Exhibit 10.12


 


WADDELL & REED FINANCIAL, INC.


 



SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN


 


 


As Amended and Restated Effective as of
January 1, 2005


 

















 


WADDELL & REED FINANCIAL, INC.

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

As Amended and Restated Effective January 1, 2005


 


PURPOSE


 


The purpose of
the Waddell & Reed Financial, Inc. Supplemental Executive Retirement Plan
is to provide deferred compensation that otherwise would be paid currently to a
select group of management or highly compensated employees of the Company (as
defined below) and any subsidiaries or affiliates of the Company that may adopt
this Plan (as defined below) with the consent of the Board of Directors of the
Company.  This Plan is designed to
constitute a nonqualified deferred compensation arrangement.  This amendment and restatement, effective
January 1, 2005, is intended to bring the Plan into compliance with section
409A of the Code (as defined below) and guidance issued pursuant thereto.


 


ARTICLE I

DEFINITION OF TERMS


 


The following
words and phrases when used herein, unless the context clearly requires
otherwise, will have the following respective meanings:


 


1.1                               “Administrator” means the
Compensation Committee.


 


1.2                               “Approved Domestic Relations Order”
means a Domestic Relations Order that is determined by the Administrator, in
its sole discretion, to be an Approved Domestic Relations Order in accordance
with the provisions of Section 6.2.


 


1.3                               “Aggregate Contribution Amount”
means the amount, if any, determined by the Compensation Committee in its sole
discretion, to be credited as a Supplemental Executive Retirement Benefit among
Participants’ Deferred Compensation Accounts for a Plan Year in accordance with
the provisions of Section 4.2(b).


 


1.4                               “Base Pay” means a Participant’s
base salary for a Plan Year, excluding extraordinary pay such as bonuses,
commissions, incentive payments, benefits, expense allowances, expense
reimbursements, or income from restricted stock or stock option awards, as
designated by the Compensation Committee in its sole discretion.


 


1.5                               “Claim for Benefits” has the
meaning specified in Section 6.6(a).


 


1.6                               “Code” means the Internal Revenue
Code of 1986, as amended.


 


1.7                               “Company” means Waddell & Reed
Financial, Inc., a Delaware corporation.


 


1.8                               “Compensation Committee” means the
Compensation Committee of the Board of Directors of Waddell & Reed
Financial, Inc.


 


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1.9                               “Deferred Compensation Account”
means the memorandum account established pursuant to Section 4.1 and maintained
for each Participant on the Company’s books and records.


 


1.10                        “Domestic Relations Order” means a
final judgment, decree, order, or property settlement agreement made pursuant
to a state domestic relations law.


 


1.11                        “Effective Date” means January 1,
2005.  The Plan was originally effective
December 10, 1998 and was subsequently amended and restated effective July 14,
2004.


 


1.12                        “Employee” means a common-law
employee of the Company or a Participating Employer who is a member of a select
group of management or highly compensated employees.


 


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


 


1.14                        “Notice of Denial” has the meaning
specified in Section 6.6(b).


 


1.15                        “401(k) Plan” means the Waddell
& Reed Financial, Inc. 401(k) and Thrift Plan, as such plan may be amended
from time to time, or any similar plan in which a Participating Employer
participates.


 


1.16                        “Participant” means an Employee
who has satisfied the requirements for eligibility under Article III and is
participating in the Plan.


 


1.17                        “Participating Employer” means a
subsidiary or affiliate of the Company that adopts this Plan by a properly
executed document evidencing such intent with the consent of the Board of
Directors of the Company.


 


1.18                        “Plan” means the Waddell &
Reed Financial, Inc. Supplemental Retirement Benefit Plan, as may be amended,
modified or supplemented from time to time.


 


1.19                        “Plan Year” means the period
commencing January 1 and ending December 31.


 


1.20                        “Request for Review” has the
meaning specified in Section 6.6(d).


 


1.21                        “Supplemental Executive Retirement Benefit”
means the allocations, if any, made pursuant to Section 4.2(b).


