Exhibit 10.1


 


SECOND AMENDED AND RESTATED


FOSSIL, INC. AND AFFILIATES

DEFERRED COMPENSATION PLAN


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  SECTION 
  I. DEFINITIONS

  	
  1

  
	
  1.1.

  	
  Addendum

  	
  1

  
	
  1.2.

  	
  Account

  	
  1

  
	
  1.3.

  	
  Applicable Interest Rate

  	
  1

  
	
  1.4.

  	
  Beneficiary

  	
  1

  
	
  1.5.

  	
  Benefit

  	
  1

  
	
  1.6.

  	
  Board

  	
  1

  
	
  1.7.

  	
  Business Day

  	
  2

  
	
  1.8.

  	
  Change in Control

  	
  2

  
	
  1.9.

  	
  Code

  	
  3

  
	
  1.10.

  	
  Committee

  	
  3

  
	
  1.11.

  	
  Company

  	
  3

  
	
  1.12.

  	
  Contributions

  	
  3

  
	
  1.13.

  	
  Deferred Payments

  	
  3

  
	
  1.14.

  	
  Deferred Payment Date

  	
  3

  
	
  1.15.

  	
  Designated Affiliate

  	
  3

  
	
  1.16.

  	
  Earnings

  	
  3

  
	
  1.17.

  	
  Effective Date

  	
  3

  
	
  1.18.

  	
  Election Form

  	
  3

  
	
  1.19.

  	
  Eligible Employee

  	
  4

  
	
  1.20.

  	
  Employee

  	
  4

  
	
  1.21.

  	
  Employer

  	
  4

  
	
  1.22.

  	
  Employer Account

  	
  4

  
	
  1.23.

  	
  Employer Contribution

  	
  4

  
	
  1.24.

  	
  Entry Date

  	
  4

  
	
  1.25.

  	
  ERISA

  	
  4

  
	
  1.26.

  	
  Grandfathered Benefit

  	
  4

  
	
  1.27.

  	
  Installment Payment

  	
  4

  
	
  1.28.

  	
  Investment Date

  	
  4

  
	
  1.29.

  	
  Lump Sum

  	
  4

  
	
  1.30.

  	
  Measurement Preference

  	
  4

  
	
  1.31.

  	
  Participant

  	
  5

  
	
  1.32.

  	
  Plan

  	
  5

  
	
  1.33.

  	
  Plan Year

  	
  5

  
	
  1.34.

  	
  Quarter

  	
  5

  
	
  1.35.

  	
  Rules of General Application

  	
  5

  
	
  1.36.

  	
  Salary

  	
  5

  
	
  1.37.

  	
  Salary Deferral Account

  	
  5

  
	
  1.38.

  	
  Salary Deferral Contributions

  	
  5

  
	
  1.39.

  	
  Separation from Service

  	
  5

  
	
  1.40.

  	
  Specified Employee

  	
  6

  
	
  1.41.

  	
  Third-Party Record Keeper

  	
  6

  
	
  1.42.

  	
  Trust

  	
  6

  
	
  1.43.

  	
  Valuation Date

  	
  6

  
	
  1.44.

  	
  Vest, Vesting or Vested

  	
  6

  
				



 


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TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  



 


	
  SECTION 
  II. ADMINISTRATION

  	
  7

  
	
  2.1.

  	
  Appointment of Committee

  	
  7

  
	
  2.2.

  	
  Employer Duties

  	
  7

  
	
  2.3.

  	
  Authority of Committee

  	
  7

  
	
  2.4.

  	
  Action by Committee

  	
  7

  
	
  2.5.

  	
  Meetings of Committee

  	
  7

  
	
  2.6.

  	
  Powers of Committee and Company

  	
  7

  
	
  2.7.

  	
  Indemnification

  	
  8

  
	
  2.8.

  	
  Bond and Expenses

  	
  8

  
	
  2.9.

