exv10w6






Exhibit 10.6




POST HOLDINGS, INC.




DEFERRED COMPENSATION PLAN




FOR KEY EMPLOYEES




(Effective January 1, 2012)









 









 








POST HOLDINGS, INC.




DEFERRED COMPENSATION PLAN




FOR KEY EMPLOYEES




(Effective as of January 1, 2012)




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	PREAMBLE
	 	 	1	 
	ARTICLE I DEFINITIONS
	 	 	2	 
	1.1 “Account”
	 	 	2	 
	1.2 “Acquiring Person”
	 	 	2	 
	1.3 “Affiliate” or “Associate”
	 	 	2	 
	1.4 “Allocation Date”
	 	 	2	 
	1.5 “Beneficiary”
	 	 	2	 
	1.6 “Board”
	 	 	2	 
	1.7 “Change in Control”
	 	 	2	 
	1.8 “Code”
	 	 	2	 
	1.9 “Committee”
	 	 	2	 
	1.10 “Company”
	 	 	2	 
	1.11 “Company Matching Contributions”
	 	 	3	 
	1.12 “Continuing Director”
	 	 	3	 
	1.13 “Deferral Election”
	 	 	3	 
	1.14 “Effective Date”
	 	 	3	 
	1.15 “Eligible Employee”
	 	 	3	 
	1.16 “Executive Savings Investment Plan”
	 	 	3	 
	1.17 “Fund”
	 	 	3	 
	1.18 “Participant”
	 	 	3	 
	1.19 “Performance-Based Compensation”
	 	 	4	 
	1.20 “Plan”
	 	 	4	 
	1.21 “Ralcorp Amounts”
	 	 	4	 
	1.22 “Plan Year”
	 	 	4	 
	1.23 “Retirement”
	 	 	4	 
	1.24 “Rollover Amounts”
	 	 	4	 
	1.25 “Separation from Service”
	 	 	4	 
	1.26 “SIP”
	 	 	5	 
	1.27 “Stock”
	 	 	5	 
	1.28 “Termination for Cause”
	 	 	6	 
	1.29 “Unforeseeable Emergency”
	 	 	6	 
	1.30 “Rules of Construction”
	 	 	6	 






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	 	 	Page	 
	ARTICLE II PARTICIPATION IN THE PLAN
	 	 	7	 
	2.1 Eligibility
	 	 	7	 
	2.2 Commencement of Participation
	 	 	7	 
	ARTICLE III ACCOUNTS
	 	 	8	 
	3.1 Deferral Election
	 	 	8	 
	3.2 Deferral Period
	 	 	9	 
	3.3 Account Reflecting Deferred Compensation
	 	 	9	 
	3.4 Credits or Charges
	 	 	9	 
	3.5 Company Matching Deferral
	 	 	10	 
	3.6 Investment, Management and Use
	 	 	11	 
	3.7 Valuation of Stock
	 	 	12	 
	3.8 Rollover Amounts
	 	 	12	 
	ARTICLE IV FUNDS
	 	 	13	 
	4.1 Fund Selection
	 	 	13	 
	4.2 Transfer
	 	 	13	 
	ARTICLE V DISTRIBUTION OF ACCOUNT
	 	 	14	 
	5.1 Time of Distribution
	 	 	14	 
	5.2 Amount Distributed
	 	 	15	 
	5.3 Method of Distribution
	 	 	15	 
	5.4 Form of Payment
	 	 	16	 
	5.5 Distribution Upon Death
	 	 	16	 
	5.6 Designation of Beneficiary
	 	 	16	 
	ARTICLE VI NON-ASSIGNABILITY
	 	 	17	 
	6.1 Non-Assignability
	 	 	17	 
	ARTICLE VII VESTING
	 	 	18	 
	7.1 Vesting
	 	 	18	 
	ARTICLE VIII AMENDMENT OR TERMINATION OF THE PLAN
	 	 	19	 
	8.1 Power to Amend Plan
	 	 	19	 
	8.2 Distribution of Plan Benefits Upon Termination
	 	 	19	 
	8.3 When Amendments Take Effect
	 	 	19	 
	8.4 Restriction on Retroactive Amendments
	 	 	19	 
	ARTICLE IX PLAN ADMINISTRATION
	 	 	20	 
	9.1 Powers of the Committee
	 	 	20	 
	9.2 Indemnification.
	 	 	20	 
	9.3 Claims Procedure
	 	 	21	 
	9.4 Expenses
	 	 	22	 
	9.5 Conclusiveness of Action
	 	 	23	 
	9.6 Release of Liability
	 	 	23	 
	ARTICLE X MISCELLANEOUS
	 	 	24	 
	10.1 Plan Not a Contract of Employment
	 	 	24	 






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	 	 	Page	 
	10.2 No Rights Under Plan Except as Set Forth Herein; Unsecured General
Creditor Status
	 	 	24	 
	10.3 Rules
	 	 	24	 
	10.4 Withholding of Taxes
	 	 	24	 
	10.5 Severability
	 	 	24	 
	10.6 409A Compliance
	 	 	24	 
	10.7 Participant Responsibility
	 	 	25	 






iii









 






POST HOLDINGS, INC.




DEFERRED COMPENSATION PLAN




FOR KEY EMPLOYEES




(Effective as of January 1, 2012)




PREAMBLE



Ralcorp Holdings, Inc. (“Ralcorp”) maintained the Ralcorp Holdings, Inc. Deferred Compensation Plan
for Key Employees (the “Ralcorp Plan”). Ralcorp intends to distribute on a pro rata basis to the
holders of Ralcorp’s common stock at least 80% of the outstanding shares of Post Holdings, Inc.
(the “Company”) common stock owned by Ralcorp (“Spin-Off”). The Company hereby adopts the Post
Holdings, Inc. Deferred Compensation Plan for Key Employees effective January 1, 2012 (“Effective
Date”), subject to the completion of the Spin-Off.



As of the Spin-Off, account balances of the Company’s employees and former employees under the
Ralcorp Plan are hereby converted into account balances under this Plan upon terms and conditions
approved by the Committee, and the Company is responsible under this Plan for the payment of all
liabilities and obligations for benefits unpaid with respect to all such transferred accounts.



The Plan as set out herein is intended to be an unfunded retirement plan for a select group of
management or highly compensated employees which, for deferrals after December 31, 2004, meets the
requirements of Section 409A of the Code. Deferrals prior to January 1, 2005 that are intended to
be grandfathered under Section 409A of the Code are not governed by, covered under, or otherwise
subject to the terms of this document.



