrals reduce
compensation for purposes of computing the maximum company match in the 401(k) plan).
	 
	 	(b)	 	The actual amount of Company matching contributions to such Participant’s
401(k) plan for the Plan Year.
	 
	 	(c)	 	The amount or any lost matching contribution to the Participant’s account in
the Company 401(k) plan due to ACP testing pursuant to Code Section 401(m).






	 	 	Company Make-Up Contributions shall vest in accordance to the Company’s 401(k) plan vesting
schedule.





Article VI




Benefits





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






	 	(a)	 	Retirement Benefit. Upon the Participant’s Separation from Service due to
Retirement, he or she shall be entitled to a Retirement Benefit. The Retirement
Benefit shall be equal to the vested portion of the Retirement/Termination Account
and any Specified Date Accounts that have not commenced payments. The Retirement
Benefit shall be based on the value of such Accounts as of the January 31 or July 31
immediately preceding the payment commencement date, or such other date determined
by the Committee. If the Participant Separates from Service during the first half of
the year (January-June), then payment will commence February 1st of the
following year. If the Participant Separates from Service during the second half of
the year (July-December), then payment will commence August 1st of the
following year. If payments are to be made in annual






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	 	 	 	installments, each installment will be paid on each anniversary of the payment
commencement date described above.
	 
	 	(b)	 	Termination Benefit. Upon the Participant’s Separation from Service for reasons
other than death or Retirement, he or she shall be entitled to a Termination Benefit.
The Termination Benefit shall be equal to the vested portion of the
Retirement/Termination Account and the vested portion of any unpaid Specified Date
Accounts that have not commenced payments. The Termination Benefit shall be based on
the value of such Accounts as of the January 31 or July 31 immediately preceding the
payment commencement date, or such other date determined by the Committee. If the
Participant Separates from Service during the first half of the year (January-June),
then payment will commence February 1st of the following year. If the
Participant Separates from Service during the second half of the year (July-December),
then payment will commence August 1st of the following year. If payments are
to be made in annual installments, each installment will be paid on each anniversary of
the payment commencement date described above.
	 
	 	(c)	 	Specified Date Benefit. If the Participant has established one or more
Specified Date Accounts, he or she shall be entitled to a Specified Date Benefit with
respect to each such Specified Date Account. The Specified Date Benefit shall be equal
to the vested portion of the Specified Date Account, based on the value of that Account
as of the January 31 following the Plan Year designated by the Participant. Payment of
the Specified Date Benefit will be made within 2-1/2 months following the end of such
Plan Year. For purposes of Article VII and Treas. Reg. Section 1.409A-3(d), the payment
date of a Specified Date Account is December 31 of the Plan Year designated by the
Participant.
	 
	 	(d)	 	Death Benefit. In the event of the Participant’s death, his or her designated
Beneficiary(ies) shall be entitled to a Death Benefit. The Death Benefit shall be equal
to the vested portion of the Retirement/Termination Account and the vested portion of
any unpaid Specified Date Accounts that have not commenced payments. The Death Benefit
shall be based on the value of the Accounts as of the end of the month in which death
occurred, with payment made the first day of the following month.
	 
	 	(e)	 	Unforeseeable Emergency Payments. A Participant who experiences an
Unforeseeable Emergency may submit a written request to the Committee to receive
payment of all or any portion of his or her vested Accounts. Whether a Participant or
Beneficiary is faced with an Unforeseeable Emergency permitting an emergency payment
shall be determined by the Committee based on the relevant facts and circumstances of
each case, but, in any case, a distribution on account of Unforeseeable Emergency may
not be made to the extent that such emergency is or may be reimbursed through insurance
or otherwise, by liquidation of the Participant’s assets, to the extent the liquidation
of such assets would not cause severe financial hardship, or by cessation of Deferrals
under this






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	 	 	 	Plan. If an emergency payment is approved by the Committee, the amount of the
payment shall not exceed the amount reasonably necessary to satisfy the need, taking
into account the additional compensation that is available to the Participant as the
result of cancellation of deferrals to the Plan, including amounts necessary to pay
any taxes or penalties that the Participant reasonably anticipates will result from
the payment. The amount of the emergency payment shall be subtracted first from the
vested portion of the Participant’s Retirement/Termination Account until depleted
and then from the vested Specified Date Accounts, beginning with the Specified Date
Account with the latest payment commencement date. Emergency payments shall be paid
in a single lump sum within the 90-day period following the date the payment is
approved by the Committee.
	 
