exv4w5






Exhibit 4.5




Execution Copy




NCI BUILDING SYSTEMS, INC.

DEFERRED COMPENSATION PLAN




(Amended and Restated effective December 1, 2009)




[CONFORMED COPY INCLUDING FIRST THROUGH FIFTH AMENDMENTS]


















 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 Definitions
	 	 	1	 
	ARTICLE 2 Selection, Enrollment, Eligibility
	 	 	8	 
	2.1 Selection by Administrator
	 	 	8	 
	2.2 Enrollment and Eligibility Requirements; Commencement of Participation
	 	 	9	 
	ARTICLE 3 Deferral Commitments/Company Contribution Amounts/Company Restoration Matching
Amounts /Vesting/Crediting/Taxes
	 	 	10	 
	3.1 Minimum Deferrals
	 	 	10	 
	3.2 Maximum Deferral
	 	 	10	 
	3.3 Election to Defer; Effect of Election Form
	 	 	10	 
	3.4 Withholding and Crediting of Annual Deferral Amounts
	 	 	12	 
	3.5 Company Contribution Amount
	 	 	12	 
	3.6 Company Restoration Matching Amount
	 	 	12	 
	3.7 Crediting of Amounts after Benefit Distribution
	 	 	13	 
	3.8 Vesting
	 	 	13	 
	3.9 Crediting/Debiting of Account Balances
	 	 	15	 
	3.10 FICA and Other Taxes
	 	 	16	 
	ARTICLE 4 Scheduled Distribution; Unforeseeable Emergencies
	 	 	17	 
	4.1 Scheduled Distribution
	 	 	17	 
	4.2 Postponing Scheduled Distributions
	 	 	18	 
	4.3 Other Benefits Take Precedence Over Scheduled Distributions
	 	 	18	 
	4.4 Unforeseeable Emergencies
	 	 	18	 
	4.5 Distributions from the Company Stock Fund
	 	 	19	 
	ARTICLE 5 Change In Control Benefit
	 	 	19	 
	5.1 Change in Control Benefit
	 	 	19	 
	5.2 Payment of Change in Control Benefit
	 	 	20	 
	ARTICLE 6 Retirement Benefit
	 	 	20	 
	6.1 Retirement Benefit
	 	 	20	 
	6.2 Payment of Retirement Benefit
	 	 	20	 
	ARTICLE 7 Termination Benefit
	 	 	21	 
	7.1 Termination Benefit
	 	 	21	 
	7.2 Payment of Termination Benefit
	 	 	21	 
	ARTICLE 8 Disability Benefit
	 	 	21	 
	8.1 Disability Benefit
	 	 	21	 
	8.2 Payment of Disability Benefit
	 	 	21	 
	ARTICLE 9 Death Benefit
	 	 	22	 
	9.1 Death Benefit
	 	 	22	 
	9.2 Payment of Death Benefit
	 	 	22	 
	ARTICLE 10 Beneficiary Designation
	 	 	22	 
	10.1 Beneficiary
	 	 	22	 
	10.2 Beneficiary Designation
	 	 	22	 
	10.3 Acknowledgement
	 	 	22	 
	10.4 No Beneficiary Designation
	 	 	22	 






 









 






	 	 	 	 	 
	 	 	Page	 
	10.5 Doubt as to Beneficiary
	 	 	22	 
	10.6 Discharge of Obligations
	 	 	23	 
	ARTICLE 11 Leave of Absence
	 	 	23	 
	11.1 Paid Leave of Absence
	 	 	23	 
	11.2 Unpaid Leave of Absence
	 	 	23	 
	11.3 Leaves Resulting in Separation from Service
	 	 	23	 
	ARTICLE 12 Termination of Plan, Amendment or Modification
	 	 	24	 
	12.1 Termination of Plan
	 	 	24	 
	12.2 Amendment
	 	 	24	 
	12.3 Plan Agreement
	 	 	25	 
	12.4 Effect of Payment
	 	 	25	 
	ARTICLE 13 Administration
	 	 	25	 
	13.1 Administrator Duties
	 	 	25	 
	13.2 Administration Upon Change In Control
	 	 	25	 
	13.3 Agents
	 	 	26	 
	13.4 Binding Effect of Decisions
	 	 	26	 
	13.5 Indemnity of Administrator
	 	 	26	 
	13.6 Employer Information
	 	 	26	 
	ARTICLE 14 Other Benefits and Agreements
	 	 	26	 
	14.1 Coordination with Other Benefits
	 	 	26	 
	ARTICLE 15 Claims Procedures
	 	 	27	 
	15.1 Presentation of Claim
	 	 	27	 
	15.2 Notification of Decision
	 	 	27	 
	15.3 Review of a Denied Claim
	 	 	28	 
	15.4 Decision on Review
	 	 	28	 
	15.5 Legal Action
	 	 	28	 
	ARTICLE 16 Trust
	 	 	29	 
	16.1 Establishment of the Trust
	 	 	29	 
	16.2 Interrelationship of the Plan and the Trust
	 	 	29	 
	16.3 Distributions From the Trust
	 	 	29	 
	16.4 Common Stock for the Company Stock Fund
	 	 	29	 
	ARTICLE 17 Miscellaneous
	 	 	29	 
	17.1 Status of Plan
	 	 	29	 
	17.2 Unsecured General Creditor
	 	 	29	 
	17.3 Employer’s Liability
	 	 	30	 
	17.4 Nonassignability
	 	 	30	 
	17.5 Not a Contract of Employment
	 	 	30	 
	17.6 Furnishing Information
	 	 	30	 
	17.7 Terms
	 	 	30	 
	17.8 Captions
	 	 	31	 
	17.9 Governing Law
	 	 	31	 
	17.10 Notice
	 	 	31	 
	17.11 Successors
	 	 	31	 
	17.12 Spouse’s Interest
	 	 	31	 
	17.13 Validity
	 	 	31	 






-ii-









 






	 	 	 	 	 
	 	 	Page	 
	17.14 Incompetent
	 	 	32	 
	17.15 Court Order
	 	 	32	 
	17.16 Distribution in the Event of Income Inclusion Under 409A
	 	 	32	 
	17.17 Deduction Limitation on Benefit Payments
	 	 	32	 
	17.18 Insurance
	 	 	33	 
	17.19 Limitation of Rights
	 	 	33	 







-iii-











 





NCI BUILDING SYSTEMS, INC.

DEFERRED COMPENSATION PLAN




(Amended and Restated effective December 1, 2009)



Purpose




     The purpose of this Plan is to provide specified benefits to Directors and a select group of
management or highly compensated Employees who contribute materially to the continued growth,
development and future business success of NCI Building Systems, Inc., a Delaware corporation, and
its subsidiaries, if any, that sponsor this Plan. This Plan shall be unfunded for tax purposes and
for purposes of Title I of ERISA.



     This Plan, which was originally effective December 8, 2005, was amended and restated effective
as of January 1, 2007 and as of August 19, 2008. The terms of the Plan, as amended and restated
effective as of December 1, 2009, shall govern all amounts accrued under the Plan. The Plan is
intended to comply with all applicable law, including Code Section 409A and related Treasury
guidance and Regulations, and shall be operated and interpreted in accordance with this intention.
Consistent with the foregoing, and in order to transition to the provisions of the Plan, as
amended, as well as to the requirements of Code Section 409A and related Treasury guidance and
Regulations, the Administrator has utilized or made available to Participants certain transition
relief described more fully in Appendix A of this Plan.



ARTICLE 1

Definitions




     For the purposes of this Plan, unless otherwise clearly apparent from the context, the
following phrases or terms shall have the following indicated meanings:




	1.1	 	“Account Balance” shall mean, with respect to a Participant, an entry on the records of the
Employer equal to the sum of the Participant’s Annual Accounts. The Account Balance shall be
a bookkeeping entry only and shall be utilized solely as a device for the measurement and
determination of the amounts to be paid to a Participant, or his or her designated
Beneficiary, pursuant to this Plan.
	 
	1.2	 	“Administrative Committee” shall mean the Administrative Committee appointed by the Committee
or the Board of Directors of the Company to assist with the administration of this Plan.
	 
	1.3	 	“Administrator” shall mean the Administrator described in Article 13 and appointed by the
Administrative Committee.
	 
	1.4	 	“Annual Account” shall mean, with respect to a Participant, an entry on the records of the
Employer equal to the following amount: (i) the sum of the Participant’s Annual Deferral
Amount, Company Contribution Amount and Company Restoration Matching Amount for any one Plan
Year, plus (ii) amounts credited or debited to such amounts pursuant to this Plan, less (iii)
all distributions made to the Participant or his or her Beneficiary




 









 






	 	 	pursuant to this Plan that relate to the Annual Account for such Plan Year. The Annual
Account shall be a bookkeeping entry only and shall be utilized solely as a device for the
measurement and determination of the amounts to be paid to a Participant, or his or her
designated Beneficiary, pursuant to this Plan.






	1.5	 	“Annual Deferral Amount” shall mean that portion of a Participant’s Base Salary, Bonus,
Director Fees and such other compensation that is eligible for deferral as designated by the
Administrative Committee, which a Participant elects to defer for any one Plan Year in
accordance with Article 3, without regard to whether such amounts are withheld and credited
during such Plan Year. In the event of a Participant’s Retirement, Disability, death or
Termination of Employment prior to the end of a Plan Year, such year’s Annual Deferral Amount
shall be the actual amount withheld prior to such event.
	 
	1.6	 	“Annual Installment Method” shall be an annual installment payment over the number of years
selected by the Participant in accordance with this Plan, calculated as follows: (i) for the
first annual installment, the vested portion of each Annual Account shall be calculated as of
the close of business on or around the Participant’s Benefit Distribution Date, as determined
by the Administrator in its sole discretion, and (ii) for remaining annual installments, the
vested portion of each applicable Annual Account shall be calculated on every anniversary of
such calculation date, as applicable. Each annual installment shall be calculated by
multiplying this balance by a fraction, the numerator of which is one and the denominator of
which is the remaining number of annual payments due to the Participant. By way of example,
if the Participant elects a ten (10) year Annual Installment Method as the form of Retirement
Benefit for an Annual Account, the first payment shall be 1/10 of the vested balance of such
Annual Account, calculated as described in this definition. The following year, the payment
shall be 1/9 of the vested balance of such Annual Account, calculated as described in this
definition.
	 
	1.7	 	“Base Salary” shall mean the annual cash compensation relating to services performed during
any calendar year, excluding distributions from nonqualified deferred compensation plans,
bonuses, commissions, overtime, fringe benefits, stock options, restricted stock or restricted
stock units, relocation expenses, incentive payments, non-monetary awards, director fees and
other fees, and automobile and other allowances paid to a Participant for employment services
rendered (whether or not such allowances are included in the Employee’s gross income). Base
Salary shall be calculated before reduction for compensation voluntarily deferred or
contributed by the Participant pursuant to all qualified or nonqualified plans of any Employer
and shall be calculated to include amounts not otherwise included in the Participant’s gross
income under Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans established by
any Employer; provided, however, that all such amounts will be included in compensation only
to the extent that had there been no such plan, the amount would have been payable in cash to
the Employee.
	 
