**Exhibit 10(vv)**

 

**DPL INC.2006 DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS**

**(AS AMENDED AND RESTATED THROUGH DECEMBER 31,2007)**

 

**ARTICLEI.  INTRODUCTION**

** **

DPL Inc. adopted the DPL Inc. 2006 Deferred Compensation Plan ForNon-Employee Directors on the terms and conditions hereinafter set forth,effective as of November 30, 2006. This amended and restated version of the Plan is effective December 31,2007.

 

The purpose of this Plan is to providedirectors of the Company who are not employed by the Company with theopportunity to defer the receipt of the cash fees which may be earned by suchdirectors for services as members of the Board (as defined below).

 

**ARTICLEII.  DEFINITIONS**

** **

For the purposes hereof, the following wordsand phrases shall have the meanings set forth below, unless their contextclearly requires a different meaning:

 

**Section 2.1           **“Account”means the bookkeeping account maintained by the Company on behalf of eachParticipant pursuant to Section 3.3 that is credited with Fees that aredeferred by a Participant.

 

**Section 2.2           **“Beneficiary”or “Beneficiaries” means the person or persons, including one or moretrusts, designated by a Participant in accordance with the Plan to receivepayment of the remaining balance of the Participant’s Account in the event ofthe death of the Participant prior to receipt of the entire amount credited tothe Participant’s Account.

 

**Section 2.3           **“Board”means the Board of Directors of the Company.

 

**Section 2.4           **“CalendarYear” means each calendar year commencing on or after January 1, 2007.

 

**Section 2.5           **“Changeof Control” means the consummation of any Change of Control of the Company,or its principal subsidiary, The Dayton Power and Light Company (“DP&L”),of a nature that would be required to be reported in response to Item 6(e) ofSchedule 14A of Regulation 14A promulgated under the Securities Exchange Act of1934, as amended (the “Exchange Act”), as determined by the Board in its solediscretion; provided that, without limitation, such a Change of Control shallbe deemed to have occurred if:

 

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(a)           any “Person” (as such term is definedin  Sections 13(d) or 14(d)(2) ofthe Exchange Act; hereafter, a “Person”) is on the date hereof or becomes thebeneficial owner, directly or indirectly, of securities of the Company orDP&L representing (i) 25% or more of the combined voting power of thethen outstanding Voting Stock of the Company or DP&L if the acquisition ofsuch beneficial ownership is not approved by the Board prior to the acquisitionor (ii) 50% or more of such combined voting power in all other cases;

 

(i)            for purposes of this Section 2.5,the following acquisitions shall not constitute a Change of Control: (A) anyacquisition of Voting Stock of the Company or DP&L directly from theCompany or DP&L that is approved by a majority of those persons serving asdirectors of the Company or DP&L on the date of this Plan (the “OriginalDirectors”) or their Successors (as defined below), (B) any acquisition ofVoting Stock of the Company or DP&L by the Company or any Subsidiary, and (C) anyacquisition of Voting Stock of the Company or DP&L by the trustee or otherfiduciary holding securities under any employee benefit plan (or related trust)sponsored or maintained by DPL or any Subsidiary (the term “Successors” shallmean those directors whose election or nomination for election by shareholdershas been approved by the vote of at least two-thirds of the Original Directorsand previously qualified Successors serving as directors of the Company orDP&L, as the case may be, at the time of such election or nomination forelection);

 

(ii)           if any Person is or becomes thebeneficial owner of 25% or more of combined voting power of thethen-outstanding Voting Stock of the Company or DP&L as a result of atransaction described in clause (A) of Section 2.5(a)(i) aboveand such Person thereafter becomes the beneficial owner of any additionalshares of Voting Stock of the Company or DP&L representing 1% or more ofthe then-outstanding Voting Stock of the Company or DP&L, other than in anacquisition directly from the Company or DP&L that is approved by amajority of the Original Directors or their Successors or other than as aresult of a stock dividend, stock split or similar transaction effected by theCompany or DP&L in which all holders of Voting Stock of the Company orDP&L are treated equally, such subsequent acquisition shall be treated as aChange of Control;