 


1.22                        “Total Disability” means a
Participant is, by reason of any medically determinable physical or mental
impairment which can be expected to last for a continuous period of not less
than twelve months, receiving long-term disability benefits under the Company’s
(or his or her Participating Employer’s) long-term disability insurance plan.


 


1.23                        “Valuation Date” means December 31
and such other or additional dates as provided herein or otherwise designated
by the Administrator as Valuation Dates for the purpose of making valuation
adjustments to the Deferred Compensation Accounts in accordance with Section
4.2(c).


 


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ARTICLE II

ADMINISTRATION


 


The Plan will
be administered by the Administrator and benefits under the Plan will be paid
only if the Administrator decides, in its sole discretion, that a Participant
is entitled to them.  The decision of a
majority of the members of the Compensation Committee will control; provided,
however, that a member will not be entitled to participate in discretionary
decisions directly related to such person’s own participation in the Plan.


 


The
Administrator will have full power and authority to adopt rules, regulations,
and practices governing the administration of the Plan, to interpret and apply
the provisions of the Plan in its sole discretion, to alter, amend, or revoke
any rules and regulations so adopted, to enter into contracts on behalf of the
Company with respect to the Plan, and to make discretionary decisions under the
Plan, except where that authority is retained by the Company under the Plan.  The Administrator will administer this Plan
and render decisions in a uniform and consistent manner so that all
Participants in similar circumstances are generally treated similarly.  The Administrator’s decision as to all
aspects of Plan operations, including but not limited to, the eligibility of
persons to participate in this Plan, the benefits payable under this Plan, and
the interpretation of this Plan, cannot be overturned unless it has no
foundation.


 


ARTICLE III

ELIGIBILITY


 


An Employee
who has been designated by the Administrator as eligible for participation in
the Plan will be eligible for participation beginning in the Plan Year with
respect to which the designation is made. 
A Participant will continue to participate in the Plan until he or she
ceases to be a member of a select group of management or highly compensated
employees, or until the Administrator in its sole discretion determines
otherwise.


 


ARTICLE IV

DEFERRED COMPENSATION ACCOUNTS


 


4.1                               Establishment of Deferred Compensation
Accounts.  At the time an Employee
becomes a Participant in the Plan, the Company will establish a Deferred
Compensation Account for the Participant on its books.


 


4.2                               Additions to Deferred Compensation Accounts.


 


(a)                                  401(k) Plan Benefit Restoration.  For each Plan Year, the Administrator will
credit the Deferred Compensation Account of each Participant with an amount
equal to four percent (4%) of his or her Base Pay, less the amount of the
maximum employer matching contribution that could be made pursuant to the terms
of the 401(k) Plan on the Participant’s behalf under the 401(k) Plan with
respect to that Plan Year.


 


(b)                                 Supplemental Executive Retirement Benefit.  For each Plan Year, the Compensation
Committee will credit the Aggregate Contribution Amount among the Deferred
Compensation Accounts of Participants in proportion to their Base Pay for the
Plan Year.


 


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(c)                                  Valuation and Adjustments.  As of each Valuation Date, the Administrator
will also credit (or charge) the Participant’s Deferred Compensation Account
with valuation adjustments determined in accordance with this Section
4.2(c).  The valuation adjustment to be
credited (or charged) to the Participant’s Deferred Compensation Account as of
any Valuation Date will be an amount equal to the performance of certain
hypothetical investments or investment vehicles since the last preceding
Valuation Date as described below.  The
performance of such hypothetical investments or investment vehicles taken into
account for purposes of this Section 4.2(c) will include, but not be limited
to, in the sole discretion of the Administrator, interest, expenses, and
realized and unrealized gains and losses. 
The crediting (or charging) of amounts under this Section 4.2(c) will
occur so long as there is a balance in the Participant’s Deferred Compensation
Account; provided, however, the crediting (or charging) of amounts under this
Section 4.2(c) will cease as close as reasonably practicable (as determined by
the Administrator in its sole discretion) prior to the date a complete
distribution of a Participant’s benefit under this Plan is made.  The value of the Participant’s Deferred
Compensation Account as of the relevant Valuation Date will be determined as if
the balance of the Deferred Compensation Account as of the preceding Valuation
Date, together with any amounts subsequently credited to (less any amounts
distributed from) such Deferred Compensation Account, had been invested since
the preceding Valuation Date or the date credited to the Deferred Compensation
Account, as the case may be, in the hypothetical investments or investment
vehicles specified for the Participant’s Deferred Compensation Account.


