**Exhibit 10(q)**

 

**DPL INC.**

**2006 DEFERRED COMPENSATION PLAN FOREXECUTIVES**

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

 

**ARTICLEI.  INTRODUCTION**

** **

DPL Inc. adopted the DPL Inc. 2006 Deferred Compensation Plan ForExecutives on the terms and conditions hereinafter set forth, effective as of September 19,2006.  This amended and restated versionof the Plan is effective December 31, 2007.

 

The purpose of this Plan is to provide aselect group of management or highly compensated employees of the Company withthe opportunity to defer the receipt of base salary and incentive compensationpayments which may be earned by such executives under any plan or program whichthe Committee (as defined below) may designate from time to time, in accordancewith the provisions of the Plan.

 

**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 comprised of the Base SalarySubaccount and the Incentive Compensation Subaccount to which deferred BaseSalary and Incentive Compensation, respectively, are credited.

 

**Section 2.2  **“BaseSalary” means the annual fixed or base compensation payable to aParticipant.

 

**Section 2.3  **“BaseSalary Payment Election” means the Election Agreement (or portion thereof)completed by a Participant and filed with the Company that indicates the timeof commencement of payment and form of payment of the Participant’s Base Salarythat is or will be deferred pursuant to a Deferral Election under the Plan.

 

**Section 2.4  **“BaseSalary Subaccount” means the bookkeeping****accountmaintained by the Company on behalf of each Participant pursuant to Section 3.3that is credited with Base Salary that is deferred by a Participant.

 

**Section 2.5  **“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.

 

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**Section 2.6  **“Board”means the Board of Directors of the Company.

 

**Section 2.7  **“CalendarYear” means each calendar year commencing on or after January 1, 2006.

 

**Section 2.8  **“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:

 

(a)              any “Person” (assuch term is defined in  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 2.8,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 2.8(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 

 

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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 Successors unless and until suchPerson thereafter becomes the beneficial owner of any additional shares ofVoting Stock of the Company or DP&L representing 1% or more of thethen-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)           theCompany or DP&L consummates a merger or consolidation, or consummates a “combination”or “majority share acquisition” in which it is the “acquiring corporation” (assuch terms are defined in Ohio Rev. Code § 1701.01 as in effect on December 31,1990) and in 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)           theCompany or DP&L consummates a sale, lease, exchange or other transfer ordisposition of all or substantially all of its assets to any 

 

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Person other thanto a wholly owned subsidiary or, in the case of DP&L, to the Company or awholly owned subsidiary(ies) of the Company; but not including (i) amortgage or pledge of assets granted in connection with a financing or (ii) aspin-off or sale of assets if the Company continues in existence and its commonshares are listed on a national securities exchange, quoted on the automatedquotation system of a national securities association or traded in theover-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

 

(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 2.9  **“Code”means the Internal Revenue Code of 1986, as amended.

 

**Section 2.10  **“Committee”means the Compensation Committee of the Board or such other Committee as may beauthorized by the Board to administer the Plan.

 

**Section 2.11  **“CommonStock” means the common stock, par value $0.01 per shares, of the Company.

 

**Section 2.12  **“Company”means DPL Inc., an Ohio corporation, and any entity that succeeds DPL Inc. bymerger, reorganization or otherwise.

 

**Section 2.13  **“DeferralElection” means the Election Agreement (or portion thereof) completed by aParticipant and filed with the Company that indicates the amount of his or herBase Salary and/or Incentive Compensation that is or will be deferred under thePlan for a Deferral Period.

 

**Section 2.14  **“DeferralPeriod” means the calendar year that commences after each Election FilingDate.

 

**Section 2.15  **“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 2.16  **“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 2.17  **“ElectionFiling Date” means December 31 of the Calendar Year immediately priorto the first day of the Calendar Year for which Base Salary and/or IncentiveCompensation would otherwise be earned.

 

**Section 2.18  **“EligibleExecutive” means the Company’s Chief Executive Officer and each otherofficer of the Company that the Committee determines should be an 

 

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Eligible Executive hereunder.  Unless otherwise determined by the Committee,an Eligible Executive shall continue as such until Termination of Employment.

 

**Section 2.19  **“ERISA”means the Employee Retirement Income Security Act of 1974, as amended.

 

**Section 2.20  **“HypotheticalInvestment Fund or Funds” means any investment fund designated by theCompany pursuant to Section 3.3.