 

(iii)          a Change of Control will not be deemedto have occurred if a Person is or becomes the beneficial owner of 25% or moreof the Voting Stock of the Company or DP&L as a result of a reduction inthe number of shares of Voting Stock of the Company or DP&L outstandingpursuant to a transaction or series of transactions that is approved by amajority of the Original Directors or their 

 

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Successors unlessand until such Person thereafter becomes the beneficial owner of any additionalshares of Voting Stock of the Company or DP&L representing 1% or more ofthe then-outstanding Voting Stock of the Company or DP&L, other than as aresult of a stock dividend, stock split or similar transaction effected by theCompany or DP&L in which all holders of Voting Stock are treated equally;and

 

(iv)          if at least a majority of the OriginalDirectors or their Successors determine in good faith that a Person hasacquired beneficial ownership of 25% or more of the Voting Stock of the Companyor DP&L inadvertently, and such Person divests as promptly as practicablebut no later than the date, if any, set by the Original Directors or theirSuccessors a sufficient number of shares so that such Person beneficially ownsless than 25% of the Voting Stock of the Company or DP&L, then no Change ofControl shall have occurred as a result of such Person’s acquisition; or

 

(b)           the Company or DP&L consummates amerger or consolidation, or consummates a “combination” or “majority shareacquisition” in which it is the “acquiring corporation” (as such terms aredefined in Ohio Rev. Code § 1701.01 as in effect on December 31, 1990) andin which shareholders of the Company or DP&L, as the case may be,immediately prior to entering into such agreement, will beneficially own,immediately after the effective time of the merger, consolidation, combinationor majority share acquisition, securities of the Company or DP&L or anysurviving or new corporation, as the case may be, having less than 50% of the “votingpower” of DPL or DP&L or any surviving or new corporation, as the case maybe, including “voting power” exercisable on a contingent or deferred basis aswell as immediately exercisable “voting power”, excluding any merger ofDP&L into the Company or of the Company into DP&L;

 

(c)           the Company or DP&L consummates asale, lease, exchange or other transfer or disposition of all or substantiallyall of its assets to any Person other than to a wholly owned subsidiary or, inthe case of DP&L, to the Company or a wholly owned subsidiary(ies) of theCompany; but not including (i) a mortgage or pledge of assets granted inconnection with a financing or (ii) a spin-off or sale of assets if theCompany continues in existence and its common shares are listed on a nationalsecurities exchange, quoted on the automated quotation system of a nationalsecurities association or traded in the over-the-counter market; or

 

(d)           the Original Directors and/or theirSuccessors do not constitute a majority of the whole Board or the Board ofDirectors of DP&L, as the case may be; or

 

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(e)           approval by the shareholders of theCompany or DP&L of a complete liquidation or dissolution of the Company orDP&L, as the case may be.

 

**Section 2.6           **“Code”means the Internal Revenue Code of 1986, as amended.

 

**Section 2.7           **“Committee”means the Compensation Committee of the Board or such other Committee as may beauthorized by the Board to administer the Plan.

 

**Section 2.8           **“CommonStock” means the common stock, par value $0.01 per shares, of the Company.

 

**Section 2.9           **“Company”means DPL Inc., an Ohio corporation, and any entity that succeeds DPL Inc. bymerger, reorganization or otherwise.

 

**Section 2.10        **“ControlledGroup” means the Company and any and all other corporations, trades and/orbusinesses, the employees of which, together with employees of the Company, aretreated under Section 414 of the Code as if they were employed by a singleemployer.  Each corporation orunincorporated trade or business that is or was a member of the ControlledGroup shall be referred to herein as a “Controlled Group Member”, but onlyduring such period as it is or was such a member.