  	
  Reliance on Tables

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION  III. PARTICIPATION

  	
  8

  
	
   

  	
   

  
	
  SECTION  IV. CONTRIBUTIONS

  	
  8

  
	
  4.1.

  	
  Election Dates

  	
  8

  
	
  4.2.

  	
  Salary Deferral Contributions

  	
  9

  
	
  4.3.

  	
  Crediting of Salary Deferral Contributions

  	
  9

  
	
  4.4.

  	
  Employer Contributions

  	
  9

  
	
  4.5.

  	
  Disposition
  of Contributions

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 
  V. PARTICIPANT’S ACCOUNTS AND INVESTMENTS

  	
  10

  
	
  5.1.

  	
  Establishment of Account

  	
  10

  
	
  5.2.

  	
  Earnings Credited to Accounts

  	
  10

  
	
  5.3.

  	
  Investment Direction

  	
  10

  
	
  5.4.

  	
  Statements

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 
  VI. VESTING

  	
  10

  
	
  6.1.

  	
  Salary Deferral Account

  	
  10

  
	
  6.2.

  	
  Employer Account

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 
  VII. DISTRIBUTION OF BENEFIT

  	
  11

  
	
  7.1.

  	
  Form and Timing of Distribution

  	
  11

  
	
  7.2.

  	
  Special Rules for Specified Employees

  	
  11

  
	
  7.3.

  	
  Election of Deferred Payments

  	
  11

  
	
  7.4.

  	
  Installment Payments

  	
  12

  
	
  7.5.

  	
  Change in Control

  	
  12

  
	
  7.6.

  	
  Hardship Distribution

  	
  12

  
	
  7.7.

  	
  Grandfathered Benefits

  	
  13

  
	
  7.8.

  	
  Source of Distribution

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 
  VIII. DESIGNATION OF BENEFICIARIES

  	
  13

  
	
  8.1.

  	
  Designation by Participant

  	
  13

  
	
  8.2.

  	
  Lack of Designation

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 
  IX. AMENDMENT AND TERMINATION

  	
  14

  



 


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TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  



 


	
  SECTION 
  X. CLAIMS PROVISIONS

  	
  15

  
	
  10.1.

  	
  Presentation of Claim

  	
  15

  
	
  10.2.

  	
  Notification of Decision

  	
  15

  
	
  10.3.

  	
  Review of a Denied Claim

  	
  16

  
	
  10.4.

  	
  Decision on Review

  	
  16

  
	
  10.5.

  	
  Legal Action

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 
  XI. GENERAL PROVISIONS

  	
  17

  
	
  11.1.

  	
  No Assignment

  	
  17

  
	
  11.2.

  	
  Incapacity

  	
  17

  
	
  11.3.

  	
  Final Resolution of Disputes Relating to Plan

  	
  17

  
	
  11.4.

  	
  Information Required

  	
  17

  
	
  11.5.

  	
  Communications by, and Information from, Participant

  	
  17

  
	
  11.6.

  	
  No Rights Implied

  	
  18

  
	
  11.7.

  	
  Communications by Committee or Employer

  	
  18

  
	
  11.8.

  	
  Interpretations and Adjustments

  	
  18

  
	
  11.9.

  	
  No Liability for Good Faith Determinations

  	
  18

  
	
  11.10.

  	
  No Employment Rights

  	
  18

  
	
  11.11.

  	
  Withholding of Taxes

  	
  18

  
	
  11.12.

  	
  Waivers

  	
  18

  
	
  11.13.

  	
  Records

  	
  19

  
	
  11.14.

  	
  Securities Laws

  	
  19

  
	
  11.15.

  	
  Severability

  	
  19

  
	
  11.16.

  	
  Captions and Gender

  	
  19

  
	
  11.17.

  	
  Choice of Law

  	
  19

  
	
  11.18.