	 	(f)	 	Voluntary Withdrawals of Grandfathered Accounts. A Participant may elect
at any time to voluntarily withdraw only the entire amount credited to his or her
Grandfathered Account. If such a withdrawal is requested, the Participant shall forfeit
an amount equal to 10% of the balance of the Grandfathered Account, and he or she shall
not be permitted to make Deferrals to the Plan in the Plan Year following the Plan Year
in which the withdrawal is made.






	6.2	 	Form of Payment.






	 	(a)	 	Retirement Benefit. A Participant who is entitled to receive a Retirement
Benefit shall receive payment of such benefit in a single lump sum, unless the
Participant elects on his or her initial Compensation Deferral Agreement to have such
benefit paid in one of the following alternative forms of payment (i) substantially
equal annual installments over a period of five (5), ten (10), or fifteen (15) years,
as elected by the Participant; or (ii) a lump sum payment of a percentage of the
balance in the Retirement/Termination Account, with the balance paid in substantially
equal annual installments over a period of five (5), ten (10), or fifteen (15) years,
as elected by the Participant.
	 
	 	(b)	 	Termination Benefit. A Participant who is entitled to receive a
Termination Benefit shall receive payment of such benefit in substantially equal
annual installments over a period of five years.
	 
	 	(c)	 	Specified Date Benefit. The Specified Date Benefit shall be paid in a single
lump sum, unless the Participant elects on the Compensation Deferral Agreement with
which such Specified Date Account was established to have such Account paid in
substantially equal annual installments over a period of two to five years, as elected
by the Participant. Notwithstanding any election of a form of payment by the
Participant, Specified Date Benefits that have not commenced as of the Participant’s
Separation from Service will be paid according to the payment schedule for the
Retirement Benefit, Termination Benefit or Death Benefit, whichever applies to the
Participant upon his or her Separation from Service. However, if the Retirement,
Termination or Death Benefit is payable in a lump sum, the unpaid balance of all
Specified Date Accounts (regardless of such






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	 	 	 	Accounts’ payment status) will be payable in a lump sum.
	 
	 	(d)	 	Death Benefit. If the Participant dies prior to the payment commencement date
of his or her Retirement Benefit, his or her designated Beneficiary shall receive
payment of such benefit in a single lump sum, unless the Participant elects on his
or her initial Compensation Deferral Agreement to have the Death Benefit paid in
one of the following alternative forms of payment (i) substantially equal annual
installments over a period of five (5), ten (10), or fifteen (15) years, as elected
by
the Participant; or (ii) a lump sum payment of a percentage of the Death Benefit,
with the balance paid in substantially equal annual installments over a period of
five (5), ten (10), or fifteen (15) years, as elected by the Participant.
	 
	 	 	 	If the Participant dies on or after his Retirement Benefit payment commencement
date, his or her designated Beneficiary shall receive the remaining payments under
the payment schedule in effect for the Retirement Benefit.
	 
	 	(e)	 	Change in Control. A Participant will receive a single lump sum payment equal
to
the unpaid balance of all of his or her Accounts in the event of a Separation from
Service within 24 months following a Change in Control. Accounts will be valued
and paid under the payment timing rules described in Section 6.1(b). In addition
to the foregoing, a Participant who has incurred a Separation from Service prior to
a Change in Control and any Beneficiary of such Participant who is receiving or is
scheduled to receive payments at the time of a Change in Control, will receive the
balance of all unpaid Accounts in a single lump sum on the next scheduled
payment date described in Section 6.1.
	 
	 	(f)	 	Small Account Balances. The Committee may, in its sole discretion which shall
be
evidenced in writing no later than the date of payment, elect to pay the value of
the Participant’s Accounts upon a Separation from Service in a single lump sum if
the balance of such Accounts is not greater than the applicable dollar amount
under Code Section 402(g)(l)(B), provided the payment represents the complete
liquidation of the Participant’s interest in the Plan.
	 
	 	(g)	 	Rules Applicable to Installment Payments. If a Payment Schedule specifies
installment payments, annual payments will be made beginning as of the payment
commencement date for such installments and shall continue on each anniversary
thereof until the number of installment payments specified in the Payment
Schedule has been paid. The amount of each installment payment shall be
determined by dividing (a) by (b), where (a) equals the Account Balance as of the
Valuation Date and (b) equals the remaining number of installment payments,
	 
	 	 	 	For purposes of Article VII, installment payments will be treated as a single form of
payment. If a lump sum equal to less than 100% of the Retirement/Termination Account
is paid, the payment commencement date for the installment form of payment will be
the first anniversary of the payment of the lump sum.