 

**Section 2.11        **“DeferralElection” means the Election Agreement (or portion thereof) completed by aParticipant and filed with the Company that indicates the amount of his or herFees that are or will be deferred under the Plan for a Deferral Period.

 

**Section 2.12        **“DeferralPeriod” means the calendar year that commences after each Election FilingDate.

 

**Section 2.13        **“Disability”means a Participant’s inability to perform the duties required on a full-timebasis for a period of six consecutive months because of physical or mentalillness or other physical or mental disability or incapacity.

 

**Section 2.14        **“ElectionAgreement” means an agreement in the form that the Company may designatefrom time to time that is consistent with the terms of the Plan.

 

**Section 2.15        **“ElectionFiling Date” means December 31 of the Calendar Year immediately priorto the first day of the Calendar Year for which Fees would otherwise be earned.

 

**Section 2.16        **“EligibleDirector” means a member of the Board who is not an employee of the Companyor any of its affiliates.  Unlessotherwise determined by the Committee, an Eligible Director shall continue assuch until his or her Termination of Service.

 

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**Section 2.17        **“Fees”means the cash fees paid to members of the Board for services as a member ofthe Board, including, without limitation, annual board retainers, committeechair retainers, and board meeting fees.

 

**Section 2.18        **“HypotheticalInvestment Fund or Funds” means any investment fund designated by theCompany pursuant to Section 3.3.

 

**Section 2.19        **“Key Employee”means a key employee as defined in Section 409A of the Code and Section 416(i) ofthe Code (without regard to paragraph (5) thereof) of the Company (or aControlled Group Member).

 

**Section 2.20        **“Participant”means any Eligible Director who has at any time made a Deferral Election inaccordance with Section 3.2 and who, in conjunction with his or herBeneficiary, has not received a complete distribution of the amount credited tohis or her Account.

 

**Section 2.21        **“PaymentElection” means the Election Agreement (or portion thereof) completed by aParticipant and filed with the Company that indicates the time of commencementof payment and form of payment of the Participant’s Fees that are or will bedeferred pursuant to a Deferral Election under the Plan.

 

**Section 2.22        **“Plan”means this deferred compensation plan, which shall be known as the DPL Inc. 2006Deferred Compensation Plan For Non-Employee Directors.  The Plan is unfunded and is maintained by theCompany primarily for the purpose of providing deferred compensation forEligible Directors of the Company.

 

**Section 2.23        **“PlanAdministrator” means the Committee.

 

**Section 2.24        **“Subsidiary”means a corporation, partnership, joint venture. unincorporated association orother entity in which the Company has a direct or indirect ownership or otherequity interest.

 

**Section 2.25        **“Terminationof Service” means a separation from service as defined under Section 409Aof the Code.

 

**Section 2.26        **“UnforeseeableEmergency” means an event that results in a severe financial hardship to aParticipant resulting from (a) an illness or accident of the Participantor his or her spouse, dependent (as defined in Section 152(a) of theCode), or Beneficiary, (b) loss of the Participant’s property due tocasualty, or (c) other similar extraordinary circumstances arising as aresult of events beyond the control of the Participant.

 

**Section 2.27        **“VotingStock” means securities entitled to vote generally in the election ofdirectors.

 

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**ARTICLEIII.  ELECTION TO DEFER**

** **

**Section 3.1           **Eligibility.  An Eligible Director may make an annualDeferral Election with respect to receipt of all or a specified part of his orher Fees for any Calendar Year in accordance with Section 3.2.  An Eligible Director who makes a DeferralElection must also make a Payment Election with respect to the amount deferredin accordance with Section 3.4.

 

**Section 3.2           **DeferralElections.  All Deferral Elections,once effective, shall be irrevocable, shall be made on an Election Agreementfiled with the Company, and shall comply with the following requirements:

 

(a)           The Deferral Election on the ElectionAgreement shall specify:

 

(i)            the percentage orthe dollar amount of a Participant’s Fees, and

 

(ii)           in accordance with Section 3.3(b),the investment election with respect to the deemed investment of Fees.