  	
  Effective Date and Termination Date

  	
  19

  



 


iii
















 


SECOND
AMENDED AND RESTATED

FOSSIL, INC. AND AFFILIATES

DEFERRED COMPENSATION PLAN


 


Effective January 1,
2005, Fossil, Inc. amended and restated the Fossil, Inc. and
Affiliates Deferred Compensation Plan (the “Predecessor Plan”) and established
the First Amended and Restated Fossil, Inc. and Affiliates Deferred
Compensation Plan to allow for a select group of highly compensated employees
to defer a portion of their compensation and possibly receive deferred employer
contributions.  Effective January 1,
2009, Fossil, Inc. amends and restates the First Amended and Restated
Fossil, Inc. and Affiliates Deferred Compensation Plan and renames it the
Second Amended and Restated Fossil, Inc. and Affiliates Deferred
Compensation Plan (the “Plan”) in the form provided herein in order to comply
with the Final Treasury Regulations of Section 409A of the Code.


 


For purposes of the Code,
the Company intends this Plan to be an unfunded, unsecured promise to pay on
the part of each Employer.  For purposes
of ERISA, the Company intends this Plan to be an unfunded plan solely for the
benefit of a select group of management or highly compensated employees of the
Employers for the purpose of qualifying the Plan for the “top hat” plan
exception under Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA.


 


SECTION  I.



DEFINITIONS


 


1.1.                              Addendum. 
Addendum shall mean, collectively, the pages which are attached to
this Plan document, and incorporated by reference, on which shall be reflected
the information described in Section 4.4.


 


1.2.                              Account. 
Account shall mean, collectively, the Salary Deferral Account, and the
Employer Account, maintained for each Participant.


 


1.3.                              Applicable Interest Rate. 
Applicable Interest Rate shall mean, for each day during a period of
reference (but computed without compounding), a percentage equal to the product
of (a), (b) and (c), where: (a) is the sum of the one (1) year
London Interbank Offered Rate (“LIBOR”) as reported in the Wall Street Journal
as of (i) the first Business Day, plus (ii) the last Business Day,
occurring during such period of reference, (b) is fifty percent (50%), and
(c) is a quotient of 1 divided by 360.


 


1.4.                              Beneficiary. 
Beneficiary shall mean the person or persons, entity or entities
designated by the Participant and in accordance with the requirements set forth
in Section VIII as the beneficiary of the Participant’s Benefit.


 


1.5.                              Benefit. 
Benefit shall mean the Vested amount credited to the Participant’s
Account at the time of reference.


 


1.6.                              Board. 
Board shall mean the Board of Directors of the Company.


 

















 


1.7.                              Business Day. 
Business Day shall mean, with respect to each Measurement Preference, a
day on which the exchange on which it is traded is operating.


 


1.8.                              Change in Control. 
Change in Control shall mean the first to occur of the following events,
which shall be deemed to have occurred:


 


(a)                                   A change in ownership of the Company.  On
the date any “Person” (as defined in subparagraph (d) below) acquires
ownership of stock of the Company that, together with stock held by such
Person, constitutes more than fifty percent (50%) of the total fair market
value or total voting power of the stock of the Company; provided, however,
that there shall be no Change in Control and this subparagraph (a) shall
not apply if such acquiring Person is a corporation and a majority of the Board
of Directors of the acquiring Person immediately after the transaction consists
of individuals who constituted a majority of the Board immediately prior to the
acquisition of such fifty percent (50%) or more total fair market value or
total voting power; and provided, further, that if any Person is considered to
own more than fifty percent (50%) of the total fair market value or total
voting power of the stock of the Company, the acquisition of additional stock
by the same Person is not considered to be a Change in Control; or


 


(b)                                  A change in the effective control of the
Company.  On the date that either:


 


(i)                                     Any
Person acquires (or has acquired during the twelve (12)-month period ending on
the date of the most recent acquisition by such Person) ownership of stock of
the Company possessing thirty-five percent (35%) or more of the total voting
power of the stock of the Company; or


 


(ii)                                  On
the date a majority of members of the Board is replaced during any twelve
(12)-month period by directors whose appointment or election is not endorsed by
a majority of the Board before the date of the appointment or election;
provided, however, that any such director shall not be considered to be
endorsed by the Board if his or her initial assumption of office occurs as a
result of an actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board.