 


(d)                                 Investments.  Each Participant, in a manner prescribed by
the Administrator, may designate the hypothetical investments or investment
vehicles in which his or her Deferred Compensation Account is to be deemed
invested under the investment options permitted by the Administrator.  Notwithstanding any other provision of this
Plan, a Participant may not designate the hypothetical investment of his or her
Deferred Compensation Account in stock or other securities of the Company or a
Participating Employer.  The
Administrator (or trustee of a grantor trust if a grantor trust is used in
connection with this Plan), in its sole discretion, may determine whether any
Deferred Compensation Accounts will, in fact, be invested according to the
hypothetical investments or investment vehicles or will be invested
otherwise.  Such hypothetical investment
designations may be made up to two times per calendar year for each Participant
by making an election with the Administrator, in a manner prescribed by the
Administrator.  The designation will
continue until changed by the submission of a new designation, which change
will be effective as soon as administratively feasible.


 


4.3                               Forfeiture.  All amounts credited to, and not withdrawn
from, a Participant’s Deferred Compensation Account are nonforfeitable, except
as otherwise provided in this Section 4.3 and Sections 6.1 and 6.4.


 


Notwithstanding
any other provision of this Plan, a Participant’s Deferred Compensation Account
will be forfeited in its entirety if the Administrator determines that the
Participant has engaged in any activity that is (a) illegal and involves fraud,
dishonesty, or theft, or (b) intentionally detrimental to the Company, a
Participating Employer, or any subsidiary or affiliate thereof.


 


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ARTICLE V

DISTRIBUTION OF BENEFITS


 


5.1                               Distribution on Termination of Employment.  Unless otherwise elected pursuant to Section
5.4, amounts credited to, and not withdrawn from, a Participant’s Deferred
Compensation Account (less applicable tax and other withholdings pursuant to
Section 5.6) will be distributed in a single lump sum payment in cash, other
property, or both, in the Administrator’s sole discretion, within 90 days after
the Participant’s termination of employment with the Company or, if applicable,
the Participating Employer.


 


5.2                               Distribution on Total Disability.  Unless otherwise elected pursuant to Section
5.4, amounts credited to, and not withdrawn from, a Participant’s Deferred
Compensation Account (less applicable tax and other withholdings pursuant to
Section 5.6) as of the date the Participant has sustained a Total Disability
will be distributed in a single lump sum payment in cash, other property, or
both, in the Administrator’s sole discretion, within 90 days after such
determination.


 


5.3                               Distribution on Death.  Unless otherwise elected pursuant to Section
5.4, payment of the amounts credited to, and not withdrawn from, a Participant’s
Deferred Compensation Account (less applicable tax and other withholdings
pursuant to Section 5.6) as of the date of the Participant’s death will be
distributed in a single lump sum payment in cash, other property, or both, in
the Administrator’s sole discretion, within 90 days after the Participant’s
death, to the Participant’s designated beneficiary in accordance with the last
such designation received by the Administrator, or if none, to the Participant’s
surviving spouse, or if there is no surviving spouse, to the personal
representative of the Participant’s estate.


 


A Participant
will have the right, at any time prior to his or her death, to submit, in a manner
prescribed by the Administrator, a written designation of primary and secondary
beneficiaries to whom payment under this Plan will be made in the event of his
or her death prior to complete distribution of the benefits due and payable to
the Participant under this Plan.  Each
beneficiary designation will become effective only when received by the
Administrator.