The purpose of the Plan is to enhance the profitability and value of the Company for the benefit of
its shareholders by providing a supplemental retirement program to attract, retain and motivate
selected employees who make important contributions to the success of the Company.







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ARTICLE I




DEFINITIONS



     As used in this Plan, the following capitalized words and phrases have the meanings indicated,
unless the context requires a different meaning:



     1.1 “Account” means the bookkeeping account established for each Participant to reflect
amounts credited to such Participant under the Plan, including any subaccount(s) established by the
Committee to record different types of credits.



     1.2 “Acquiring Person” means any person or group of Affiliates or Associates who is or becomes
the beneficial owner, directly or indirectly, of 20% or more of the outstanding Stock.



     1.3 “Affiliate” or “Associate” shall have the meanings set forth as of March 1, 1994 in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended.



     1.4 “Allocation Date” means each day the New York Stock Exchange is open for business.



     1.5 “Beneficiary” means the person or persons designated by a Participant, or otherwise
entitled, to receive any amount credited to his Account that remains undistributed at his death.



     1.6 “Board” means the Board of Directors of the Company.



     1.7 “Change in Control” means the time when (i) any person, either individually or together
with such person’s Affiliates or Associates, shall become the beneficial owner, directly or
indirectly, of more than 50% of the outstanding Stock and there shall have been a public
announcement of such occurrence by the Company or such person or (ii) during any twelve (12) month
period individuals who shall qualify as Continuing Directors shall have ceased for any reason to
constitute at least a majority of the Board; provided, however, that in the case of either clause
(i) or clause (ii), a Change in Control shall not be deemed to have occurred if the event shall
have been approved prior to the occurrence thereof by a majority of the Continuing Directors who
shall then be members of the Board. Notwithstanding anything to the contrary, an event shall not
be a Change in Control if it is not a change in control as that term is used in Section 409A of the
Code.



     1.8 “Code” means the Internal Revenue Code of 1986, as amended from time to time.



     1.9 “Committee” means the Corporate Governance and Compensation Committee of the Board.



     1.10 “Company” means Post Holdings, Inc., a Missouri corporation, and any successor thereto.



2









 





     1.11 “Company Matching Contributions” means the Company contributions described in Section
3.5.



     1.12 “Continuing Director” means any member of the Board of Directors of Post Holdings, Inc.,
while such person is a member of such Board, who is not an Affiliate or Associate of an Acquiring
Person or of any such Acquiring Person’s Affiliate or Associate and was a member of such Board
prior to the time when such Acquiring Person became an Acquiring Person, and any successor of a
Continuing Director, while such successor is a member of such Board, who is not an Acquiring Person
or an Affiliate or Associate of an Acquiring Person or a representative or nominee of an Acquiring
Person or of any Affiliate or Associate of such Acquiring Person and is recommended or elected to
succeed the Continuing Director by a majority of the Continuing Directors.



     1.13 “Deferral Election” means an agreement between a Participant and the Company under which
the Participant agrees to a deferral of his annual bonus, Performance-Based Compensation or other
compensation in accordance with Section 3.1 as follows:




     (a) a specified percentage (from 1% to 100%) of a Participant’s bonus,
Performance-Based Compensation or other compensation;




     (b) all of a Participant’s bonus, Performance-Based Compensation or other
compensation up to a specified dollar amount; or




     (c) all of a Participant’s bonus, Performance-Based Compensation or other
compensation in excess of a specified dollar amount.



     1.14 “Effective Date” means January 1, 2012.



     1.15 “Eligible Employee” means an employee of the Company, or except as provided below an
employee of a subsidiary of the Company, who is a member of a select group of management or highly
compensated employees and who is eligible to receive a bonus, Performance-Based Compensation or
other compensation, in the discretion of the Committee, from the Company or from a subsidiary of
the Company. An employee of a subsidiary of the Company shall not be an Eligible Employee unless
the Chief Executive Officer of the Company has extended this Plan to such subsidiary.



     1.16 “Executive Savings Investment Plan” means the Post Holdings, Inc. Executive Savings
Investment Plan.



     1.17 “Fund” means one or more of the measurement investment funds available under the Plan for
purposes of crediting or debiting hypothetical investment gains and losses to the Accounts of
Participants. The investment funds available under the Plan shall be identical to the extent
possible to those approved by the Employee Benefit Trustees Committee under the SIP. Each Fund
shall be subject to all terms, conditions and fees established from time to time by the Fund
sponsor.



     1.18 “Participant” means any Eligible Employee who satisfies the conditions for participation
in the Plan set forth in Section 2.1. In addition, Participant means any current or



3









 




former employee of the Company or its subsidiaries whose name is listed on Appendix I hereto,
to the extent an Account is credited with Ralcorp Amounts on behalf of such individual under this
Plan.




     1.19 “Performance-Based Compensation” means Compensation that constitutes performance-based
compensation as defined by Section 409A of the Code and the regulations thereunder.



     1.20 “Plan” means the Post Holdings, Inc. Deferred Compensation Plan for Key Employees, as
originally adopted and as from time to time amended.



     1.21 “Plan Year” means the accounting year of the Plan, which ends on December 31.



     1.22 “Ralcorp Amounts” means amounts credited to the Plan in accordance with Section 3.3.



     1.23 “Retirement” means an Employee’s Separation from Service following attainment of age 62.



     1.24 “Rollover Amounts” means amounts credited to the Plan in accordance with Section 3.8.



     1.25 “Separation from Service” means the date a Participant separates from service within the
meaning of Code Section 409A. Generally, a Participant separates from service if the Participant
dies, retires, or otherwise has a termination of employment with the Company determined in
accordance with the following:




     (a) Leaves of Absence. The employment relationship is treated as continuing intact
while the Participant is on military leave, sick leave, or other bona fide leave of
absence if the period of such leave does not exceed six (6) months, or, if longer, so
long as the Participant retains a right to reemployment with the Company under an
applicable statute or by contract. A leave of absence constitutes a bona fide leave of
absence only if there is a reasonable expectation that the Participant will return to
perform services for the Company. If the period of leave exceeds six (6) months and the
Participant does not retain a right to reemployment under an applicable statute or by
contract, the employment relationship is deemed to terminate on the first date
immediately following such six (6) month period. Notwithstanding the foregoing, where a
leave of absence is due to any medically determinable physical or mental impairment that
can be expected to result in death or can be expected to last for a continuous period of
not less than six (6) months, where such impairment causes the Participant to be unable
to perform the duties of his or her position of employment or any substantially similar
position of employment, a twenty-nine (29) month period of absence shall be substituted
for such six (6)-month period.