 


(c)                                   A change in the ownership of a substantial
portion of the Company’s assets.
 On the date any Person acquires (or has
acquired during the twelve (12)-month period ending on the date of the most
recent acquisition by such Person) assets from the Company that have a total
gross fair market value equal to or more than forty percent (40%) of the total
gross fair market value of all of the assets of the Company immediately before
such acquisition or acquisitions.  For
this purpose, gross fair market value means the value of the assets of the
Company or the value of the assets being disposed of, determined without regard
to any liabilities associated with such assets. 
However, there is no Change in Control when there is such a sale or
transfer to (i) a shareholder of the Company (immediately before the asset
transfer) in exchange for or with respect to the Company’s then outstanding
stock; (ii) an entity, at least fifty percent (50%) of the total value or
voting power of the stock of which is owned, directly or indirectly, by the
Company; (iii) a Person that owns directly or indirectly, at least fifty
percent (50%) of the 


 


2

















 


total value or voting power of the
outstanding stock of the Company; or (iv) an entity, at least fifty
percent (50%) of the total value or voting power of the stock of which is
owned, directly or indirectly, by a Person that owns, directly or indirectly,
at least fifty percent (50%) of the total value or voting power of the
outstanding stock of the Company.


 


(d)                                  For purposes of subparagraphs (a),(b) and
(c) above, “Person” shall have the meaning given in Section 7701(a)(1) of
the Code.  Person shall include more than
one Person acting as a group as defined by the Final Treasury Regulations
issued under Section 409A of the Code.


 


1.9.                              Code. 
Code shall mean the Internal Revenue Code of 1986, as amended.


 


1.10.                        Committee. 
Committee shall mean those persons designated to administer the Plan
pursuant to Section II.


 


1.11.                        Company. 
Company shall mean Fossil, Inc., a Delaware corporation, and its
successors and assigns.


 


1.12.                        Contributions. 
Contributions shall mean, collectively, the Salary Deferral
Contributions, and the Employer Contributions, with respect to each
Participant, except that when it shall be appropriate to refer to a particular
Contribution, reference shall be to that Contribution.


 


1.13.                        Deferred Payments. 
Deferred Payments shall mean the payment of a Participant’s Benefits as
described in Section 7.3.


 


1.14.                        Deferred Payment Date. 
Deferred Payment Date shall mean the date as of which a Participant’s
Deferred Payments are made or commenced.


 


1.15.                        Designated Affiliate. 
Designated Affiliate shall mean Fossil Partners, L.P., and each other
entity of which fifty percent (50%) or more of its value or, in the case of a
corporation, of the total combined voting power of all classes of stock, are
held by the Company or another subsidiary, whether or not such entity now
exists or is hereafter organized or acquired by the Company or another
subsidiary, and which has been designated for participation herein by the Committee.


 


1.16.                        Earnings. 
Earnings shall mean the notated credits or debits to a Participant’s
Account based on changes in the value (including, without limitation,
unrealized appreciation or depreciation) of the Participant’s Measurement
Preferences, plus the amount, if any, attributable to the crediting of the
Applicable Interest Rate, all determined in accordance with Rules of
General Application.


 


1.17.                        Effective Date. 
Effective Date shall mean December 30, 1998.  The Effective Date of the Second Amended and
Restated Plan shall be January 1, 2009.


 


1.18.                        Election Form. 
Election Form shall mean an election in such form as specified by
the Committee by which the Participant may specify his: (a) Salary
Deferral Contribution for 


 


3

















 


the Plan Year, (b) Measurement
Preferences, (c) form and timing of distribution of his Benefit, and (d) such
other matters as shall be determined by the Committee at the time of reference.