 

(b)           The DeferralElection shall be made by, and shall be effective as of, the applicableElection Filing Date.  Notwithstandingthe foregoing, a director who first becomes an Eligible Director during thecourse of a Calendar Year, rather than as of the applicable Election FilingDate, shall make such Deferral Election with respect to Fees within thirty daysfollowing the date the director first becomes an Eligible Director, and suchDeferral Election shall be effective on the date made and shall be effective withregard to Fees earned during such Calendar Year following the filing of theElection Agreement with the Company.

 

**Section 3.3           **Accounts.

 

(a)           Feesthat a Participant elects to defer shall be credited to the Account on the datethe Fees would otherwise have been paid to the Participant.  Credits or charges representing gains,losses, interest or other earnings allocable to the Account which would beapplicable if such Account had been invested on a tax deferred basis in theHypothetical Investment Fund(s) selected by the Participant or theParticipant’s Beneficiary as provided in Section 3.3(b) shall also becredited to the Account.  The Companyshall also enter on the books of each Participant’s Account debits for anydistributions made from the Account.

 

(b)           The Company shalldesignate a Hypothetical Investment Fund or Funds under this Plan, which may,but need not, include one or more of the investment funds provided under TheDayton Power and Light Company Employee Savings Plan or offered by the trusteethereunder (which shall not include Common Stock).  Any such designation shall be in a writingwhich may be amended or supplemented from time to time by the Company pursuantto rules adopted by the Company. Each Participant shall elect a Hypothetical Investment Fund (or, ifpermitted by rules adopted by the Company, one or more 

 

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HypotheticalInvestment Funds) in which the amount of Fees that a Participant defers underthis Plan shall be deemed invested.  Suchan election may be made in accordance with rules and proceduresestablished by the Company.  AnyParticipant may change his investment election either prospectively or withrespect to amounts previously credited to his Account in accordance with proceduresspecified by the Company.  In the absenceof an investment election by a Participant, the company shall select theHypothetical Investment Fund(s) which shall be applicable to suchParticipant’s Account.

 

**Section 3.4           **InitialPayment Elections.  Subject to Sections3.4(c), 3.5, 3.6, 3.7, and 3.8 of this Plan, all Payment Elections shall be irrevocable,shall be made on an Election Agreement filed with the Company and shall complywith the following requirements:

 

(a)           The Payment Electionshall contain the Participant’s elections regarding the time of thecommencement of payment of amounts in his or her Account, to the extent theParticipant does not already have an election regarding the time of thecommencement of payment applicable to his or her Account.  In addition, if the Participant has elected,pursuant to Section 3.4(a)(i)(B), to commence payment in a specified year,the Payment Election for the Deferral Period immediately prior to suchspecified year shall contain the Participant’s election regarding the time ofthe commencement of payment of amounts in his or her Account for that and allfuture Deferral Periods.

 

(i)            A Participant mayelect to commence payment (A) upon the date on which he or she incurs aTermination of Service for any reason, including, without limitation, by reasonof death or Disability, or (B) in a specified year that begins at leasttwo years after the date on which the Deferral Election becomes effective.

 

(ii)           Payments made inaccordance with the Participant’s election under Section 3.4(a)(i)(A) shallbe paid or commence to be paid within 90 days following the date of theTermination of Service; provided, however, that the Participantdoes not have the right to designate the taxable year of such payments, andpayments made in accordance with the Participant’s election under Section 3.4(a)(i)(B) shallbe paid or commence to be paid on January 31 of the specified year.