 

**Section 2.21  **“IncentiveCompensation” means cash incentive compensation payable pursuant to theCompany’s Executive Incentive Compensation Plan, effective January 1,2006.

 

**Section 2.22  **“IncentiveCompensation Payment Election” means the Election Agreement (or portionthereof) completed by a Participant and filed with the Company that indicatesthe time of commencement of payment and form of payment of the Participant’sIncentive Compensation that is or will be deferred pursuant to a DeferralElection under the Plan.

 

**Section 2.23  **“IncentiveCompensation Subaccount” means the bookkeeping****account maintained by the Company on behalf of eachParticipant pursuant to Section 3.3 that is credited with IncentiveCompensation that is deferred by a Participant.

 

**Section 2.24  **“IncentiveFiling Date” means the date six months prior to the end of the performanceperiod with respect to which the Incentive Compensation is earned.

 

**Section 2.25  **“KeyEmployee” means a key employee as defined in Section 409A of the Codeand Section 416(i) of the Code (without regard to paragraph (5) thereof)of the Company (or a controlled group member).

 

**Section 2.26  **“Participant”means any Eligible Executive 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 2.27  **“PaymentElection” means the Base Salary Payment Election and the Incentive CompensationPayment Election.

 

**Section 2.28  **“Plan”means this deferred compensation plan, which shall be known as the DPL Inc. 2006Deferred Compensation Plan For Executives. The Plan is unfunded and is maintained by the Company primarily for thepurpose of providing deferred compensation for a select group of management orhighly compensated employees of the Company.

 

**Section 2.29  **“PlanAdministrator” means the Committee.

 

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**Section 2.30  **“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 2.31  **“Terminationof Employment” means a separation from service as defined under Section 409Aof the Code.

 

**Section 2.32  **“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 2.33  **“VotingStock” means securities entitled to vote generally in the election ofdirectors.

 

**ARTICLEIII.  ELECTION TO DEFER**

** **

**Section 3.1  **Eligibility.  An Eligible Executive may make an annualDeferral Election with respect to receipt of all or a specified part of his orher Base Salary and/or Incentive Compensation for any Calendar Year inaccordance with Section 3.2.  AnEligible Executive who makes a Deferral Election must also make a PaymentElection with respect to the amount deferred in accordance with Section 3.4.  An Eligible Executive’s entitlement to defershall cease with respect to the Deferral Period following the Deferral Periodin which he or she ceases to be an Eligible Executive.

 

**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)          TheDeferral Election on the Election Agreement shall specify:

 

(i)                 thepercentage or the dollar amount of a Participant’s Base Salary and/or IncentiveCompensation, and

 

(ii)                inaccordance with Section 3.3(b), the investment election with respect tothe deemed investment of the Base Salary and/or Incentive Compensation.

 

(b)          TheDeferral Election shall be made by, and shall be effective as of, theapplicable Election Filing Date; provided, however, that to theextent permitted by Section 409A of the Code, the Company may permitParticipants to make a Deferral Election with respect to Incentive Compensationthat constitutes “performance-based compensation” (within the meaning of Section 409A(a)(4)(B)(iii) ofthe Code) at a time later than the Election Filing Date but no later than theIncentive Filing Date, and in such event, the Deferral Election shall beeffective as of such Incentive Filing Date. Notwithstanding the foregoing, an 

 

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employee who firstbecomes an Eligible Executive during the course of a Calendar Year, rather thanas of the applicable Election Filing Date, shall make such Deferral Electionwith respect to Base Salary and/or Incentive Compensation within thirty daysfollowing the date the employee first becomes an Eligible Executive, and suchDeferral Election shall be effective on the date made and, unless the proviso inthe first sentence of this Section 3.2(b) applies, shall be effectivewith regard to Base Salary and/or Incentive Compensation earned during suchCalendar Year following the filing of the Election Agreement with the Companyas determined pursuant to the pro-ration method permitted under Section 409Aof the Code.