     (b) Dual Status. Generally, if a Participant performs services both as an employee
and an independent contractor, such Participant must separate from service both as an
employee, and as an independent contractor pursuant to standards set forth in Treasury
Regulations, to be treated as having a separation from service. However,



4









 





if a Participant provides services to the Company as an employee and as a member of
the Board, and if any plan in which such person participates as a Board member is not
aggregated with this Plan pursuant to Treasury Regulations section 1.409A-1(c)(2)(ii),
then the services provided as a director are not taken into account in determining
whether the Participant has a separation from service as an employee for purposes of
this Plan.




     (c) Termination of Employment. Whether a termination of employment has occurred is
determined based on whether the facts and circumstances indicate that the Company and
the Participant reasonably anticipated that no further services would be performed after
a certain date or that the level of bona fide services the Participant would perform
after such date (whether as an employee or as an independent contractor, except as
provided in section 1.25(b) would permanently decrease to no more than twenty (20)
percent of the average level of bona fide services performed (whether as an employee or
an independent contractor, except as provided in section 1.25(b) over the immediately
preceding thirty-six (36)-month period (or the full period of services to the Company if
the Participant has been providing services to the Company less than thirty-six (36)
months). For periods during which a Participant is on a paid bona fide leave of absence
and has not otherwise terminated employment as described above, for purposes of this
paragraph (c), the Participant is treated as providing bona fide services at a level
equal to the level of services that the Participant would have been required to perform
to receive the compensation paid with respect to such leave of absence. Periods during
which a Participant is on an unpaid bona fide leave of absence and has not otherwise
terminated employment are disregarded for purposes of this subsection (c) (including for
purposes of determining the applicable thirty-six (36)-month (or shorter) period). For
the avoidance of doubt, no Participant shall be treated as incurring a Separation from
Service, termination of employment, retirement, or other similar event for purposes of
determining the right to distribution, vesting, benefits, or any other purpose under the
Plan as a result of the Spin-Off (as defined in the Preamble).




     (d) Service with Related Companies. For purposes of determining whether a
Separation from Service has occurred, the “Company” shall include the Company or a
subsidiary, as applicable, and any other entity that is aggregated with the Company or
such subsidiary pursuant to Code section 414(b) or (c).



     1.26 “SIP” means the Post Holdings, Inc. Savings Investment Plan.



     1.27 “Stock” means the Company’s $.01 par value common stock or any such other security
outstanding upon the reclassification of the Company’s common stock, including, without limitation,
any Stock, split-up, Stock dividend, or other distributions of stock in respect of Stock, or any
reverse Stock split-up, or recapitalization of the Company or any merger or consolidation of the
Company with any Affiliate, or any other transaction, whether or not with or into or otherwise
involving an Acquiring Person.



5









 





     1.28 “Termination for Cause” means a Participant’s termination of employment with the Company
because the Participant willfully engaged in gross misconduct; provided, however, that a
“Termination for Cause” shall not include a termination attributable to:




     (a) poor work performance, bad judgment or negligence on the part of the
Participant; or




     (b) an act or omission reasonably believed by the Participant in good faith to have
been in or not opposed to the best interests of his employer and reasonably believed by
the Participant to be lawful.



     1.29 “Unforeseeable Emergency” means a severe financial hardship to a Participant resulting
from an illness or accident of the Participant, the Participant’s spouse, or a dependent (as
defined in Code section 152 without regard to 152(b)(1), (b)(2) and (d)(1)(B)) of the Participant,
loss of the Participant’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of the Participant.
The Committee will determine the existence of an Unforeseeable Emergency, based on the supporting
facts, circumstances, and documentation provided by the Participant.



     1.30 “Rules of Construction”




     (a) Governing law. The construction and operation of this Plan are governed by the
laws of the State of Missouri.




     (b) Headings. The headings of Articles, Sections and Subsections are for reference
only and are not to be utilized in construing the Plan.




     (c) Gender. Unless clearly inappropriate, all pronouns of whatever gender refer
indifferently to persons or objects of any gender.




     (d) Singular and plural. Unless clearly inappropriate, singular items refer also
to the plural and vice versa.




     (e) Severability. If any provision of this Plan is held illegal or invalid for any
reason, the remaining provisions are to remain in full force and effect and to be
construed and enforced in accordance with the purposes of the Plan as if the illegal or
invalid provision did not exist.



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6









 








ARTICLE II




PARTICIPATION IN THE PLAN



     2.1 Eligibility. Participation in the Plan shall be limited to Eligible Employees. If the
Committee determines that a Participant no longer qualifies as being a member of a select group of
management or highly compensated employees, the Participant shall cease to be eligible to make
Deferral Elections, but will continue to participate in the Plan with respect to existing amounts
credited to his Account. A Committee determination that a Participant is no longer eligible may
not result in a mid-year rescission of a Deferral Election.



     2.2 Commencement of Participation. To participate in the Plan, an Eligible Employee shall
defer a bonus, Performance-Based Compensation or other compensation earned during a Plan Year by
making a Deferral Election with respect to such bonus, Performance-Based Compensation or other
compensation, in the manner set forth in Section 3.1.



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7









 








ARTICLE III




ACCOUNTS



     3.1 Deferral Election




     (a) Annual Bonus. Prior to each Plan Year, a Participant may execute a Deferral
Election under which he may elect to defer all or a portion of his annual bonus earned
during such Plan Year. A Deferral Election is irrevocable upon the beginning of the
Plan Year (or the period otherwise described below in this Section 3.1(a)) to which it
applies. Notwithstanding the foregoing, an individual who first becomes an Eligible
Employee subsequent to the first day of any Plan Year (and was not previously eligible
to participate in a plan which is treated with this Plan as one plan under Treasury
Regulation section 1.409A-1(c)(2)) may make a Deferral Election, applicable to the
period from the Eligible Employee’s initial entry date to the end of the Plan Year,
provided the Deferral Election is made within 30 days of becoming an Eligible Employee
and prior to the performance of services by a Participant for the period covered by the
election. Each Deferral Election shall be in a form designated by the Committee.



     (b) Performance-Based Compensation. Notwithstanding subsection (a) above, in the
case of a Deferral Election to defer compensation which is Performance-Based
Compensation, as defined herein, a Deferral Election must be made no later than the date
(as determined by the Committee) that is six months before the end of the performance
period, provided that (1) the Participant continuously performs services from the later
of the beginning of the performance period or the date the performance criteria are
established through the date the Participant makes his Deferral Election and (2) the
Performance-Based Compensation is not substantially certain to be paid and is not
readily ascertainable as of the date of such Deferral Election.