 


1.19.                        Eligible Employee. 
Eligible Employee shall mean an Employee of an Employer who is: (a) a
member of a select group of management or a highly compensated Employee and
after December 31, 2004, is at the level of vice president or above, and (b) designated
by the Committee as eligible to participate in the Plan.


 


1.20.                        Employee. 
Employee shall mean any person on the U.S. payroll of the Employer.


 


1.21.                        Employer. 
Employer shall mean, collectively, the Company and each Designated
Affiliate.


 


1.22.                        Employer Account. 
Employer Account shall mean the account maintained for each Participant
who has received an Employer Contribution, and which will reflect the amount of
such Employer Contribution and appropriate adjustments as provided herein.


 


1.23.                        Employer Contribution. 
Employer Contribution shall mean the amount, if any, credited under the
Plan by an Employer to an Eligible Participant, and evidenced by an Addendum.


 


1.24.                        Entry Date. 
Entry Date shall mean January 1st for each Plan Year;
except that for any Employee who first became an Eligible Employee on or
between January 1st and June 30th  of a Plan Year, the Entry Date shall
mean  July 1st of that
same Plan Year.


 


1.25.                        ERISA. 
ERISA shall mean the Employee Retirement Income Security Act of 1974, as
amended.


 


1.26.                        Grandfathered Benefit.  Grandfathered
Benefit shall mean the Benefit earned and Vested and credited to the Account of
any Participant as of December 31, 2004, plus any Earning credited to the
Account on and after January 1, 2005 relating to the such Benefit.


 


1.27.                        Installment Payment. 
Installment Payment shall mean each of a series of annual distributions,
in cash, of the Participant’s Account balance. 
A series of Installment Payments will be treated as a single payment for
purposes of Section 409A of the Code.


 


1.28.                        Investment Date. 
Investment Date shall mean the first Business Day in each Quarter,
except that it also shall mean an Entry Date (except that if the Entry Date is
not a Business Day, then the first Business Day following an Entry Date) with
respect to each Eligible Employee who first becomes a Participant on such Entry
Date.


 


1.29.                        Lump Sum. 
Lump Sum shall mean a single distribution, in cash, of a Participant’s
Benefit.


 


1.30.                        Measurement Preference. 
Measurement Preference shall mean the preference described in Section 5.3.


 


4

















 


1.31.                        Participant. 
Participant shall mean an Eligible Employee who participates in the Plan
pursuant to Section 3.


 


1.32.                        Plan. 
Plan shall mean the Second Amended and Restated Fossil, Inc. and
Affiliates Deferred Compensation Plan, as set forth in this document and
subsequent amendments.


 


1.33.                        Plan Year. 
Plan Year shall mean calendar year.


 


1.34.                        Quarter. 
Quarter shall mean calendar quarter.


 


1.35.                        Rules of General Application.  Rules of General Application shall mean
those rules promulgated by the Committee, in its sole discretion, from
time to time with respect to the matter of reference, but which will be applied
in a consistent manner to similarly situated Participants.


 


1.36.                        Salary.  Salary
shall mean Participant’s base salary determined as of December 31
preceding the effective date of the election to defer Salary.  Salary shall include any amounts deferred
under Sections 125 or 401(k) of the Code, plus any amounts under this
Plan, but excludes bonuses, expense reimbursements and fringe benefits.


 


1.37.                        Salary Deferral Account. 
Salary Deferral Account shall mean the amount credited under the Plan as
a result of the Participant’s Salary Deferral Contributions, and appropriate
adjustments as provided herein.


 


1.38.                        Salary Deferral Contributions.  Salary Deferral Contributions shall mean the
amounts described in Section 4.2.