	1.8	 	“Beneficiary” shall mean one or more persons, trusts or trustees of a trust, partnership,
corporation, limited liability partnership, limited liability company, estates or other




-2-









 






	 	 	entities, designated in accordance with Article 10, that are entitled to receive benefits
under this Plan upon the death of a Participant.






	1.9	 	“Beneficiary Designation Form” shall mean the form established from time to time by the
Administrator that a Participant completes, signs and returns to the Administrator to
designate one or more Beneficiaries.
	 
	1.10	 	“Benefit Distribution Date” shall mean a date that triggers distribution of a Participant’s
vested benefits. A Benefit Distribution Date for a Participant shall be determined upon the
occurrence of any one of the following:






	 	(a)	 	If the Participant Retires, the Benefit Distribution Date for his or her vested
Account Balance shall be (i) the last day of the six-month period immediately following
the date on which the Participant Retires if the Participant is a Key Employee, and
(ii) for all other Participants, the date on which the Participant Retires; provided,
however, in the event the Participant changes the Retirement Benefit election for one
or more Annual Accounts in accordance with Section 6.2(b), the Benefit Distribution
Date for such Annual Account(s) shall be postponed in accordance with such section
6.2(b); or
	 
	 	(b)	 	If the Participant experiences a Termination of Employment, the Benefit
Distribution Date for his or her vested Account Balance shall be (i) the last day of
the six-month period immediately following the date on which the Participant
experiences a Termination of Employment if the Participant is a Key Employee, and (ii)
for all other Participants, the date on which the Participant experiences a Termination
of Employment; or
	 
	 	(c)	 	If the Participant dies prior to the complete distribution of his or her vested
Account Balance, the Participant’s Benefit Distribution Date shall be the date on which
the Administrator is provided with proof that is satisfactory to the Administrator of
the Beneficiary’s status; or
	 
	 	(d)	 	If the Participant becomes Disabled, the Participant’s Benefit Distribution
Date shall be the date on which the Participant becomes Disabled; or
	 
	 	(e)	 	If a Change in Control occurs prior to the Participant’s Termination of
Employment, Retirement, death or Disability, the Participant’s Benefit Distribution
Date shall be the date on which the Company experiences a Change in Control, if the
Employee has previously elected to receive the Change in Control Benefit described in
Article V, as determined by the Administrator in its sole discretion. If the
Participant has not made a prior election to receive the Change in Control Benefit,
then it will be paid in accordance with the remaining provisions of this Plan (i.e. as
a Scheduled Distribution or upon Termination of Employment, Retirement, death or
Disability).




-3-









 












	1.11	 	“Bonus” shall mean any cash compensation, in addition to Base Salary, earned by a Participant
for services rendered during a Plan Year, under any Employer’s annual bonus and cash incentive
plans.
	 
	1.12	 	“Change in Control” shall mean any “change in control event” as defined in accordance with
Code Section 409A and related Treasury guidance and Regulations to the extent applicable to
the Company.
	 
	1.13	 	“Change in Control Benefit” shall have the meaning set forth in Article 5.
	 
	1.14	 	“Claimant” shall have the meaning set forth in Section 15.1.
	 
	1.15	 	“Code” shall mean the Internal Revenue Code of 1986, as it may be amended from time to time.
	 
	1.16	 	“Committee” shall mean the Compensation Committee of the Board of Directors of the Company.
	 
	1.17	 	“Company” shall mean NCI Building Systems, Inc., a Delaware corporation, and any successor to
all or substantially all of the Company’s assets or business.
	 
	1.18	 	“Company Contribution Amount” shall mean, for any one Plan Year, the amount determined in
accordance with Section 3.5.
	 
	1.19	 	“Company Restoration Matching Amount” shall mean, for any one Plan Year, the amount
determined in accordance with Section 3.6.
	 
	1.20	 	“Company Stock” shall mean the common stock, par value $0.01 per share, of the Company.
	 
	1.21	 	“Company Stock Fund” shall mean an investment fund consisting of notional shares of Company
Stock.
	 
	1.22	 	“Death Benefit” shall mean the benefit set forth in Article 9.
	 
	1.23	 	“Director” shall mean any member of the board of directors of the Company. A Director who is
also an Employee shall be considered an Employee for all purposes with respect to Base Salary
and Bonus deferrals and shall be considered a Director for all purposes with respect to
deferrals of any Director Fees.
	 
	1.24	 	“Director Fees” shall mean the annual fees earned by a Director from any Employer, including
retainer fees and meetings fees, as compensation for serving on the board of directors.
	 
	1.25	 	“Disability” or “Disabled” shall be defined as follows:






	 	(a)	 	For purposes of determining a Participant’s Benefit Distribution Date described
in Section 1.10(d) and whether a Participant qualifies for the benefit set forth in




-4-









 






	 	 	 	Article 8, “Disability” or “Disabled” shall mean a physical or mental condition that
qualifies as a total and permanent disability under the employer’s long term disability
plan and which satisfies the definition of disability under Code Section 409A.






	 	(b)	 	For the sole purpose of applying the vesting provisions of Section 3.8(d),
“Disability” or “Disabled” shall mean (i) a period of disability during which a
Participant qualifies for permanent disability benefits under the Participant’s
Employer’s long-term disability plan, or (ii) if a Participant does not participate in
such a plan, a period of disability during which the Participant is determined to be
totally disabled by the Social Security Administration.






	1.26	 	“Disability Benefit” shall mean the benefit set forth in Article 8.
	 
	1.27	 	“Election Form” shall mean the form, which may be in electronic format, established from time
to time by the Administrator that a Participant completes, signs and returns to the
Administrator to make an election under the Plan.
	 
	1.28	 	“Employee” shall mean a full-time, regular salaried employee eligible.
	 
	1.29	 	“Employer(s)” shall mean the Company and/or any of its Subsidiaries (now in existence or
hereafter formed or acquired) that have been selected by the Committee to participate in the
Plan and have adopted the Plan as a sponsor.
	 
	1.30	 	“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as it may be amended
from time to time.
	 
	1.31	 	“401(k) Plan” shall mean, with respect to an Employer, a plan qualified under Code Section
401(a) that contains a cash or deferral arrangement described in Code Section 401(k), adopted
by the Employer, as it may be amended from time to time, or any successor thereto.
	 
	1.32	 	“Key Employee” shall mean any Participant who is a “key employee” (as defined in Code Section
416(i) without regard to paragraph (5) thereof) of any Employer whose stock is publicly traded
on an established securities market or otherwise, as determined by the Administrator based
upon the 12-month period ending on each December 31st (such 12-month period is
referred to below as the “identification period”). All Participants who are determined to be
key employees under Code Section 416(i) (without regard to paragraph (5) thereof) during the
identification period shall be treated as Key Employees for purposes of the Plan during the
12-month period that begins on the first day of the 4th month following the close
of such identification period.
	 
	1.33	 	“Multiple Distribution Method” shall be a distribution method in the form of payments over
the number of years selected by the Participant with respect to any Annual Account. Under the
Multiple Distribution Method, for the first payment with respect to an Annual Account, the
vested portion of the Annual Account shall be calculated as of the close of business on the
business date immediately preceding the Participant’s Scheduled 




-5-









 






	 	 	Distribution Date, and the payment shall be calculated by multiplying this balance by the distribution percentage
designated by the Participant. In subsequent years, the payment shall be calculated by (i)
multiplying (A) the total of the amount or amounts distributed in prior years from the Annual
Account and the vested portion of the Annual Account as of the close of business on the
business date immediately preceding the Participant’s relevant Scheduled Distribution Date by
(B) a percentage equal to the total of the percentages for all prior Scheduled Distributions
with respect to that Annual Account and the percentage elected for the current Scheduled
Distribution, reduced by (ii) the total of the amount or amounts distributed in prior years
from the Annual Account (but not below zero). If the Participant had elected Scheduled
Distributions totaling 100% for any Annual Account under the Multiple Distribution Method,
then the final Scheduled Distribution shall be the balance of the Participant’s Annual Account
as of the close of business on the business date immediately preceding the Scheduled
Distribution Date.






	1.34	 	“Participant” shall mean any Employee or Director (i) who is selected to participate in the
Plan by the Committee, (ii) who submits an executed Plan Agreement, Election Form and
Beneficiary Designation Form, if required by and accepted by the Administrator, and
(iii) whose Plan Agreement has not terminated.
	 
	1.35	 	“Phantom Investment Fund” shall mean the measurement funds selected by the Administrative
Committee, in its sole discretion, which can include mutual funds or any other investment or
fund approved by the Administrative Committee. The Administrative Committee, in its sole
discretion, will determine whether there will be one or more than one Phantom Investment Fund.
As necessary, the Administrative Committee may, in its sole discretion, discontinue,
substitute or add a Phantom Investment Fund. Each such action will take effect as of the date
specified by the Administrative Committee after giving Participants advance written notice of
such change. Notwithstanding anything to the contrary herein, a Participant’s Account Balance
attributable to amounts deferred on or after January 1, 2006 and which are not invested in or
allocated to the Company Stock Fund, shall be allocated into the single or multiple Phantom
Investment Funds designated by the Administrative Committee as the default Phantom Investment
Funds for such purpose. Such Account Balances shall remain allocated into the default Phantom
Investment Funds until such time as the Participants select their own Phantom Investment
Funds.
	 
	1.36	 	“Plan” shall mean the NCI Building Systems, Inc. Deferred Compensation Plan, which shall be
evidenced by this instrument and by each Plan Agreement, as they may be amended from time to
time.
	 
	1.37	 	“Plan Agreement” shall mean a written agreement, as may be amended from time to time, which
is entered into by and between an Employer and a Participant. Each Plan Agreement executed by
a Participant and the Participant’s Employer shall provide for the entire benefit to which
such Participant is entitled under the Plan; should there be more than one Plan Agreement, the
Plan Agreement bearing the latest date of acceptance by the Employer shall supersede all
previous Plan Agreements in their entirety and shall govern such entitlement. The terms of
any Plan Agreement may be different for any 




-6-









 






	 	 	Participant, and any Plan Agreement may provide additional benefits not set forth in the Plan or limit the benefits otherwise provided under
the Plan; provided, however, that any such additional benefits or benefit limitations must be
agreed to by both the Employer and the Participant.






	1.38	 	“Plan Year” shall mean a period beginning on January 1 of each calendar year and continuing
through December 31 of such calendar year.
	 