 


5.4                               Form and Timing of Benefit Distribution.  A Participant or beneficiary, in a manner
prescribed by the Administrator, may elect, or elect to change, the form and
timing, subject to the Administrator’s approval, of distribution of his or her
benefits pursuant to this Section 5.4, by delivering such election to the
Administrator, in accordance with procedures established by the Administrator.


 


(a)                                  Initial Election.   On or before December 31, 2006, a
Participant may elect the time and/or form of distribution of his or her
Deferred Compensation Account; provided, however, that such election, to the
extent made in calendar year 2006, will apply only to amounts that are not
otherwise payable in 2006 and may not cause a payment to be made in 2006 that
would not otherwise be payable in 2006. 
In the case of the first year in which a Participant becomes a Participant,
such Participant will be entitled to deliver his or her election, with respect
to amounts credited to his or her Deferred Compensation Account for services to
be performed subsequent to the election, 


 


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within 30 days after the date the Participant has been designated by
the Administrator as eligible for participation in the Plan.


 


(b)                                 Time
of Payment.  A
Participant may elect, pursuant to an initial election under Section 5.4(a) or
a subsequent election under Section 5.4(d), to receive, within 90 days of the
distribution time or event, the amounts credited to, and not withdrawn from,
the Participant’s Deferred Compensation Account (less applicable tax and other
withholdings pursuant to Section 5.6) in the form elected or specified in
Section 5.4(c) upon the earlier of death (which amount will be payable pursuant
to Section 5.3) or the following:


 


(1)                                  The Participant’s termination of employment
with the Company or, if applicable, the Participating Employer;


 


(2)                                  The determination by the Administrator that
the Participant has sustained a Total Disability;


 


(3)                                  The Participant’s termination of employment
with the Company or, if applicable, the Participating Employer, or the
determination by the Administrator that the Participant has sustained a Total
Disability; or


 


(4)                                  January 1 of a calendar year specified by the
Participant, which calendar year may be specified as a number of years
following a Participant’s termination of employment with the Company or, if
applicable, the Participating Employer.


 


(c)                                  Form of Payment.  A
Participant may elect, pursuant to an
initial election under Section 5.4(a) or a subsequent election under Section
5.4(d), distribution of benefits under the Plan in one of the following
forms:


 


(1)                                  Lump Sum — a single payment of the entire
balance in the Participant’s Deferred Compensation Account (less applicable tax and other withholdings
pursuant to Section 5.6).


 


(2)                                  Installments — periodic payments over a
specified period of time (less
applicable tax and other withholdings pursuant to Section 5.6),
beginning as of the date specified in the Participant’s election, which time
period may not extend beyond the life expectancy of the Participant (or the
Participant’s designated beneficiary) as determined under the 1983 Group Annuity
Mortality Table or such other mortality table prescribed by the Internal
Revenue Service as the prevailing commissioners’ standard table described in
Code section 807(d)(5)(A), as determined by the Administrator in its sole
discretion.


 


(d)                                 Change in Form and Timing of Benefit Distribution.  A
Participant may change the time and/or form of distribution elected with
respect to his or her Deferred Compensation Account by delivering a subsequent
election; provided, that, such election may not result in the acceleration of
the time or schedule of any payment.  
For purposes of this Section 5.4(d), installment payments will be
treated as a single payment.


 


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In addition, any change in the form or timing of benefits may not:


 


(1)                                  take
effect for at least 12 months after the date on which the election is made;


 


(2)                                  in
the case of an election related to a payment described in Sections 5.1, or
5.4(c) or (d), the first payment with respect to which the new election is made
must be deferred for a period of not less than five years from the date the
payment would otherwise have been made; and


 


(3)                                  any
election to delay a payment previously elected pursuant to this Section 5.4 may
not be made less than 12 months prior to the date of the first scheduled
payment under the prior election.


 


5.5                               Key Employees.  In the event a distribution pursuant to
Section 5.1 is made to a “key employee,” as defined in section 416(i) of the
Code without regard to paragraph (5) thereof, such distribution may not be made
before the date that is six (6) months after the date of separation from
service (or, if earlier, the date of death of the key Employee).