 


1.39.                        Separation from Service. 
Separation from Service means a termination of services provided by a
Participant to an Employer, whether voluntarily or involuntarily, as determined
by the Committee in accordance with Treas. Reg. §1.409A-1(h).  In determining whether a Participant has
experienced a Separation from Service, the following provisions shall apply:


 


(a)                                   For
a Participant who provides services to an Employer as an Employee, a Separation
from Service shall occur when such Participant has experienced a termination of
employment with such Employer.  A
Participant shall be considered to have experienced a termination of employment
when the facts and circumstances indicate that the Participant and an Employer
reasonably anticipate that either (i) no further services will be
performed for such Employer after a certain date, or (ii) that the level
of bona fide services the Participant will perform for such Employer after such
date (whether as an Employee or as an independent contractor) will permanently
decrease to no more than twenty percent (20%) of the average level of bona fide
services performed by such Participant (whether as an Employee or an
independent contractor) over the immediately preceding thirty-six (36)-month
period (or the full period of services to such Employer if the Participant has
been providing services to such Employer less than thirty-six (36) months).


 


5

















 


(b)                                  If
a Participant is on military leave, sick leave, or other bona fide leave of
absence, the employment relationship between the Participant and an Employer
shall be treated as continuing intact, provided that the period of such leave
does not exceed six (6) months; or if longer, so long as the Participant
retains a right to reemployment with such Employer under an applicable statute
or by contract.  If the period of a
military leave, sick leave, or other bona fide leave of absence exceeds six (6) months
and the Participant does not retain a right to reemployment under an applicable
statute or by contract, the employment relationship shall be considered to be
terminated for purposes of the Plan as of the first day immediately following
the end of such six (6)-month period.  In
applying the provisions of this paragraph, a leave of absence shall be
considered a bona fide leave of absence only if there is a reasonable
expectation that the Participant will return to perform services for an
Employer.


 


1.40.                        Specified Employee. 
Specified Employee means any Participant who is determined to be a “key
employee” (as defined under Section 416(i) of the Code without regard
to paragraph (5) thereof) for the applicable period, as determined
annually by the Committee in accordance with Treas. Reg. §1.409A-1(i).  In determining whether a Participant is a
Specified Employee, the following provisions shall apply:


 


(a)                                   Identification
of the individuals who fall within the definition of “key employee” under Section 416(i) of
the Code (without regard to paragraph (5) thereof) shall be based upon the
twelve (12)-month period ending on each December 31st (referred to below
as the “identification date”).  In
applying the applicable provisions of Section 416(i) of the Code to
identify such individuals, “compensation” shall be determined in accordance
with Treas. Reg. §1.415(c)-2(a) without regard to (i) any safe harbor
provided in Treas. Reg. §1.415(c)-2(d), (ii) any of the special timing rules provided
in Treas. Reg. §1.415(c)-2(e), and (iii) any of the special rules provided
in Treas. Reg. §1.415(c)-2(g); and


 


(b)                                  Each
Participant who is a “key employee” in accordance with part (a) of this Section shall
be treated as a Specified Employee for purposes of this Plan if such
Participant experiences a Separation from Service during the twelve (12)-month
period that begins on the April 1st following the applicable
identification date.


 


1.41.                        Third-Party Record Keeper. 
Third-Party Record Keeper shall mean the person or entity selected by
the Committee to maintain the records necessary to the administration of the
Plan.


 


1.42.                        Trust. 
Trust shall mean a trust which substantially conforms to the model rabbi
trust provided in Section 5 of the Internal Revenue Service’s Revenue
Procedure 92-64, 1992-2 C.B. 422, that may be established between the Company
and the trustee(s) named in the Trust.


 


1.43.                        Valuation Date. 
Valuation Date shall mean the last Business Day of each Quarter.


 


1.44.                        Vest, Vesting or Vested. 
Vest, Vesting or Vested, shall mean the portion of a Participant’s
Employer Account which is nonforfeitable at the time of reference.


 


6

















 


SECTION 
II.




ADMINISTRATION


 


2.1.                              Appointment of Committee. 
The Board shall appoint the Committee comprised of one or more persons
who may or may not be Employees.  The
Board may change Committee membership at any time without cause, and a member
may resign by providing written notice to the Company.  Any vacancy in the membership of the
Committee may be filled by the Board.


