Exhibit 10.5


 


Draft of February 16,
2006


 


DPL INC.


SUPPLEMENTAL
EXECUTIVE DEFINED CONTRIBUTION RETIREMENT PLAN


EFFECTIVE
JANUARY 1, 2006


 


DPL
Inc. hereby adopts the DPL Inc. Supplemental Executive Defined Contribution
Retirement Plan on the terms and conditions described hereunder, effective as
of January 1, 2006.


 


ARTICLE I - PREFACE


 


Section 1.1.                                Effective
Date.  The effective date of the Plan
is January 1, 2006.


 


Section 1.2.                                Purpose
of the Plan.  The purpose of this
Plan is to provide additional retirement benefits beyond the dollar limitation
on Compensation imposed under Section 401(a)(17) of the Internal Revenue Code
of 1986, as amended (the “Code”).


 


Section 1.3.                                Section
409A of the Code.  It is intended
that the Plan (including all amendments thereto) comply with the provisions of
Section 409A of the Code, so as to prevent the inclusion in gross income of any
retirement benefit accrued hereunder in a taxable year that is prior to the
taxable year or years in which such amount would otherwise be actually
distributed or made available to the Participants.  It is intended that the Plan shall be
administered in a manner that will comply with Section 409A of the Code,
including proposed, temporary or final regulations or any other guidance issued
by the Secretary of the Treasury and the Internal Revenue Service with respect
thereto (collectively, the “409A Guidance”). 
Any Plan provisions that would cause the Plan to fail to satisfy Section
409A of the Code shall have no force and effect unless and until amended to
comply with Section 409A of the Code (which amendment may be retroactive to the
extent permitted by the 409A Guidance).


 


Section 1.4.                                Interpretation.  For purposes of interpreting the provisions
of this Plan, the singular shall include the plural unless otherwise clearly
required by the context.


 


ARTICLE II - DEFINITIONS


 


Section 2.1.                                “Account”
means the notional account maintained by the Company in accordance with Section
4.1.


 


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Section 2.2.                                “Beneficiary”
means the person or persons designated by the Participant as his or her
Beneficiary under this Plan, in accordance with the provisions of Article VII
hereof.


 


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


 


Section 2.4.                                “Change
of Control” means the consummation of any Change of Control of the Company,
or its principal subsidiary, The Dayton Power and Light Company (“DP&L”),
of a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the “Exchange Act”) as determined by the Board in its sole
discretion; provided that, without limitation, such a Change of Control shall
be deemed to have occurred if:


 


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


 


(i)                                     for
purposes of this Section 2.4, the following acquisitions shall not constitute a
Change of Control: (A) any acquisition of Voting Stock of the Company or
DP&L directly from the Company or DP&L that is approved by a majority
of those persons serving as directors of the Company or DP&L on the date of
this Plan (the “Original Directors”) or their Successors (as defined below),
(B) any acquisition of Voting Stock of the Company or DP&L by the
Company or any Subsidiary, and (C) any acquisition of Voting Stock of the
Company or DP&L by the trustee or other fiduciary holding securities under
any employee benefit plan (or related trust) sponsored or maintained by DPL or
any Subsidiary (the term “Successors” shall mean those directors whose election
or nomination for election by shareholders has been approved by the vote of at
least two-thirds of the Original Directors and previously qualified Successors
serving as directors of the Company or DP&L, as the case may be, at the
time of such election or nomination for election);


 


(ii)                                  if
any Person is or becomes the beneficial owner of 25% or more of combined voting
power of the then-outstanding Voting Stock of the Company or DP&L as a
result of a transaction described in clause (A) of Section 2.4(a)(i) above and
such Person thereafter becomes the beneficial owner of any additional shares of
Voting Stock of the Company or DP&L representing 1% or more of the
then-outstanding Voting Stock of the Company or DP&L, other than


 


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in an acquisition directly from the Company or DP&L that is
approved by a majority of the Original Directors or their Successors or other
than as a result of a stock dividend, stock split or similar transaction
effected by the Company or DP&L in which all holders of Voting Stock of the
Company or DP&L are treated equally, such subsequent acquisition shall be
treated as a Change in Control;