	1.39	 	“Retirement”, “Retire(s)” or “Retired” shall be defined as follows:






	 	(a)	 	For purposes of determining a Participant’s Benefit Distribution Date described
in Section 1.10(a) and whether a Participant qualifies for the benefit set forth in
Article 6, ‘Retirement’, ‘Retire(s)’ or ‘Retired’ shall mean, with respect to an
Employee, separation from service with all Employers for any reason other than death or
Disability, as determined in accordance with Code Section 409A and related Treasury
guidance and Regulations, on or after the earlier of (i) the attainment of age
fifty-nine and one-half (59 1/2) with at least twenty-five (25) full Years of Service
or (ii) the attainment of age sixty-five (65); and shall mean with respect to a
Director who is not an Employee, separation from service as a Director with all
Employers. If a Participant is both an Employee and a Director, Retirement shall not
occur until he or she Retires as both an Employee and a Director.
	 
	 	(b)	 	For the sole purpose of applying the vesting provisions of Section 3.8(d),
‘Retirement’, ‘Retire(s)’ or ‘Retired’ shall mean the separation from service with all
Employers for any reason other than death or Disability on or after the earlier of (i)
the attainment of age fifty-nine and one-half (59 1/2) with at least twenty-five (25)
full Years of Service or (ii) the attainment of age sixty-five (65).






	1.40	 	“Retirement Benefit” shall mean the benefit set forth in Article 6 due to Retirement.
	 
	1.41	 	“Scheduled Distribution” and “Scheduled Distribution Date” shall have the meanings set forth
in Section 4.1.
	 
	1.42	 	“Subsidiary” means any entity with which the Company would be considered a single employer
under Section 414(b) of the Code.
	 
	1.43	 	“Terminate the Plan”, “Termination of the Plan” shall mean a determination by an Employer’s
board of directors that (i) all of its Participants shall no longer be eligible to
participate in the Plan, (ii) no new deferral elections for such Participants shall be
permitted, and (iii) such Participants shall no longer be eligible to receive company
contributions under this Plan or such earlier date as the Committee terminates the Plan.
	 
	1.44	 	“Termination Benefit” shall mean the benefit set forth in Article 7 due to Termination of
Employment.




-7-









 












	1.45	 	“Termination of Employment” shall mean the separation from service with all Employers,
voluntarily or involuntarily, for any reason other than Retirement, Disability or death, as
determined in accordance with Code Section 409A and related Treasury guidance and Regulations.
If a Participant is both an Employee and a Director, a Termination of Employment shall occur
only upon the termination of the last position held.
	 
	1.46	 	“Trust” shall mean one or more trusts established by the Company in accordance with Article
16.
	 
	1.47	 	“Unforeseeable Emergency” shall mean a severe financial hardship of the Participant or his or
her Beneficiary resulting from (i) an illness or accident of the Participant or Beneficiary,
the Participant’s or Beneficiary’s spouse, or the Participant’s or Beneficiary’s dependent (as
defined in Code Section 152(a)), (ii) a loss of the Participant’s or Beneficiary’s property
due to casualty, or (iii) such other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant or the Participant’s
Beneficiary, all as determined in the sole discretion of the Administrator as meeting the
definition of “unforeseeable emergency” under Code Section 409A, related Treasury
pronouncements and any successor rulings. Furthermore, the Administrator shall have the
authority to require a Participant to provide such proof as it deems necessary to establish
the existence and significant nature of the Participant’s unforeseeable emergency.
	 
	1.48	 	“Years of Service” shall mean the total number of full years in which a Participant has been
employed by one or more Employers. For purposes of this definition, a year of employment
shall be a 365 day period (or 366 day period in the case of a leap year) that, for the first
year of employment, commences on the Employee’s date of hiring and that, for any subsequent
year, commences on an anniversary of that hiring date. The Administrator shall make a
determination as to whether any partial year of employment shall be counted as a Year of
Service.





ARTICLE 2




Selection, Enrollment, Eligibility




	2.1	 	Selection by Committee. Participation in the Plan shall be limited to Directors and,
as determined by the Committee in its sole discretion, a select group of management or highly
compensated Employees who may participate in this Plan. A designation of an Employee to
participate with respect to a particular Plan Year shall not automatically entitle such
Participant to participate with respect to any other Plan Year. The Committee may from time
to time establish additional eligibility requirements for participation in the Plan.
Notwithstanding the foregoing or any other Plan provision, participation in the Plan shall not
confer on a Participant the right to invest in the 




-8-









 






	 	 	Company Stock Fund, unless the Committee, in its sole discretion, designates such Participant as also eligible to invest in the Company
Stock Fund.






	2.2	 	Enrollment and Eligibility Requirements; Commencement of Participation.






	 	(a)	 	As a condition to participation, each Director or selected Employee who is
eligible to participate in the Plan effective as of the first day of a Plan Year shall
complete, execute and return to the Administrator a Plan Agreement and an Election
Form, prior to the first day of such Plan Year, or such other deadline as may be
established by the Administrator in its sole discretion subject to the requirements of
Section 409A. In addition, the Administrator shall establish from time to time such
other enrollment requirements as it determines, in its sole discretion, are necessary.
	 
	 	(b)	 	As a condition to participation, a Director or selected Employee who first
becomes eligible to participate in this Plan after the first day of a Plan Year must
complete, execute and return to the Administrator a Plan Agreement and an Election Form
within thirty (30) days after he or she first becomes eligible to participate in the
Plan, or within such other deadline as may be established by the Administrator, in its
sole discretion, subject to the requirements of Section 409A. In such event, such
person’s participation in this Plan shall not commence earlier than the date determined
by the Administrator pursuant to Section 2.2(c) and such person shall not be permitted
to defer under this Plan any portion of compensation attributable to services performed
prior to his or her participation commencement date, except to the extent permissible
under Code Section 409A and related Treasury guidance or Regulations.
	 
	 	(c)	 	Each Director or selected Employee who is eligible to participate in the Plan
shall commence participation in the Plan on the date that the Administrator determines,
in its sole discretion, that the Director or Employee has met all enrollment
requirements set forth in this Plan and required by the Administrator, including
returning all required documents to the Administrator within the specified time period.
A Director or selected Employee who has met the enrollment requirements established by the Administrator may subsequently change any initial
deferral election by submitting a new Election Form to the Administrator no later
than the date on which the initial deferral election becomes irrevocable as set
forth in Section 3.3. The Administrator shall process such Participant’s deferral
election as soon as Administratively practicable after such deferral election is
submitted to and accepted by the Administrator.
	 
	 	(d)	 	If a Director or an Employee fails to meet all requirements contained in this
Section 2.2 within the period required, that Director or Employee shall not be eligible
to participate in the Plan during such Plan Year.




-9-









 











ARTICLE 3

Deferral Commitments/Company Contribution Amounts/

Company Restoration Matching Amounts/ Vesting/Crediting/Taxes





	3.1	 	Minimum Deferrals.






     Annual Deferral Amount. For each Plan Year, a Participant may elect to defer,
as his or her Annual Deferral Amount, Base Salary, Bonus and/or Director Fees in the
following minimum amounts for each deferral elected:



	 	 	 	 	 
	Deferral	 	Minimum Amount
	Base Salary and/or Bonus

	 	$5,000 aggregate

	Director Fees

	 	$	0	 







     If the Administrator determines, in its sole discretion, prior to the beginning of a
Plan Year that a Participant has made an election for less than the stated minimum amounts,
or if no election is made, the amount deferred shall be zero.




	3.2	 	Maximum Deferral. 






	 	(a)	 	Annual Deferral Amount. For each Plan Year, a Participant may elect to
defer, as his or her Annual Deferral Amount, Base Salary, Bonus and/or Director Fees up
to the following maximum percentages for each deferral elected:





	 	 	 
	Deferral	 	Maximum Percentage
	Base Salary
	 	80%
	Bonus
	 	90%
	Director Fees
	 	100%







	 	(b)	 	Short Plan Year. Notwithstanding the foregoing, if a Participant first
becomes a Participant after the first day of a Plan Year, the maximum Annual Deferral
Amount shall be limited to the amount of compensation not yet earned by the Participant
as of the date the Participant submits a Plan Agreement and Election Form to the
Administrator for acceptance, except to the extent permissible under Code Section 409A
and related Treasury guidance or Regulations.






	3.3	 	Election to Defer; Effect of Election Form.






	 	(a)	 	First Year of Plan Participation. In connection with a Participant’s
commencement of elective participation in the Plan, the Participant shall make an
irrevocable deferral election for the Plan Year in which the Participant commences
participation in the Plan, along with such other elections as the Administrator deems
necessary or desirable under the Plan. For these elections to be valid, the Election
Form must be completed and signed by the Participant,




-10-









 






	 	 	 	timely delivered to the Administrator (in accordance with Section 2.2 above) and accepted by the Administrator.






	 	(b)	 	Subsequent Plan Years of Participation. For each succeeding Plan Year
of participation, a Participant may elect to defer Base Salary, Bonus and Director Fees
and such other compensation that is eligible for deferral as designated by the
Administrative Committee, and may make such other elections as the Administrator deems
necessary or desirable under the Plan by timely delivering an Election Form to the
Administrator, in accordance with its rules and procedures, before the December 31st
preceding the Plan Year in which such compensation is earned, or before such other
deadline established by the Administrator in accordance with the requirements of Code
Section 409A and related Treasury guidance or Regulations. With respect to
compensation earned over one or more consecutive fiscal years of an Employer that is
not payable during the service period, the Administrator may determine that a
Participant may defer such compensation by making an election before the last day of
the fiscal year preceding the first fiscal year in which the services are performed.






     Any deferral election(s) made in accordance with this Section 3.3(b) shall be
irrevocable as of the last day of the election period; provided, however, that if
the Administrator requires Participants to make a deferral election for
“performance-based compensation” by the deadline(s) described above, it may, in its sole discretion, and in accordance with Code
Section 409A and related Treasury guidance or Regulations, permit a Participant to
subsequently change his or her deferral election for such compensation by submitting
an Election Form to the Administrator no later than the deadline established by the
Administrator pursuant to Section 3.3(c) below.




	 	(c)	 	Performance-Based Compensation. Notwithstanding the foregoing, the
Administrator may, in its sole discretion, determine that an irrevocable deferral
election pertaining to “performance-based compensation” based on services performed
over a period of at least twelve (12) months, may be made by timely delivering an
Election Form to the Administrator, in accordance with its rules and procedures, no
later than six (6) months before the end of the performance service period for which
the performance bonus is paid, and prior elections will become irrevocable as of such
date. “Performance-based compensation” shall be compensation, the payment or amount of
which is contingent on pre-established organizational or individual performance
criteria, which satisfies the requirements of Code Section 409A and related Treasury
guidance or Regulations. In order to be eligible to make a deferral election for
performance-based compensation, a Participant must perform services continuously from a
date no later than the date upon which the performance criteria for such compensation
are established through the date upon which the Participant makes a deferral election
for such compensation. In no event shall an election to defer performance-based
compensation be permitted after such compensation has become both substantially certain
to be paid and readily ascertainable.