 

**Section 3.3****  **Accounts.

 

(a)         Base Salary and IncentiveCompensation that a Participant elects to defer shall be credited to theAccount on the date the Base Salary or Incentive Compensation would otherwisehave been paid to the Participant. Credits or charges representing income, expenses, gains or lossesallocable to the Account which would be applicable if such Account had beeninvested on a tax deferred basis in the Hypothetical Investment Fund(s) selectedby the Participant or the Participant’s Beneficiary as provided in Section 3.3(b) shallalso be credited to the Account.  TheCompany shall also enter on the books of each Participant’s Account debits forany distributions made from the Account.

 

(b)         The Companyshall designate a Hypothetical Investment Fund or Funds under this Plan, whichmay, but need not, include one or more of the investment funds provided underThe Dayton 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 HypotheticalInvestment Funds) in which the amount of Base Salary and/or Incentive Bonus thata Participant defers under this Plan shall be deemed invested.  Such an election may be made in accordancewith rules and procedures established by the Company.  Any Participant may change his investmentelection either prospectively or with respect to amounts previously credited tohis Account in accordance with procedures specified by the Company.  In the absence of an investment election by aParticipant, the company shall select the Hypothetical Investment Fund(s) whichshall be applicable to such Participant’s Account.

 

**Section 3.4****  **InitialPayment Elections.  Subject to Sections3.4(d), 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:

 

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(a)      EachParticipant shall make a Base Salary Payment Election with respect to BaseSalary deferred pursuant to the Deferral Election and a separate IncentiveCompensation Payment Election with respect to Incentive Compensation deferredpursuant to the Deferral Election.

 

(b)      Each BaseSalary Payment Election and each Incentive Compensation Payment Election shallcontain the Participant’s elections regarding the time of the commencement ofpayment of amounts in his or her Base Salary Subaccount and Incentive CompensationSubaccount, to the extent the Participant does not already have an electionregarding the time of the commencement of payment applicable to his or her BaseSalary Subaccount or Incentive Compensation Subaccount.  In addition, if the Participant has elected,pursuant to Section 3.4(b)(i)(B), to commence payment in a specified year,the Payment Election(s) 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 Base Salary Subaccount andIncentive Compensation Subaccount for that and all future Deferral Periods.

 

(i)            AParticipant may elect to commence payment (A) upon the date on which he orshe incurs a Termination of Employment for any reason, including, withoutlimitation, by reason of death, retirement, or Disability, or (B) in aspecified year that begins at least two years after the date on which theDeferral Election becomes effective.

 

(ii)           Paymentsmade in accordance with the Participant’s elections under Section 3.4(b)(i)(A) shallbe paid or commence to be paid within 90 days following the date of theTermination of Employment; provided, however, that theParticipant does not have the right to designate the taxable year of suchpayments.  Payments made in accordancewith the Participant’s election under Section 3.4(b)(i)(B) withrespect to Base Salary shall be paid or commence to be paid on January 31 ofthe specified year and payments made in accordance with the Participant’selection under Section 3.4(b)(i)(B) with respect to IncentiveCompensation shall be paid or commence to be paid on January 31 of thespecified year.

 

(iii)          Notwithstanding theforegoing provisions of this Section 3.4(b), 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(b)(ii))he or she incurs a Termination of Employment, payment of the Participant’sAccount shall commence, in the form or forms elected pursuant to Section 3.4(c) and/or(d), on the date of such Termination of Employment.

 

(c)           The Base Salary PaymentElection and the Incentive Compensation Payment Election shall also contain theParticipant’s elections regarding the form of payment of amounts in his or her BaseSalary Subaccount 

 

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and IncentiveCompensation Subaccount, to the extent the Participant does not already have anelection regarding the form of payment applicable to his or her Base SalarySubaccount and Incentive Compensation Subaccount.  In addition, if the Participant has elected,pursuant to Section 3.4(b)(i)(B), to commence payment in a specified year,the Payment Election(s) for the Deferral Period immediately prior to suchspecified year shall contain the Participant’s election regarding form ofpayment of amounts in his or her Base Salary Subaccount and IncentiveCompensation Subaccount for that and all future Deferral Periods.

 

(i)                    TheParticipant may elect to receive amounts in his or her Base Salary Subaccount andIncentive Compensation Subaccount in one of the following forms:  (A) a single, lump sum payment or (B) anumber of annual installments over a period of up to twenty years.