 


(iii)                               a
Change in Control will not be deemed to have occurred if a Person is or becomes
the beneficial owner of 25% or more of the Voting Stock of the Company or
DP&L as a result of a reduction in the number of shares of Voting Stock of
the Company or DP&L outstanding pursuant to a transaction or series of
transactions that is approved by a majority of the Original Directors or their
Successors unless and until such Person thereafter becomes the beneficial owner
of any additional shares of Voting Stock of the Company or DP&L
representing 1% or more of the then-outstanding Voting Stock of the Company or
DP&L, other than as a result of a stock dividend, stock split or similar
transaction effected by the Company or DP&L in which all holders of Voting
Stock are treated equally; and


 


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


 


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


 


(c)                                  the
Company or DP&L consummates a sale, lease, exchange or other transfer or
disposition of all or substantially all of its assets to any Person other than
to a wholly owned subsidiary or, in the case of DP&L, to the Company or a
wholly owned subsidiary(ies) of the Company; but not including (I) a mortgage
or pledge of


 


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assets granted in connection with a financing or (II) a spin-off or
sale of assets if the Company continues in existence and its common shares are
listed on a national securities exchange, quoted on the automated quotation
system of a national securities association or traded in the over-the-counter
market; or


 


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


 


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


 


Section 2.5.                                “Company”
means DPL Inc., an Ohio corporation, and any entity that succeeds DPL Inc. by
merger, reorganization or otherwise.


 


Section 2.6.                                “Compensation”
means, for a Plan Year, a Participant’s annual base salary as of the end of
such Plan Year and the benefit earned by such Participant under the Company’s
Executive Incentive Compensation Program for such Plan Year.


 


Section 2.7.                                “Compensation
Committee” means the Compensation Committee of the Board.


 


Section 2.8.                                “Contributions”
means the contributions credited pursuant to Section 3.1 of the Plan.


 


Section 2.9.                                “Controlled
Group” means the Company and any and
all other corporations, trades and/or businesses, the employees of which,
together with employees of the Company, are treated under Section 414 of the
Code as if they were employed by a single employer.  Each corporation or unincorporated trade or
business that is or was a member of the Controlled Group shall be referred to
herein as a “Controlled Group Member”, but only during such period as it is or
was such a member.


 


Section 2.10.                         “Disability”
means a Participant’s inability to perform the duties required on a full-time
basis for a period of six consecutive months because of physical or mental
illness or other physical or mental disability or incapacity.


 


Section 2.11.                         “Employee”
means a full-time salaried employee of an Employer.


 


Section 2.12.                         “Employer”
means the Company and any other Controlled Group Member.


 


Section 2.13.                         “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.


 


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Section 2.14.                         “Hypothetical
Investment Fund” means any investment fund designated by the Company
pursuant to Section 8.1.


 


Section 2.15.                         “Participant”
means an Employee that the Compensation Committee has designated to participate
under this Plan and who has executed a Participation Agreement.


 


Section 2.16.                         “Participation
Agreement” means an agreement between the Company and each Employee that
must be executed as a condition of the Participant’s eligibility for this Plan.


 


Section 2.17.                         “Plan”
means the DPL Inc. Supplemental Executive Defined Contribution Retirement Plan,
as herein set forth and as the same may from time to time be amended or
restated.


 


Section 2.18.                         “Plan
Administrator” means the Compensation Committee.


 


Section 2.19.                         “Plan
Year” means the calendar year.


 


Section 2.20.                         “Qualified
Plan” means The Dayton Power and Light Company Employee Savings Plan.


 


Section 2.21.                         “Retirement”
has the meaning ascribed to such term in the Retirement Income Plan of The
Dayton Power and Light Company.


 


Section 2.22.                         “Separates
from Service” or “Separation from Service” has the meaning ascribed
to such phrase in the 409A Guidance.


 


Section 2.23.                         “Unforseeable
Emergency” means an event which results in a severe financial hardship to
the Participant resulting from (a) an illness or accident of the Participant,
the Participant’s spouse or a dependent of the Participant, (b) loss of the
Participant’s property due to casualty or (c) other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant.