 

(iii)          Notwithstanding theforegoing provisions of this Section 3.4(a), in the event that a Participantelects to commence payments in a specified year, and prior to the date suchpayment is due to be paid or commence to be paid (as described Section 3.4(a)(ii))he or she incurs a Termination of Service, payment of the Participant’s Accountshall commence, in the form or forms elected pursuant to Section 3.4(b) and/or(c), on the date of such Termination of Service.

 

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(iv)          Notwithstanding theforegoing provisions of this Section 3.4(a), if a Participant is a KeyEmployee at the time of his or her Termination of Service, then the payment onaccount of a Termination of Service shall commence on the first day of theseventh month after such Termination of Service (or if earlier, on the date ofdeath).

 

(b)           The Payment Electionshall also contain the Participant’s elections regarding the form of payment ofamounts in his or her Account, to the extent the Participant does not alreadyhave an election regarding the form of payment applicable to his or herAccount.  In addition, if the Participanthas elected, pursuant to Section 3.4(a)(i)(B), to commence payment in aspecified year, the Payment Election for the Deferral Period immediately priorto such specified year shall contain the Participant’s election regarding formof payment of amounts in his or her Account for that and all future DeferralPeriods.

 

(i)            The Participant mayelect to receive amounts in his or her Account in one of the followingforms:  (A) a single, lump sumpayment or (B) a number of annual installments over a period of up to fiveyears.

 

(ii)           In the event that aParticipant’s Account is payable in annual installments, the amount of eachinstallment shall be equal to the value, as of December 31 of the calendaryear immediately prior to the date of the respective installment payment, ofthe Participant’s Account divided by the number of installment payments thenremaining in the installment period;

 

(A)          The portion of theAccount subject to such installment payments that remains unpaid from time totime shall continue to be credited with gains, losses, interest and otherearnings.

 

(B)           The finalinstallment payment shall include an adjustment for gains, losses, interest andother earnings during the period between the beginning of the calendar year inwhich the final installment payment is made and the date of such final payment.

 

(c)           The Payment Electionshall be made by, and shall be effective as of, the applicable Election FilingDate.  Except as provided in thefollowing sentence, a Participant may not have more than one Payment Election ineffect at any one time.  If theParticipant has elected, pursuant to Section 3.4(a)(i)(B), to commencepayment in a specified year, the Payment Election for the Deferral Periodimmediately prior to such specified year shall contain the Participant’selection regarding form of payment of amounts in his or her Account for thatand all future Deferral Periods.

 

(d)           The payment of asingle, lump-sum amount, or the payment of a number of annual installments asdesignated by the Participant in the Election Agreement, to a Participant (orhis or her Beneficiary) pursuant to this Section 

 

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3.4 shalldischarge all obligations of the Company to such Participant (or his or herBeneficiary) under the Plan.

 

**Section 3.5           **SubsequentPayment Elections.  A Participant maymake a subsequent Payment Election(s) to change the time of thecommencement of payment(s) of his or her Account, the form of payment ofhis or her Account, or both, with respect to an amount previously deferredunder a Deferral Election if all of the following requirements are met:

 

(a)           Such subsequentPayment Election may not take effect until at least twelve months after thedate on which the subsequent Payment Election is made;

 

(b)           In the case of asubsequent Payment Election related to a payment not described in Section 3.6or Section 3.8, the first payment under such subsequent Payment Electionshall in all cases be deferred for a period of not less than five years fromthe date such payment would otherwise have been made (or, in the case ofinstallment payments, which are treated as a single payment for purposes ofthis Section 3.5, five years from the date the first installment paymentwas scheduled to be paid); and

 

(c)           Any subsequent PaymentElection related to a distribution that is to be made at a specified time orpursuant to a fixed schedule pursuant to Section 3.4 must be made not lessthan twelve months prior to the date the payment was scheduled to be made underthe prior Payment Election (or, in the case of installment payments, which aretreated as a single payment for purposes of this Section 3.5, twelvemonths prior to the date the first installment payment was scheduled to bepaid).

