exv10w1






Exhibit 10.1




2005 Molex Supplemental Executive Retirement Plan




	 	 	 	 	 	 	 

	Article

	 	1. Establishment and Purposes
	 	 	1	 
	 

	 	1.1 Establishment
	 	 	1	 
	 

	 	1.2 Purposes
	 	 	1	 
	 
	 	 	 	 	 	 
	Article

	 	2. Definitions
	 	 	2	 
	 

	 	2.1 “Account”
	 	 	2	 
	 

	 	2.2 “Affiliate”
	 	 	2	 
	 

	 	2.3 “Beneficiary”
	 	 	2	 
	 

	 	2.4 “Bonus”
	 	 	2	 
	 

	 	2.5 “Bonus Deferral”
	 	 	2	 
	 

	 	2.6 “Code”
	 	 	2	 
	 

	 	2.7 “Committee”
	 	 	2	 
	 

	 	2.8 “Company”
	 	 	3	 
	 

	 	2.9 “Deferred Compensation Plan”
	 	 	3	 
	 

	 	2.10 “Disability”
	 	 	3	 
	 

	 	2.11 “Distribution Date”
	 	 	3	 
	 

	 	2.12 “Election Form(s)”
	 	 	3	 
	 

	 	2.13 “Employer”
	 	 	3	 
	 

	 	2.14 “ERISA”
	 	 	3	 
	 

	 	2.15 “Expatriate”
	 	 	3	 
	 

	 	2.16 “Fiscal Year”
	 	 	3	 
	 

	 	2.17 “Forfeiture”
	 	 	3	 
	 

	 	2.18 “Initial Eligibility Date”
	 	 	4	 
	 

	 	2.19 “Investment Elections”
	 	 	4	 
	 

	 	2.20 “Matching Contribution”
	 	 	4	 
	 

	 	2.21 “Old SERP”
	 	 	4	 
	 

	 	2.22 “Participant”
	 	 	4	 
	 

	 	2.23 “Plan”
	 	 	4	 
	 

	 	2.24 “Plan Contributions”
	 	 	4	 
	 

	 	2.25 “Plan Year”
	 	 	4	 
	 

	 	2.26 “Salary”
	 	 	5	 
	 

	 	2.27 “Salary Deferral”
	 	 	5	 
	 

	 	2.28 “Savings Plan”
	 	 	5	 
	 

	 	2.29 “Separation from Service”
	 	 	5	 
	 

	 	2.30 “Supplemental Company Contributions”
	 	 	5	 
	 

	 	2.31 “Trust Agreement” or “Trust”
	 	 	5	 
	 

	 	2.32 “Trustee”
	 	 	5	 
	 

	 	2.33 “Unforeseeable Emergency”
	 	 	6	 
	 

	 	2.34 “Vested Benefit”
	 	 	6	 
	 
	 	 	 	 	 	 
	Article

	 	3. Eligibility and Participation
	 	 	6	 
	 

	 	3.1 Eligibility
	 	 	6	 
	 

	 	3.2 Notice of Eligibility
	 	 	6	 






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	 	3.3 Right to Participation or Employment
	 	 	7	 
	 

	 	3.4 Effect of Subsequent Ineligibility
	 	 	7	 
	 
	 	 	 	 	 	 
	Article

	 	4. Company Contributions
	 	 	7	 
	 

	 	4.1 Salary Deferrals
	 	 	7	 
	 

	 	4.2 Bonus Deferrals
	 	 	7	 
	 

	 	4.3 Deferral Elections
	 	 	7	 
	 

	 	4.4 Supplemental Company Contributions
	 	 	8	 
	 

	 	4.5 Matching Contributions
	 	 	8	 
	 

	 	4.6 Vesting
	 	 	8	 
	 
	 	 	 	 	 	 
	Article

	 	5. Distribution of Benefits
	 	 	10	 
	 

	 	5.1 Time of Distribution
	 	 	10	 
	 

	 	5.2 Benefits Upon Separation From Service
	 	 	10	 
	 

	 	5.3 Benefits Upon Disability
	 	 	10	 
	 

	 	5.4 Benefits Upon Death
	 	 	10	 
	 

	 	5.5 Payment Forms
	 	 	10	 
	 

	 	5.6 Changes to Time and Form of Payment in 2010
	 	 	11	 
	 

	 	5.7 Unforeseeable Emergency
	 	 	12	 
	 

	 	5.8 Source of Assets for Benefits
	 	 	12	 
	 

	 	5.9 Forfeitures
	 	 	13	 
	 

	 	5.10 Withholding of Taxes
	 	 	13	 
	 
	 	 	 	 	 	 
	Article

	 	6. Individual Accounts
	 	 	13	 
	 

	 	6.1 Participants’ Accounts
	 	 	13	 
	 

	 	6.2 Earnings and Losses
	 	 	13	 
	 

	 	6.3 Distributions
	 	 	13	 
	 

	 	6.4 Participant Statements
	 	 	13	 
	 
	 	 	 	 	 	 
	Article

	 	7. The Trust
	 	 	13	 
	 

	 	7.1 Establishment of Irrevocable Trust
	 	 	13	 
	 

	 	7.2 Trustee
	 	 	13	 
	 

	 	7.3 Investment Managers
	 	 	14	 
	 

	 	7.4 Assets
	 	 	14	 
	 

	 	7.5 Funding
	 	 	14	 
	 
	 	 	 	 	 	 
	Article

	 	8. Investment Elections and Allocations
	 	 	14	 
	 

	 	8.1 Investment Election
	 	 	14	 
	 

	 	8.2 Change of Prior Election
	 	 	14	 
	 

	 	8.3 Form of Election
	 	 	15	 
	 

	 	8.4 Transfer of Funds
	 	 	15	 
	 

	 	8.5 Allocating Distributions
	 	 	15	 
	 
	 	 	 	 	 	 
	Article

	 	9. Beneficiary Designation
	 	 	15	 
	 

	 	9.1 Designation of Beneficiary
	 	 	15	 
	 

	 	9.2 Death of Beneficiary
	 	 	15	 






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	 	9.3 Ineffective Designation
	 	 	15	 
	 