 


Section 2.24.                         “Valuation
Date” means each December 31, plus such additional date(s), if any,
selected by the Plan Administrator.  In
the event of a Change of Control, the term “Valuation Date” shall also mean the
last day of the calendar month immediately preceding the date of the Change of
Control.


 


Section 2.25.                         “Vesting
Years” has the meaning ascribed to such phrase in the Retirement Income
Plan of The Dayton Power and Light Company.


 


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Section 2.26.                         “Voting
Stock” means securities entitled to vote generally in the election of
directors.


 


Section 2.27.                         “409A
Guidance” has the meaning set forth in Section 1.3.


 


ARTICLE III - CONTRIBUTIONS


 


Section 3.1.                                Contributions.  For each Plan Year, the Company shall credit
to the Account established for each Participant an amount (the “Contribution”)
equal to 15% of the amount, if any, by which the Participant’s Compensation for
such Plan Year exceeds the limit on Compensation imposed by Section 401(a)(17)
of the Code (the “Code Limit”) for that Plan Year.  The Company shall credit the Contribution to
each Participant’s Account as soon as practicable after the Participant’s
Compensation for the Plan Year is determined.


 


ARTICLE IV - ACCOUNTS


 


Section 4.1.                                Participants’
Accounts.  The Company shall
establish and maintain on its books an Account for each Participant which shall
contain the following entries:


 


(a)                                  Credits
for the Contributions described in Section 3.1.


 


(b)                                 Credits
or charges representing the income, expenses, gains or losses allocable to the
Participant’s Account which would be applicable if such Account had been
invested on a tax deferred basis in the Hypothetical Investment Fund(s)
selected by the Participant or the Participant’s Beneficiary as provided in Section
8.1.  The entries provided by this
Subsection shall continue to be made until the Participant’s entire Account has
been distributed to the Participant or the Participant’s Beneficiary pursuant
to Article VI.


 


(c)                                  Debits
for any distributions made from the Account and any amounts forfeited under Section
5.2.


 


Section 4.2.                                Effect
on other Benefits.  Benefits payable
to or with respect to a Participant under any other Employer sponsored
(qualified or nonqualified) plan, if any, are in addition to those provided
under this Plan.


 


ARTICLE V - VESTING


 


Section 5.1.                                Vesting.  A Participant shall become 100% vested in all
amounts credited to the Participant’s Account hereunder upon completion of five
Vesting Years.  In addition, a
Participant shall become 100% vested in all amounts credited to the Participant’s
Account hereunder upon the Participant’s death or Disability or upon a Change
of Control.


 


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Section 5.2.                                Forfeitures.  If a Participant Separates from Service
(other than by reason of death or Disability) prior to becoming 100% vested in
the Participant’s Account, the Participant’s Account shall be forfeited as of
the date of the Participant’s Separation from Service.


 


ARTICLE VI - DISTRIBUTION OF BENEFITS TO PARTICIPANTS


 


Section 6.1.                                Time
and Manner of Payment.


 


(a)                                  Upon
the Separation from Service (other than by reason of death) of a Participant
who is 100% vested in his or her Account, the Participant’s Account shall be
paid or commence to be paid to him or her six months after such Participant’s
Separation from Service with the Company. 
Subject to Subsection (c), upon a Change of Control or upon a
Participant’s Disability, the Participant’s Account shall be paid as soon as
practicable following such Change of Control or Disability, as the case may
be.  Upon the death of a Participant, the
Participant’s Account shall be paid at the time provided in Section 7.3.


 


(b)                                 The
Participant’s Account shall be paid in the following manner:


 


(i)                                     If
the Participant’s Separation from Service is on account of Retirement:


 


(1)                                  If
the balance in the Participant’s Account is $100,000 or less, the Participant’s
entire Account shall be paid in the form of a lump sum cash payment at the time
prescribed in Subsection (a); and


 


(2)                                  If
the balance in a Participant’s Account is in excess of $100,000, the
Participant’s Account shall be paid in the form of five annual cash
installments (A) with the first installment being payable at the time
prescribed in Subsection (a) of this Section and each other installment being
payable on the anniversary date of the date of payment of the first installment
and (B) with the amount of each installment equal to the value of the
Participant’s Account on the Valuation Date immediately preceding the date for
payment of the installment multiplied by a fraction the numerator of which is
one and the denominator of which is the total number of remaining installments.