     (c) Other Compensation. Notwithstanding subsections (a) and (b) above, in the
discretion of the Committee, a Participant may execute a Deferral Election with respect
to certain forfeitable rights in a manner consistent with Section 409A including: (1) a
legally binding right to a payment of other compensation in a subsequent year provided
that, (2) the payment of compensation is subject to a forfeiture condition requiring the
Participant’s continued services for a period of at least 12 months from the date the
Participant obtains the legally binding right, (3) the Deferral Election is made within
30 days after the Participant obtains the legally binding right to the compensation, and
(4) the Deferral Election is made at least 12 months in advance of the earliest date at
which the forfeiture condition could lapse.



     (d) Continuation of Elections. On the date of the Spin-Off, all deferral elections
in effect under the Ralcorp Holdings, Inc. Deferred Compensation Plan for Key Employees
with respect to Participants listed on Appendix I hereto shall transfer to, be
recognized as a Deferral Election by, and remain in effect for the year or other
applicable period to which it relates under this Plan.



8









 





     3.2 Deferral Period. A Participant shall specify on a distribution election form, approved by
the Committee, on or before the Deferral Election which of the following times the bonus,
Performance-Based Compensation or other compensation shall be paid:




     (a) Short-term deferral: in January of the year following the year the bonus would
have been paid in the absence of the Deferral Election, the performance period ends, or
the forfeiture condition lapses, as applicable.




     (b) Deferral until a specified date: the last day of a calendar month that is at
least three years after the date the bonus would have been paid in the absence of the
Deferral Election, the performance period ends, or the forfeiture condition lapses, as
applicable.




     (c) Deferral until Separation from Service.



     3.3 Account Reflecting Deferred Compensation. The Committee shall establish and maintain a
separate Account for each Participant which shall reflect the amount of the Participant’s total
contributions under this Plan and all credits or charges under Section 3.4 from time to time. All
amounts credited or charged to a Participant’s Account hereunder shall be in a manner and form
determined within the sole discretion of the Committee. The amount of a Participant’s annual
bonus, Performance-Based Compensation or other compensation deferred by a Deferral Election shall
be credited to the Participant’s Account as soon as administratively practicable. The amount
credited to an account under the Ralcorp Holdings, Inc. Deferred Compensation Plan for Key
Employees as of the Spin-Off with respect to a Participant listed on Appendix I shall be credited
to such Participant’s Account as Ralcorp Amounts under this Plan in a separate bookkeeping
sub-account and shall include earnings and losses credited pursuant to Section 3.4. Ralcorp
Amounts shall be invested in accordance with Section 3.6 and Article IV and distributed in
accordance with Article V. On and after the Spin-Off, the Company shall assume all liabilities
relating to the Ralcorp Amounts, and Ralcorp Holdings, Inc. and its affiliates shall have no
liability therefor.



3.4 Credits or Charges





     (a) Earnings or Losses. As of each Allocation Date during a Plan Year, a
Participant’s Account shall be credited or debited with earnings or losses, if any,
equal to the earnings, gain or loss on the Funds indicated as preferred by a Participant
for the Plan Year or for the portion of such Plan Year in which the Account is deemed to
be invested.




     (b) Balance of Account. As of each Allocation Date, the amount credited to a
Participant’s Account shall be the amount credited to his Account as of the immediately
preceding Allocation Date, plus the Participant’s contribution credits since the
immediately preceding Allocation Date, minus any amount that is paid to or on behalf of
a Participant pursuant to this Plan subsequent to the immediately preceding Allocation
Date, plus or minus any hypothetical investment gains or losses determined pursuant to
Section 3.4(a) above.



9









 





    3.5 Company Matching Deferral





     (a) Committee Discretion. The Committee may determine that a Company matching
contribution described in this Section 3.5 shall be made with respect to Participant
deferrals for any specific fiscal year of the Company. Absent such determination with
respect to any such fiscal year deferrals, no Participant shall be entitled to the
Company matching contribution described herein. The amount of matching contribution
shall be equal to a percentage (as determined by the Committee) of a Participant’s
compensation that is deferred pursuant to such Deferral Election and credited to the
Post Holdings, Inc. Common Stock Fund, up to a maximum percentage of Participant’s
compensation as determined by the Committee. Such Company matching contributions and
all earnings thereon are hereinafter referred to as “Company Matching Contributions.”
Company Matching Contributions for a Participant shall be credited to the Participant’s
Matching Contributions Account at the same time as Deferral Election amounts are
credited pursuant to Section 3.3.




     (b) Vesting. Vesting for Company Matching Contributions shall be governed by this
paragraph:




     (1) A Participant’s Company Matching Contribution and related hypothetical
earnings shall not vest until the Participant has been employed by the Company for a
period of at least five years following the relevant date of crediting with respect
to such Company Matching Contribution. Prior service recognized for vesting
purposes under the Ralcorp Holdings, Inc. Deferred Compensation Plan for Key
Employees as of the Spin-Off shall be counted as years of service for vesting under
this Plan.



The non-vested portion of a Participant’s Company Matching Contributions shall be
forfeited upon a Participant’s Separation from Service; provided, however, that (a)
if a Participant’s Separation from Service is by reason of Retirement, the
Participant’s otherwise non-vested Company Matching Contributions and related
hypothetical earnings shall be deemed 100% vested if the Participant’s Company
Matching Contributions have been invested in the Company Stock Fund for at least one
year from the date the Company credited the Company Matching Contributions to the
Participant’s Matching Contributions Account; or (b) if a Participant becomes
disabled, as is determined by the Committee, or the Participant’s Separation of
Service is by reason of death or involuntary termination other than Termination for
Cause, the Participant’s otherwise non-vested Company Matching Contributions and
related hypothetical earnings shall be deemed 100% vested.




     (2) In addition, if at any time prior to the date that is two years after a
Participant’s Separation from Service prior to age 62, the Committee determines that
the Participant has engaged in competition with the Company or any Affiliate



10









 





or has engaged in any activity or conduct contrary to the best interests of the
Company or an Affiliate, the Participant’s right to his or her Company Matching
Contributions Account shall be forfeited and the Participant shall promptly, upon
written demand by the Company, remit to the Company all amounts paid to him or her
upon termination. The determination that a Participant is engaging in competition
with the Company or an Affiliate shall be made by the Committee in its sole and
absolute discretion. In exercising its discretion, the Committee shall consider,
among other factors, the nature of the competitive activity, the potential harm to
the Company or an Affiliate which may result from the competitive activity, the
Participant’s ability to find non-competitive employment and the Participant’s
financial need. Upon request, the Committee shall advise a Participant whether it
deems an activity in which the Participant proposes to engage to be a competitive
activity.