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	6.3	 	Acceleration of or Delay in Payments. The Committee, in its sole and absolute
discretion, may elect to accelerate the time or form of payment of a benefit owed to the
Participant hereunder, provided such acceleration is permitted under Treas. Reg. Section
1.409A-3(j)(4). The Committee may also, in its sole and absolute discretion, delay the time
for payment of a benefit owed to the Participant hereunder, to the extent permitted under
Treas. Reg. Section 1.409A-2(b)(7).





Article VII



Modifications to Payment Schedules





	7.1	 	Participant’s Right to Modify. A Participant may modify any or all of the alternative
Payment Schedules with respect to an Account, consistent with the permissible Payment
Schedules available under the Plan, provided such modification complies with the
requirements of this Article VII.
	 
	7.2	 	Time of Election. The date on which a modification election is submitted to the
Committee must be at least twelve months prior to the date on which payment is
scheduled to commence under the Payment Schedule in effect prior to the modification.
	 
	7.3	 	Date of Payment under Modified Payment Schedule. Except with respect to
modifications that relate to the payment of a Death Benefit, the date payments are to
commence under the modified Payment Schedule must be no earlier than five years after
the date payment would have commenced under the original Payment Schedule. Under
no circumstances may a modification election result in an acceleration of payments in
violation of Code Section 409A.
	 
	7.4	 	Effective Date. A modification election submitted in accordance with this Article VII
is
irrevocable upon receipt by the Committee and becomes effective 12 months after such
date.
	 
	7.5	 	Effect on Accounts. An election to modify a Payment Schedule is specific to the
Account
or payment event to which it applies, and shall not be construed to affect the Payment
Schedules of any other Accounts.
	 
	7.6	 	Modifications to Grandfathered Accounts. Notwithstanding the preceding provisions of
this Article VII, a Participant may modify the time or form of payment applicable to a
Grandfathered Account at any time, provided the modification is submitted in writing at
least 13 months in advance of the date the Grandfathered Account is scheduled to be
paid.




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Article VIII



Valuation of Account Balances; Investments





	8.1	 	Valuation. Deferrals shall be credited to appropriate Accounts on the date such
Compensation would have been paid to the Participant absent the Compensation Deferral
Agreement. Company Contributions shall be credited to the Retirement/Termination
Account at the times determined by the Committee. Valuation of Accounts shall be
performed under procedures approved by the Committee.
	 
	8.2	 	Earnings Credit. Each Account will be credited with Earnings on each Business Day,
based upon the Participant’s investment allocation among a menu of investment options
selected in advance by the Committee, in accordance with the provisions of this Article
VIII (“investment allocation”).
	 
	8.3	 	Investment Options. Investment options will be determined by the Committee. The
Committee, in its sole discretion, shall be permitted to add or remove investment options
from the Plan menu from time to time, provided that any such additions or removals of
investment options shall not be effective with respect to any period prior to the effective
date of such change.
	 
	8.4	 	Investment Allocations. A Participant’s investment allocation constitutes a deemed,
not
actual, investment among the investment options comprising the investment menu. At no
time shall a Participant have any real or beneficial ownership in any investment option
included in the investment menu, nor shall the Participating Employer or any trustee
acting on its behalf have any obligation to purchase actual securities as a result of a
Participant’s investment allocation. A Participant’s investment allocation shall be used
solely for purposes of adjusting the value of a Participant’s Account Balances.
	 
	 	 	A Participant shall specify an investment allocation for each of his Accounts in accordance
with procedures established by the Committee. Allocation among the investment options must
be designated in increments of 1%. The Participant’s investment allocation will become
effective on the same Business Day or, in the case of investment allocations received after
a time specified by the Committee, the next Business Day.
	 
	 	 	A Participant may change an investment allocation on any Business Day, both with respect to
future credits to the Plan and with respect to existing Account Balances, in accordance with
procedures adopted by the Committee. Changes shall become effective on the same Business Day
or, in the case of investment allocations received after a time specified by the Committee,
the next Business Day, and shall be applied prospectively.
	 
	8.5	 	Unallocated Deferrals and Accounts. If the Participant fails to make an investment
allocation with respect to an Account, such Account shall be invested in an investment
option, the primary objective of which is the preservation of capital, as determined by the
Committee.