 


(ii)                                  If
the Participant’s Separation from Service is other than on account of
Retirement, death or Disability, the Participant’s account shall be paid in the
form of a lump sum cash payment at the time prescribed in Subsection (a).


 


(iii)                               If
the Participant’s Separation from Service is on account of death, the
Participant’s Account shall be paid as provided in Section 7.3.


 


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(iv)                              Subject
to Subsection (c), upon the Participant’s Disability or upon a Change of
Control, the Participant’s account shall be paid in the form of a lump sum cash
payment at the time prescribed in Subsection (a).


 


(c)                                  To
the extent (i) a Participant shall be deemed to be vested upon the occurrence
of a Change of Control pursuant to Section 5.1 and such Change of Control does
not constitute a “change in the ownership or effective control” or a “change in
the ownership of a substantial portion of the assets” of the Company within the
meaning of Section 409A(a)(2)(A)(v) of the Code, or (ii) a Participant shall be
deemed to be vested upon the Participant’s Disability pursuant to Section 5.1
and such Participant is not considered to be “disabled” within the meaning of
Section 409A(a)(2)(C) of the Code, then, notwithstanding that the Participant
shall be deemed to be vested in his or her Account upon the occurrence of the
Change of Control or the occurrence of the Disability, as the case may be,
payment will be made, to the extent necessary to comply with the provisions of
Section 409A of the Code, to the Participant on the earlier of (1) six months
after the Participant’s Separation from Service with the Company or (2) the
Participant’s death.


 


Section 6.2.                                Liability
for Payment/Expenses.  The Employer
by which the Participant was last employed prior to the Participant’s
Separation from Service or death shall pay the Participant’s vested Account to
the Participant or the Participant’s Beneficiary, but such Employer’s liability
shall be limited to its proportionate share of the Account, as hereinafter
provided.  If the Account payable to or
on behalf of a Participant is based on the Participant’s employment with more
than one Employer, the liability for the payment of such Account shall be
shared by all such Employers (by reimbursement to the Employer making such
payment) as may be agreed to among them in good faith and as will permit the
deduction (for purposes of federal income tax) by each such Employer of its
portion of the payments made and to be made hereunder.  Expenses of administering the Plan shall be
paid by the Employers, as directed by the Company.


 


Section 6.3.                                Prohibition
on Acceleration of Distributions. 
Notwithstanding any provision of the Plan to the contrary, the time for
payment or the schedule of any payment with respect to a Participant’s Account
as provided under the Plan shall not be accelerated (within the meaning of the
Section 409A Guidance) except as follows:


 


(a)                                  To
the extent necessary to comply with terms of a domestic relations order (as
defined in section 414(p)(1)(B) of the Code), the Plan may permit such
acceleration of the time or schedule of a payment of all or a portion of a
Participant’s Account to an individual other than the Participant;


 


(b)                                 To
the extent necessary to comply with a certificate of divestiture (as defined in
section 1043(b)(2) of the Code), the Plan may permit the acceleration of the
time or schedule of a payment of a Participant’s Account;


 


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(c)                                  The
Plan may permit acceleration of the time for payment or schedule of a payment
with respect to a Participant’s Account in order (i) to pay the Federal
Insurance Contributions Act (“FICA”) tax imposed under sections 3101 and
3121(v)(2) of the Code on compensation deferred under the plan (the “FICA
Amount”), (ii) pay the income tax at source on wages imposed under section 3401
of the Code on the FICA Amount, and (iii) pay the additional income tax at
source on wages attributable to the pyramiding of section 3401 wages and taxes,
provided that the total payment permissible under this acceleration provision
shall not exceed the aggregate of the FICA Amount and the income tax
withholding related to such FICA Amount;