     (3) Notwithstanding the above, however, upon a Change in Control there will be
no forfeiting of Company Matching Contributions in the event of a Participant’s
engaging in competition with the Company. Notwithstanding anything else contained
herein, in the event of a Change in Control, Company Matching Contributions and
related hypothetical earnings shall vest in their entirety and shall not be subject
to forfeiture.




     (4) Matching contributions under the Ralcorp Holdings, Inc. Deferred
Compensation Plan for Key Employees credited as Ralcorp Amounts shall be subject to
the foregoing vesting provisions of this Section as though such matching
contributions were Company Matching Contributions under this Plan, provided that the
original date of crediting under the Ralcorp Holdings, Inc. Deferred Compensation
Plan for Key Employees with respect to such matching contributions shall be deemed
to be the relevant date of crediting for purposes of determining any vesting under
this Plan.




     (c) Investment of Company Matching Contributions. All Company Matching
Contributions credited to a Participant shall be deemed to be invested in the Post
Holdings, Inc. Common Stock Fund.




     (d) Form of distribution. Any distribution with respect to Company Matching
Contributions that remain invested in the Common Stock Fund shall be in Stock, with cash
for any fractional shares, unless the Committee in its discretion changes the form of
distribution to all cash or any other combination of Stock and cash.




     (e) Change in Control. Upon a Change in Control, all amounts deemed to be invested
in the Post Holdings, Inc. Common Stock Fund shall be immediately converted to the Fund
that is a money market fund.



     3.6 Investment, Management and Use. The Company shall have sole control and discretion over
the investment, management and use of all amounts credited to a Participant’s Account until such
amounts are distributed pursuant to Article V. Notwithstanding any other



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provision of this Plan or any notice, statement, summary or other communication provided to a
Participant that may be interpreted to the contrary, the Funds are to be used for measurement
purposes only, and a Participant’s election of any such Fund, the determination of credits and
debits to his Account based on such Funds, the Company’s actual ownership of such Funds, and any
authority granted under this Plan to a Participant to change the investment of the Company’s
assets, if any, may not be considered or construed in any manner as an actual investment of the
Account in any such Fund or to constitute a funding of this Plan.




     3.7 Valuation of Stock. In any situation in which it is necessary to value Stock, the value
of the Stock shall be the closing price as reported by the New York Stock Exchange — Composite
Transactions on the date in question, or, if the Stock is not quoted on such composite tape or if
the Stock is not listed on such exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934, as amended, on which the Stock is listed, or
if the Stock is not listed on any such exchange, the average of the closing bid quotations with
respect to a share of the Stock during the ten (10) days immediately preceding the date in question
on the National Association of Securities Dealers, Inc. Automated Quotations System or any system
then in use, or if no such quotations are available, the fair market value on the date in question
of a share of the Stock as determined by a majority of the Continuing Directors in good faith.



     3.8 Rollover Amounts. If the Company acquires an operation that sponsored a nonqualified
deferred compensation plan under which Participants have accounts, the amount credited to a
Participant’s account under such acquired operation’s nonqualified deferred compensation plan may,
in the sole and absolute discretion of the Company, be credited to the Participant’s Account under
this Plan in a separate bookkeeping sub-account and shall include earnings and losses credited
pursuant to Section 3.4. Rollover Amounts shall be invested in accordance with Sections 3.6 and
Article IV and distributed in accordance with Article V.



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ARTICLE IV




FUNDS



     4.1 Fund Selection. Except for short-term deferrals described in Section 3.2(a) and Company
Matching Contributions described in Section 3.5, the rate at which earnings and losses shall be
credited to a Participant’s Account shall be determined in accordance with one or more Funds
selected by the Participant; if a Participant does not select a Fund the Fund applicable for that
Participant shall be the Fund that is a money market fund. Short-term deferrals shall be credited
earnings at the rate of the Fund which is a money market fund. Notwithstanding anything to the
contrary, a Participant shall have one election in effect at any given time that applies to Fund
selections under both this Plan and the Executive Savings Investment Plan, and the most recent Fund
selection under either this Plan or the Executive Savings Investment Plan shall apply to and shall
supersede any previous Fund selection under the other plan. Fund selections recognized under the
Ralcorp Holdings, Inc. Deferred Compensation Plan for Key Employees immediately prior to the
Spin-Off shall be recognized under this Plan until superseded or otherwise changed in accordance
with this Plan; provided however, that Ralcorp Amounts deemed invested in the Ralcorp Holdings,
Inc. stock fund immediately prior to the Spin-Off shall be deemed invested in a Fund selected by
the Committee until the Participant elects a replacement Fund (if and to the extent permitted by
the Committee). If a Fund elected by a Participant is removed, a Fund selected by the Employee
Benefit Trustees Committee under the SIP shall apply in its place until the Participant elects a
replacement Fund. For purposes of calculating earnings and losses attributable to a Fund, any
amount shall be deemed to be invested in the Fund as of the date determined appropriate by the
Committee.



     4.2 Transfer. Subject to any limitations set forth herein and/or established by the Committee
from time to time, a Participant may transfer amounts between Funds as of the close of each
business day. The Committee has discretion to set any limitations on the transfer of such funds as
it deems necessary or desirable under applicable laws and regulations or to ensure the orderly
operation of the Plan. With respect to the Company Stock Fund, the following limitations shall
apply:




     (a) Amounts transferred from a Fund into the Company Stock Fund may not be
transferred out of the Company Stock Fund;




     (b) Amounts deferred and directed into the Company Stock Fund that are subject to a
Company Matching Contribution and the related vested Company Matching Contribution may
be exchanged between the Company Stock Fund and any other Fund but such ability to
transfer does not alter the vesting requirements of the Plan; and




     (c) All other amounts deferred directly into the Company Stock Fund may not be
transferred to any other Fund.



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ARTICLE V




DISTRIBUTION OF ACCOUNT



    5.1 Time of Distribution.





     (a) General. Payment of the amount credited to a Participant’s Account shall be made or
commence upon the earlier of the following:




     (i) the date specified in a distribution election form;




     (ii) a Change in Control (to the extent provided in an election form);




     (iii) the occurrence of an Unforeseeable Emergency; provided that a withdrawal
with respect to an Unforeseeable Emergency may not exceed the amount necessary to
satisfy the emergency need, plus amounts necessary to pay taxes reasonably
anticipated as a result of the distribution, after taking into account the extent to
which such hardship is or may be relieved through reimbursement or compensation by
insurance or otherwise or by liquidation of the Participant’s assets (to the extent
the liquidation of such assets itself would not cause severe financial hardship); or




     (iv) Separation from Service.