	 	 	 	 	 	 
	Article

	 	10. Administration
	 	 	15	 
	 

	 	10.1 The Committee
	 	 	15	 
	 

	 	10.2 Authority of the Committee
	 	 	15	 
	 

	 	10.3 Delegation of Committee Members’ Powers
	 	 	16	 
	 

	 	10.4 Manner of Action of the Committee
	 	 	16	 
	 

	 	10.5 Decisions Binding
	 	 	16	 
	 

	 	10.6 Indemnification
	 	 	16	 
	 

	 	10.7 Claims Procedures
	 	 	16	 
	 
	 	 	 	 	 	 
	Article

	 	11. Amendment and Termination
	 	 	16	 
	 

	 	11.1 Right to Terminate and Amend
	 	 	16	 
	 

	 	11.2 Notice of Termination
	 	 	16	 
	 

	 	11.3 Effect of Termination
	 	 	17	 
	 

	 	11.4 Limitations on Amendments
	 	 	17	 
	 

	 	11.5 Merger, Consolidation, Reorganization, or Transfer
	 	 	17	 
	 
	 	 	 	 	 	 
	Article

	 	12. Participation In And Withdrawal from the Plan By An Employer
	 	 	17	 
	 

	 	12.1 Affiliate Participation in the Plan
	 	 	17	 
	 

	 	12.2 Withdrawal from the Plan
	 	 	18	 
	 
	 	 	 	 	 	 
	Article

	 	13. Miscellaneous
	 	 	18	 
	 

	 	13.1 Costs of the Plan
	 	 	18	 
	 

	 	13.2 Nontransferability
	 	 	18	 
	 

	 	13.3 Successors
	 	 	19	 
	 

	 	13.4 Severability
	 	 	19	 
	 

	 	13.5 Applicable Law
	 	 	19	 
	 

	 	13.6 Gender and Number
	 	 	19	 







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2005 MOLEX SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN



(As Amended and Restated Generally Effective as of January 1, 2011)




ARTICLE 1. ESTABLISHMENT AND PURPOSES



     1.1 Establishment. Molex Incorporated originally adopted the 2005 Molex Supplemental
Executive Retirement Plan (the “Plan”) effective January 1, 2005 to provide for (1) employee
voluntary deferrals, and (2) employer contributions to restore benefits lost by certain employees
under the Molex Incorporated Profit Sharing and Retirement Plan because of limitations imposed by
ERISA and the Code. Effective as of January 1, 2008, the portion of the Plan providing for
employee voluntary deferrals was spun-off to the Molex Executive Deferred Compensation Plan, and
the Molex Incorporated Supplemental Executive Retirement Plan (the “Old SERP”) was merged into this
Plan. Effective as of January 1, 2011, the Molex Incorporated Profit Sharing and Retirement Plan
(the “Profit Sharing Plan”) is being merged into The Molex Incorporated Retirement and Savings Plan
(the “Savings Plan”). Effective January 1, 2011, unless otherwise stated herein, this Plan is
hereby amended and restated to (1) restore certain benefits lost by certain employees under the
Savings Plan, as profit sharing contributions will no longer be made under the Profit Sharing Plan,
(2) reflect the merger of the Molex Executive Deferred Compensation Plan into this Plan, and (3)
provide for employee voluntary deferrals of salary and bonus in this Plan. The Plan is a
nonqualified retirement plan for key employees as described herein and is intended to comply with
the provisions of Code Section 409A and any regulations issued thereunder.



     1.2 Purposes. The purposes of the Plan are as follows:




     (a) Restoration of Qualified Benefits. To restore the intended
operation of the nonelective contribution provisions of the Savings Plan for a select group
of management or highly compensated employees of an Employer by replacing certain benefits
lost thereunder due to certain statutory restrictions.




     (b) Expatriate Deferrals. To allow an Expatriate to defer up to
100% of Salary and Bonus while he or she is expatriated out of the United States.




     (c) Discretionary Deferred Contributions. To allow an eligible
employee to defer all or a portion of Salary and Bonus.




     (d) Unfunded Plan. To be an unfunded plan maintained primarily to
provide benefits for a select group of management or highly compensated employees within the
meaning of §§ 201, 301, and 401 of ERISA, and therefore to be exempt from the provisions of
Parts 2, 3, and 4 of Title I of ERISA.




     (e) Merger of Prior Plans and the Plan. To continue to reflect the
terms of: (i) the Molex Incorporated Supplemental Executive Retirement Plan (As Amended and
Restated, Effective as of January 1, 2007) as merged into this 2005 Molex Supplemental
Executive Retirement Plan, effective as of January 1, 2008; and (ii) the Molex Executive
Deferred Compensation Plan (Effective as of January 1, 2008), as merged into this 2005 Molex
Supplemental Executive Retirement Plan, effective as of January 1, 2011, for



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     purposes of creating a single, integrated, combined excess benefit plan for
administration purposes.




ARTICLE 2. DEFINITIONS




     Whenever used herein, the following terms shall have the respective meanings set forth below
and, when intended, such terms shall be capitalized:



     2.1 “Account”means the bookkeeping ledger established for each Participant for the
purpose of tracking:



          (a) Salary Deferrals;




          (b) Bonus Deferrals;




          (c) Supplemental Company Contributions;




          (d) Matching Contributions;





     (e) the prior account balance, if any, valued as of December 31, 2010 and
merged into this Account from the Deferred Compensation Plan on January 1, 2011; and




     (f) the prior account balance, if any, valued as of December 31, 2007 and
merged into this Account from the Old SERP on January 1, 2008,


all adjusted periodically to reflect any gains (or losses) accruing as a result of Investment
Elections.




     2.2 “Affiliate” means any corporation, organization, or entity which is under common
control with the Company or which is otherwise required to be aggregated with the Company pursuant
to paragraphs (b), (c), (m), or (o) of Code §414.



     2.3 “Beneficiary” means the person, trust, or other entity designated by the
Participant to receive benefits that may become payable hereunder upon his/her death pursuant to
Section 5.4 of the Plan.



     2.4 “Bonus” means a payment of annual cash compensation earned for a Fiscal Year or
portion thereof under an annual incentive plan or arrangement offered by the Company.



     2.5 “Bonus Deferral” means the portion of a Bonus deferred by a Participant under
Section 4.3(b) for the Plan Year.



     2.6 “Code” means the Internal Revenue Code of 1986, as amended from time to time, and
the regulations and rulings issued thereunder. Reference to any section or subsection of the Code
includes reference to any comparable or succeeding provisions of any legislation that amends,
supplements or replaces that section or subsection.



     2.7 “Committee”means the Special Subcommittee of the Executive Committee of the
Company’s Board of Directors.



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     2.8 “Company” means Molex Incorporated, a Delaware corporation.



     2.9 “Deferred Compensation Plan”means the Molex Executive Deferred Compensation Plan,
effective as of January 1, 2008, as amended.



     2.10 “Disability”means the Participant is determined by the Committee to be:




     (a) unable to engage in any substantial gainful activity 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 (12) months; or




     (b) by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a continuous period
of not less than twelve (12) months, receiving income replacement benefits for a period of
not less than three (3) months under an accident and health plan of an Employer that then
covers the Participant.



     2.11 “Distribution Date” Effective January 1, 2009, means the earlier to occur of:




     (a) in the case of Separation from Service other than for death or
Disability, the date specified in Section 5.2.




     (b) in the case of Disability, the date the Participant becomes disabled;




     (c) in the case of death, the date of the Participant’s death.