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Article IX



Administration





	9.1	 	Plan Administration. This Plan shall be administered by the Committee which shall
have
discretionary authority to make, amend, interpret and enforce all appropriate rules and
regulations for the administration of this Plan and to utilize its discretion to decide or
resolve any and all questions, including but not limited to eligibility for benefits and
interpretations of this Plan and its terms, as may arise in connection with the Plan. Claims
for benefits shall be filed with the Committee and resolved in accordance with the claims
procedures in Article XII.
	 
	9.2	 	Administration Upon Change in Control. Upon a Change in Control affecting the
Company, the Committee, as constituted immediately prior to such Change in Control,
shall continue to act as the Committee. The individual who was the Chief Executive
Officer of the Company (or if such person is unable or unwilling to act, the next highest
ranking officer) prior to the Change in Control shall have the authority (but shall not be
obligated) to appoint an independent third party to act as the Committee.
	 
	 	 	Upon such Change in Control, the Company may not remove the Committee, unless 2/3rds of the
members of the Board of Directors of the Company and a majority of Participants and
Beneficiaries with Account Balances consent to the removal and replacement Committee.
Notwithstanding the foregoing, neither the Committee nor the officer described above shall
have authority to direct investment of trust assets under any rabbi trust described in
Section 11.2.
	 
	 	 	The Participating Employer shall, with respect to the Committee identified under this
Section, (I) pay all reasonable expenses and fees of the Committee, (ii) indemnify the
Committee (including individuals serving as Committee) against any costs, expenses and
liabilities including, without limitation, attorneys’ fees and expenses arising in
connection with the performance of the Committee hereunder, except with respect to matters
resulting from the Committee’s gross negligence or willful misconduct and (iii) supply full
and timely information to the Committee on all matters related to the Plan, any rabbi trust,
Participants, Beneficiaries and Accounts as the Committee may reasonably require.
	 
	9.3	 	Withholding. The Participating Employer shall have the right to withhold from any
payment due under the Plan (or with respect to any amounts credited to the Plan) any
taxes required by law to be withheld in respect of such payment (or credit). Withholdings
with respect to amounts credited to the Plan shall be deducted from Compensation that
has not been deferred to the Plan.
	 
	9.4	 	Indemnification. The Participating Employers shall indemnify and hold harmless each
employee, officer, director, agent or organization, to whom or to which are delegated
duties, responsibilities, and authority under the Plan or otherwise with respect to
administration of the Plan, including, without limitation, the Committee and its agents,
against all claims, liabilities, fines and penalties, and all expenses reasonably incurred
by
or imposed upon him or it (including but not limited to reasonable attorney fees) which




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	 	 	Arise as a result of his or its actions or failure to act in connection with the operation
and administration of the Plan to the extent lawfully allowable and to the extent that such
claim, liability, fine, penalty, or expense is not paid for by liability insurance purchased
or paid for by the Participating Employer. Notwithstanding the foregoing, the Participating
Employer shall not indemnify any person or organization if his or its actions or failure to
act are due to gross negligence or willful misconduct or for any such amount incurred
through any settlement or compromise of any action unless the Participating Employer
consents in writing to such settlement or compromise.
	 
	9.5	 	Delegation of Authority. In the administration of this Plan, the Committee may, from
time to time, employ agents and delegate to them such administrative duties as it sees fit,
and may from time to time consult with legal counsel who shall be legal counsel to the
Company.
	 
	9.6	 	Binding Decisions or Actions. The decision or action of the Committee in respect of
any
question arising out of or in connection with the administration, interpretation and
application of the Plan and the rules and regulations hereunder shall be final and
conclusive and binding upon all persons having any interest in the Plan.





Article
X



Amendment and Termination





	10.1	 	Amendment and Termination. The Company may at any time and from time to time
amend the Plan or may terminate the Plan as provided in this Article X. Each
Participating Employer may also terminate its participation in the Plan.
	 
	10.2	 	Amendments. The Company, by action taken by its Board of Directors, may amend the
Plan at any time and for any reason, provided that any such amendment shall not reduce
the vested Account Balances of any Participant accrued as of the date of any such
amendment or restatement (as if the Participant had incurred a voluntary Separation from
Service on such date) or reduce any rights of a Participant under the Plan or other Plan
features with respect to Deferrals made prior to the date of any such amendment or
restatement without the consent of the Participant. The Board of Directors of the
Company may delegate to the Committee the authority to amend the Plan without the
consent of the Board of Directors for the purpose of (I) conforming the Plan to the
requirements of law, (ii) facilitating the administration of the Plan, (iii) clarifying
provisions based on the Committee’s interpretation of the document and (iv) making such
other amendments as the Board of Directors may authorize.
	 