     (b) Specified Employee. Notwithstanding any provision of the Plan to the contrary,
if a Participant is a “specified employee” within the meaning of Section 409A of the
Code, no portion of his or her Account shall be distributed on account of a Separation
from Service before the earlier of (a) the date which is six (6) months following the
date of the Participant’s Separation from Service, or (b) the date of death of the
Participant. Amounts that would have been paid during the delay will be paid on the
first business day following the end of the six month delay. The Company’s specified
employees shall be determined in accordance with the special rules for spin-offs under
Treas. Reg. Section 1.409A-1(i)(6)(iii), or any successor thereto, for the period
indicated in such regulation.




     (c) Deferred Time of Payment. In the discretion of the Committee, a Participant
may elect to modify the form and time at which payment of his benefit shall be paid, in
accordance with the following:




     (i) any such election must be received by the Committee or its designee no less
than twelve (12) months prior to the Participant’s scheduled payment date (or, in
the case of annual installments pursuant to Section 5.3(b) or (c), twelve (12)
months prior to the date the first amount was scheduled to be paid), if applicable;




     (ii) the election shall not take effect until twelve (12) months after the date
on which the new election is made; and



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     (iii) the payment with respect to which such election is made is deferred for a
period of not less than 5 years from the date the payment otherwise would have been
made (or, in the case of annual installments pursuant to Section 5.3(b) or (c), 5
years from the date the first amount was scheduled to be paid).




     (d) Rollover Amounts. Notwithstanding anything to the contrary, but subject to
Section 5.1(b), a Participant’s Rollover Amounts shall be distributed at the time
determined in accordance with the terms of the nonqualified deferred compensation plan
sponsored by the acquired operation as of the date each such Rollover Amount became
credited under this Plan as a Rollover Amount.




     (e) Ralcorp Elections. Notwithstanding anything to the contrary, but subject to
Section 5.1(b), Ralcorp Amounts shall be distributed at the time determined in
accordance with the Ralcorp Holdings, Inc. Deferred Compensation Plan for Key Employees
as of the Spin-Off. Distribution elections effective under such plan as of the Spin-Off
with respect to Participants listed on Appendix I shall be recognized under this Plan,
subject to permitted modifications as described herein.




     The Committee, in its discretion, may limit the number of times a Participant may
modify his elected time of payment and establish such other limitations as it deems
advisable for the proper administration of the Plan.




     Notwithstanding anything to the contrary, a Participant shall have one election in
effect at any given time that applies to distributions under both this Plan and under the
Executive Savings Investment Plan, and the most recent distribution election under either
this Plan or the Executive Savings Investment Plan shall apply to and shall supersede any
previous distribution elections under the other plan.



     5.2 Amount Distributed. The amount distributed to a Participant shall be determined as of the
Allocation Date as of which distribution is made, or as of the most recent Allocation Date
preceding the date as of which distribution is made, pursuant to the Committee’s practice for
different methods of distributions, with actual payment occurring as soon as practicable
thereafter. In the case of a deferral until a specified date, the amount paid will equal the
lesser of the following:




     (a) the amount deferred; or




     (b) the current value of the amount deferred determined as of the most recent
Allocation Date preceding the date as of which distribution is made.


Notwithstanding anything to the contrary, a Participant’s Rollover Amounts shall be distributed in
the method determined in accordance with the terms of the nonqualified deferred compensation plan
sponsored by the acquired operation as of the date each such Rollover Amount became credited under
this Plan as a Rollover Amount.




     5.3 Method of Distribution. Distribution under this Plan with respect to a short-term
deferral and a deferral until a specified date shall be in a single payment in the form(s)
determined pursuant to Section 5.4. Distribution under this Plan with respect to a deferral until



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Separation from Service or a Change in Control may be made in any of the following forms
elected by the Participant on his distribution election form, subject to change pursuant to Section
5.1(c):





     (a) Single payment in the form(s) determined pursuant to Section 5.4;




     (b) Annual installments over five years; or




     (c) Annual installments over ten years.


A Participant may elect a different method of distribution for a distribution upon a Change in
Control than upon a Separation from Service. If a Participant does not make a timely election for
the method of distribution, his method of distribution shall be a single payment in the form(s)
determined pursuant to Section 5.4. Notwithstanding anything to the contrary, a Participant’s
Account shall be paid in a lump sum if the balance does not exceed the dollar amount under Section
402(g)(1)(B) of the Code ($17,000 for 2012), and if the payment results in the termination and
liquidation of the Participant’s entire interest under the Plan, and any other plans that are
treated with this Plan as one plan under Treasury Regulation section 1.409A-1(c)(2). Distribution
election forms in effect under the Ralcorp Holdings, Inc. Deferred Compensation Plan for Key
Employees immediately prior to the Spin-Off for Participants listed on Appendix I shall be
recognized under this Plan, subject to permitted modifications as described herein.




     5.4 Form of Payment. All payments made pursuant to this Plan shall be in cash, except for
amounts credited to the Post Holdings, Inc. Common Stock Fund, which shall be paid in Stock,
subject in any case to the Committee’s discretion to change the form of payment.



     5.5 Distribution Upon Death. If a Participant dies before completing the payment of his
Account, the unpaid Account balance shall be paid to a Participant’s designated Beneficiary in a
single payment in the form(s) determined pursuant to Section 5.4 within sixty (60) days following
the Participant’s date of death.



     5.6 Designation of Beneficiary. A Participant shall designate a Beneficiary on a form to be
supplied by the Committee. The Beneficiary designation may be changed by the Participant at any
time, but any such change shall not be effective until the Beneficiary designation form completed
by the Participant is delivered to and received by the Committee. In the event that the Committee
receives more than one Beneficiary designation form from the Participant, the form bearing the most
recent date shall be controlling. If the Committee does not have a valid Beneficiary designation of
a Participant at the time of the Participant’s death, then the Participant’s Beneficiary shall be
the Participant’s estate. The beneficiary designation, if any, in effect under the Ralcorp
Holdings, Inc. Deferred Compensation Plan for Key Employees immediately prior to the Spin-Off with
respect to Participants listed on Appendix I shall be recognized under this Plan and shall be
deemed the Participant’s valid Beneficiary designation hereunder, subject to permitted changes as
described herein.