 


(d)                                 The
Company at any time, upon written request of the Participant, may cause to be
paid to such Participant, an amount equal to all or any part of the Participant’s
Account if the Company determines, based on such reasonable evidence that it
shall require, that such a payment is necessary for the purpose of alleviating
the consequences of an Unforseeable Emergency. 
Payments of amounts because of an Unforseeable Emergency may not exceed
the amount necessary to satisfy the Unforseeable Emergency plus amounts
necessary to pay taxes reasonably anticipated as a result of the distribution
after taking into account the extent to which the hardship is or may be
relieved through reimbursement or compensation by insurance or otherwise by
liquidation of the Participant’s assets (to the extent the liquidation of such
assets would not itself cause severe financial hardship); and


 


(e)                                  The
Plan may permit acceleration of the time for payment or schedule of a payment
with respect to a Participant’s Account in such other circumstances as
prescribed in the 409A Guidance and in accordance with such Guidance.


 


ARTICLE VII - BENEFICIARIES


 


Section 7.1.                                Beneficiary
Designations.  A designation of a
Beneficiary hereunder may be made only by an instrument (in form acceptable to
the Plan Administrator) signed by the Participant and filed with the Plan
Administrator prior to the Participant’s death. 
The Beneficiary hereunder need not be the same as under other retirement
plans in which Participant participates. 
In the absence of a Beneficiary designation and at any other time when
there is no existing Beneficiary designated hereunder, the Beneficiary of a
Participant shall be the Participant’s beneficiary under the Qualified
Plan.  A person designated by a Participant
as the Participant’s Beneficiary who or which ceases to exist shall not be
entitled to any part of any payment thereafter to be made to the Participant’s
Beneficiary unless the Participant’s designation specifically provided to the
contrary.  If two or more persons
designated as a Participant’s Beneficiary are in existence, the amount of any
payment to the Beneficiary under this Plan shall be divided equally among such
persons unless the Participant’s designation specifically provides for a
different allocation.


 


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Section 7.2.                                Change
in Beneficiary.


 


(a)                                  Anything
herein or in the Qualified Plan to the contrary notwithstanding, a Participant
may, at any time and from time to time, change a Beneficiary designation
hereunder without the consent of any existing Beneficiary or any other person.


 


(b)                                 Any
change in Beneficiary shall be made by giving written notice thereof to the
Plan Administrator and any change shall be effective only if received prior to
the death of the Participant.


 


Section 7.3.                                Distributions
to Beneficiaries.  Upon the death of
a Participant who had commenced to receive payment of his or her Account prior
to his or her death in the form of installments (as provided in Section 6.1(b)),
any unpaid installments shall be paid to the Participant’s Beneficiary at the
same time that they would have been paid to the Participant had the Participant
not died (as provided in Section 6.1(b)).  Upon the death of any other
Participant, the entire Account of the Participant shall be paid to the
Participant’s Beneficiary in a lump sum cash payment as soon as practicable
following the Participant’s death, but in no event later than 60 days after the
Company receives notice of the Participant’s death.  Notwithstanding the foregoing, distributions
to Beneficiaries of amounts that are allocated to Participants’ Accounts shall
be made in a manner that satisfies the requirements of Code Section 409A.


 


ARTICLE VIII - INVESTMENT OF ACCOUNTS


 


Section 8.1.                                Hypothetical
Investment Fund(s).  The Company
shall designate as a Hypothetical Investment Fund or Funds under this Plan one
or more of the investment funds provided under the Qualified Plan or offered by
the trustee thereunder.  Any such
designation shall be in a writing which may be amended or supplemented from
time to time by the Company pursuant to rules adopted by the Company.  Each Participant (or the Participant’s
Beneficiary) shall elect a Hypothetical Investment Fund (or, if permitted by
rules adopted by the Company, one or more Hypothetical Investment Funds) for
the purposes of Section 4.1.  Such an
election may be made in accordance with rules and procedures established by the
Company.  A Participant or Beneficiary
may change the Participant’s (or Beneficiary’s, as the case may be)
Hypothetical Investment Fund election to another election at times specified in
rules adopted by the Company and, from and after the effective date of such
change, the Participant’s (or Beneficiary’s, as the case may be) new Hypothetical
Investment Fund election shall be applicable. 
In the absence of a hypothetical investment election by a Participant or
the Participant’s Beneficiary, the Company shall select the Hypothetical
Investment Fund(s) which shall be applicable to such person’s Account.