-11-









 









	 	(d)	 	Compensation Subject to Risk of Forfeiture. With respect to
compensation (i) to which a Participant has a legally binding right to payment in a
subsequent year, and (ii) that is subject to a forfeiture condition requiring the
Participant’s continued services for a period of at least twelve (12) months from the
date the Participant obtains the legally binding right, the Administrator may, in its
sole discretion, determine that an irrevocable deferral election for such compensation
may be made by timely delivering an Election Form to the Administrator in accordance
with its rules and procedures, no later than the 30th day after the
Participant obtains the legally binding right to the compensation, provided that the
election is made at least twelve (12) months in advance of the earliest date at which
the forfeiture condition could lapse.






	3.4	 	Withholding and Crediting of Annual Deferral Amounts. For each Plan Year, the Base
Salary portion of the Annual Deferral Amount shall be withheld from each regularly scheduled
Base Salary payroll in equal amounts, as adjusted from time to time for increases and
decreases in Base Salary. The Bonus and/or Director Fees portion of the Annual Deferral
Amount shall be withheld at the time the Bonus or Director Fees are or otherwise
would be paid to the Participant, whether or not this
occurs during the Plan Year itself. Annual Deferral
Amounts shall be credited to the Participant’s Annual
Account for such Plan Year at the time such amounts
would otherwise have been paid to the Participant.
	 
	3.5	 	Company Contribution Amount.






	 	(a)	 	For each Plan Year, an Employer may be required to credit amounts to a
Participant’s Annual Account in accordance with employment or other agreements entered
into between the Participant and the Employer, which amounts shall be part of the
Participant’s Company Contribution Amount for that Plan Year. Such amounts shall be
credited to the Participant’s Annual Account for the applicable Plan Year on the date
or dates prescribed by such agreements.
	 
	 	(b)	 	For each Plan Year, the Committee may, in its sole discretion, credit any
amount it desires to any Participant’s Annual Account under this Plan, which amount
shall be part of the Participant’s Company Contribution Amount for that Plan Year. The
Participant must have elected to make deferrals under this Plan in order to be eligible
for the Company Contribution Amount. The amount so credited to a Participant may be
smaller or larger than the amount credited to any other Participant, and the amount
credited to any Participant for a Plan Year may be zero, even though one or more other
Participants receive a Company Contribution Amount for that Plan Year. The Company
Contribution Amount described in this Section 3.5(b), if any, shall be credited to the
Participant’s Annual Account for the applicable Plan Year on a date or dates to be
determined by the Administrator, in its sole discretion.






	3.6	 	Company Restoration Matching Amount. A Participant’s Company Restoration Matching
Amount for any Plan Year shall be an amount determined by the 




-12-









 






	 	 	Administrator, in its sole discretion, to make up for certain limits applicable to the 401(k) Plan, as identified by the
Administrator; provided, that any such amounts credited to a Participant hereunder shall be
determined in a manner that is consistent with the requirements of Code Section 409A, if
applicable. The amount so credited to a Participant for any Plan Year (i) may be smaller or
larger than the amount credited to any other Participant (and may be zero), and (ii) may
differ from the amount credited to such Participant in the preceding Plan Year. The
Participant’s Company Restoration Matching Amount, if any, shall be credited to the
Participant’s Annual Account for the applicable Plan Year on a date or dates to be determined
by the Administrator, in its sole discretion. In order to receive the Company Restoration
Matching Amount, a Participant must have made an irrevocable election to participate in the
401(k) Plan for the Plan Year with respect to which the Company Restoration
Matching Amount is credited under this Plan, at a level of pre-tax contributions not less
than 6% of eligible compensation, prior to the first day of such Plan Year.
	 
	3.7	 	Crediting of Amounts after Benefit Distribution. Notwithstanding any provision in
this Plan to the contrary, should the complete distribution of a Participant’s vested Account
Balance occur prior to the date on which any portion of (i) the Annual Deferral Amount that a
Participant has elected to defer in accordance with Section 3.3, (ii) the Company Contribution
Amount or (iii) the Company Restoration Matching Amount, would otherwise be credited to the
Participant’s Account Balance, such amounts shall not be credited to the Participant’s Account
Balance, but may, in the Administrative Committee’s sole discretion, be paid to the
Participant in a manner determined by the Administrative Committee.
	 
	3.8	 	Vesting.






	 	(a)	 	A Participant shall at all times be 100% vested in the portion of his or her
Account Balance attributable to Annual Deferral Amounts.
	 
	 	(b)	 	A Participant shall vest in each Company Contribution Amount, plus amounts
credited and debited on such amount, in accordance with the schedule below based on the
number of full Plan Years following the Plan Year to which the contribution relates.
However, on or prior to the date on which a Participant is awarded a Company
Contribution Amount for a Plan Year, the Committee, in its sole discretion, may
designate a different vesting schedule in lieu of the schedule described below that
will apply to such Company Contribution Amount. Unless otherwise declared by the
Committee, a new vesting schedule shall apply to each Company Contribution Amount.




-13-









 











	 	 	 	 	 
	Plan Years Following Year to 

which Contribution Relates	 	Vested Percentage
	Less than 1 year

	 	 	0	%
	1 year or more, but less than 2 years

	 	 	33 1/3	%
	2 years or more, but less than 3 years

	 	 	66 2/3	%
	3 years or more

	 	 	100	%







	 	(c)	 	A Participant shall be vested in the portion of his or her Account Balance
attributable to any Company Restoration Matching Amounts, plus amounts credited or
debited on such amounts (pursuant to Section 3.9), only to the extent
that the Participant is vested in employer matching contributions allocated to him
under the 401(k) Plan, as determined by the Administrator in its sole discretion.
	 
	 	(d)	 	Notwithstanding anything to the contrary contained in this Section 3.8, in the
event of a Change in Control, or upon a Participant’s Retirement, death while employed
by an Employer, or Disability (as defined in Section 1.25(b)), any amounts that are not
vested in accordance with Sections 3.8(b) or 3.8(c) above, shall immediately become
100% vested (if it is not already vested in accordance with the above vesting
schedules).
	 
	 	(e)	 	Notwithstanding subsection 3.8(d) above, the vesting schedules described in
Sections 3.8(b) and 3.8(c) shall not be accelerated upon a Change in Control to the
extent that the Administrator determines that such acceleration would cause the
deduction limitations of Section 280G of the Code to become effective. In the event of
such a determination, the Participant may request independent verification of the
Administrator’s calculations with respect to the application of Section 280G. In such
case, the Administrator must provide to the Participant within ninety (90) days of such
a request an opinion from a nationally recognized accounting firm selected by the
Participant (the “Accounting Firm”). The opinion shall state the Accounting Firm’s
opinion that any limitation in the vested percentage hereunder is necessary to avoid
the limits of Section 280G and contain supporting calculations. The cost of such
opinion shall be paid for by the Company.
	 
	 	(f)	 	Section 3.8(e) shall not prevent the acceleration of the vesting schedules
described in Sections 3.8(b) and 3.8(c) if such Participant is entitled to a “gross-up”
payment, to eliminate the effect of the Code section 4999 excise tax, pursuant to his
or her employment agreement or other agreement entered into between such Participant
and the Employer.




-14-









 












	 	(g)	 	Notwithstanding anything to the contrary contained herein, the Committee or the
Board of Directors of the Company may, in its sole discretion, accelerate the vesting
schedule applicable to all or any portion of a Participant’s Account Balance.






	3.9	 	Crediting/Debiting of Account Balances. In accordance with, and subject to, the
rules and procedures that are established from time to time by the Administrator, in its sole
discretion, amounts shall be credited or debited to a Participant’s Account Balance in
accordance with the following rules:






	 	(a)	 	Phantom Investment Portfolio Program. The Participant may elect one or
more of the Phantom Investment Funds and the Company Stock Fund, for the purpose of
crediting or debiting additional amounts to his or her Account Balance provided that
Participants may elect the Company Stock Fund, only if designated by the Committee in
accordance with Section 2.1 of the Plan.
	 
	 	(b)	 	Election of Phantom Investment Funds. A Participant, in connection
with his or her initial deferral election in accordance with Section 3.3(a) above,
shall elect, on the Election Form, one or more Phantom Investment Fund(s) and the
Company Stock Fund (as described in Section 3.9(a) above) to be used to determine the
amounts to be credited or debited to his or her Account Balance. If a Participant does
not elect any of the Phantom Investment Funds or the Company Stock Fund, as described
in the previous sentence, the Participant’s Account Balance shall automatically be
allocated into the Phantom Investment Fund designated as the default Phantom Investment
Fund by the Administrative Committee, in its sole discretion. The Participant may (but
is not required to) elect, by submitting an Election Form to the Administrator that is
accepted by the Administrator, to add or delete one or more Phantom Investment Fund(s)
and the Company Stock Fund to be used to determine the amounts to be credited or
debited to his or her Account Balance, or to change the portion of his or her Account
Balance allocated to each previously or newly elected Phantom Investment Fund or the
Company Stock Fund, provided that, unless otherwise determined by the Committee, an
allocation to the Company Stock Fund pursuant to a Participant’s election shall be
irrevocable and the Participant may not thereafter reallocate such amount to any of the
Phantom Investment Funds. If an election is made in accordance with the previous
sentence, it shall apply as of the first business day deemed reasonably practicable by
the Administrator, in its sole discretion, and shall continue thereafter for each
subsequent day in which the Participant participates in the Plan, unless changed in
accordance with the previous sentence. Notwithstanding the foregoing, the
Administrator, in its sole discretion, may impose limitations on the frequency with
which one or more of the Phantom Investment Funds elected in accordance with this
Section 3.9(b) may be added or deleted by such Participant; furthermore, the
Administrator, in its sole discretion, may impose limitations on the frequency with
which the Participant may change the portion of his or her Account Balance allocated to each previously or newly elected Phantom
Investment Fund or the Company Stock Fund.




-15-









 












	 	(c)	 	Proportionate Allocation. In making any election described in Section
3.9(b) above, the Participant shall specify on the Election Form, in increments of one
percent (1%), the percentage of his or her Annual Deferral Amount and Account Balance,
as applicable, to be allocated/reallocated.
	 
	 	(d)	 	Crediting or Debiting Method. The performance of each Phantom
Investment Fund and the Company Stock Fund (either positive or negative) will be
determined on a daily basis based on the manner in which such Participant’s Account
Balance has been hypothetically allocated among the Phantom Investment Funds and the
Company Stock Fund by the Participant. Any dividends attributable to Company Stock
shall be credited to the Participant’s Company Stock Fund as of the record date and
shall be paid in accordance with Article 4 of the Plan.
	 