     2.12 “Election Form(s)”means the form(s) that the Participant must complete and return
to the Company in order to defer any portion of his/her Salary and/or Bonus and to elect the form
of distribution with respect to the Participant’s Account under the Plan to be paid upon his/her
relevant Distribution Date.



     2.13 “Employer” means the Company, and any corporation, organization or entity that is
an Affiliate and either adopts the Plan pursuant to Section 12.1 or continues the Plan as a
successor under Section 13.3.



     2.14 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time, or any successor thereto.



     2.15 “Expatriate” means an employee of an Employer who is expatriated out of the
United States and becomes subject to tax in a foreign jurisdiction at rates higher than the
applicable United States Federal income tax rates.



     2.16 “Fiscal Year”means the 12 month period beginning each July 1 and ending the
following June 30, or such other 12-month period as determined by the Company’s Board of Directors.



     2.17 “Forfeiture” means the unvested portion (in accordance with Section 4.6) of a
Participant’s Account as of a participant’s Distribution Date.



3









 





     2.18 “Initial Eligibility Date” means the earliest to occur of:




     (a) the date on which a newly hired eligible employee is first notified
that he or she has been designated by the Committee as eligible to make a deferral election
pursuant to Section 3.1, provided that on such date the Employee either has not been
eligible to participate in this Plan, the Old SERP, the Deferred Compensation Plan, or any
other nonqualified deferred compensation plan maintained by the Company or any Affiliate and
required to be aggregated with any such plan under Regulation Section 1.409A-1(c)(3)(viii)
(other than through accrual of earnings) at any time during the 24 month period prior to
such date, or has received a distribution of all amounts deferred under all such plans and
immediately prior to the last payment was not eligible to participate or continue to
participate in any such plan (other than through an election of a different time and form of
payment with respect to the amounts paid), all as determined in accordance with Regulation
Section 1.409A-2(a)(7)(ii);




     (b) the first day of the year following the year in which a newly hired
Employee is first notified that he or she has been designated by the Committee as eligible
to make a deferral election pursuant to Section 3.1, if Section 2.18(a) does not apply to
such employee; or




     (c) the first day of the first Plan Year for which a Supplemental Company
Contribution is credited to the Account of an eligible employee who had not previously been
notified that he or she was eligible to make a deferral election; provided that, pursuant to
Regulation Section 1.409A-2(a)(7)(iii), if prior to such Plan Year the eligible employee had
never previously been eligible to participate in any nonqualified deferred compensation plan
maintained by the Company or any Affiliate, the Initial Eligibility Date shall instead be
the first day of the year immediately following the first year for which the Supplemental
Company Contribution was credited.




     2.19 “Investment Elections” shall have the same meaning as described in Section 8.1.



     2.20 “Matching Contribution”means a Company contribution to a Participant’s Account
under Section 4.5 in an amount equal to 100% of the Participant’s Salary Deferrals up to a maximum
amount of 4% of such Participant’s Salary.



     2.21 “Old SERP” means the Molex Incorporated Supplemental Executive Retirement Plan
(As Amended and Restated Effective as of January 1, 2007).



     2.22 “Participant” means an employee, including an Expatriate, of an Employer who has
been approved for eligibility by the Committee as provided in Article 3.



     2.23 “Plan” means the 2005 Molex Supplemental Executive Retirement Plan, as amended.



     2.24 “Plan Contributions” means each of Salary Deferrals, Bonus Deferrals,
Supplemental Company Contributions and Matching Contributions.



     2.25 “Plan Year” means the consecutive 12-month period beginning each January 1 and
ending December 31.



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     2.26 “Salary” means the annual base salary rate and payments of cash compensation
payable by the Employer to an employee for services performed during any Plan Year before deduction
for income taxes, but reduced by all legally required deductions against such income (including,
but not limited to, if applicable, elective contributions or benefit contributions made by such
employee, wage assignments, wage garnishments, child support payments, levies, remittance of all
applicable taxes to governmental authorities), and specifically other than Bonuses and Bonus
Deferrals under the Plan; provided that no change in any such deductions occurring after the first
day of a Plan Year (or Initial Eligibility Date if applicable) shall have the effect of reducing or
increasing the portion of Salary deferred, except for changes in elections under a cafeteria plan
described in Code §125 to the extent permitted by Regulation Section 1.409A-2(a)(10).



     2.27 “Salary Deferral” means the portion of Salary deferred by a Participant under
Section 4.3(a) for a Plan Year.



     2.28 “Savings Plan” means The Molex Incorporated Retirement and Savings Plan, as
amended, or any successor plan thereto.



     2.29 “Separation from Service” means the Participant’s termination of employment with
the Employer for any reason, including retirement, death, or Disability; provided that, other than
in the case of death or Disability, it is reasonably anticipated that no further services would be
performed after the date or termination, or that the level of bona fide services the Participant
would perform after such date to the Employer or any Affiliate (whether as an employee or as an
independent contractor) would permanently decrease to no more than 20 percent of the average level
of bona fide services performed (whether as an employee or an independent contractor) over the
immediately preceding 36-month period (or the full period of services to the Employer and all
Affiliates if the employee has been providing services to the Employer and all Affiliates less than
36 months); as determined in accordance with Regulation Section 1.409A-1(h).



     2.30 “Supplemental Company Contributions” means a Company contribution to a
Participant’s Account under Section 4.4 that, when added to the amount contributed on the
Participant’s behalf under the Savings Plan as a non-elective employer contribution for a Plan
Year, is equal to 3% of Salary (prior to any deductions or other withholdings) for such Plan Year
contributed by an Employer to the Participant’s Account A Participant who is re-employed during
the period following military service during which his reemployment rights are guaranteed by the
Uniformed Services Employment and Reemployment Act shall be credited with a Supplemental Company
Contribution equal to the amount that would have been credited had the Participant been employed
throughout the period of military service, calculated in accordance with Code Section 414(u) as if
the Plan were subject thereto (but without regard to the limit on compensation under Code Section
401(a)(17)).



     2.31 “Trust Agreement” or “Trust” means the trust agreement and the trust
established by the Company for the Plan.



     2.32 “Trustee” means the Trustee named in the Trust Agreement and any duly appointed
successor thereto.




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     2.33 “Unforeseeable Emergency” means a severe financial hardship to a Participant
resulting from an illness or accident of the Participant, the Participant’s spouse, the
Participant’s beneficiary or a dependent (as defined in Code Section 152, without regard to section
152(b)(1), (b)(2), and (d)(1)(B)), 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. Any distributions made on account of an Unforeseeable Emergency shall
be made pursuant to Section 5.7.



     2.34 “Vested Benefit” means the amount equal to the vested portion (in accordance with
Section 4.6) of a Participant’s Account at any time. All Vested Benefits shall be determined by
valuing the Participant’s Account as of the close of the business day immediately prior to the
Distribution Date.