 

(ii)                   Inthe event that a Participant’s Base Salary Subaccount****or Incentive Compensation Subaccount is payable in annualinstallments, the amount of each installment shall be equal to the value, as ofDecember 31 of the calendar year immediately prior to the date of therespective installment payment, of the Participant’s Base Salary Subaccount orIncentive Compensation Subaccount, as the case may be, divided by the number ofinstallment payments then remaining in the installment period;

 

(A)          The portion of the BaseSalary Subaccount or Incentive Compensation Subaccount subject to suchinstallment payments that remains unpaid from time to time shall continue to becredited with gains, losses, interest and other earnings.

 

(B)           The final installmentpayment shall include an adjustment for gains, losses, interest and otherearnings during the period between the beginning of the calendar year in whichthe final installment payment is made and the date of such final payment.

 

(d)      Except asprovided in the last sentence of Section 3.2(b), the Payment Election(s) shallbe made by, and shall be effective as of, the applicable Election Filing Dateor Incentive Filing Date, as the case may be. Except as provided in the following sentence, a Participant may not havemore than one Base Salary Payment Election and one Incentive CompensationPayment Election in effect at any one time. If the Participant has elected, pursuant to Section 3.4(b)(i)(B),to commence payment in a specified year, the Payment Election(s) for theDeferral Period immediately prior to such specified year shall contain theParticipant’s election regarding form of payment of amounts in his or her BaseSalary Subaccount and/or Incentive Compensation Subaccount for that and allfuture Deferral Periods.

 

(e)      If the PaymentElection(s) are not made by the applicable Election Filing Date orIncentive Filing Date, as the case may be, or are insufficient to be 

 

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deemed effectiveas of such date, then a Participant’s Deferral Election shall be null and void.

 

(f)            Notwithstandingthe foregoing provisions of this Section 3.4, if the Participant is a KeyEmployee, then the payment on account of Termination of Employment shallcommence on the first day of the seventh month after such Termination ofEmployment (or, if earlier, the date of death).

 

(g)           Thepayment of a single, lump-sum amount, or the payment of a number of annualinstallments as designated by the Participant in the Election Agreement, to aParticipant (or his or her Beneficiary) pursuant to this Section 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 Base Salary Subaccount andIncentive Compensation Subaccount, the form of payment of his or her BaseSalary Subaccount and Incentive Compensation Subaccount, or both, with respectto an amount previously deferred under a Deferral Election if all of thefollowing requirements are met:

 

(a)          Suchsubsequent Payment Election(s) may not take effect until at least twelvemonths after the date on which the subsequent Payment Election is made;

 

(b)          Inthe case of a subsequent Payment Election(s) related to a payment notdescribed in Section 3.6 or Section 3.8, the first payment under suchsubsequent Payment Election(s) shall in all cases be deferred for a periodof not less than five years from the date such payment would otherwise havebeen made (or, in the case of installment payments, which are treated as asingle payment for purposes of this Section 3.5, five years from the datethe first installment payment was scheduled to be paid); and

 

(c)          Anysubsequent Payment Election(s) related to a distribution that is to bemade at a specified time or pursuant to a fixed schedule pursuant to Section 3.4must be made not less than twelve months prior to the date the payment wasscheduled to be made under the prior Payment Election(s) (or, in the caseof installment payments, which are treated as a single payment for purposes ofthis Section 3.5, twelve months prior to the date the first installmentpayment was scheduled to be paid).

 

**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(s), or inaccordance with a special payment election filed by the Participant with theCompany at the same time as the Participant’s Payment Election(s) 

 

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under Section 3.4 or Section 3.5 is filedwith the Company that is to be operative and override any other paymentelection under the Participant’s Payment Election(s) in the event of thedeath of the Participant.  Any specialpayment election filed by a Participant subsequent to the filing of his or herinitial Payment Election(s) under Section 3.4 must meet suchadditional requirements as the Company determines are appropriate to avoid theinclusion of the amounts subject to such special payment election in the grossincome 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 the Participant, the amount of theParticipant’s Account shall be paid to the Participant’s estate in****a lump sum.  In the event of the death of the Beneficiaryor Beneficiaries after the death of a Participant, the amount of theParticipant’s Account shall be paid to the estate of the last survivingBeneficiary in a lump sum.