 

**Section 3.6           **Deathof a Participant.  In the event ofthe death of a Participant, the remaining amount of the Participant’s Accountshall be paid to the Beneficiary or Beneficiaries designated in a writing on aform that the Company may designate from time to time (the “BeneficiaryDesignation”), in accordance with the Participant’s Payment Election, or inaccordance with a special payment election filed by the Participant with theCompany at the same time as the Participant’s Payment Election under Section 3.4or Section 3.5 is filed with the Company that is to be operative andoverride any other payment election under the Participant’s Payment Election inthe event of the death of the Participant. Any special payment election filed by a Participant subsequent to thefiling of his or her initial Payment Election under Section 3.4 must meetsuch additional requirements as the Company determines are appropriate to avoidthe inclusion of the amounts subject to such special payment election in thegross income of a Participant or Beneficiary under Section 409A(a)(1) ofthe Code, including, without limitation, the requirements under Section 3.5.  A Participant’s Beneficiary Designation maybe changed at any time prior to his or her death by the execution and deliveryof a new Beneficiary Designation.  TheBeneficiary Designation on file with the Company that bears the latest date atthe time of the Participant’s death shall govern.  In the absence of a Beneficiary Designationor the failure of any Beneficiary to survive 

 

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the Participant, the amount of the Participant’sAccount shall be paid to the Participant’s estate in****a lump sum.  In theevent of the death of the Beneficiary or Beneficiaries after the death of aParticipant, the amount of the Participant’s Account shall be paid to theestate of the last surviving Beneficiary in a lump sum.

 

**Section 3.7           **Small Payments.  Notwithstanding the foregoing, if at the timeof a Participant’s Termination of Service the Participant’s Account****balance is less than $100,000, suchAccount shall be automatically paid to such Participant in a single, lump-sumpayment on the date of such Termination of Service;  provided, however, that if theParticipant is a Key Employee at the time of his or her Termination of Service,then the payment on account of a Termination of Service shall be paid on thefirst day of the seventh month after such Termination of Service (or, ifearlier, the date of death).

 

**Section 3.8           **UnforeseeableEmergency.  Notwithstanding theforegoing, in the event of an Unforeseeable Emergency and at the request of aParticipant, accelerated payment shall be made to the Participant of all or apart of his or her Account, together with the earnings thereon.  Payments of amounts as a result of anUnforeseeable Emergency may not exceed the amount necessary to satisfy suchUnforeseeable Emergency plus amounts necessary to pay taxes reasonablyanticipated as a result of the distribution(s), after taking into account theextent to which the hardship is or may be relieved through reimbursement orcompensation by insurance or otherwise or by liquidation of the Participant’sassets (to the extent the liquidation of such assets would not itself causesevere financial hardship).

 

**Section 3.9           **Terminationof Participation.  Notwithstandingany other provision of the Plan, a Participant’s active participation in thePlan shall terminate upon a Termination of Service.

 

**ARTICLEIV.  ADMINISTRATION**

** **

**Section 4.1           **Administration.

 

(a)           The Plan shall beadministered by the Plan Administrator. The Plan Administrator shall have discretion to interpret wherenecessary all provisions of the Plan (including, without limitation, bysupplying omissions from, correcting deficiencies in, or resolving inconsistenciesor ambiguities in, the language of the Plan), to make factual findings withrespect to any issue arising under the Plan, to determine the rights and statusunder the Plan of Participants or other persons, to resolve questions(including factual questions) or disputes arising under the Plan and to makeany determinations with respect to the benefits payable under the Plan and thepersons entitled thereto as may be necessary for the purposes of the Plan.  Without limiting the generality of the foregoing,the Plan Administrator is hereby granted the authority (i) to determinewhether a particular director is a Participant, and (ii) to determine if aperson is entitled to benefits hereunder and, if so, the amount and duration ofsuch benefits.  The Plan Administrator’sdetermination of the rights of any person 

 

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hereunder shall befinal and binding on all persons, subject only to the provisions of Sections4.2 and 4.3 hereof.