 


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ARTICLE IX - MISCELLANEOUS


 


Section 9.1.                                Liability
of Employers.  Nothing in this Plan
shall constitute the creation of a trust or other fiduciary relationship
between an Employer and any Participant, Beneficiary or any other person.


 


Section 9.2.                                Limitation
on Rights of Participants and Beneficiaries - No Lien.  This Plan is designed to be an unfunded,
nonqualified plan.  Nothing contained
herein shall be deemed to create a trust or lien in favor of any Participant or
Beneficiary on any assets of an Employer. 
The Employers shall have no obligation to purchase any assets that do
not remain subject to the claims of the creditors of the Employers for use in
connection with the Plan.  No Participant
or Beneficiary or any other person shall have any preferred claim on, or any
beneficial ownership interest in, any assets of an Employer prior to the time
that such assets are paid to the Participant or Beneficiary as provided herein.  Each Participant and Beneficiary shall have
the status of a general unsecured creditor of the Employers.  The amount standing to the credit of any
Participant’s Account is purely notional and affects only the calculation of
benefits payable to or in respect of him or her.  It does not give the Participant any right or
entitlement (whether legal, equitable or otherwise) to any particular assets
held for the purposes of the Plan or otherwise.


 


Section 9.3.                                No
Guarantee of Employment.  Nothing in
this Plan shall be construed as guaranteeing future employment to
Participants.  A Participant continues to
be an employee of the Employers solely at the will of the Employers subject to
discharge at any time, with or without cause.


 


Section 9.4.                                Payment
to Guardian.  If a benefit payable
hereunder is payable to a minor, to a person declared incompetent or to a
person incapable of handling the disposition of the Participant’s property, the
Plan Administrator may direct payment of such benefit to the guardian, legal
representative or person having the care and custody of such minor, incompetent
or person.  The Plan Administrator may
require such proof of incompetency, minority, incapacity or guardianship as it
may deem appropriate prior to distribution of the benefit.  Such distribution shall completely discharge
the Employers from all liability with respect to such benefit.


 


Section 9.5.                                Assignment.


 


(a)                                  Subject
to Subsection (b), no right or interest under this Plan of any Participant or
Beneficiary shall be assignable or transferable in any manner or be subject to
alienation, anticipation, sale, pledge, encumbrance or other legal process or
in any manner be liable for or subject to the debts or liabilities of the
Participant or Beneficiary.


 


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(b)                                 Notwithstanding
the foregoing, to the extent provided in Section 6.3, the Plan Administrator
shall honor a judgment, order or decree from a state domestic relations court
which requires the payment of all or a part of a Participant’s vested Account
under this Plan to an “alternate payee” as defined in Section 414(p) of the
Code.


 


Section 9.6.                                Severability.  If any provision of this Plan or the
application thereof to any circumstance(s) or person(s) is held to be invalid
by a court of competent jurisdiction, the remainder of the Plan and the
application of such provision to other circumstances or persons shall not be
affected thereby.


 


Section 9.7.                                Governing
Law.  Except as otherwise provided in
Section 1.3 and except when preempted by federal law, this Plan shall be
regulated, construed and administered under the laws of the State of Ohio.


 


ARTICLE X - ADMINISTRATION OF PLAN


 


Section 10.1.                         Administration.