 


5.6                               Incapacity.  In the event of the Participant’s incapacity
(as determined by the Administrator), payment pursuant to Sections 5.1 through
5.4 will be made to the Participant, to the legal guardian or conservator of
the Participant, or to an adult with whom the Participant maintains his or her
residence, as the Administrator in its sole discretion will determine.  Such payment to a legal guardian,
conservator, or adult will fully discharge the Administrator, the Company, each
Participating Employer, and this Plan from further liability on account thereof.


 


5.7                               Withholding.  The Company may withhold or cause to be
withheld from, or with respect to, any benefit under this Plan any federal,
state, or local taxes required by law to be withheld with respect to such
benefit and such sum as the Company may reasonably estimate as necessary to
cover any taxes for which the Company may be liable and which may be assessed
with regard to such payment.


 


ARTICLE VI

GENERAL PROVISIONS


 


6.1                               Non-Transferability of Interests.  Notwithstanding any other provision of this
Plan, all Deferred Compensation Accounts maintained by the Company will be
general assets of the Company and will be subject to the claims of such
Employer’s general creditors.


 


Except as
provided in Section 6.2, benefits payable to Participants under this Plan may
not in any manner be anticipated, assigned (either at law or in equity),
alienated, sold, transferred, pledged, encumbered, or subjected to attachment,
garnishment, levy, execution, or other legal or equitable process by creditors
of the Participant.


 


6.2                               Domestic Relations Orders.


 


(a)                                  The
Administrator shall establish written procedures to determine whether any
Domestic Relations Order directed to this Plan is an Approved Domestic
Relations


 


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Order in its sole discretion.  To
the extent required under an Approved Domestic Relations Order, any portion of
a Participant’s Deferred Compensation Account may be paid or set aside for
payment to a spouse, former spouse, or child of the Participant in cash, other
property, or both, in the Administrator’s sole discretion.


 


(b)                                 Where
necessary to carry out the terms of an Approved Domestic Relations Order, a
separate account may be established with respect to the spouse, former spouse,
or child.  Any amount so set aside for a
spouse, former spouse, or child shall be paid out in a single lump sum payment
in cash, other property, or both, in the Administrator’s sole discretion, at
the earliest date that benefits may be paid to the Participant, unless the
Domestic Relations Order directs a different form of payment.  Nothing in this Section 6.2 shall be
construed to authorize any amount to be distributed under this Plan at a time
or in a form that is not permitted under the Plan or the Code.


 


(c)                                  A
Participant’s right to receive benefits under this Plan will be reduced to the
extent that any portion of a Participant’s Deferred Compensation Account has
been paid or set side for payment to a spouse, former spouse, or child pursuant
to an Approved Domestic Relations Order or to the extent that the Company, a Participating
Employer, or the Plan is otherwise subject to a binding Domestic Relations
Order for the attachment, garnishment, or execution or any portion of the
Participant’s Deferred Compensation Account or of any distributions
therefrom.  The Participant shall be
deemed to have released the Company, each Participating Employer, the
Administrator, and the Plan from any claim with respect to such amounts in any
case in which (1) the Company, a Participating Employer, the Plan, or any Plan
representative has been served with legal process or otherwise joined in a
proceeding relating to such amounts, (2) the Participant has been notified of
the pendency of such proceeding in the manner prescribed by the law of the
jurisdiction in which the proceeding is pending for service of process or by
mail from the Company, a Participating Employer, the Plan, or a Plan
representative to the Participant’s last known mailing address, and (3) the
Participant fails to obtain an order of the court in the proceeding relieving the
Company, each Participating Employer, the Administrator, or this Plan from the
obligation to comply with the Domestic Relations Order.