ARTICLE 3. ELIGIBILITY AND PARTICIPATION



     3.1 Eligibility. To be eligible for participation in the Plan for a given Plan Year,
an employee must be among a select group of management or highly compensated employees of an
Employer, and selected for participation by the Committee, such that the Plan qualifies for the
“top hat” exemption from most of the substantive requirements of Title I of ERISA, as described in
Section 1.2(d). Accordingly, the Committee may terminate the participation of any or all
Participants in order to achieve and maintain this intended result; provided, however, such
termination from participation shall not become effective until the first day of the next
succeeding Plan Year. Notwithstanding the prior provisions of this Section 3.1, such an employee
shall be eligible to receive Matching Contributions for a Plan Year only if as of December
1st of the prior Plan Year, the employee is expected to have Salary and Bonus (prior to
any deferrals or other withholdings, whether before or after tax) in excess of the Code Section
401(a)(17) limit ($245,000 for 2011); provided that if an employee becomes eligible to make a
deferral election during a Plan Year, the Committee may in its sole discretion provide that the
employee will be eligible for Matching Contributions if the employee’s Salary at the time of hire
or promotion is at an annual rate in excess of the Code Section 401(a)(17) limit. An employee who
is not otherwise eligible to participate shall be eligible to receive a Supplemental Company
Contribution for a Plan Year if and only if his Salary for the Plan Year prior to any deductions or
withholdings actually exceeds the Code Section 401(a)(17) limit for such Plan Year. The Committee
shall have the sole discretion to determine eligibility pursuant to the Plan.



     3.2 Notice of Eligibility. The Company shall notify eligible employees of their
eligibility to participate in the Plan. An eligible employees shall be treated as initially
eligible to participate in the Plan at the employee’s Initial Eligibility Date. Subject to the
Code Section 409A aggregation rules as applicable, for the first year an employee is notified of
eligibility under this Article 3, the employee must file an Election Form with respect to deferral
elections and payment of his/her Account within 30 days of his/her Initial Eligibility Date;
provided, however, that all such elections shall only be prospective. In the event such eligible
employee does not file an initial Election Form within 30 days of his/her Initial Eligibility Date,
then the eligible employee shall be deemed to: (1) have irrevocably elected not to make Salary
Deferrals or Bonus Deferrals or to receive Matching Contributions for the Plan Year, and (ii) have
irrevocably elected the default form of distribution under Section 5.5(a) of the Plan, which is a
lump-sum distribution, for all Plan Contributions for all Plan Years.



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     3.3 Right to Participation or Employment. No employee shall have the right to be
selected to participate in this Plan or, having been so selected, to be selected to participate in
any future Plan Year. Further, nothing in the Plan shall interfere with or limit in any way the
right of an Employer to terminate any Participant’s employment at any time, nor confer upon any
Participant a right to continue in the employ of an Employer.



     3.4 Effect of Subsequent Ineligibility. In the event a Participant ceases to be
eligible for continued participation in the Plan for any reason, such individual shall become an
inactive Participant, retaining all the rights relating to previous Plan Contributions under the
Plan, until such time that such individual again is determined by the Committee to be an active
Participant or until Separation from Service.



ARTICLE 4. COMPANY CONTRIBUTIONS



     4.1 Salary Deferrals. A Participant may elect to defer receipt of all or any portion
of his/her Salary for a given Plan Year by delivering a properly executed Election Form to the
Company within the time specified in Section 4.3(a). The Election Form shall designate the amount
or percentage of Salary that is to be deferred under the Plan for a given Plan Year. The Committee
shall have the sole discretionary authority to establish the maximum amount of Salary Deferrals any
particular Participant shall make to the Plan each Plan Year. The Election Form shall be
irrevocable for a given Plan Year once effective.



     4.2 Bonus Deferrals. A Participant may elect to defer receipt of all or any portion
of his/her Bonus for a given Fiscal Year, or portion thereof, by delivering a properly executed
Election Form to the Company within the time specified in Section 4.3(b). The Election Form shall
designate the amount or percentage of Bonus that is to be deferred under the Plan for a given
Fiscal Year. The Committee shall have the sole discretionary authority to establish the maximum
amount of Bonus Deferrals any particular Participant shall make to the Plan each Fiscal Year. The
Election Form shall be irrevocable for a given Fiscal Year once effective.



     4.3 Deferral Elections.




     (a) Salary Deferral Elections. A Participant shall make an
irrevocable election each Plan Year to defer all or any portion of his/her Salary under the
Plan for such Plan Year by delivering to the Company a properly executed Election Form. The
Election Form shall be completed and filed with the Company with respect to deferrals of
Salary before the beginning of the Plan Year for which services are performed so long as the
employee remains eligible to participate in the Plan. Notwithstanding the foregoing and
subject to the aggregation rules under Code Section 409A, a newly-hired Participant or an
employee who becomes a Participant due to promotion or other such change to employment
status, shall be given thirty (30) days after his or her Initial Eligibility Date to
complete and submit an Election Form. Each properly completed and timely submitted Election
Form shall become effective as of the first day of the following Plan Year; provided,
however, that in the case of a Participant described in the preceding sentence, a properly
completed and timely submitted Election Form shall become effective on the date provided to
the Company.



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     (b) Bonus Deferral Elections. A Participant shall make an
irrevocable election each Fiscal Year (or portion of a Fiscal Year that constitutes a
performance period for Bonus purposes) to defer any or all of his/her Bonus under the Plan
for such Fiscal Year or portion thereof by delivering to the Company a properly executed
Election Form. The Election Form shall be completed and filed with the Company with respect
to deferrals of Bonus before the first day of the Plan Year that includes the first day of
the Fiscal Year or portion thereof. Notwithstanding the foregoing and subject to the
aggregation rules under Code Section 409A, a newly-hired Participant or an employee who
becomes a Participant due to promotion or other such change to employment status, shall be
given thirty (30) days after his or her Initial Eligibility Date to complete and submit an
Election Form. Each properly completed and timely submitted Election Form shall become
effective as of the first day of the next following Plan Year with respect to Fiscal Years
or portions thereof beginning in such Plan Year; provided, however, that in the case of a
Participant described in the preceding sentence, a properly completed and timely submitted
Election Form shall become effective on the date provided to the Company, but if the date on
which the Election Form becomes effective occurs during a Bonus performance period, the
deferral election shall apply only to the portion of the Bonus determined by multiplying the
Bonus by a fraction, the numerator of which is the number of days remaining in the
performance period after the date on which the Election Form becomes effective and the
denominator of which is the total number of days in the Performance Period. Notwithstanding
the foregoing, if a Participant’s Bonus is based on a performance period that is coextensive
with one or more Fiscal Years, the Election Form with respect to deferral of such Bonus may
be submitted prior to the first day of such performance period, and to the extent that a
Participant’s Bonus is based on a performance period of at least twelve consecutive months
and otherwise constitutes “performance based compensation” (within the meaning of Code
Section 409A and regulations issued thereunder), the Participant’s Election Form with
respect to the deferral of such performance-based Bonus may be delivered to the Plan
Administrator no later than six months prior to the end of such performance period.