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ARTICLE VI




NON-ASSIGNABILITY



     6.1 Non-Assignability. Neither a Participant nor any Beneficiary of a Participant shall have
any right to commute, sell, assign, pledge, transfer or otherwise convey the right to receive his
Account until his Account is actually distributed to a Participant or his Beneficiary. The portion
of the Account which has not been distributed shall not be subject to attachment, garnishment or
execution for the payment of any debts, judgments, alimony or separate maintenance and shall not be
transferable by operation of law in the event of bankruptcy or insolvency of a Participant or a
Participant’s Beneficiary.



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ARTICLE VII




VESTING



     7.1 Vesting. Each Participant shall be fully (100%) vested in his Account balance
attributable to Deferral Elections at all times. Vesting with respect to Company Matching
Contributions and other matching contributions credited as Ralcorp Amounts is described in Section
3.5.



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ARTICLE VIII




AMENDMENT OR TERMINATION OF THE PLAN



     8.1 Power to Amend Plan. The power to amend, modify or terminate this Plan at any time is
reserved to the Committee, except that the Chief Executive Officer of the Company may make
amendments to resolve ambiguities, supply omissions and cure defects, any amendments deemed
necessary or desirable to comply with federal tax law or regulations to avoid adverse tax
consequences, and any other amendments deemed necessary or desirable, which shall be reported to
the Committee. Notwithstanding the foregoing, no amendment, modification or termination which
would reasonably be considered to be adverse to a Participant or Beneficiary may apply to or affect
the terms of any deferral of Compensation prior to the effective date of such amendment,
modification or termination, without the consent of the Participant or Beneficiary affected
thereby. Any amendment made to this Plan shall be in accordance with Code section 409A and the
regulations thereunder. Any amendment made in accordance with this Section 8.1 is binding upon all
Participants and their Beneficiaries, the Committee and all other parties in interest.



     8.2 Distribution of Plan Benefits Upon Termination. Upon the full termination of the Plan,
the Committee shall direct the distribution of the benefits of the Plan to the Participants in a
manner that is consistent with and satisfies the provisions of Article V and Section 409A of the
Code to the extent applicable.



     8.3 When Amendments Take Effect. A resolution amending or terminating the Plan becomes
effective as of the date specified therein.



     8.4 Restriction on Retroactive Amendments. No amendment may be made that retroactively
deprives a Participant of any benefit accrued before the date of the amendment.



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ARTICLE IX




PLAN ADMINISTRATION



     9.1 Powers of the Committee. In carrying out its duties with respect to the general
administration of the Plan, the Committee has, in addition to any other powers conferred by the
Plan or by law, the following powers:




     (a) to determine all questions relating to eligibility to participate in the Plan;




     (b) to compute and certify to an appropriate party the amount and kind of
distributions payable to Participants and their Beneficiaries;




     (c) to maintain all records necessary for the administration of the Plan that are
not maintained by any recordkeeper;




     (d) to interpret the provisions of the Plan and to make and publish such rules for
the administration of the Plan as are not inconsistent with the terms thereof;




     (e) to establish and modify the method of accounting for the Plan;




     (f) to employ counsel, accountants and other consultants to aid in exercising its
powers and carrying out its duties hereunder; and




     (g) to perform any other acts necessary and proper for the administration of the
Plan.



     9.2 Indemnification.




     (a) Indemnification of Members of the Committee by the Company. The Company agrees
to indemnify and hold harmless each member of the Committee against any and all expenses
and liabilities arising out of his action or failure to act in such capacity, excepting
only expenses and liabilities arising out of his own willful misconduct or gross
negligence. This right of indemnification is in addition to any other rights to which
any member of the Committee may be entitled.




     (b) Liabilities for Which Members of the Committee are Indemnified. Liabilities
and expenses against which a member of the Committee is indemnified hereunder include,
without limitation, the amount of any settlement or judgment, costs, counsel fees and
related charges reasonably incurred in connection with a claim asserted or a proceeding
brought against him or the settlement thereof.




     (c) Company’s Right to Settle Claims. The Company may, at its own expense, settle
any claim asserted or proceeding brought against any member of the Committee when such
settlement appears to be in the best interests of the Company.



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     9.3 Claims Procedure. A Participant or Beneficiary or other person who feels he is entitled
to a benefit or right provided under the Plan (hereinafter referred to as “Claimant”) may make a
claim, i.e., a request for benefits under this Plan, pursuant to the Committee’s procedures.




     (a) Company Action. The Company shall, within 90 days after its receipt of such
claim, make its determination. However, if special circumstances require an extension of
time for processing the claim, the Company shall furnish the Claimant, within 90 days
after its receipt of such claim, written notification of the extension explaining the
circumstances requiring such extension and the date that it is anticipated that such
written statement will be furnished, and shall provide such Claimant with its
determination not later than 180 days after receipt of the Claimant’s claim.




	 	 	In the event the claim is denied, the Company shall provide such Claimant a written
statement of the Adverse Benefit Determination, as defined in Subsection (d) below. The
notice of Adverse Benefit Determination shall be delivered or mailed to the Claimant by
certified or registered mail to his last known address, which statement shall contain the
following:






          (i) the specific reason or reasons for Adverse Benefit Determination;




          (ii) a reference to the specific provisions of the Plan upon which the Adverse
Benefit Determination is based;




          (iii) a description of any additional material or information that is necessary
for the Claimant to perfect the claim;




          (iv) an explanation of why that material or information is necessary; and




          (v) an explanation of the review procedure provided below, including applicable
time limits and a notice of a Claimant’s rights to bring a legal action under ERISA
after an Adverse Benefit Determination on appeal.




          (b) Procedures for Appealing an Adverse Benefit Determination. Within 60 days
after receipt of a notice of an Adverse Benefit Determination as provided above, if the
Claimant disagrees with the Adverse Benefit Determination, the Claimant, or his
authorized representative, may request, in writing, that the Committee review his claim
and may request to appear before the Committee for such review. If the Claimant does
not request a review of the Adverse Benefit Determination within such 60 day period, he
shall be barred and estopped from appealing the Company’s Adverse Benefit Determination.
Any appeal shall be filed with the Committee at the address prescribed by the
Committee, and it shall be considered filed on the date it is received by the addressee.
In deciding any appeal, the Committee shall act in its capacity as a named Fiduciary.




	 	 	The Claimant shall have the rights to:




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     (i) submit written comments, documents, records and other information relating
to the claim for benefits;




     (ii) request, free of charge, reasonable access to, and copies of all
documents, records and other information relevant to his claim for benefits.