	 	(e)	 	No Actual Investment. Notwithstanding any other provision of this Plan
that may be interpreted to the contrary and except as otherwise provided in Section
16.4 of the Plan, the Phantom Investment Funds and the Company Stock Fund are to be
used for measurement purposes only, and a Participant’s election of any such Phantom
Investment Fund and Company Stock Fund, the allocation of his or her Account Balance
thereto, the calculation of additional amounts and the crediting or debiting of such
amounts to a Participant’s Account Balance shall not be considered or construed in any
manner as an actual investment of his or her Account Balance in any such Phantom
Investment Fund or Company Stock Fund. In the event that the Company or the Trustee
(as that term is defined in the Trust, if any), in its own discretion, decides to
invest funds in any or all of the investments on which the Phantom Investment Funds or
Company Stock Fund are based, no Participant shall have any rights in or to such
investments themselves. Without limiting the foregoing, a Participant’s Account
Balance shall at all times be a bookkeeping entry only and shall not represent any
investment made on his or her behalf by the Company or the Trust, if any; the
Participant shall at all times remain an unsecured creditor of the Company.
	 
	 	(f)	 	Allocation to the Company Stock Fund. Notwithstanding any other
provision of the Plan and subject to distribution pursuant to Article 4, 5, 6, 7, ,8 or
9. any allocation of a Participant’s Account Balance, into the Company Stock Fund,
shall be irrevocable unless the Committee determines otherwise.






	3.10	 	FICA and Other Taxes.






	 	(a)	 	Annual Deferral Amounts. For each Plan Year in which an Annual
Deferral Amount is being withheld from a Participant, the Participant’s Employer(s)
shall withhold from that portion of the Participant’s Base Salary and/or Bonus that is




-16-









 






	 	 	 	not being deferred, in a manner determined by the Employer(s), the Participant’s share
of FICA and other employment taxes on such Annual Deferral Amount. If necessary, the
Administrator may reduce the Annual Deferral Amount in order to comply with this
Section 3.10.






	 	(b)	 	Company Restoration Matching Amounts and Company Contribution Amounts.
When a Participant becomes vested in a portion of his or her Account Balance
attributable to any Company Restoration Matching Amounts and/or Company Contribution
Amounts, the Participant’s Employer(s) shall withhold from that portion of the
Participant’s Base Salary and/or Bonus that is not deferred, in a manner determined by
the Employer(s), the Participant’s share of FICA and other employment taxes on such
amounts. Alternatively, the Participant’s Employer may withhold at the end of the
calendar year or within 3 months after the end of the calendar year from the
Participants Base Salary and/or Bonus that is not deferred, in order to comply with
this Section 3.10. If the end of the calendar year or the three month method described
above is used, FICA and other employment taxes must also be paid with respect to
interest earned on the deferrals.
	 
	 	(c)	 	Distributions. The Participant’s Employer(s), or the trustee of the
Trust, if any, shall withhold from any payments made to a Participant under this Plan
all federal, state and local income, employment and other taxes required to be withheld
by the Employer(s), or the trustee of the Trust, if any, in connection with such
payments, in amounts and in a manner to be determined in the sole discretion of the
Employer(s) and the trustee of the Trust, if any.





ARTICLE 4

Scheduled Distribution; Unforeseeable Emergencies 





	4.1	 	Scheduled Distribution. In connection with each election to defer an Annual Deferral
Amount, a Participant may irrevocably elect to receive a Scheduled Distribution from the Plan
in the form of a lump sum or under the Multiple Distribution Method with respect to (i) the
Annual Deferral Amount, (ii) the vested portion of the Company Contribution Amount
attributable to the Plan Year to which the deferral election relates and (iii) the vested
portion of the Company Restoration Matching Amount attributable to the Plan Year to which the
deferral election relates. The Scheduled Distribution shall be made in accordance with this
Section 4.1, in an amount that is equal to the portion of the Annual Deferral Amount, the vested portion of the Company Contribution Amount and the vested
portion of the Company Restoration Matching Amount that the Participant elected to have
distributed as a Scheduled Distribution, plus amounts credited or debited in the manner
provided in Section 3.9 above on such amounts, payable in a lump sum or calculated in
accordance with the Multiple Distribution Method. Subject to the other terms and conditions
of this Plan, each Scheduled Distribution elected shall be paid out during a sixty (60) day
period commencing immediately after the “Scheduled Distribution Date.” The “Scheduled
Distribution Date” shall be the first day of any Plan Year designated by the Participant.
The Plan Year designated by the Participant must be 




-17-









 






	 	 	at least three (3) Plan Years after the end of the Plan Year to which the amounts subject to the Scheduled Distribution election
relate, unless otherwise provided on an Election Form approved by the Administrator in its
sole discretion. By way of example, if a Scheduled Distribution is elected for Annual
Deferral Amounts that are earned in the Plan Year commencing January 1, 2007, the earliest
Scheduled Distribution Date that may be designated by a Participant would be January 1,
2011, and the Scheduled Distribution would become payable during the sixty (60) day period
commencing immediately after such Scheduled Distribution Date. A Participant may elect to
receive the Scheduled Distribution for each Annual Account in the form of the Multiple
Distribution Method; provided, however, that the maximum number of Scheduled Distribution
Dates that are unpaid and due to a Participant from his entire Account Balance prior to
termination of employment is ten.






	4.2	 	Postponing Scheduled Distributions. A Participant may elect to postpone all or a
portion of a Scheduled Distribution described in Section 4.1 above, and have such amount paid
out during a sixty (60) day period commencing immediately after an allowable alternative
distribution date designated by the Participant in accordance with this Section 4.2. In order
to make this election, the Participant must submit a new Scheduled Distribution Election Form
to the Administrator in accordance with the following criteria:






	 	(a)	 	Such Scheduled Distribution Election Form must be submitted to and accepted by
the Administrator in its sole discretion at least twelve (12) months prior to the
Participant’s previously designated Scheduled Distribution Date;
	 
	 	(b)	 	The new Scheduled Distribution Date selected by the Participant must be the
first day of a Plan Year, and must be at least five years after the previously
designated Scheduled Distribution Date; and
	 
	 	(c)	 	The election of the new Scheduled Distribution Date shall have no effect until
at least twelve (12) months after the date on which the election is made.






	4.3	 	Other Benefits Take Precedence Over Scheduled Distributions. Should a Benefit
Distribution Date occur that triggers a benefit under Articles 5, 6, 7, 8, or 9, any Annual
Deferral Amount that is subject to a Scheduled Distribution election under Section 4.1 shall
not be paid in accordance with Section 4.1, but shall be paid in accordance with the other
applicable Article. Notwithstanding the foregoing, the Administrator shall interpret this
Section 4.3 in a manner that is consistent with Code Section 409A and related Treasury
guidance and Regulations.
	 
	4.4	 	Unforeseeable Emergencies.






	 	(a)	 	If the Participant experiences an Unforeseeable Emergency, the Participant may
petition the Administrator to receive a partial or full payout from the Plan, subject
to the provisions set forth below.






-18-











 






	 	(b)	 	The payout, if any, from the Plan shall not exceed the lesser of (i) the
Participant’s vested Account Balance, calculated as of the close of business on or
around the date on which the amount becomes payable, as determined by the
Administrator in its sole discretion, or (ii) the amount necessary to satisfy the
Unforeseeable Emergency, plus amounts necessary to pay Federal, state, or local income
taxes or penalties reasonably anticipated as a result of the distribution.
Notwithstanding the foregoing, a Participant may not receive a payout from the Plan to
the extent that the Unforeseeable Emergency is or may be relieved (A) through
reimbursement or compensation by insurance or otherwise, (B) by liquidation of the
Participant’s assets, to the extent the liquidation of such assets would not itself
cause severe financial hardship or (C) by cessation of deferrals under this Plan.
	 
	 	(c)	 	If the Administrator, in its sole discretion, approves a Participant’s petition
for payout from the Plan, the Participant shall receive a payout from the Plan within
sixty (60) days of the date of such approval, and the Participant’s deferrals under the
Plan shall be terminated as of the date of such approval.
	 
	 	(d)	 	In addition, a Participant’s deferral elections under this Plan shall be
terminated to the extent the Administrator determines, in its sole discretion, that
termination of such Participant’s deferral elections is required pursuant to Treas.
Reg. §1.401(k)-1(d)(3) for the Participant to obtain a hardship distribution from an
Employer’s 401(k) Plan. If the Administrator determines, in its sole discretion, that
a termination of the Participant’s deferrals is required in accordance with the
preceding sentence, the Participant’s deferrals shall be terminated as soon as
Administratively practicable following the date on which such determination is made.
	 
	 	(e)	 	Notwithstanding the foregoing, the Administrator shall interpret all provisions
relating to a payout and/or termination of deferrals under this Section 4.4 in a manner
that is consistent with Code Section 409A and related Treasury guidance and
Regulations.






	4.5	 	Distributions from the Company Stock Fund. Notwithstanding any other Plan provision,
a Participant shall receive a distribution of the portion of his or her Account Balance
allocated to the Company Stock Fund in the number of whole shares of Common Stock that are
reflected as a bookkeeping entry as of the date of the Participant’s distribution, with any
fractional share to be paid in cash, subject to applicable withholding pursuant to Section
3.10 of the Plan.





ARTICLE 5

Change in Control Benefit 





	5.1	 	Change in Control Benefit. If a Change in Control occurs prior to a Participant’s
Termination of Employment, Retirement, death or Disability, a Participant’s deferral elections
shall immediately terminate with respect to any prospective compensation




-19-









 






	 	 	payable after the
Change in Control, and the Participant shall be entitled to receive a Change in Control
Benefit, which shall be equal to the Participant’s vested Account Balance, calculated as of
the close of business on or around the Participant’s Benefit Distribution Date, as determined
by the Administrator in its sole discretion. Notwithstanding the foregoing provisions, a
Participant whose deferral elections ceased with respect to prospective compensation payable
after a Change of Control and who would otherwise continue to be, or subsequently is
designated as, an eligible Employee following the Change in Control, may elect to enroll in
the Plan pursuant to the provisions of Article 2 for any Plan Year beginning after the
effective date of the Change in Control for which the Participant is an eligible Employee.
	 
	5.2	 	Payment of Change in Control Benefit. The Change in Control Benefit, if any, shall
be paid to the Participant in a lump sum payment no later than ten (10) days after the
Participant’s Benefit Distribution Date.





ARTICLE 6

Retirement Benefit





	6.1	 	Retirement Benefit. A Participant who Retires shall receive, as a Retirement
Benefit, his or her vested Account Balance, calculated as of the close of business on or
around the Participant’s Benefit Distribution Date, as determined by the Administrator in
its sole discretion.
	 