 


2.2.                              Employer Duties. 
An Employer shall, upon request or as may be specifically required under
the Plan, furnish or cause to be furnished all of the information or documentation
in its possession or control that is necessary or required by the Committee to
perform its duties and functions under the Plan.


 


2.3.                              Authority of Committee. 
The Committee shall have the exclusive authority and responsibility for
administering the Plan in accordance with its terms.  All exercises of authority by the Committee
under this Plan shall be final, conclusive and binding.


 


2.4.                              Action by Committee. 
The Committee may elect a chairman who shall be a member of the
Committee and a secretary who may, but need not, be a member of the
Committee.  Any and all acts and
decisions of the Committee shall be by at least a majority of the then members,
but the Committee may delegate to any one or more of its members the authority
to sign notices or other documents on its behalf or to perform ministerial acts
for it, in which event any person may accept such notice, document or act
without questioning its having been authorized by the Committee.


 


2.5.                              Meetings of Committee. 
The Committee shall hold meetings upon such notice, at such place or
places, and at such time or times as it may from time to time determine;
provided, however, any decisions made or action taken pursuant to written
approval of a majority of the then members shall be sufficient; and provided,
further, and without limitation, that the Committee may take actions which have
retroactive effect.


 


2.6.                              Powers of Committee and Company.  The Committee shall have all powers and
discretion as may be necessary to discharge its duties and responsibilities
under this Plan, including, without limitation, the power, exercisable in its
sole discretion: (a) to interpret or construe the Plan, (b) to make rules and
regulations for the administration of the Plan, (c) to determine all
questions of eligibility, status and other rights of Participants,
beneficiaries and other persons, (d) to confirm or reject each
Participants selection of Measurement Preferences, and (e) to resolve any
dispute which may arise under this Plan involving Participants or beneficiaries.  The Committee may engage agents to assist it
and may engage legal counsel, who may be counsel for the Company.


 


No member of the Committee
shall vote or act upon any matter which relates exclusively to such member’s
own rights or benefits under this Plan. 
If all members of the Committee shall be disqualified with regard to one
or more matters, the President of the Company shall appoint one or more
qualifying persons to be the Committee only with regard to such specific
matters.


 


7

















 


2.7.                              Indemnification. 
Without limitation, including Section 11.9, the members of the
Committee shall be indemnified by the Company against any and all liabilities
arising by reason of any act, or failure to act, pursuant to the provisions of
the Plan, including expenses reasonably incurred in the defense of any claim
relating to the Plan, even if the same is judicially determined to be due to
such member’s negligence, but not when the same is judicially determined to be
due to the gross negligence or willful misconduct of such member.


 


2.8.                              Bond and Expenses. 
The Committee shall serve without bond unless state or federal statutes
require otherwise, in which event the Company shall pay the premium.  The expenses of the Committee shall be paid
by the Company.  Such expenses shall
include all expenses incident to the functioning of the Committee, including,
without limitation, litigation costs, fees of accountants, counsel and other
specialists and other costs of administering the Plan.


 


2.9.                              Reliance on Tables. 
In administering the Plan, the Committee shall be entitled to the extent
permitted by law to rely conclusively on all tables, valuations, certificates,
opinions and reports which are furnished by accountants, legal counsel or other
experts employed or engaged by the Committee.


 


SECTION 
III.



PARTICIPATION


 


An Eligible Employee will
first become a Participant by filing an Election Form prior to his Entry
Date in accordance with Section 4.1(a) and will remain a Participant
until he receives the payment of his entire Benefit.  Being designated as an Eligible Employee for
one Plan Year does not entitle such Employee to continued status as an Eligible
Employee for subsequent Plan Years.  A
designation of an Employee as an Eligible Employee for any Plan Year shall be
made by the Committee in advance of such Plan Year, except that for the first
Plan Year such designation shall be made before January 1 or July 1,
as applicable.  Following removal of the
status of Eligible Employee for any Participant, such Participant shall not be
able to elect Salary Deferral Contributions for any subsequent Plan Year in
which he is not an Eligible Employee.