	10.3	 	Termination. The Company, by action taken by its Board of Directors, may terminate
the
Plan and pay Participants and Beneficiaries their Account Balances in a single lump sum
at any time, to the extent and in accordance with Treas. Reg. Section 1.409A-3(j)(4)(ix).
If a Participating Employer terminates its participation in the Plan, the benefits of
affected Employees shall be paid at the time provided in Article VI.






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Article
XI


Informal Funding





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






	11.2	 	Rabbi Trust. A Participating Employer may, in its sole discretion, establish a
grantor trust, commonly known as a rabbi trust, as a vehicle for accumulating assets to pay
benefits under the Plan. Payments under the Plan may be paid from the general assets of
the Participating Employer or from the assets of any such rabbi trust. Payment from any
such source shall reduce the obligation owed to the Participant or Beneficiary under the
Plan.





Article
XII
 

Claims





	12.1	 	Filing a Claim. Any controversy or claim arising out of or relating to the Plan
shall be filed in writing with the Committee which shall make all determinations concerning such
claim. Any claim filed with the Committee and any decision by the Committee denying such
claim shall be in writing and shall be delivered to the Participant or Beneficiary filing
the claim (the “Claimant”).






	 	(a)	 	In General. Notice of a denial of benefits will be provided within ninety (90)
days of the Committee’s receipt of the Claimant’s claim for benefits. If the Committee
determines that it needs additional time to review the claim, the Committee will
provide the Claimant with a notice of the extension before the end of the initial
ninety (90) day period. The extension will not be more than ninety (90) days from
the end of the initial ninety (90) day period and the notice of extension will
explain the special circumstances that require the extension and the date by which
the Committee expects to make a decision.
	 
	 	(b)	 	Contents of Notice. If a claim for benefits is completely or partially denied,
notice of such denial shall be in writing and shall set forth the reasons for denial in
plain language. The notice shall (i) cite the pertinent provisions of the Plan document
and (ii) explain, where appropriate, how the Claimant can perfect the claim,
including a description of any additional material or information necessary to
complete the claim and why such material or information is necessary. The claim
denial also shall include an explanation of the claims review procedures and the
time limits applicable to such procedures, including a statement of the Claimant’s





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	 	 	 	right to bring a civil action under Section 502(a) of ERISA following an adverse
decision on review.






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






	 	(a)	 	In General. Appeal of a denied benefits claim must be filed in writing with the
Appeals Committee no later than sixty (60) days after receipt of the written
notification of such claim denial. The Appeals Committee shall make its decision
regarding the merits of the denied claim within sixty (60) days following receipt
of the appeal (or within one hundred and twenty (120) days after such receipt, in a
case where there are special circumstances requiring extension of time for
reviewing the appealed claim). If an extension of time for reviewing the appeal is
required because of special circumstances, written notice of the extension shall be
furnished to the Claimant prior to the commencement of the extension. The notice
will indicate the special circumstances requiring the extension of time and the
date by which the Appeals Committee expects to render the determination on
review. The review will take into account comments, documents, records and
other information submitted by the Claimant relating to the claim without regard
to whether such information was submitted or considered in the initial benefit
determination.
	 
	 	(b)	 	Contents of Notice. If a benefits claim is completely or partially denied on
review, notice of such denial shall be in writing and shall set forth the reasons for denial
in plain language. The decision on review shall set forth (i) the specific reason or
reasons for the denial, (ii) specific references to the pertinent Plan provisions on
which the denial is based, (iii) a statement that the Claimant is entitled to
receive,
upon request and free of charge, reasonable access to and copies of all documents,
records, or other information relevant (as defined above) to the Claimant’s claim,
and (iv) a statement describing any voluntary appeal procedures offered by the
plan and a statement of the Claimant’s right to bring an action under Section
502(a) of ERISA.





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	12.3	 	Claims Appeals Upon Change in Control. Upon a Change in Control, the Appeals
Committee, as constituted immediately prior to such Change in Control, shall continue to
act as the Appeals Committee. Upon such Change in Control, the Company may not
remove any member of the Appeals Committee, but may replace resigning members if
2/3rds of the members of the Board of Directors of the Company and a majority of
Participants and Beneficiaries with Account Balances consent to the replacement.
	 