	6.2	 	Payment of Retirement Benefit.






	 	(a)	 	In connection with a Participant’s election to defer an Annual Deferral Amount,
the Participant shall elect the form in which his or her Annual Account for such Plan
Year will be paid. Subject to the provisions set forth in 6.2(c), a Participant may
elect to receive each Annual Account as a Retirement Benefit in the form of a lump sum
or pursuant to an Annual Installment Method of five (5) or ten (10) years. If a
Participant does not make any election with respect to the payment of an Annual
Account, then the Participant shall be deemed to have elected to receive such Annual
Account as a lump sum.
	 
	 	(b)	 	A Participant may change the form of payment for an Annual Account by
submitting an Election Form to the Administrator in accordance with the following
criteria:






	 	(i)	 	The election to modify the form of payment for such Annual
Account shall have no effect until at least twelve (12) months after the date
on which the election is made; and
	 
	 	(ii)	 	The first payment related to such Annual Account shall be
delayed at least five (5) years from the originally scheduled Benefit
Distribution Date for such Annual Account, as described in Section 1.10(a).




-20-









 









     For purposes of applying the requirements above, the right to receive an Annual
Account in installment payments shall be treated as the entitlement to a single
payment. The Administrator shall interpret all provisions relating to an election
described in this Section 6.2 in a manner that is consistent with Code Section 409A
and related Treasury guidance or Regulations.




	 	(c)	 	The Election Form most recently accepted by the Administrator that has become
effective shall govern the payout of the applicable Annual Account; provided, however,
that if the value of Participant’s vested Annual Account balance is less than $50,000
at the time of the Participant’s Benefit Distribution Date, the Participant’s vested
Annual Account balance shall be distributed to the Participant in a lump sum payment
notwithstanding a Participant’s election to receive an Annual Account in installment
payments.
	 
	 	(d)	 	The lump sum payment shall be made, or installment payments shall commence, no
later than sixty (60) days after the Benefit Distribution Date. Remaining
installments, if any, shall continue in accordance with the Participant’s election for
each Annual Account and shall be paid no later than sixty (60) days after each
anniversary of the Benefit Distribution Date.





ARTICLE 7

Termination Benefit





	7.1	 	Termination Benefit. A Participant who experiences a Termination of Employment shall
receive, as a Termination Benefit, his or her vested Account Balance, calculated as of the
close of business on or around the Participant’s Benefit Distribution Date, as determined by
the Administrator in its sole discretion.
	 
	7.2	 	Payment of Termination Benefit. The Termination Benefit shall be paid to the
Participant in a lump sum payment no later than thirty (30) days after the Participant’s
Benefit Distribution Date.





ARTICLE 8

Disability Benefit





	8.1	 	Disability Benefit. Upon a Participant’s Disability, the Participant shall receive a
Disability Benefit, which shall be equal to the Participant’s vested Account Balance,
calculated as of the close of business on or around the Participant’s Benefit Distribution
Date, as determined by the Administrator in its sole discretion.
	 
	8.2	 	Payment of Disability Benefit. The Disability Benefit shall be paid to the
Participant in a lump sum payment no later than thirty (30) days after the Participant’s
Benefit Distribution Date.








-21-









 






ARTICLE 9

Death Benefit






	9.1	 	Death Benefit. The Participant’s Beneficiary(ies) shall receive a Death Benefit upon
the Participant’s death which will be equal to the Participant’s vested Account Balance,
calculated as of the close of business on or around the Participant’s Benefit Distribution
Date, as determined by the Administrator in its sole discretion.
	 
	9.2	 	Payment of Death Benefit. The Death Benefit shall be paid to the Participant’s
Beneficiary(ies) in a lump sum payment no later than thirty (30) days after the Participant’s
Benefit Distribution Date.





ARTICLE 10

Beneficiary Designation





	10.1	 	Beneficiary. Each Participant shall have the right, at any time, to designate his or
her Beneficiary(ies) (both primary as well as contingent) to receive any benefits payable
under the Plan to a beneficiary upon the death of a Participant. The Beneficiary designated
under this Plan may be the same as or different from the Beneficiary designation under any
other plan of an Employer in which the Participant participates.
	 
	10.2	 	Beneficiary Designation. A Participant shall designate his or her Beneficiary by
completing and signing the Beneficiary Designation Form, and returning it to the Administrator
or its designated agent. A Participant shall have the right to change a Beneficiary by
completing, signing and otherwise complying with the terms of the Beneficiary Designation Form
and the Administrator’s rules and procedures, as in effect from time to time. Upon the
acceptance by the Administrator of a new Beneficiary Designation Form, all Beneficiary
designations previously filed shall be canceled. The Administrator shall be entitled to rely
on the last Beneficiary Designation Form filed by the Participant and accepted by the
Administrator prior to his or her death.
	 
	10.3	 	Acknowledgment. No designation or change in designation of a Beneficiary shall be
effective until received by the Administrator or its designated agent.
	 
	10.4	 	No Beneficiary Designation. If a Participant fails to designate a Beneficiary as
provided in Sections 10.1, 10.2 and 10.3 above or, if all designated Beneficiaries predecease
the Participant or die prior to complete distribution of the Participant’s benefits, then the
Participant’s designated Beneficiary shall be deemed to be his or her surviving spouse. If
the Participant has no surviving spouse, the benefits remaining under the Plan to be paid to a
Beneficiary shall be payable
to the executor or personal representative of the Participant’s estate. If the Beneficiary,
whether under a valid Beneficiary designation or under the preceding sentence, shall survive
the Participant but die before receiving all payments hereunder, the balance of the benefits
which would have been paid to the Beneficiary had he or she lived shall, unless the
Participant’s designation provided otherwise, be distributed to the Beneficiary’s estate.
	 
	10.5	 	Doubt as to Beneficiary. If the Administrator has any doubt as to the proper
Beneficiary to receive payments pursuant to this Plan, the Administrator shall have the right,




-22-









 






	 	 	exercisable in its discretion, to cause the Participant’s Employer to withhold such payments
until this matter is resolved to the Administrator’s satisfaction.
	 
	10.6	 	Discharge of Obligations. The payment of benefits under the Plan to a Beneficiary
shall fully and completely discharge all Employers, the Administrator, the Administrative
Committee and the Committee from all further obligations under this Plan with respect to the
Participant, and that Participant’s Plan Agreement shall terminate upon such full payment of
benefits.





ARTICLE 11

Leave of Absence





	11.1	 	Paid Leave of Absence. If a Participant is authorized by the Participant’s Employer
to take a paid leave of absence from the employment of the Employer, and such leave of absence
does not constitute a separation from service, as determined by the Administrator in
accordance with Code Section 409A and related Treasury guidance and Regulations, (i) the
Participant shall continue to be considered eligible for the benefits provided in Articles 4,
5, 6, 7, 8, or 9 in accordance with the provisions of those Articles, and (ii) the Annual
Deferral Amount shall continue to be withheld during such paid leave of absence in accordance
with Section 3.3.
	 
	11.2	 	Unpaid Leave of Absence. If a Participant is authorized by the Participant’s
Employer to take an unpaid leave of absence from the employment of the Employer for any
reason, and such leave of absence does not constitute a separation from service, as determined
by the Administrator in accordance with Code Section 409A and related Treasury guidance and
Regulations, such Participant shall continue to be eligible for the benefits provided in
Articles 4, 5, 6, 7, 8, or 9 in accordance with the provisions of those Articles. However, no
amounts shall be withheld during the remainder of the Plan Year in which the unpaid leave of
absence is taken and during any subsequent Plan Years in which his unpaid leave of absence
continues. Further, during the unpaid leave of absence, the Participant shall not be allowed
to make any new deferral elections. However, if the Participant returns to employment, the
Participant may elect to defer an Annual Deferral Amount for the Plan Year following his or
her return to employment and for every Plan Year thereafter while a Participant in the Plan,
provided such deferral elections are otherwise allowed and an Election Form is delivered to
and accepted by the Administrator for each such election in accordance with Section 3.3 above.
	 
	11.3	 	Leaves Resulting in Separation from Service. In the event that a Participant’s leave
of absence from his or her Employer constitutes a separation from service, as determined by
the Administrator in accordance with Code Section 409A and related Treasury guidance and
Regulations, the Participant’s vested Account Balance shall be distributed to the Participant
in accordance with Article 6 or 7 of this Plan, as applicable.





-23-









 





ARTICLE 12

Termination of Plan, Amendment or Modification








	12.1	 	Termination of Plan. Although each Employer anticipates that it will continue the
Plan for an indefinite period of time, there is no guarantee that any Employer will continue
the Plan or will not terminate the Plan at any time in the future. Accordingly, each Employer
reserves the right to Terminate the Plan. Furthermore, the Committee may terminate this Plan
as to all or any Employers. In
the event of a Termination of the
Plan, the Phantom Investment Funds
available to Participants following
the Termination of the Plan shall
be comparable in number and type to
those Phantom Investment Funds
available to Participants in the
Plan Year preceding the Plan Year
in which the Termination of the
Plan is effective. Following a
Termination of the Plan,
Participant Account Balances shall
remain in the Plan until the
Participant becomes eligible for
the benefits provided in Articles
4, 5, 6, 7, 8 or 9 in accordance
with the provisions of those
Articles. The Termination of the
Plan shall not adversely affect any
Participant or Beneficiary who has
become entitled to the payment of
any benefits under the Plan as of
the date of termination.
Notwithstanding the foregoing, to
the extent permissible under Code
Section 409A and related Treasury
guidance or Regulations, during the
thirty (30) days preceding or
within twelve (12) months following
a Change in Control, an Employer
shall be permitted to (i) terminate
the Plan by action of its board of
directors, and (ii) distribute the
vested Account Balances to
Participants in a lump sum no later
than twelve (12) months after the
Change in Control, provided that
all other substantially similar
arrangements sponsored by such
Employer are also terminated and
all balances in such arrangements
are distributed within twelve (12)
months of the termination of such
arrangements. The Committee may
terminate the Plan and distribute
vested Account Balances to
Participants in a lump sum at any
other time only to the extent, and
in the manner, permissible under
Code Section 409A and related
Treasury guidance or Regulations.
	 
	12.2	 	Amendment.






	 	(a)	 	The Committee may, at any time, amend or modify the Plan in whole or in part.
Notwithstanding the foregoing, (i) no amendment or modification shall be effective to
decrease the value of a Participant’s vested Account Balance in existence at the time
the amendment or modification is made, and (ii) no amendment or modification of Section
13.2 of the Plan shall be effective after a Change in Control.
	 
	 	(b)	 	Notwithstanding any provision of the Plan to the contrary, in the event that
the Company determines that any provision of the Plan may cause amounts deferred under
the Plan to become immediately taxable to any Participant under Code Section 409A and
related Treasury guidance or Regulations, the Company may (i) adopt such amendments to
the Plan and appropriate policies and procedures, including amendments and policies
with retroactive effect, that the Company determines necessary or appropriate to
preserve the intended tax treatment of the Plan benefits provided by the Plan and/or
(ii) take such other actions as the Company determines necessary or appropriate to
comply with the requirements of Code Section 409A and related Treasury guidance or
Regulations.