     (c) Response on Appeal. Within 60 days after receipt by the Committee of a written
application for review of a Claimant’s claim, the Committee shall notify the Claimant of
its decision by delivery or by certified or registered mail to his last known address;
provided, however, in the event that special circumstances require an extension of time
for processing such application, the Committee shall so notify the Claimant of its
decision not later than 120 days after receipt of such application.




	 	 	In the event the Committee’s decision on appeal is adverse to the Claimant, the Committee
shall issue a written notice of an Adverse Benefit Determination on Appeal that will contain
all of the following information, in a manner calculated to be understood by the Claimant:






     (i) the specific reason(s) for the Adverse Benefit Determination on Appeal;




     (ii) reference to specific plan provisions on which the benefit determination
is based;




     (iii) a statement that the Claimant is entitled to receive, upon request and
free of charge, reasonable access to and copies of all documents, records and other
information relevant to the Claimant’s claim for benefits; and a statement of the
Claimant’s right to bring an action under ERISA Section 502(a).




     (d) Definition. As used herein, the term “Adverse Benefit Determination” shall
mean a determination that results in any of the following: the denial, reduction, or
termination of, or a failure to provide or make payment (in whole or in part) for, a
benefit, including any such denial, reduction, termination, or failure to provide or
make payment that is based on a determination of the Claimant’s eligibility to
participate in the Plan.




     (e) A Claimant may bring a legal action with respect to a claim only if (i) all
procedures described above have been exhausted, and (ii) the action is commenced within
ninety (90) days after a decision on review is furnished. In light of the Company’s
substantial contacts with the State of Missouri, the fact that the Company is
headquartered in St. Louis, Missouri, and the Company’s establishment of, and the
Committee’s maintenance of, this Plan in Missouri, any legal action brought by a
Claimant shall be filed and conducted exclusively in the federal courts in the Eastern
District of Missouri.



9.4 Expenses. All expenses of the Committee with respect to the Plan shall be paid by the
Company.



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     9.5 Conclusiveness of Action. Any action on matters within the discretion of the Committee
will be conclusive, final and binding upon all Participants and upon all persons claiming any
rights under the Plan, including Beneficiaries.



     9.6 Release of Liability. By participating in the Plan, each Participant and Beneficiary
automatically releases the Company, its employees, the Committee, the Board and each member of the
Board from any liability due to any failure to follow the requirements of Code section 409A, unless
such failure was the result of an action or failure to act that was undertaken by the Company in
bad faith. Further by participating in the Plan, each Participant and Beneficiary automatically
(1) releases Ralcorp Holdings, Inc., its employees, the Corporate Governance and Compensation
Committee of the Board of Directors of Ralcorp Holdings, Inc., the Board of Directors of Ralcorp
Holdings, Inc. and each member of such Board of Directors, and each of their affiliates,
successors, predecessors, assigns, transferees, agents, counsel, plans, and insurers, from any and
all liabilities in connection with the Ralcorp Holdings, Inc. Deferred Compensation Plan for Key
Employees and this Plan, (2) agrees to the assignment and transfer of the rights, benefits,
obligations, and other liabilities pursuant to the Ralcorp Holdings, Inc. Deferred Compensation
Plan for Key Employees to the Company and this Plan, and (3) agrees that Ralcorp Holdings, Inc.
shall not guarantee the payment of such transferred rights, benefits, obligations, and other
liabilities in the event that the Plan and the Company fail to pay them or otherwise.



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23









 








ARTICLE X




MISCELLANEOUS



     10.1 Plan Not a Contract of Employment. The adoption and maintenance of the Plan does not
constitute a contract between the Company and any Participant or to be a consideration for the
employment of any person. Nothing herein contained gives any Participant the right to be retained
in the employ of the Company or derogates from the right of the Company to discharge any
Participant at any time without regard to the effect of such discharge upon his rights as a
Participant in the Plan.



     10.2 No Rights Under Plan Except as Set Forth Herein; Unsecured General Creditor Status.
Nothing in this Plan, express or implied, is intended, or shall be construed, to confer upon or
give to any person, firm, association, or corporation, other than the parties hereto and their
successors in interest, any right, remedy, or claim under or by reason of this Plan or any
covenant, condition, or stipulation hereof, and all covenants, conditions and stipulations in this
Plan, by or on behalf of any party, are for the sole and exclusive benefit of the parties hereto.
The obligations of the Company under the Plan shall be merely that of an unfunded and unsecured
promise to pay money in the future. The benefits paid under the Plan shall be paid from the
general assets of the Company, and the Participants and any Beneficiary or their heirs or
successors shall be unsecured general creditors of the Company with no special or prior right to
any assets of the Company for payment of any obligations hereunder. Notwithstanding the foregoing,
nothing in this Section shall preclude the Company, in its sole discretion, from establishing a
“rabbi trust” or other vehicle in connection with the operation of this Plan, provided that no such
action shall cause the Plan to fail to be an unfunded plan designed to provide deferred
compensation benefits for a select group of management or highly compensated employees.



     10.3 Rules. The Committee shall have full and complete discretionary authority to construe
and interpret provisions of the Plan and to determine a Participant’s eligibility for benefits on a
uniform, nondiscriminatory basis in similar fact situations. The Committee may adopt such rules as
it deems necessary, desirable or appropriate. All rules and decisions shall be uniformly applied to
all Participants in similar circumstances.



     10.4 Withholding of Taxes. The Committee shall cause taxes to be withheld from an Account
distributed hereunder as required by law, and shall comply with all reporting requirements
applicable to amounts deferred and distributed under this Plan.



     10.5 Severability. If any provision of this Plan is determined to be invalid or illegal, the
remaining provisions shall be effective and shall be interpreted as if the invalid or illegal
provision did not exist, unless the illegal or invalid provision is of such materiality that its
omission defeats the purposes of the parties in entering into this Plan.



     10.6 409A Compliance. If any provision of the Plan is determined not to comply with Code
section 409A, the non-compliant provisions shall be interpreted and applied in a manner that
complies with Code section 409A and implements the intent of the Plan as closely as possible.



24









 





     10.7 Participant Responsibility. Each Participant is responsible for reviewing the accuracy
of the Company’s implementation of Deferral Elections and investment allocations. If a Participant
fails to notify the Company of an improper implementation of a Deferral Election or investment
allocation within thirty-one (31) days after receiving the first statement or other communication
implementing the election or allocation, the Participant is deemed to have elected the implemented
Deferral Election or investment allocation.



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25