     4.4 Supplemental Company Contributions. For each Plan Year, the Company shall make a
contribution, equal to the Supplemental Company Contribution for such Plan Year, to the Account of
each Participant, if applicable.



     4.5 Matching Contributions. For each Plan Year, the Company shall make a contribution,
equal to the applicable Matching Contribution for such Plan Year to the Account of each Participant
who, as of December 1st of the prior Plan Year, was expected to have Salary and Bonus in
excess of the Code Section 401(a)(17) limit ($245,000 for 2011).



     4.6 Vesting. A Participant shall have a vested non-forfeitable interest in his/her
Account in accordance with the following:




     (a) Participant Contributions. A Participant shall always be 100%
vested in that portion of his/her Account attributable to Salary Deferrals and Bonus
Deferrals.




     (b) Company Contributions. A Participant who was a Participant on
or before December 31, 2010 and continued to be eligible under Section 3.1 as of January 1,
2011, shall have a vested and non-forfeitable interest in that portion of his/her Account



8









 







attributable to Supplemental Company Contributions and/or Matching Contributions in
accordance with the following schedule.



	 	 	 
	Years of Service	 	Vested Percentage
	Less than 1
	 	0%
	1
	 	20%
	2
	 	40%
	3
	 	100%







A Participant who first becomes a Participant after December 31, 2010 shall have a vested
and non-forfeitable interest in that portion of his/her Account attributable to Supplemental
Company Contributions and/or Matching Contributions in accordance with the following
schedule.



	 	 	 
	Years of Service	 	Vested Percentage
	Less than 1
	 	0%
	1
	 	0%
	2
	 	0%
	3
	 	100%







Any Participant who is an inactive Participant pursuant to Section 3.4 as of January 1, 2011
or any other Participant who was a Participant on or before December 31, 2010 and does not
continue to be eligible under Section 3.1 as of January 1, 2011 shall have a vested and
non-forfeitable interest in that portion of his/her Account attributable to Supplemental
Company Contributions and/or Matching Contributions in accordance with the following
schedule.



	 	 	 
	Years of Service	 	Vested Percentage
	Less than 2
	 	0%
	2
	 	20%
	3
	 	40%
	4
	 	60%
	5
	 	80%
	6 or more
	 	100%







     (c) Accelerated Vesting. Notwithstanding paragraph (b) immediately above, a
Participant shall be fully vested and have a non-forfeitable interest in that portion of
his/her Account attributable to Supplemental Company Contributions and/or Matching
Contributions if:




     (A) the Participant attains age 65
while still an employee; or




     (B) the Participant dies or suffers a
Disability while an employee.




     (d) Transferred Employee. An Employee who is transferred to or from a
nonparticipating Affiliate shall be credited with service, for purposes of vesting, for all
of
his/her employment with the Employer and any nonparticipating
Affiliate, before and after such transfer.




9












 






ARTICLE 5. DISTRIBUTION OF BENEFITS




     5.1 Time of Distribution. Effective January 1, 2009, a Participant’s Account shall be
distributed in accordance with Sections 5.2, 5.3 5.4 or 5.7, as applicable. Notwithstanding any
other provision of the Plan to the contrary, in no event shall the distribution of any Plan
Contributions be accelerated to a time earlier than which they would otherwise have been paid,
whether by amendment of the Plan, exercise of the Committee’s discretion, or otherwise, except as
permitted by the Treasury Regulations issued or other governmental guidance provided pursuant to
Code §409A.



     5.2 Benefits Upon Separation From Service. Effective as of January 1, 2009, a
Participant who has Separated from Service with an Employer other than on account of death or
Disability shall receive or begin to receive payment of his/her vested Account balance as
soon as reasonably practicable after the first (1st) business day of the seventh
calendar month following the Participant’s Separation from Service, and such payment shall be
made in the following form:




     (a) Separation from Service On or After Attaining Age 591/2. The
Participant shall receive payment(s) in accordance with the election, made in accordance
with Section 5.5 (or Section 5.6 if applicable), on the Participant’s Election Form; or




     (b) Separation from Service Before Attaining Age 591/2.
Notwithstanding the election on the Participant’s Election Form, the Participant shall
receive a single lump sum payment.



     5.3 Benefits Upon Disability. Effective as of January 1, 2009, a Participant who has
incurred a Disability shall receive or begin to receive distribution of his/her vested Account
balance not more than ninety (90) days following the date of the Participant’s Disability. The
Committee shall have the sole discretionary authority to determine whether a Participant has
incurred a Disability. Payment(s) shall be made in the form elected by the Participant in
accordance with Section 5.5 (or Section 5.6 if applicable) on the Participant’s Election Form.



     5.4 Benefits Upon Death. Notwithstanding the election on the Participant’s Election
Form related to the form of distribution, upon a Participant’s death, the Committee shall pay to
the Participant’s Beneficiary a benefit equal to the remaining balance in the Participant’s Account
in a single lump sum payment, whether or not the Participant’s distribution had commenced before
the date of death. Effective as of January 1, 2009, payment shall be made not more than ninety
(90) days following the Participant’s death.



     5.5 Payment Forms. To the extent a Participant had a distribution election in place
for certain portions of his or her Account in the Plan, the Old SERP, or the Deferred Compensation
Plan before January 1, 2011, such portions of such Accounts shall be distributed in accordance with
the form of distribution previously elected by the Participant pursuant to the terms of the Plan,
the Old SERP, or the Deferred Compensation Plan, for the applicable Plan Year, unless a change in
election is made and is effective pursuant to Section 5.6. Effective for Plan Contributions made
on or after January 1, 2011, the form of payment elected on the Participant’s Election Form for the
2011 Plan Year, or the Participant’s initial Election Form if the Participant’s Initial Eligibility
Date is after December 31, 2010, shall be irrevocable and shall



10









 




apply to all Plan Contributions
made for all Plan Years to a Participant’s Account on or after January 1, 2011. In the event a
Participant does not file an initial Election Form specifying a form of distribution by December
31, 2010, or the Initial Eligibility Date if later, then the Participant shall be deemed to have
irrevocably elected the default form of distribution, which is a lump-sum distribution, for all
Plan Contributions made to his/her Account for all Plan Years beginning with 2011.





     (a) Default Form of Distribution. Unless a Participant otherwise
elects in accordance with paragraph (b) below, his/her Vested Benefits shall be paid in a
single lump sum.