-24-









 












	12.3	 	Plan Agreement. Despite the provisions of Sections 12.1 and 12.2 above, if a
Participant’s Plan Agreement contains benefits or limitations that are not in this Plan
document, the Committee may only amend or terminate such provisions as they apply to that
Participant with the written consent of the Participant.
	 
	12.4	 	Effect of Payment. The full payment of the Participant’s vested Account Balance
under Articles 4, 5, 6, 7, 8, or 9 of the Plan shall completely discharge all obligations to a
Participant and his or her designated Beneficiaries under this Plan, and the Participant’s
Plan Agreement shall terminate.





ARTICLE 13

Administration





	13.1	 	Administrator Duties. Except as otherwise provided in this Article 13, this Plan
shall be administered by the Administrator, which shall consist of the Vice President — Human
Resources (or such other person or committee appointed by the Administrative Committee).
Members of the Administrator may be Participants under this Plan. The Administrator shall
also have the discretion and authority to (i) make, amend, interpret, and enforce all
appropriate rules and regulations for
the administration of this Plan, and (ii) decide or resolve any and all questions, including
benefit entitlement determinations, compensation subject to deferral and interpretations of
this Plan, as may arise in connection with the Plan. Any individual serving on the
Administrator who is a Participant shall not vote or act on any matter relating solely to
himself or herself. When making a determination or calculation, the Administrator shall be
entitled to rely on information furnished by a Participant or the Company. The
Administrator shall not be liable for any decision or action taken in good faith in
connection with the administration of this Plan. Without limiting the generality of the
foregoing, any such decision or action taken by the Administrator in reliance upon any
information supplied to it by an officer of the Company, the Company’s legal counsel, or the
Company’s independent accountants in connection with the administration of this Plan shall
be deemed to have been taken in good faith.
	 
	13.2	 	Administration Upon Change In Control. Within one hundred and twenty (120) days
following a Change in Control, the individuals who comprised the Administrator immediately
prior to the Change in Control (whether or not such individuals are members of the
Administrator following the Change in Control) may, by written consent of the majority of such
individuals, appoint an independent third party Administrator (the “Administrator”) to perform
any or all of the Administrator’s duties described in Section 13.1 above, including without
limitation, the power to determine any questions arising in connection with the administration
or interpretation of the Plan, and the power to make benefit entitlement determinations. Upon
and after the effective date of such appointment, (i) the Company must pay all reasonable
Administrative expenses and fees of the Administrator, and (ii) the Administrator may only be
terminated with the written consent of the majority of Participants with an Account Balance in
the Plan as of the date of such proposed termination. Notwithstanding the foregoing
provisions of this Section 13.2 or the definition of Change in Control set forth in Section
1.12 of the Plan to




-25-









 






	 	 	the contrary, the consummation of the “Transactions” (as defined in the
Investment Agreement by and between the Company and Clayton, Dubilier and Rice Fund VIII,
L.P., a Cayman Islands exempted limited partnership, dated as of August 14, 2009 (as it may be
amended from time to time)) shall not constitute a Change in Control for purposes of this
Section 13.2.
	 
	13.3	 	Agents. In the administration of this Plan, the Administrator and the Administrative
Committee may, from time to time, employ agents and delegate to them such Administrative
duties as it sees fit (including acting through a duly appointed representative) and may from
time to time consult with counsel.
	 
	13.4	 	Binding Effect of Decisions. The decision or action of the Committee, Administrator
or Administrative Committee, as applicable, with respect to any question arising out of or in
connection with the administration, interpretation and application of the Plan (including
whether and when there has been a termination of an Employee’s employment) and the rules and
regulations promulgated hereunder shall be final and conclusive and binding upon all persons
having any interest in the Plan.
	 
	13.5	 	Indemnity of Administrator. All Employers shall indemnify and hold harmless the
members of the Administrator, the Committee, the Administrative Committee and any Employee to
whom the duties of any such entities may be delegated, against any and all claims, losses,
damages, expenses or liabilities arising from any action or failure to act with respect to
this Plan, except in the case of willful misconduct by the Administrator, the Administrative
Committee, the Committee or any of their members, or any such Employee.
	 
	13.6	 	Employer Information. To enable the Committee, Administrative Committee and/or
Administrator to perform its functions, the Company and each Employer shall supply full and
timely information to the Committee, Administrative Committee and/or Administrator, as the
case may be, on all matters relating to the Plan, the Trust, if any, the Participants and
their Beneficiaries, the Account Balances of the Participants, the compensation of its
Participants, the date and circumstances of the Retirement, Disability, death or Termination
of Employment of its Participants, and
such other pertinent information as the Committee, Administrative Committee or Administrator
may reasonably require.





ARTICLE 14

Other Benefits and Agreements





	14.1	 	Coordination with Other Benefits. The benefits provided for a Participant and
Participant’s Beneficiary under the Plan are in addition to any other benefits available to
such Participant under any other plan or program for employees of the Participant’s Employer.
The Plan shall supplement and shall not supersede, modify or amend any other such plan or
program except as may otherwise be expressly provided.




-26-









 











ARTICLE 15

Claims Procedures





	15.1	 	Presentation of Claim. Any Participant or Beneficiary of a deceased Participant
(such Participant or Beneficiary being referred to below as a “Claimant”) may deliver to the
Administrative Committee a written claim for a determination with respect to the amounts
distributable to such Claimant from the Plan. If such a claim relates to the contents of a
notice received by the Claimant, the claim must be made within sixty (60) days after such
notice was received by the Claimant. All other claims must be made within 180 days of the
date on which the event that caused the claim to arise occurred. The claim must state with
particularity the determination desired by the Claimant.
	 
	15.2	 	Notification of Decision. The Administrative Committee shall consider a Claimant’s
claim within a reasonable time, but no later than ninety (90) days after receiving the claim.
If the Administrative Committee determines that special circumstances require an extension of
time for processing the claim, written notice of the extension shall be furnished to the
Claimant prior to the termination of the initial ninety (90) day period. In no event shall
such extension exceed a period of ninety (90) days from the end of the initial period. The
extension notice shall indicate the special circumstances requiring an extension of time and
the date by which the Administrative Committee expects to render the benefit determination.
The Administrative Committee shall notify the Claimant in writing:






	 	(a)	 	that the Claimant’s requested determination has been made, and that the claim
has been allowed in full; or
	 
	 	(b)	 	that the Administrative Committee has reached a conclusion contrary, in whole
or in part, to the Claimant’s requested determination, and such notice must set forth
in a manner calculated to be understood by the Claimant:






	 	(i)	 	the specific reason(s) for the denial of the claim, or any part
of it;
	 
	 	(ii)	 	specific reference(s) to pertinent provisions of the Plan upon
which such denial was based;
	 
	 	(iii)	 	a description of any additional material or information
necessary for the Claimant to perfect the claim, and an explanation of why such
material or information is necessary;
	 
	 	(iv)	 	an explanation of the claim review procedure set forth in
Section 15.3 below; and
	 
	 	(v)	 	a statement of the Claimant’s right, following an adverse
benefit determination on review, to bring a civil action under ERISA Section
502(a) if the claim is denied on appeal..






-27-












 






	15.3	 	Review of a Denied Claim. On or before sixty (60) days after receiving a notice
from the Administrative Committee that a claim has been denied, in whole or in part or within
60 days after the date on which such denial is considered to have occurred), a Claimant (or
the Claimant’s duly authorized representative) may file with the Administrative Committee a
written request for a review of the denial of the claim. The Claimant (or the Claimant’s duly
authorized representative):






	 	(a)	 	may, upon request and free of charge, have reasonable access to, and copies of,
all documents, records and other information relevant (as defined in applicable ERISA
regulations) to the claim for benefits;
	 
	 	(b)	 	may submit written comments or other documents; and/or
	 
	 	(c)	 	may request a hearing, which the Administrative Committee, in its sole
discretion, may grant.






	15.4	 	Decision on Review. The Administrative Committee shall render its decision on review
promptly, and no later than sixty (60) days after the Administrative Committee receives the
Claimant’s written request for a review of the denial of the claim. If the Administrative
Committee determines that special circumstances require an extension of time for processing
the claim, written notice of the extension shall be furnished to the Claimant prior to the
termination of the initial sixty (60) day period. In no event shall such extension exceed a
period of sixty (60) days from the end of the initial period. The extension notice shall
indicate the special circumstances requiring an extension of time and the date by which the
Administrative Committee expects to render the benefit determination. In rendering its
decision, the Administrative Committee shall take into account all 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.
The decision must be written in a manner calculated to be understood by the Claimant, and it
must contain:






	 	(a)	 	specific reasons for the decision;
	 
	 	(b)	 	specific reference(s) to the pertinent Plan provisions upon which the decision
was based;
	 
	 	(c)	 	a statement that the Claimant is entitled to receive, upon request and free of
charge, reasonable access to and copies of, all documents, records and other
information relevant (as defined in applicable ERISA regulations) to the Claimant’s
claim for benefits; and
	 
	 	(d)	 	a statement of the Claimant’s right to bring a civil action under ERISA Section
502(a).






	15.5	 	Legal Action. Benefits under this Plan will only be paid if the Administrative
Committee decides, in its discretion, that a person is entitled to them. Moreover, no action
at law or in equity shall be brought to recover benefits under this Plan prior to the




-28-









 












	 	 	date the
claimant has exhausted the Administrative process of appeal available under the Plan.





ARTICLE 16

Trust





	16.1	 	Establishment of the Trust. In order to provide assets from which to fulfill its
obligations to the Participants and their Beneficiaries under the Plan, the Company may
establish a trust by a trust agreement with a third party, the trustee, to which each Employer
may, in its discretion, contribute cash or other property, including securities issued by the
Company, to provide for the benefit payments under the Plan, (the “Trust”).
	 
	16.2	 	Interrelationship of the Plan and the Trust. The provisions of the Plan and the Plan
Agreement shall govern the rights of a Participant to receive distributions pursuant to the
Plan. The provisions of the Trust shall govern the rights of the Employers, Participants and
the creditors of the Employers to the assets transferred to the Trust. Each Employer shall at
all times remain liable to carry out its obligations under the Plan.
	 
	16.3	 	Distributions From the Trust. Each Employer’s obligations under the Plan may be
satisfied with Trust assets distributed pursuant to the terms of the Trust, and any such
distribution shall reduce the Employer’s obligations under this Plan.
	 
	16.4	 	Common Stock for the Company Stock Fund. If a Trust is established, the Company may
contribute shares of its Treasury Stock to such Trust in order to make distributions from the
Company Stock Fund pursuant to Section 4.5 of the Plan.