 

**Section 3.7  **SmallPayments.  Notwithstanding theforegoing, if at the time of a Participant’s Termination of Employment the Participant’sAccount****balance is less than $100,000,such Account shall be automatically paid to such Participant in a single,lump-sum payment on the date of such Termination of Employment; provided,however, that if the Participant is a Key Employee, then the payment onaccount of Termination of Employment shall be paid on the first day of theseventh month after such Termination of Employment (or, if earlier, the date ofdeath).

 

**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 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 determination by the Committee that the Participantis not a member of a select group of management or highly compensated employeesof his or her employer, within the meaning of ERISA; provided, however, such adetermination will not cause deferrals to cease any sooner than the end of theDeferral Period during which such a termination is made.

 

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**ARTICLEIV.  ADMINISTRATION**

 

**Section 4.1  **Administration.

 

(a)      The Plan shallbe administered 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 resolvinginconsistencies or ambiguities in, the language of the Plan), to make factualfindings with respect to any issue arising under the Plan, to determine therights and status under the Plan of Participants or other persons, to resolvequestions (including factual questions) or disputes arising under the Plan andto make any determinations with respect to the benefits payable under the Planand the persons entitled thereto as may be necessary for the purposes of thePlan.  Without limiting the generality ofthe foregoing, the Plan Administrator is hereby granted the authority (i) todetermine whether a particular employee is a Participant, and (ii) todetermine if a person is entitled to benefits hereunder and, if so, the amountand duration of such benefits.  The PlanAdministrator’s determination of the rights of any person hereunder shall befinal and binding on all persons, subject only to the provisions of Sections4.3, 4.4 and 4.5 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 isintended that, to the extent applicable, all Participant elections hereunderwill comply with Section 409A of the Code. The Plan Administrator is authorized to adopt rules or regulationsdeemed necessary or appropriate in connection therewith to anticipate and/orcomply with 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 Sections 4.3, 4.4 and4.5 hereof, be final and binding on all persons.

 

**Section 4.3  **ClaimsProcedures.

 

(a)      The PlanAdministrator shall determine the rights of any person to any benefit hereunder.  Any person who believes that he or she hasnot received the benefit to which he or she is entitled under the Plan mustfile a claim in writing with the Plan Administrator specifying the basis forhis or her claim and the facts upon which he or she relies in making such aclaim.

 

(b)      The PlanAdministrator will notify the claimant of its decision regarding his or herclaim within a reasonable period of time, but not later than 90 days followingthe date on which the claim is filed, unless special circumstances 

 

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require a longerperiod for adjudication and the claimant is notified in writing of the reasonsfor an extension of time prior to the end of the initial 90-day period and thedate by which the Plan Administrator expects to make the final decision.  In no event will the Plan Administrator begiven an extension for processing the claim beyond 180 days after the date onwhich the claim is first filed with the Plan Administrator.

 

If such a claim is denied, the PlanAdministrator’s notice will be in writing, will be written in a mannercalculated to be understood by the claimant and will contain the followinginformation:

 

(i)               The specific reason(s) forthe denial;

 

(ii)              A specific reference to the pertinentPlan provision(s) on which the denial is based;

 

(iii)             A description of additionalinformation or material necessary for the claimant to perfect his or her claim,if any, and an explanation of why such information or material is necessary;and

 

(iv)             An explanation of the Plan’s claimreview procedure and the applicable time limits under such procedure and astatement as to the claimant’s right to bring a civil action under ERISA afterall of the Plan’s review procedures have been satisfied.

 

If additional information is needed, theclaimant shall be provided at least 45 days within which to provide theinformation and any otherwise applicable time period for making a determinationshall be suspended during the period the information is being obtained.

 

Within 60 days after receipt of a denial of aclaim, the claimant must file with the Plan Administrator, a written requestfor review of such claim.  If a requestfor review is not filed within such 60-day period, the claimant shall be deemedto have acquiesced in the original decision of the Plan Administrator on his orher claim.  If a request for review isfiled, the Plan Administrator shall conduct a full and fair review of theclaim.  The claimant will be provided,upon request and free of charge, reasonable access to and copies of alldocuments and information relevant to the claim for benefits.  The claimant may submit issues and commentsin writing, and the review must take into account all information submitted bythe claimant regardless of whether it was reviewed as part of the initialdetermination.  The decision by the PlanAdministrator with respect to the review must be given within 60 days afterreceipt of the request for review, unless circumstances warrant an extension oftime not to exceed an additional 60 days. If this occurs, written notice of the extension will be furnished to theclaimant before the end of the initial 60-day period, indicating the specialcircumstances requiring the extension and the date by which the Plan Administratorexpects to make the final decision.  Thedecision shall be written in a manner calculated to be understood by theclaimant, and it shall include