     (b) Forms of Distribution. In lieu of a lump sum form of payment,
a Participant may elect to receive a distribution of his/her Vested Benefits in the form of
substantially equal annual installment payments upon the relevant Distribution Date. A
Participant may select the number of years within the options provided by the Committee on
the Election Form, over which the Vested Benefits are to be paid, up to a maximum of ten
years. Such election shall be made on the Participant’s Election Form for the 2011 Plan
Year, or the Participant’s initial Election Form if the Participant’s Initial Eligibility
Date is after December 31, 2010, as required by the Committee. During the payout period,
earnings shall accrue on a Participant’s Plan Contributions in the manner provided in
Section 6.2. The amount of each installment payment shall be equal to the balance
remaining in the vested portion of the Participant’s Account immediately prior to each such
payment, multiplied by a fraction, the numerator of which is one, and the denominator of
which is the number of installment payments remaining, with the last installment consisting
of the balance of the vested portion of a Participant’s Account, as liquidated to
completely settle the Account. The first installment payment shall be made on the
Distribution Date specified for purposes of Section 5.2, 5.3, or 5.4, and each subsequent
installment shall be paid on the anniversaries of such Distribution Date, except that in
the case of a termination of employment pursuant to Section 5.2(a), installments beginning
with the second installment shall be paid on the anniversaries of the date of the
Participant’s Separation from Service.



     5.6 Changes to Time and Form of Payment in 2010.




     (a) Five (5) Year Rule. Effective only for the Election Form for
the 2011 Plan Year, a Participant who is eligible to make an election for the 2011 Plan
Year may change a prior distribution election under the Plan to another form of
distribution permitted under the Plan; provided, however, that the first payment under the
newly elected form of distribution shall be deferred to a date that is at least five years
after the date the distribution would otherwise have commenced. Such changes in election
will not be permitted on or after January 1, 2011.




     (b) Twelve (12) Month Rule. Any such election changes shall be
completed in accordance with Committee rules, and shall not be effective unless made more
than twelve (12) months before the date payment would otherwise be made or begin to be made
and additionally, such change election shall not become effective for twelve (12) months
after such change election is filed with the Committee. If a Participant dies, becomes
Disabled, or incurs a Separation from Service, during the twelve (12) month



11









 






period after the new election becomes irrevocable, the new election shall be null and void.
Notwithstanding the foregoing, in accordance with Code §409A, election changes that have
the effect of accelerating the time for payment shall be prohibited.



     5.7 Unforeseeable Emergency.




     (a) Request for Distribution. A Participant may request that all
or a portion of his/her vested Account balance be distributed at any time by submitting a
written request to the Committee demonstrating that he or she has suffered an Unforeseeable
Emergency, and that the distribution is necessary to alleviate the financial hardship
created by the Unforeseeable Emergency.




     (b) Committee Determination. The Committee shall have the sole
discretionary authority to determine whether a Participant has suffered an Unforeseeable
Emergency. Whether a Participant has suffered an Unforeseeable Emergency shall be
determined based on the relevant facts and circumstances of each case. In making such a
determination, the Committee shall take into account the extent that such Unforeseeable
Emergency is or may be relieved through reimbursement or compensation by insurance or
otherwise, or by liquidation of the Participant’s assets (unless such liquidation itself
would cause a severe financial hardship).




     (c) Timing of Distribution. Upon the finding that the Participant
has suffered an Unforeseeable Emergency, the Committee shall distribute to the Participant
in a lump sum that portion of his/her Account necessary to satisfy the Unforeseeable
Emergency, plus taxes attributable thereto. Distributions made pursuant to this Section
5.7 shall be made no later than ninety (90) days after the Committee has reviewed and
approved the request. Notwithstanding the foregoing, distributions due to Unforeseeable
Emergencies shall only be made in accordance with regulations promulgated by the Department
of Treasury or other guidance issued by the Internal Revenue Service under Code §409A.




     (d) Impact of Hardship Withdrawals Under Savings Plan. A
Participant shall not be required to take any hardship withdrawal or loan to which he is
entitled under the Savings Plan or any other tax qualified retirement plan as a condition
of receiving a distribution pursuant to this Section 5.7, but if a Participant receives a
hardship withdrawal from the Savings Plan or any other tax-qualified §401(k) plan
maintained by an Employer and the terms of such plan require a suspension of the
Participant’s deferrals for six months following the date of the distribution, then the
Participant’s Salary Deferral and Bonus Deferral elections shall be permanently revoked for
the Plan Year in which the Participant receives the hardship withdrawal and, if such
hardship withdrawal is received less than six months prior to the end of the Plan Year, any
Salary Deferral or Bonus Deferral elections made for the following Plan Year shall not
apply to any compensation paid or payable within six months following the date of the
hardship withdrawal.



     5.8 Source of Assets for Benefits. All Vested Benefits shall be paid first from the
Trust, to the extent assets exist in the Trust and then, as necessary, by the Employer from other
general assets.



12









 





     5.9 Forfeitures. Any Forfeitures triggered in a given Plan Year shall be applied in
the same manner as forfeitures are applied under the Savings Plan.



     5.10 Withholding of Taxes. The Employer shall have the right to require Participants
to remit to the Employer an amount sufficient to satisfy Federal, state, and local tax withholding
requirements, or to deduct from all payments made pursuant to the Plan amounts sufficient to
satisfy such withholding requirements.



ARTICLE 6. INDIVIDUAL ACCOUNTS



     6.1 Participants’ Accounts. The Employer shall establish and maintain individual
Accounts for each Participant hereunder. The establishment and maintenance of Participants’
Accounts, however, shall not be construed as entitling any Participant to any specific assets of an
Employer. Supplemental Company Contributions shall be credited to a Participant’s Account annually
during the immediately following Plan Year after the relevant computations have been completed
under the Savings Plan. Salary Deferrals and Bonus Deferrals shall be credited to a Participant’s
Account on the date of funding pursuant to Section 7.5.



     6.2 Earnings and Losses. Each Participant’s Plan Contributions shall be credited with
earnings (or losses) thereon daily or some less frequent time period as agreed upon by the
Committee and the Trustee. Such earnings (or losses) shall be based upon the actual returns
achieved pursuant to the Investment Elections of each Participant.



     6.3 Distributions. There shall be charged against each Participant’s Plan
Contributions any payments of Vested Benefits made to the Participant or to a Participant’s
Beneficiary and any Forfeitures associated therewith.



     6.4 Participant Statements. Statements that identify the Participant’s Account
balance shall be provided to Participants on a basis no less frequent than quarterly.



ARTICLE 7. THE TRUST



     7.1 Establishment of Irrevocable Trust. The Company has established an Irrevocable
Trust, governed by the Trust Agreement, (which shall be a grantor trust within the meaning of Code
§§671-678) with the Company as the grantor, for the benefit of Plan Participants and Beneficiaries
of Participants, as appropriate. The Trust shall receive and hold all Plan Contributions, and
earnings (or losses) thereon, and shall make the payments provided by the Plan. The Trust fund
shall be held and invested by the Trustee at the direction of the Committee and in accordance with
the Trust Agreement.