 


(d)                                 Neither
the Company, any Participating Employer, the Plan, nor any Plan representative
will be obligated to incur any cost to defend against or set aside any Domestic
Relations Order relating to the division, attachment, garnishment, or execution
of the Participant’s Deferred Compensation Account or of any distribution
therefrom.  Notwithstanding the
foregoing, if the Company, a Participating Employer, the Plan, or a Plan
representative is joined in any such proceeding, a Plan representative will
take such steps as it deems necessary and appropriate to protect the terms of
the Plan.


 


6.3                               Amendment, Suspension, and Termination.  The Company, in its sole discretion, at any
time may amend, suspend, or terminate this Plan or any portion thereof in any
manner and to any extent.  Such
amendment, suspension, or termination of the Plan will be final and binding on
each Participating Employer.  No
amendment, suspension, or termination will alter or impair any then existing
Deferred Compensation Accounts without the consent of the affected
Participant.  Upon termination of the
Plan, but only if and to the extent allowed by


 


9

















 


section 409A of the Code and
guidance published thereunder, amounts credited to each Participant’s Deferred
Compensation Account will be distributed at the Administrator’s election
(provided such election applies uniformly to all such Participants) in a single
lump sum payment (in cash, other property, or both, at the Administrator’s
election) either (a) at any time after 30 days following the termination of the
Plan, or (b) at such time and in such event as are otherwise provided under the
Plan.


 


6.4                               Unfunded Obligation.  This Plan is intended to be, and will be
operated and administered so as to be, a plan that is unfunded and maintained
primarily for the purpose of providing deferred compensation for a select group
of management or highly compensated employees. 
Neither the Company nor any Participating Employer will make any
provision for funding or insuring the Deferred Compensation Accounts that would
cause the Plan to be (a) a “funded” plan for purposes of Section 404(a)(5) of
the Code or Title I of ERISA, or (b) other than an “unfunded and unsecured
promise to pay money or property in the future” under Treasury Regulations
Section 1.83-3(e).  A Participant will be
treated as a general, unsecured creditor of the Company and, if applicable, his
or her Participating Employer at all times under the Plan.  This Plan constitutes a mere promise by the
Company to make the benefit payments as provided in the future.  It is the intention of the Company that the
Deferred Compensation Accounts be unfunded for tax purposes and for purposes of
Title I of ERISA.


 


The foregoing
notwithstanding, the Company may establish a grantor trust described in
Treasury Regulation Sections 1.677(a)-(d) to accumulate assets to pay the Deferred
Compensation Accounts, provided that the trust assets will be subject to the
claims of the Company’s general creditors and will be required to be used to
satisfy the claims of the Company’s general creditors in the event the Company
or a Participating Employer is “insolvent” under the terms of such trust.


 


6.5                               No Right to Employment or Other Benefits.  Nothing contained herein will be construed as
conferring upon any Participant the right to continue in the employ of the
Company or any Participating Employer. 
Any compensation deferred and any benefits paid under this Plan will be
disregarded in computing benefits under any employee benefit plan of the
Company or any Participating Employer.


 


6.6                               Claims Procedures.


 


(a)                                  In
the event benefits provided under this Plan are not timely paid, any
Participant or, if the Participant is deceased, the Participant’s designated
beneficiary, may file a claim requesting benefits under this Plan by submitting
to the Administrator (or such officer or agent of the Company as the
Administrator may designate for such purpose) a written statement setting out
the general nature of the claim (the “Claim for Benefits”).


 


(b)                                 If
a duly submitted Claim for Benefits has not been granted within 90 days of the
submission of the claim, the Claim for Benefits will be deemed denied for the
purposes hereof.  If a duly submitted
Claim for Benefits is wholly or partly denied, written notice of the denial
(the “Notice of Denial”) will be furnished as provided in


 


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Section 6.6(c) hereunder to the Participant within 90 days after
receipt of the Claim for Benefits by the Administrator.