	 	 	The Appeals Committee shall have the exclusive authority at the appeals stage to
interpret the terms of the Plan and resolve appeals under the Claims
Procedure.
	 
	 	 	Each Participating Employer shall, with respect to the Committee identified under this
Section, (i) pay its proportionate share of all reasonable expenses and fees of the Appeals
Committee, (ii) indemnify the Appeals Committee (including individual committee members)
against any costs, expenses and liabilities including, without limitation, attorneys’ fees
and expenses arising in connection with the performance of the Appeals Committee hereunder,
except with respect to matters resulting from the Appeals Committee’s gross negligence or
willful misconduct and (iii) supply full and timely information to the Appeals Committee on
all matters related to the Plan, any rabbi trust, Participants, Beneficiaries and Accounts
as the Appeals Committee may reasonably require.
	 
	12.4	 	Legal Action. A Claimant may not bring any legal action, including a suit in state or
federal court or commencement of any arbitration, relating to a claim for benefits under
the Plan unless and until the Claimant has followed the claims procedures under the Plan
and exhausted his or her administrative remedies under such claims procedures. In no
event may legal action be brought more than five years after the events giving rise to the
claim have occurred.
	 
	 	 	If a Participant or Beneficiary prevails in a legal proceeding brought under the Plan to
enforce the rights of such Participant or any other similarly situated Participant or
Beneficiary, in whole or in part, the Participating Employer shall reimburse such
Participant or Beneficiary for all legal costs, expenses, attorneys’ fees and such other
liabilities incurred as a result of such proceedings. If the legal proceeding is brought in
connection with a Change in Control, or a “change in control” as defined in a rabbi trust
described in Section 11.2, the Participant or Beneficiary may file a claim directly with the
trustee for reimbursement of such costs, expenses and fees. For purposes of the preceding
sentence, the amount of the claim shall be treated as if it were an addition to the
Participant’s or Beneficiary’s Account Balance.
	 
	12.5	 	Discretion of Appeals Committee. All interpretations, determinations and decisions of
the Appeals Committee with respect to any claim shall be made in its
sole discretion, and
shall be final and conclusive.






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	12.6	 	Arbitration.






	 	(a)	 	Prior to Change in Control. If, prior to a Change in Control, any claim or
controversy between a Participating Employer and a Participant or Beneficiary is not
resolved through the claims procedure set forth in Article XII, such claim shall be
submitted to and resolved exclusively by expedited binding arbitration by a single
arbitrator. Arbitration shall be conducted in accordance with the following
procedures:
	 
	 	 	 	The complaining party shall promptly send written notice to the other party
identifying the matter in dispute and the proposed remedy. Following the giving of
such notice, the parties shall meet and attempt in good faith to resolve the matter.
In the event the parties are unable to resolve the matter within twenty one (21)
days, the parties shall meet and attempt in good faith to select a single arbitrator
acceptable to both parties. If a single arbitrator is not selected by mutual consent
within ten (10) Business Days following the giving of the written notice of dispute,
an arbitrator shall be selected from a list of nine persons each of whom shall be an
attorney who is either engaged in the active practice of law or recognized
arbitrator and who, in either event, is experienced in serving as an arbitrator in
disputes between employers and employees, which list shall be provided by the main
office of either JAMS, the American Arbitration Associate (“AAA”) or the Federal
Mediation and Conciliation Service. If, within three Business Days of the parties’
receipt of such list, the parties are unable to agree on an arbitrator from the
list, then the parties shall each strike names alternatively from the list, with the
first to strike being determined by the flip of a coin. After each party has had
four strikes, the remaining name on the list shall be the arbitrator. If such person
is unable to serve for any reason, the parties shall repeat this process until an
arbitrator is selected.
	 
	 	 	 	Unless the parties agree otherwise, within sixty (60) days of the selection of the
arbitrator, a hearing shall be conducted before such arbitrator at a time and a
place agreed upon by the parties. In the event the parties are unable to agree upon
the time or place of the arbitration, the time and place shall be designated by the
arbitrator after consultation with the parties. Within thirty (30) days of the
conclusion of the arbitration hearing, the arbitrator shall issue an award,
accompanied by a written decision explaining the basis for the arbitrator’s award.
	 