 


(a)                                  The
Plan shall be administered by the Plan Administrator.  The Plan Administrator shall have discretion
to interpret where necessary all provisions of the Plan (including, without
limitation, by supplying omissions from, correcting deficiencies in, or
resolving inconsistencies or ambiguities in, the language of the Plan), to make
factual findings with respect to any issue arising under the Plan, to determine
the rights and status under the Plan of Participants or other persons, to
resolve questions (including factual questions) or disputes arising under the
Plan and to make any determinations with respect to the benefits payable under
the Plan and the persons entitled thereto as may be necessary for the purposes
of the Plan.  Without limiting the
generality of the foregoing, the Plan Administrator is hereby granted the
authority (i) to determine whether a particular employee is a Participant, and
(ii) to determine if a person is entitled to benefits hereunder and, if so, the
amount and duration of such benefits. 
The Plan Administrator’s determination of the rights of any person
hereunder shall be final and binding on all persons, subject only to the
provisions of Section 10.3, 10.4 and 10.5 hereof.


 


(b)                                 The
Plan Administrator may delegate any of its administrative duties, including,
without limitation, duties with respect to the processing, review,
investigation, approval and payment of benefits, to a named administrator or
administrators.


 


(c)                                  It
is intended that, to the extent applicable, all Participant elections hereunder
will comply with the 409A Guidance.  The
Plan Administrator is authorized to adopt rules or regulations deemed necessary
or appropriate in connection therewith to


 


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anticipate and/or comply with the requirements thereof (including any
transition rules thereunder).


 


Section 10.2.                         Regulations.  The Plan Administrator shall promulgate any
rules and regulations it deems necessary in order to carry out the purposes of
the Plan or to interpret the provisions of the Plan; provided, however, that no
rule, regulation or interpretation shall be contrary to the provisions of the
Plan or the 409A Guidance.  The rules,
regulations and interpretations made by the Plan Administrator shall, subject
only to the provisions of Section 10.3, 10.4 and 10.5 hereof, be final and
binding on all persons.


 


Section 10.3.                         Claims
Procedures.


 


(a)                                  The
Plan Administrator shall determine the rights of any person to any benefit
hereunder.  Any person who believes that
he or she has not received the benefit to which he or she is entitled under the
Plan must file a claim in writing with the Plan Administrator specifying the
basis for his or her claim and the facts upon which he or she relies in making
such a claim.


 


(b)                                 The
Plan Administrator will notify the claimant of its decision regarding his or
her claim within a reasonable period of time, but not later than 90 days
following the date on which the claim is filed, unless special circumstances
require a longer period for adjudication and the claimant is notified in
writing of the reasons for an extension of time prior to the end of the initial
90-day period and the date by which the Plan Administrator expects to make the
final decision.  In no event will the
Plan Administrator be given an extension for processing the claim beyond 180
days after the date on which the claim is first filed with the Plan
Administrator.


 


If such a claim is
denied, the Plan Administrator’s notice will be in writing, will be written in
a manner calculated to be understood by the claimant and will contain the
following information:


 


(i)                                     The
specific reason(s) for the denial;


 


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


 


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


 


(iv)                              An
explanation of the Plan’s claim review procedure and the applicable time limits
under such procedure and a statement as to the claimant’s


 


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right to bring a civil action under ERISA after all of the Plan’s
review procedures have been satisfied.


 


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


 


Within 60 days after
receipt of a denial of a claim, the claimant must file with the Plan
Administrator, a written request for review of such claim.  If a request for review is not filed within
such 60-day period, the claimant shall be deemed to have acquiesced in the
original decision of the Plan Administrator on his or her claim.  If a request for review is filed, the Plan
Administrator shall conduct a full and fair review of the claim.  The claimant will be provided, upon request
and free of charge, reasonable access to and copies of all documents and
information relevant to the claim for benefits. 
The claimant may submit issues and comments in writing, and the review
must take into account all information submitted by the claimant regardless of
whether it was reviewed as part of the initial determination.  The decision by the Plan Administrator with
respect to the review must be given within 60 days after receipt of the request
for review, unless circumstances warrant an extension of time not to exceed an
additional 60 days.  If this occurs,
written notice of the extension will be furnished to the claimant before the
end of the initial 60-day period, indicating the special circumstances
requiring the extension and the date by which the Plan Administrator expects to
make the final decision.  The decision
shall be written in a manner calculated to be understood by the claimant, and
it shall include


 


(A)                              The
specific reason(s) for the denial;


 


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


 


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


 


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


 


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


 


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Section 10.4.                         Arbitration.