ARTICLE 17

Miscellaneous





	17.1	 	Status of Plan. The Plan is intended to be a plan that is not qualified within the
meaning of Code Section 401(a) and that “is unfunded and is maintained by an employer
primarily for the purpose of providing deferred compensation for a select group of management
or highly compensated employees” within the meaning of ERISA Sections 201(2), 301(a)(3) and
401(a)(1). The Plan shall be administered and interpreted (i) to the extent possible in a
manner consistent with the intent described in the preceding sentence, and (ii) in accordance
with Code Section 409A and related Treasury guidance and Regulations.
	 
	17.2	 	Unsecured General Creditor. Participants and their Beneficiaries, heirs, successors
and assigns shall have no legal or equitable rights, interests or claims in any property or
assets of an Employer. For purposes of the payment of benefits under this Plan, any and all
of an Employer’s assets shall be, and remain, the general, unpledged unrestricted assets of
the Employer. An Employer’s obligation under the Plan shall be merely that of an unfunded and
unsecured promise to pay money in the future. The benefits provided under this Plan shall be a
general, unsecured obligation of the Employer payable solely from the general assets of the
Employer, and neither the Participant nor the Participant’s




-29-









 












	 	 	Beneficiary or estate shall have
any interest in any assets of the Employer by virtue of this Plan.






	17.3	 	Employer’s Liability. An Employer’s liability for the payment of benefits shall be
defined only by the Plan and the Plan Agreement, as entered into between the Employer and a
Participant. An Employer shall have no obligation to a Participant under the Plan except as
expressly provided in the Plan and his or her Plan Agreement.
	 
	17.4	 	Nonassignability. Neither a Participant nor any other person shall have any right to
commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer,
hypothecate, alienate or convey in advance of actual receipt, the amounts, if any, payable
hereunder, or any part thereof, which are, and all rights to which are expressly declared to
be, unassignable and non-transferable. No part of the amounts payable shall, prior to actual
payment, be subject to seizure, attachment, garnishment or sequestration for the payment of
any debts, judgments, alimony or separate maintenance owed by a Participant or any other
person, be transferable by operation of law or court order in the event of a Participant’s or
any other person’s bankruptcy or insolvency or be transferable to a spouse as a result of a
property settlement or otherwise. Any attempt at such an assignment, allocation, seizure,
attachment, garnishment sequestration, transfer or encumbrance shall vest no right in the
person or entity to whom the right or property is purportedly assigned, allocated or
transferred (or for whose benefit the right or property is purportedly encumbered). These
prohibitions apply to any creditor, spouse, former spouse, heir, estate or Beneficiary of a
Participant.
	 
	17.5	 	Not a Contract of Employment. The terms and conditions of this Plan shall not be
deemed to constitute a contract of employment between any Employer and the Participant. Such
employment is hereby acknowledged to be an “at will” employment relationship that can be
terminated at any time for any reason, or no reason, with or without cause, and with or
without notice, unless expressly provided in a written employment agreement. Nothing in this
Plan shall be deemed to give a Participant the right to be retained in the service of any
Employer, either as an Employee or a Director, or to interfere with the right of any Employer
to discipline or discharge the Participant at any time.
	 
	17.6	 	Furnishing Information. A Participant or his or her Beneficiary will cooperate with
the Administrator, Administrative Committee and Committee by furnishing any and all
information requested by the Administrator, Administrative Committee and/or Committee and take
such other actions as may be requested in order to facilitate the administration of the Plan
and the payments of benefits hereunder, including but not limited to taking such physical
examinations as the Administrator, Administrative Committee and/or Committee may deem
necessary.
	 
	17.7	 	Terms. Whenever any words are used herein in the masculine, they shall be construed
as though they were in the feminine in all cases where they would so apply; and whenever any
words are used herein in the singular or in the plural, they shall be construed as




-30-









 








	 	 	though they
were used in the plural or the singular, as the case may be, in all cases where they would so
apply.
	 
	17.8	 	Captions. The captions of the articles, sections and paragraphs of this Plan are for
convenience only and shall not control or affect the meaning or construction of any of its
provisions.
	 
	17.9	 	Governing Law. Subject to ERISA, the provisions of this Plan shall be construed and
interpreted according to the internal laws of the State of Texas without regard to its
conflicts of laws principles.
	 
	17.10	 	Notice. Any notice or filing required or permitted to be given to the Administrator
or Administrative Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address below:






	 	 	 	NCI Building Systems, Inc.

Attn: Administrator

c/o Vice President of Human Resources

10943 North Sam Houston Parkway West

Houston, Texas 77064
	 
	 	 	 	NCI Building Systems, Inc.

Attn: Administrative Committee

10943 North Sam Houston Parkway West

Houston, Texas 77064






	 	 	Such 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.
	 
	 	 	Any notice or filing required or permitted to be given to a Participant under this Plan
shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known
address of the Participant.
	 
	17.11	 	Successors. The provisions of this Plan shall bind and inure to the benefit of the
Participant’s Employer and its successors and assigns and the Participant and the
Participant’s designated Beneficiaries.
	 
	17.12	 	Spouse’s Interest. The interest in the benefits hereunder of a spouse of a
Participant who has predeceased the Participant shall automatically pass to the Participant
and shall not be transferable by such spouse in any manner, including but not limited to such
spouse’s will, nor shall such interest pass under the laws of intestate succession.
	 
	17.13	 	Validity. In case any provision of this Plan shall be illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining parts hereof, but this
Plan shall be construed and enforced as if such illegal or invalid provision had never been
inserted herein.




-31-









 












	17.14	 	Incompetent. If the Administrator and/or the Administrative Committee determines in
its discretion that a benefit under this Plan is to be paid to a minor, a person declared
incompetent or to a person incapable of handling the disposition of that person’s property,
the Administrator and/or Administrative Committee may direct payment of such benefit to the
guardian, legal representative or person having the care and custody of such minor,
incompetent or incapable person. The Administrator and/or Administrative Committee, as
applicable, may require proof of minority, incompetence, incapacity or guardianship, as it may
deem appropriate prior to distribution of the benefit. Any payment of a benefit shall be a
payment for the account of the Participant and the Participant’s Beneficiary, as the case may
be, and shall be a complete discharge of any liability under the Plan for such payment amount.
	 
	17.15	 	Court Order. The Administrator and the Administrative Committee are authorized to
comply with any court order in any action in which the Plan or the Administrator or the
Administrative Committee has been named as a party, including any action involving a
determination of the rights or interests in a Participant’s benefits under the Plan.
Notwithstanding the foregoing, the Administrator and the Administrative Committee shall
interpret this provision in a manner that is consistent with Code Section 409A and other
applicable tax law.
	 
	17.16	 	Distribution in the Event of Income Inclusion Under 409A. If any portion of a
Participant’s Account Balance under this Plan is required to be included in income by the
Participant prior to receipt due to a failure of this Plan to meet the requirement of Code
Section 409A and related Treasury guidance or Regulations, the Participant may petition the
Administrative Committee for a distribution of that portion of his or her Account Balance
that is required to be included in his or her income. Upon the grant of such a petition,
which grant shall not be unreasonably withheld, the Participant’s Employer shall distribute
to the Participant immediately available funds in an amount equal to the portion of his or
her Account Balance required to be included in income as a result of the failure of the Plan
to meet the requirements of Code Section 409A and related Treasury guidance or Regulations,
which amount shall not exceed the Participant’s unpaid vested Account Balance under the
Plan. If the petition is granted, such distribution shall be made within ninety (90) days
of the date when the Participant’s petition is granted. Such a distribution shall affect
and reduce the Participant’s benefits to be paid under this Plan.
	 
	17.17	 	Deduction Limitation on Benefit Payments. If an Employer reasonably anticipates
that the Employer’s deduction with respect to any distribution from this Plan would be limited
or eliminated by application of Code Section 162(m), then to the extent deemed necessary by
the Employer to ensure that the entire amount of any distribution from this Plan is
deductible, the Employer may delay payment of any amount that would otherwise be distributed
from this Plan. Any amounts for which distribution is delayed pursuant to this Section shall
continue to be credited/debited with additional amounts in accordance with Section 3.9 above.
The delayed amounts (and any amounts credited thereon) shall be distributed to the Participant
(or his or her Beneficiary in the event of the Participant’s death) at the earliest date the
Employer reasonably anticipates that the deduction of the




-32-









 









	 	 	payment of the amount will not be
limited or eliminated by application of Code Section 162(m).
	 
	17.18	 	Insurance. The Employers, on their own behalf or on behalf of the Trustee of the
Trust, if any, and, in their sole discretion, may apply for and procure insurance on the life
of the Participant, in such amounts and in such forms as the Trust, if any, may choose. The
Employers or the trustee of the Trust, if any, as the case may be, shall be the sole owner and
beneficiary of any such insurance. The Participant shall have no interest whatsoever in any
such policy or policies, and at the request of the Employers shall submit to medical
examinations and supply such information and execute such documents as may be required by the
insurance company or companies to whom the Employers have applied for insurance.
	 
	17.19	 	Limitation of Rights. Nothing in this Plan shall be construed to:






	 	(a)	 	Give any Employee of an Employer any right to be designated a Participant in
the Plan other than in the sole discretion of the Committee;
	 
	 	(b)	 	Limit in any way the right of the Employer to terminate a Participant’s
employment at any time; or
	 
	 	(c)	 	Be evidence of any agreement or understanding, express or implied, that the
Company or any other Employer will employ a Participant in any particular position or
at any particular rate of remuneration.





     IN WITNESS WHEREOF, the Company has signed this Plan document as of                                         , 2010.



	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC.

 	 
	 	By:  	
 	 
	 
	 	 	Title:  	 	 
	 	 	 	 



-33-









 






APPENDIX A



LIMITED TRANSITION RELIEF MADE AVAILABLE IN ACCORDANCE WITH CODE SECTION 409A AND
RELATED TREASURY GUIDANCE AND REGULATIONS





       Unless otherwise provided below, the capitalized terms below shall have the same meaning
as provided in the Plan.




	 	1.	 	Opportunity to Make New Distribution Elections. Notwithstanding the
required deadline for the submission of an initial distribution election described in
the Plan, the Administrative Committee may, as permitted by Code Section 409A and
related Treasury guidance or Regulations, provide a limited period in which existing
Participants must make new elections regarding the timing and/or form of payment of
Plan benefits, by submitting an Election Form on or before the deadline established by
the Administrative Committee, which in no event shall be later than December 31, 2007.
Any change to the timing of form of payment of a Participant’s benefit that is made in
accordance with the requirements established by the Administrative Committee pursuant
to this section, shall not be treated as a change in the form or timing of a
Participant’s benefit payment for purposes of Code Section 409A or the Plan.






     The Administrator shall interpret all provisions relating to an election submitted in
accordance with this section in a manner that is consistent with Code Section 409A and
related Treasury guidance or Regulations.




-34-