 

(b)           The PlanAdministrator may delegate any of its administrative duties, including, withoutlimitation, duties with respect to the processing, review, investigation,approval and payment of benefits, to a named administrator(s) or anemployee of the Company.

 

(c)           It is intended that,to the extent applicable, all Participant elections hereunder will comply withthe Section 409A of the Code.  ThePlan Administrator is authorized to adopt rules or regulations deemednecessary or appropriate in connection therewith to anticipate and/or complywith the requirements thereof (including any transition rules thereunder).

 

**Section 4.2           **Regulations.  The Plan Administrator shall promulgate any rules andregulations it deems necessary in order to carry out the purposes of the Planor to interpret the provisions of the Plan; provided, however,that no rule, regulation or interpretation shall be contrary to the provisionsof the Plan or Section 409A of the Code. The rules, regulations and interpretations made by the PlanAdministrator shall, subject only to the provisions of Section 4.3 hereof,be final and binding on all persons.

 

**Section 4.3           **Revocabilityof Plan Administrator/Employer Action. Any action taken by the Plan Administrator or the employer with respectto the rights or benefits under the Plan of any person shall be revocable bythe Plan Administrator or the employer as to payments not yet made to suchperson, and acceptance of any benefits under the Plan constitutes acceptance ofand agreement to the Plan Administrator’s or the employer’s making anyappropriate adjustments in future payments to such person to recover from suchperson any excess payment or make up any underpayment previously made to him orher.

 

**ARTICLEV.  AMENDMENT AND TERMINATION**

** **

**Section 5.1           **Amendment.  The Committee may at any time (without theconsent of the Participants) amend any or all of the provisions of this Plan,except that no such amendment may adversely affect the amount of anyParticipant’s accrued benefit as of the date of such amendment, without theprior written consent of the affected Participant.  A proper amendment of this Plan automaticallyshall effect a corresponding amendment to all Participants’ rights hereunder.

 

**Section 5.2           **Termination.  The Committee, in its sole discretion, mayterminate this Plan at any time and for any reason whatsoever except that nosuch termination may adversely affect the amount of any Participant’s accruedbenefit as of the date of such termination, without the prior written consentof the affected Participant. Notwithstanding the preceding sentence, the Committee, in its solediscretion, may terminate this Plan to the extent and in circumstancesdescribed in Treas. Reg. § 1.409A-3(j)(4)(ix), or any successorprovision.  A proper termination of thisPlan automatically shall effect a termination of all Participants’ rights andbenefits hereunder 

 

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without further action, to the extent that suchParticipants have received payment of their balances under the Plan.  Written notice of any termination shall begiven to the Participants as soon as practicable after a proper termination.

 

**ARTICLEVI.  MISCELLANEOUS**

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**Section 6.1           **Section 409Aof the Code.  It is intended that thePlan (including all amendments thereto) comply with the provisions of Section 409Aof the Code, so as to prevent the inclusion in gross income of any retirementbenefit accrued hereunder in a taxable year that is prior to the taxable yearor years in which such amount would otherwise be actually distributed or madeavailable to the Participants.  It isintended that the Plan shall be administered in a manner that will comply with Section 409Aof the Code.

 

**Section 6.2           **Non-Alienationof Deferred Compensation.  No rightor interest under the Plan of any Participant or Beneficiary shall be (a) assignableor transferable in any manner, (b) subject to alienation, anticipation,sale, pledge, encumbrance, attachment, garnishment or other legal process or (c) inany manner liable for or subject to the debts or liabilities of the Participantor Beneficiary.  Notwithstanding theforegoing, to the extent permitted by Section 409A of the Code, theCommittee shall honor a judgment, order or decree from a state domesticrelations court which requires the payment of part or all of a Participant’s orBeneficiary’s interest under this Plan to an “alternate payee” as defined in Section 414(p) ofthe Code.