 


(a)                                  After
a Participant has exhausted all administrative remedies as provided in Section
10.3, any disputes arising hereunder may, at the election of the Participant,
be submitted for non-binding arbitration to an arbitrator appointed under the
auspices of the American Arbitration Association (“AAA”) office in Cincinnati,
Ohio, or if closer, the AAA office that is located in a U.S. city nearest to
the general corporate offices of the Company for resolution under the AAA
Employment Dispute Arbitration Rules. 
Such arbitration shall be held in such place as the parties and the
arbitrator shall mutually agree.  The
arbitrator shall apply applicable Federal and state law, including ERISA.  The provisions of ERISA, including, but not
limited to, preemption, review of claims, and standards of review, shall be
applied by the arbitrator to the same extent as if the matter were proceeding
in federal court.  The state law applied
shall be the law of the state in which the general corporate offices of the
Company are located (Ohio as of the date hereof).  The entire cost of the proceedings, except
for the Participant’s attorney’s fees and costs, shall be borne by the Company.


 


(b)                                 If,
following exhaustion of all administrative remedies as provided in Section 10.3
and Subsection (a) above, the Participant pursues litigation with respect to a
dispute arising hereunder and prevails in such litigation, the Company shall
pay and be solely responsible for attorneys’ and related fees and expenses
incurred by the employee with respect to such litigation in an aggregate amount
not to exceed the amount of the Participant’s most recent base salary.


 


Section 10.5.                         Revocability
of Plan Administrator/Employer Action. 
Any action taken by the Plan Administrator or an Employer with respect
to the rights or benefits under the Plan of any person shall be revocable by
the Plan Administrator or the Employer as to payments not yet made to such
person, and acceptance of any benefits under the Plan constitutes acceptance of
and agreement to the Plan Administrator’s or the Employer’s making any
appropriate adjustments in future payments to such person to recover from such
person any excess payment or make up any underpayment previously made to him or
her.


 


Section 10.6.                         Amendment.


 


(a)                                  The
Compensation Committee may at any time (without the consent of the Employees)
amend any or all of the provisions of this Plan, except that no such amendment
may adversely affect the amount of any Participant’s accrued benefit as of the
date of such amendment, without the prior written consent of the affected Participant.  A proper amendment of this Plan automatically
shall effect a corresponding amendment to all Participants’ rights hereunder.


 


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(b)                                 Without
limiting the generality of the foregoing, the Compensation Committee shall have
the authority to adopt an amendment to the Plan that conforms the terms of the
Plan to the requirements of Section 409A of the Code at such time as the
Company determines is necessary to comply with the 409A Guidance.


 


Section 10.7.                         Termination.


 


(a)                                  The
Compensation Committee, in its sole discretion, may terminate this Plan at any
time and for any reason whatsoever, except that, subject to Subsection (b)
hereof, no such termination may adversely affect the amount of any Participant’s
accrued benefit as of the date of such termination, without the prior written
consent of the affected Participant. 
Notwithstanding the preceding sentence, the Compensation Committee, in
its sole discretion, may terminate this Plan to the extent and in circumstances
described in Prop. Treas. Reg. § 1.409A-3(h)(2)(viii), or any successor
provision.  A proper termination of this
Plan automatically shall effect a termination of all Participants’ rights and
benefits hereunder without further action. 
Written notice of any termination shall be given to the Participants as
soon as practicable after a proper termination.


 


(b)                                 Any
Employer (other than the Company) that adopts the Plan may elect to withdraw
from the Plan and such withdrawal shall constitute a termination of the Plan as
to such Employer; provided, however, that such terminating Employer shall
continue to be an Employer for purposes hereof as to Participants or
Beneficiaries to whom it owes obligations hereunder.  Such withdrawal and termination shall be
expressed in an instrument executed by the terminating Employer and filed with
the Company, and shall become effective as of the date designated in such
instrument or, if no such date is specified, on the date of its execution.


 


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