	 	 	 	In any arbitration hereunder, the Participating Employer shall pay all administrative
fees of the arbitration and all fees of the arbitrator, except that the Participant
or Beneficiary may, if he/she/it wishes, pay up to one-half of those amounts. Each
party shall pay its own attorneys’ fees, costs, and expenses, unless the arbitrator
orders otherwise. The prevailing party in such arbitration, as determined by the
arbitrator, and in any enforcement or other court proceedings, shall be entitled, to
the extent permitted by law, to reimbursement from the other party for all of the
prevailing party’s costs (including but not limited to the arbitrator’s
compensation), expenses, and attorneys’ fees. The arbitrator shall





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	 	 	 	have no authority to add to or to modify this Plan, shall apply all applicable law,
and shall have no lesser and no greater remedial authority than would a court of law
resolving the same claim or controversy. The arbitrator shall have no authority to
add to or to modify this Plan, shall apply all applicable law, and shall have no
lesser and no greater remedial authority than would a court of law resolving the
same claim or controversy. The arbitrator shall, upon an appropriate motion, dismiss
any claim without an evidentiary hearing if the party bringing the motion
establishes that it would be entitled to summary judgment if the matter had been
pursued in court litigation.
	 
	 	 	 	The parties shall be entitled to discovery as follows: Each party may take no more
than three depositions. The Participating Employer may depose the Participant or
Beneficiary plus two other witnesses, and the Participant or Beneficiary may depose
the Participating Employer, pursuant to Rule 30(b)(6) of the Federal Rules of Civil
Procedure, plus two other witnesses. Each party may make such reasonable document
discovery requests as are allowed in the discretion of the arbitrator.
	 
	 	 	 	The decision of the arbitrator shall be final, binding, and non-appealable, and may
be enforced as a final judgment in any court of competent jurisdiction.
	 
	 	 	 	This arbitration provision of the Plan shall extend to claims against any parent,
subsidiary, or affiliate of each party, and, when acting within such capacity, any
officer, director, shareholder, Participant, Beneficiary, or agent of any party, or
of any of the above, and shall apply as well to claims arising out of state and
federal statutes and local ordinances as well as to claims arising under the common
law or under this Plan.
	 
	 	 	 	Notwithstanding the foregoing, and unless otherwise agreed between the parties,
either party may apply to a court for provisional relief, including a temporary
restraining order or preliminary injunction, on the ground that the arbitration
award to which the applicant may be entitled may be rendered ineffectual without
provisional relief.
	 
	 	 	 	Any arbitration hereunder shall be conducted in accordance with the Federal
Arbitration Act: provided, however, that, in the event of any inconsistency between
the rules and procedures of the Act and the terms of this Plan, the terms of this
Plan shall prevail.
	 
	 	 	 	If any of the provisions of this Section 12.6(a) are determined to be unlawful or
otherwise unenforceable, in the whole part, such determination shall not affect the
validity of the remainder of this section and this section shall be reformed to the
extent necessary to carry out its provisions to the greatest extent possible and to
insure that the resolution of all conflicts between the parties, including those
arising out of statutory claims, shall be resolved by neutral, binding arbitration.
If a court should find that the provisions of this Section 12.6(a) are not
absolutely





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	 	 	 	binding, then the parties intend any arbitration decision and award to be fully
admissible in evidence in any subsequent action, given great weight by any finder of
fact and treated as determinative to the maximum extent permitted by law.
	 
	 	 	 	The parties do not agree to arbitrate any putative class action or any other
representative action. The parties agree to arbitrate only the claims(s) of a single
Participant or Beneficiary.
	 
	 	(b)	 	Upon Change in Control. If, upon the occurrence of a
Change in Control, any dispute, controversy or claim arises between a Participant or Beneficiary and the
Participating Employer out of or relating to or concerning the provisions of the
Plan, such dispute, controversy or claim shall be finally settled by a court of
competent jurisdiction which, notwithstanding any other provision of the Plan, shall
apply a de novo standard of review to any determination made by the Company or its
Board of Directors, a Participating Employer, the Committee, or the Appeals
Committee.





Article XIII




General Provisions





	13.1	 	Assignment. No interest of any Participant, spouse or Beneficiary under this Plan and
no benefit payable hereunder shall be assigned as security for a loan, and any such purported
assignment shall be null, void and of no effect, nor shall any such interest or any such
benefit be subject in any manner, either voluntarily or involuntarily, to anticipation, sale,
transfer, assignment or encumbrance by or through any Participant, spouse or Beneficiary.
Notwithstanding anything to the contrary herein, however, the Committee has the discretion to
make payments to an alternate payee in accordance with the terms of a domestic relations order
(as defined in Code Section 414(p)(l)(B)).
	 