 

**Section 6.3           **Interestof Participant.  The obligation ofthe Company under the Plan to make payment of amounts reflected in an Accountmerely constitutes the unsecured promise of the Company to make payments fromits general assets and no Participant or Beneficiary shall have any interestin, or a lien or prior claim upon, any property of the Company or a propertyinterest in his or her Account.  Further,no Participant or Beneficiary shall have any claim whatsoever against anySubsidiary for amounts reflected in an Account. It is the intention of the Company that the Plan be unfunded for taxpurposes and for purposes of Title I of the Employee Retirement IncomeSecurity Act of 1974, as amended.  TheCompany may, but need not, establish a trust to fund its obligations under thePlan.  In such event, the Company may establisha trust or use an already existing trust, either the Company’s Amended andRestated Master Trust, dated January 1, 2001, or the Company’s SecondAmended and Restated Master Trust, dated January 1, 2001 (such new trustor an existing trust, each, a “Master Trust”), and may fund such Master Trust; provided,however, that any funds contained therein shall remain liable for theclaims of the Company’s general creditors and provided, further, no amountshall be transferred to a Master Trust if, pursuant to Section 409A(b)(3)(A) ofthe Code, such amount would, for purposes of Section 83 of the Code, betreated as property transferred in connection with the performance of services.  Notwithstanding the above, upon the earlierto occur of (a) a Change of Control or (b) a declaration by the Boardthat a Change of Control is imminent, the Company shall promptly to the extentit has not previously done so transfer to the trustee of such Master Trust, tobe added to the principal thereof, an amount equal to (A) the aggregateamount credited to the Accounts of all of the Participants and 

 

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Beneficiaries under the Plan, less (B) thesurplus, if any, in the Master Trust at such time that is not dedicated to thepayment of benefits under any other benefit plan sponsored by the Company; provided,however, no amount shall be transferred to a Master Trust if, pursuantto Section 409A(b)(3)(A) of the Code, such amount would, for purposesof Section 83 of the Code, be treated as property transferred inconnection with the performance of services.

 

**Section 6.4           **Claimsof Other Persons.  The provisions ofthe Plan shall in no event be construed as giving any other person, firm orcorporation any legal or equitable right as against the Company or anySubsidiary or the officers, employees or directors of the Company or anySubsidiary, except any such rights as are specifically provided for in the Planor are hereafter created in accordance with the terms and provisions of thePlan.

 

**Section 6.5           **Severability.  The invalidity and unenforceability of anyparticular provision of the Plan shall not affect any other provision hereof,and the Plan shall be construed in all respects as if such invalid orunenforceable provision were omitted.

 

**Section 6.6           **Expenses.  The Company shall pay all expenses incurredin the administration and operation of the Plan.

 

**Section 6.7           **GoverningLaw.  Except when preempted byfederal law, this Plan shall be regulated, construed and administered under thelaws of the State of Ohio.

 

**Section 6.8           **Relationshipto Other Plans.  The Plan is intendedto serve the purposes of and to be consistent with any incentive compensationplan approved by the Committee for purposes of the Plan.

 

**Section 6.9           **Headings;Interpretation.

 

(a)           Headings in thisPlan are inserted for convenience of reference only and are not to beconsidered in the construction of the provisions hereof.

 

(b)           Any reference inthis Plan to Section 409A of the Code will also include any regulations orany other formal guidance, promulgated with respect to such Section 409Aby the U.S. Department of Treasury or the Internal Revenue Service.

 

(c)           For purposes of thePlan, the phrase “permitted by Section 409A of the Code,” or words orphrases of similar import, shall mean that the event or circumstance that mayoccur or exist only if permitted by Section 409A of the Code would notcause an amount deferred or payable under the Plan to be includible in thegross income of a Participant or Beneficiary under Section 409A(a)(1) ofthe Code.

 

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