     7.2 Trustee. The Trust shall have an independent Trustee (such Trustee to have a
fiduciary duty to carry out the terms and conditions of this Plan) as selected by the Company, and
shall have restrictions as to the Company’s ability to amend the Trust or to cancel benefits
provided thereunder. Except to the extent that investments of the Trust fund are subject to the
direction of the Committee, or to the direction of investment managers appointed pursuant to
Section 7.3, the Trustee shall have the sole and exclusive responsibility for investing the Trust
fund. The Trust Fund shall not be required to be invested in any of the Investment Funds



13









 





     7.3 Investment Managers. The Committee may designate one or more investment managers
to control and manage (including the power to direct the acquisition and disposition of) the
investment funds and to make professional investment decisions or recommendations. The Committee
shall not be liable for any act or omission of such investment managers, except as required by law



     7.4 Assets. Assets contained in the Trust shall at all times be specifically subject
to the claims of the Employer’s general creditors in the event of bankruptcy or insolvency; such
terms shall be specifically defined within the provisions of the Trust, along with a required
procedure for notifying the Trustee of any such bankruptcy or insolvency.



     7.5 Funding. The Employer shall contribute cash or cash equivalents to the Trust for
the benefit of Participants for each component comprising Plan Contributions as soon as practicable
after the amount of each such respective component is known for each Participant, provided the
Employer shall not be required to contribute cash or cash equivalents to the Trust for Matching
Contributions and Supplemental Company Contributions until a reasonable time after the applicable
Plan Year. The aggregate amount to be so contributed by the Employer on a periodic basis to the
Trust shall be equal to the aggregate Plan Contributions of all Participants.



ARTICLE 8. INVESTMENT ELECTIONS AND ALLOCATIONS



     8.1 Investment Election. Each Participant shall make an Investment Election to have
the earnings or losses on his/her Account determined as if the Account were allocated among among
the investment funds described below in any combination in multiples of one percent (1%). To the
extent that a Participant shall have made no election hereunder, such Participant’s Account shall
be allocated to the investment fund having investment guidelines that contemplate the least risk of
loss of principal as determined by the Committee. To the extent that a Participant makes no new
election provided for hereunder in accordance with this Section 8.1, the allocation of his/her
Account among the investment funds shall remain unchanged. The Committee shall designate two or
more separate investment funds as selected from time to time, each of which shall consist either of
separate accounts within the Trust, or mutual funds or other investment vehicles with objectively
determined investment returns. The Committee shall have the authority to select and change the
number of investment funds available and to set the investment guidelines of each investment fund
and to otherwise set policy and establish the funding strategies utilized by the Trust, as the
Committee may deem appropriate. All or any portion of any investment fund may, on a temporary
basis, be retained in cash or invested in property other than that specified as the primary type of
investment for such investment fund. Any investment fund may be partially or entirely invested in
any common or commingled fund that is invested in property of the kind specified for such
investment fund.



     8.2 Change of Prior Election. Subject to rules and procedures as the Committee may
establish, each Participant may change the allocation of his/her Account among the investment funds
provided for in Section 8.1 by making a new Investment Election. The Committee shall have the
authority and discretion to limit reallocation or trading practices that the Committee or an
Investment Manager determines to be abusive or adverse to the investment fund or to the interests
of other Plan participants.




14












 





     8.3 Form of Election. The Investment Elections shall be made in such form and in such
manner as the Committee shall prescribe.



     8.4 Transfer of Funds. When an amount or amounts must be transferred between
investment funds by reason of a Participant’s election hereunder, such amount shall be transferred
to one or more of the other investment funds pursuant to such election as soon as practical.



     8.5 Allocating Distributions. Any time a distribution (as defined in Section 6.3) of
part or all of the amount allocated to the Account of a Participant is made pursuant to this Plan,
a pro rata share of such distribution shall be made from each investment fund in which said Account
is invested.



ARTICLE 9. BENEFICIARY DESIGNATION




     9.1 Designation of Beneficiary. Each Participant shall be entitled to designate a
Beneficiary or Beneficiaries who, upon the Participant’s death, shall receive the amounts that
otherwise would have been paid to the Participant under the Plan. All designations shall be signed
by the Participant, and shall be in a form prescribed by the Committee. The Participant may change
his/her designation of Beneficiary at any time, on a form prescribed by the Committee. The filing
of a new Beneficiary designation form by a Participant shall automatically revoke all prior
designations by that Participant. Notwithstanding the foregoing, such new Beneficiary designation
is not effective until received by the Committee during the Participant’s lifetime.



     9.2 Death of Beneficiary. In the event that all the Beneficiaries named by a
Participant, pursuant to Section 9.1 herein, predecease the Participant, the Plan Contributions
that would have been paid to the Participant shall be paid to the Participant’s estate.



     9.3 Ineffective Designation. In the event the Participant does not designate a
Beneficiary, or for any reason such designation is ineffective in whole or in part, the
ineffectively designated amounts shall be paid to the Participant’s estate.



ARTICLE 10. ADMINISTRATION




     10.1 The Committee. This Plan shall be administered by the Committee in accordance
with any rules and regulations that the Committee shall establish from time to time, which are
consistent with the provisions of this Plan.



     10.2 Authority of the Committee. The Committee shall have full power to make any
determination that may be necessary or advisable for the Plan’s administration including, but not
limited to, the following:




     (a) select employees for participation in the Plan, including anyone who is
a key employee;




     (b) establish the maximum Salary and/or Bonus Deferrals;




     (c) select and change from time to time the investment funds available;



15









 






     (d) construe and interpret the Plan and any agreement or instrument entered
into hereunder;




     (e) determine whether a Participant has incurred a Disability or suffered
an Unforeseeable Emergency; and




     (f) establish, amend, or waive rules and regulations for the Plan’s
administration.



     10.3 Delegation of Committee Members’ Powers. A Committee member may delegate any or
all of his/her rights, powers, duties, and discretions to any other Committee member, with the
consent of the latter. The Committee may delegate any or all of its powers, rights, duties, and
discretions to an individual to act as “Administrator” who may, but need not be, a Committee member
or an employee of the Company. Such delegation and the acceptance thereof by such individual shall
be in writing and written notice of such delegation shall be given to the Company. To the extent
the Committee has delegated its powers, rights, duties, and discretions to an Administrator, the
term “Committee” as used in this Plan shall include such Administrator.



     10.4 Manner of Action of the Committee. The Committee members may act by meeting, or
by writing signed without meeting, and may sign any document by signing one document or concurrent
documents.



     10.5 Decisions Binding. All determinations and decisions made by the Committee
pursuant to the provisions of the Plan shall be final, conclusive, and binding on all persons,
including the Employer, its owners, employees, Participants, and their estates and Beneficiaries.



     10.6 Indemnification. The Company shall indemnify and hold the members of the
Committee, its and their delegates and each Employer’s directors, officers, and employees harmless
from all claims, liabilities, and costs (including reasonable attorneys’ fees) arising out of the
good faith performance of their functions hereunder.