 


(c)                                  Any
Notice of Denial provided to a Participant shall set forth in a manner
reasonably calculated to be understood by the Participant:


 


(1)                                  The
specific reason or reasons for the denial;


 


(2)                                  Reference
to the specific Plan provisions on which the denial is based;


 


(3)                                  A
description of any additional material or information necessary for the
Participant to perfect the Claim for Benefits and an explanation of why such
material or information is necessary; and


 


(4)                                  A
description of the Plan’s review procedures and the time limits applicable to
such procedures, including a statement of the Participant’s right to bring a
civil action under section 502(a) of ERISA following denial of the Claim for
Benefits or Request for Review (as defined below).


 


(d)                                 Within
60 days after receipt of any Notice of Denial as herein provided, the
Participant may request review of the denied Claim for Benefits by submitting a
written request therefor to the Administrator (the “Request for Review”).


 


(e)                                  Upon
submission of the Request for Review, and before issuance of the decision on
review, the Participant will be provided, upon request and free of charge,
reasonable access to, and copies of, all documents, records, and other
information relevant, in the Administrator’s sole discretion, to the
Participant’s Claim for Benefits.


 


(f)                                    Within
30 days after submission of the Request for Review, the Participant may submit
written comments, documents, records, and other information relating to the
Claim for Benefits to the Administrator. 
In addition, upon request of the Participant, or upon its own motion,
the Administrator may, but will not be required to, provide the Participant an
opportunity for a hearing before the Administrator.


 


(g)                                 Within
60 days after receipt of a Request for Review, the Administrator will render
its decision unless special circumstances (such as the need to hold a hearing)
require an extension of time for processing the Request for Review and the
Administrator furnishes written notice of the extension to the Participant, in
which case a decision will be rendered as soon as possible, but in no event
later than 120 days after receipt of the Request for Review.


 


(h)                                 The
decision on review will be in writing and will include:


 


(1)                                  Specific
reasons for the decision, written in a manner reasonably calculated to be
understood by the Participant;


 


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(2)                                  Reference
to the specific Plan provisions on which the decision is based;


 


(3)                                  A
statement that the Participant 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 Participant’s Claim for Benefits; and


 


(4)                                  A
statement of the Participant’s right to bring an action under section 502(a) of
ERISA.


 


6.7                               Inurement.  This Plan will be binding upon and inure to
the benefit of the Company, each Participating Employer, their successors and
assigns, the Participant, and his or her heirs, executors, personal
representatives, administrators and beneficiaries.


 


6.8                               Notice.  Any notice, consent, or demand required or
permitted to be given under the provisions of this Plan will be in writing, and
will be signed by the party giving or making the same.  If such notice, consent, or demand is mailed
to a party pursuant hereto, it will be sent by United States certified mail,
postage prepaid, addressed to such party’s last known address as shown in the
records of the Company.  The date of such
mailing will be deemed the date of notice, consent, or demand.  Either party may change the address to which
notice is to be sent by giving notice of change of address in the manner
aforesaid.


 


6.9                               Governing Law.  This Plan, and the rights of the parties
hereunder, will be governed by and construed in accordance with the laws of the
State of Kansas, without reference to the principles of conflict of laws.


 


6.10                        Taxation.  This Plan is intended to provide tax-deferred
benefits under certain provisions of the Code, including section 409A of the
Code and the guidance promulgated thereunder. 
To the extent the Plan fails to satisfy the requirements of section 409A
of the Code and related guidance, the Company may, but shall not be required
to, modify the Plan, in its sole discretion, to the limited extent necessary to
satisfy section 409A of the Code and related guidance without the consent of
any Participant.  Upon any Internal
Revenue Service finding that compensation intended to be deferred for federal
income tax purposes pursuant to this Plan is immediately taxable to a
Participant for such purposes, the Company may, but shall not be required to,
amend this Plan to comply with the Internal Revenue Service requirements
necessary to achieve the desired federal income tax benefits relating to this
Plan without the consent of any Participant. 
Notwithstanding the foregoing, each Participant agrees to be liable for
any tax that may be imposed by the Internal Revenue Service or any other taxing
entity with respect to any benefits provided pursuant to this Plan (including,
without limitation, any and all withholding taxes), irrespective of whether
such tax consequences were intended pursuant to this Plan.


 


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