	 	 	The Company may assign any or all of its liabilities under this Plan in connection with any
organizational restructuring, recapitalization, sale of assets (including a sale with
respect to which an agreement under Treas. Reg. Section 1.409A-l(h)(4) has been entered
into) or other similar transaction affecting a Participating Employer without the consent of
the Participants.
	 
	13.2	 	Accounts Taxable Under Code Section 409A. The Plan is intended to constitute a plan
of deferred compensation that meets the requirements for deferral of income taxation under
Code Section 409A. The Committee, pursuant to its authority to interpret the Plan, may sever
from the Plan or any Compensation Deferral Agreement any provision or exercise of a right that
otherwise would result in a violation of Code Section 409A.
	 
	13.3	 	No Legal or Equitable Rights or Interest. No Participant or other person shall have
any legal or equitable rights or interest in this Plan that are not expressly granted in this
Plan. Participation in this Plan does not give any person any right to be retained in the
service of the Participating Employer. The right and power of a Participating Employer to





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	 	 	dismiss or discharge an Employee is expressly reserved. The Participating Employers
make no representations or warranties as to the tax consequences to a Participant or a
Participant’s beneficiaries resulting from a deferral of income pursuant to the Plan.
	 
	13.4	 	No Employment Contract. Nothing contained herein shall be construed to constitute a
contract of employment between an Employee and a Participating Employer.
	 
	13.5	 	Notice. Any notice or filing required or permitted to be delivered to the Committee
under this Plan shall be delivered in writing, in person, or through such electronic means as
is established by the Committee. Notice shall be deemed given as of the date of delivery or,
if delivery is made by mail, as of the date shown on the postmark on the receipt for
registration or certification. Written transmission shall be sent by certified mail to:





FIDELITY NATIONAL FINANCIAL, INC.

ATTN: CHIEF FINANCIAL OFFICER

601 RIVERSIDE AVENUE

JACKSONVILLE, FL 32204





	 	 	Any notice or filing required or permitted to be given to a Participant under this Plan
shall be sufficient if in writing or hand-delivered, or sent by mail to the last known
address of the Participant.
	 
	13.6	 	Headings. The headings of Sections are included solely for convenience of reference,
and if there is any conflict between such headings and the text of this Plan, the text shall
control.
	 
	13.7	 	Invalid or Unenforceable Provisions. If any provision of this Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect any other
provisions hereof and the Committee may elect in its sole discretion to construe such invalid
or unenforceable provisions in a manner that conforms to applicable law or as if such
provisions, to the extent invalid or unenforceable, had not been included.
	 
	13.8	 	Lost Participants or Beneficiaries. Any Participant or Beneficiary who is entitled to
a benefit from the Plan has the duty to keep the Committee advised of his or her current
mailing address. If benefit payments are returned to the Plan or are not presented for payment
after a reasonable amount of time, the Committee shall presume that the payee is missing. The
Committee, after making such efforts as in its discretion it deems reasonable and appropriate
to locate the payee, shall stop payment on any uncashed checks and may discontinue making
future payments until contact with the payee is restored.
	 
	13.9	 	Facility of Payment to a Minor. If a distribution is to be made to a minor, or to a
person who is otherwise incompetent, then the Committee may, in its discretion, make such
distribution (i) to the legal guardian, or if none, to a parent of a minor payee with whom the
payee maintains his or her residence, or (ii) to the conservator or committee or, if





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	 	 	none, to the person having custody of an incompetent payee. Any such distribution shall
fully discharge the Committee, the Company, and the Plan from further liability on account
thereof.
	 
	13.10	 	Governing Law. To the extent not preempted by ERISA, the laws of the State of
Florida shall govern the construction and administration of the Plan.






	IN WITNESS WHEREOF, the undersigned executed this Plan as of the 28th day of
July 2008, to be effective as of the Effective Date.





	 	 	 	 	 
	FIDELITY NATIONAL FINANCIAL, INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ Karen Harper
	 	(Print Name)
	 

	 	 	 	 
	Its:

	 	VP HR
	 	(Title)
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	(Signature)
	
Director Relesement Plans

 7/28/08	 	 








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