     10.7 Claims Procedures. Claims for benefits under the Plan shall be determined by the
Committee, which shall have the sole discretionary authority to interpret the Plan, to determine
factual matters under the Plan and to decide claims for benefits under the Plan. The claims
procedures used by the Committee under the Plan shall be the claims procedures set forth in the
Savings Plan for claims for benefits under the Savings Plan. Benefits shall be paid under the Plan
only if the Committee determines in its discretion that the claimant is entitled to them.



ARTICLE 11. AMENDMENT AND TERMINATION




     11.1 Right to Terminate and Amend. The Company or the Committee may amend, modify,
and/or terminate the Plan at any time. While the Company contemplates carrying out the provisions
of the Plan indefinitely, the Company shall be under no obligation or liability to maintain the
Plan for any minimum or other amount of time.



     11.2 Notice of Termination. Upon any termination of the Plan in its entirety, the
Committee shall give written notice thereof to the Trustee and to each Participant.



16









 





     11.3 Effect of Termination. Except as provided by law, upon any termination of the
Plan, the Company shall thereafter be under no obligation, liability, or responsibility to make any
future contribution or other payment to the Trustee on behalf of any Participant or any other
person, trust, or fund for any purpose under or in connection with the Plan except as provided in
Section 13.1. Notwithstanding the foregoing, all other provisions of the Plan concerning the
investment of Accounts and distribution of benefits shall continue. No distributions of any
Account shall be made or accelerated on account of the termination of the Plan except as otherwise
permitted by §409A of the Code or regulations issued thereunder.



     11.4 Limitations on Amendments. The provisions of this Article 11 are subject to and
limited by the following restrictions:




     (a) No such amendment or termination shall in any manner adversely affect
any Participant’s rights to contributions previously made, or to pay previously deferred, or
earnings thereon, without the consent of the Participant.




     (b) The provisions of the Trust may only be amended or modified with the
written consent of both the Company and the Trustee.



     11.5 Merger, Consolidation, Reorganization, or Transfer.



     (a) General Rule. The merger, consolidation, or reorganization of
the Company, or the sale or transfer by it of all or substantially all of its assets shall
not terminate the Plan if there is delivery to the Company by the Company’s successor or by
the purchaser of all or substantially all of the Company’s assets, of a written instrument
requesting that the successor or purchaser be substituted for the Company and agreeing to
perform all the provisions hereof which the Company is required to perform. Upon the
receipt of said instrument, with the approval of the Company, the successor or the purchaser
shall be substituted for the Company herein, and the Company shall be relieved and released
from any obligations of any kind, character, or description herein or in any trust agreement
imposed upon it.



     (b) No Assumption of Plan by Company’s Successor. In the event
that the Plan is not assumed by the Company’s successor or by the purchaser of all or
substantially all of the Company’s assets in a merger, consolidation, reorganization or
sale/transfer of the Company, then notwithstanding anything to the contrary, the Company
shall only be permitted to freeze the Plan to new participants as of such transactional date
but not terminate the Plan as of such transactional date. Current Participants as of such
transactional date who are not yet fully vested in their Account pursuant to Section 4.6
shall be permitted to continue vesting in their Account following such amendment to freeze
as of the transactional date. Notwithstanding Section 11.1, the Company shall not be
permitted to terminate and liquidate the Plan until all Participants have become fully
vested under Section 4.6 following such transactional date.



ARTICLE 12. PARTICIPATION IN AND WITHDRAWAL

FROM THE PLAN BY AN EMPLOYER




     12.1 Affiliate Participation in the Plan. Any Affiliate which desires to become an
Employer hereunder may elect, with the consent of its board of directors, to become a party to



17









 




the Plan and Trust Agreement by adopting the Plan for the benefit of its eligible employees, effective
as of the date specified in such adoption:





     (a) by filing with the Company a certified copy of a resolution of its
board of directors to that effect, and such other information as the Company may require;
and




     (b) by the Company’s filing with the then Trustee a copy of such
resolution, together with a certified copy of resolutions of the adopting organization’s
board of directors approving such adoption.


The adoption resolution may contain such specific changes and variations in Plan or Trust Agreement
terms and provisions applicable to such adopting Employer and its employees as may be acceptable to
the Company and the Trustee. However, the Company reserves the sole, exclusive right of any other
amendment of whatever kind or extent to the Plan or Trust Agreement. The Company may not amend
specific changes and variations in the Plan or Trust Agreement terms and provisions as adopted by
the Employer in its adoption resolution without the consent of such Employer. The adoption
resolution shall become, as to such adopting organization and its employees, a part of this Plan as
then amended or thereafter amended and the related Trust Agreement. It shall not be necessary for
the adopting organization to sign or execute the original or then amended Plan and Trust Agreement
documents. The coverage date of the Plan for any such adopting organization shall be that stated
in the resolution or decision of adoption, and from and after such effective date, such adopting
organization shall assume all the rights, obligations, and liabilities of an individual employer
entity hereunder and under the Trust Agreement. The administrative powers and control of the
Company, as provided in the Plan and Trust Agreement, including the sole right to amendment, and of
appointment and removal of the Committee, the Trustee, and their successors, shall not be
diminished by reason of the participation of any such adopting organization in the Plan and Trust
Agreement.




     12.2 Withdrawal from the Plan. Any Employer, by action of its board of directors or
other governing authority, may withdraw from the Plan and Trust Agreement after giving 90 days’
notice to the Company, provided the Company consents to such withdrawal. The Company shall
thereafter be under no obligation, liability or responsibility to make any future contribution or
other payment to the Trustee on behalf of any employee or any other person with respect to such
Employer under the Plan. No distributions of any Account shall be made or accelerated on account
of the Employer’s withdrawal except as otherwise permitted by §409A of the Code or regulations
issued thereunder.



ARTICLE 13. MISCELLANEOUS




     13.1 Costs of the Plan. All costs of implementing and administering the Plan shall be
borne by the Employer.



     13.2 Nontransferability. Participants’ rights to their Accounts under the Plan may
not be sold, transferred, assigned, or otherwise alienated or hypothecated, other than by will or
by the laws of descent and distribution. In no event shall the Employer make any payment under
the Plan to any assignee or creditor of a Participant or to any assignee or creditor of a
Participant’s Beneficiary.



18









 





     13.3 Successors. All obligations of the Employer under the Plan shall be binding upon
and inure to the benefit of any successor to the Employer, whether the existence of such successor
is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or
substantially all of the business and/or assets of the Employer.



     13.4 Severability. In the event any provision of the Plan shall be held illegal or
invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the
Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not
been included.



     13.5 Applicable Law. To the extent not preempted by federal law, the Plan shall be
governed by and construed in accordance with the laws of the state of Illinois.



     13.6 Gender and Number. Except when otherwise indicated by the context, any masculine
term used herein also shall include the feminine; the plural shall include the singular and the
singular shall include the plural.




19