 

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                (A)          The specific reason(s) forthe denial;

 

                (B)           A reference to thespecific Plan provision(s) on which the denial is based;

 

                (C)           A statement that theclaimant is entitled to receive, upon request and free of charge, reasonableaccess to and copies of all information relevant to the claimant’s claim for benefits;and

 

                (D)          A statementdescribing any voluntary appeal procedures offered by the Plan and a statementof the claimant’s right to bring a civil action under ERISA.

 

(c)            The PlanAdministrator’s decision on review shall be, to the extent permitted by applicablelaw, final and binding on all interested persons.

 

**Section 4.4  **Arbitration.  After a Participant has exhausted alladministrative remedies as provided in Section 4.3, any disputes arisinghereunder may, at the election of the Participant, be submitted for non-bindingarbitration to an arbitrator appointed under the auspices of the AmericanArbitration Association (“AAA”) office in Cincinnati, Ohio, or if closer, theAAA office that is located in a U.S. city nearest to the general corporateoffices of the Company for resolution under the AAA Employment DisputeArbitration Rules.  Such arbitrationshall be held in such place as the parties and the arbitrator shall mutuallyagree.  The arbitrator shall applyapplicable Federal and state law, including ERISA.  The provisions of ERISA, including, but notlimited to, preemption, review of claims, and standards of review, shall beapplied by the arbitrator to the same extent as if the matter were proceedingin federal court.  The state law appliedshall be the law of the state in which the general corporate offices of theCompany are located (Ohio as of the date hereof).  The entire cost of the proceedings, exceptfor the Participant’s attorney’s fees and costs, shall be borne by the Company.

 

**Section 4.5  **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.

 

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**Section 5.2  **Termination.  The Committee, in its sole discretion, mayterminate this Plan at any time and for any reason whatsoever, except that,subject to Subsection (b) hereof, no such termination may adversely affectthe amount of any Participant’s accrued benefit as of the date of suchtermination, without the prior written consent of the affectedParticipant.  Notwithstanding thepreceding sentence, the Compensation Committee, in its sole discretion, mayterminate this Plan to the extent and in circumstances described in Treas. Reg.§ 1.409A-3(j)(4)(ix), or any successor provision.  A proper termination of this Plan automaticallyshall effect a termination of all Participants’ rights and benefits hereunderwithout further action, to the extent that such Participants have receivedpayment of their balances under the Plan. Written notice of any termination shall be given to the Participants assoon as practicable after a proper termination.

 

**ARTICLEVI.  MISCELLANEOUS**

** **

**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. Nothing in the Plan shall be construed as guaranteeing future employmentto Eligible Executives.  It is theintention of the Company that the Plan be unfunded for tax purposes and forpurposes of Title I of ERISA.  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 

 

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Master Trust; provided, however, thatany funds contained therein shall remain liable for the claims of the Company’sgeneral creditors and provided, further, that no amount shall be transferred toa Master Trust if, pursuant to Section 409A(b)(3)(A) of the Code,such amount would, for purposes of Section 83 of the Code, be treated asproperty 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 Beneficiariesunder the Plan, less (B) the surplus, if any, in the Master Trust at suchtime that is not dedicated to the payment of benefits under any other benefitplan sponsored by the Company; provided, however, that no amountshall be transferred pursuant 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.

 

**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 this Plan areinserted for convenience of reference only and are not to be considered in theconstruction of the provisions hereof.

 

(b)        Anyreference in this Plan to Section 409A of the Code will also include any regulationsor any other formal guidance, promulgated with respect to such Section 409Aby the U.S. Department of Treasury or the Internal Revenue Service.

 

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(c)      Forpurposes of the Plan, the phrase “permitted by Section 409A of the Code,”or words or phrases of similar import, shall mean that the event orcircumstance that may occur or exist only if permitted by Section 409A ofthe Code would not cause an amount deferred or payable under the Plan to beincludible in the gross income of a Participant or Beneficiary under Section 409A(a)(1) ofthe Code.

 

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