 


SECTION 
IV.



CONTRIBUTIONS


 


4.1.                              Election Dates.


 


(a)                                 First Plan Year.  An Employee who first becomes eligible to
participate in the Plan on or after the beginning of a Plan Year, as determined
in accordance with Treas. Reg. §1.409A-2(a)(7)(ii) and the “plan
aggregation” rules provided in Treas. Reg. §1.409A-1(c)(2), shall file an
Election Form which shall include, among other things, any election to
defer the portion of his Salary attributable to services to be performed after
such election and elections as to the timing and form of payment of such Salary
Deferral Contributions and any Employer Contributions for such Plan Year,
provided that a Participant whose Entry Date is January 1st
must submit an Election Form no later than the December 31st
immediately preceding such Entry Date and a Participant whose Entry 


 


8

















 


Date is July 1, must
submit an Election Form no later than the June 30th
immediately preceding such Entry Date. 
Any deferral election made in accordance with this Section 4.1(a) shall
become irrevocable as of the applicable Entry Date that the Employee first
becomes eligible to participate in the Plan.


 


(b)                                Subsequent
Plan Years.    An Election Form shall continue to apply
to each subsequent Plan Year until a Participant files a new Election Form before
the December 31 preceding the Plan Year for which the election is made.  For each
succeeding Plan Year in which the Participant continues to be an Eligible
Employee, and the Participant wants to change his elections for such succeeding
Plan Year, an irrevocable deferral election for the Salary Deferral
Contributions and the timing and form of payment of any such Salary Deferral
Contributions and Employer Contributions attributable to that Plan Year shall
be made by timely delivering a new Election Form to the Committee, in
accordance with the Rules of General Application, before the December 31st
preceding the Plan Year for which the election is made.


 


4.2.                              Salary Deferral Contributions.  An Employee who is an Eligible Employee on
his Entry Date with respect to a Plan Year may elect to defer from Salary any
amount which is not less than Five Thousand Dollars ($5,000) (prorated based on
the remaining portion of the Plan Year if the Participant’s Entry Date is not January 1st)
and not more than fifty percent (50%) of his Salary payable during the portion
of the Plan Year following such Entry Date, by filing an Election Form with
the Committee prior to such Entry Date. 
Unless otherwise determined by the Committee, the election to defer
Salary must be designated as a fixed dollar amount.  If an Eligible Employee has never timely
filed an Election Form deferring a portion of his Salary, then such
Eligible Employee shall not have any portion of his Salary deferred.  Notwithstanding any provision hereof to the
contrary, the amount of a Participant’s Salary Deferral Contributions will be
deducted from a Participant’s Salary on each payroll date during the Plan Year
of reference in an amount equal to the total Salary Deferral Contribution
divided by the number of payroll dates during the Plan Year of reference
following the Entry Date of reference.


 


4.3.                              Crediting of Salary Deferral Contributions.  The portion of the Salary Deferral
Contribution amount which will be deducted from Salary shall be credited to the
Participant’s Salary Deferral Account as soon as administratively practicable,
but no later than thirty (30) days, after the payroll period from which such
salary was deferred.


 


4.4.                              Employer Contributions. 
At any time on or after the Effective Date, in addition to the amount
described in Section 4.2, an Employer may credit a Participant’s Employer
Account with such amount as it shall determine in its sole discretion.  The name of the Participant, the amount to be
credited, the date as of which it is to be credited, the rate of Vesting, and
such other matters as are required to be set forth (as determined by the
Employer in its sole discretion), shall be set forth on the Addendum; provided
that one hundred percent (100%) of such amounts contributed for a Participant,
and related Earnings, shall be forfeited on such Participant’s Separation from
Service for reasons other than a Change in Control unless otherwise expressly
provided in an Addendum expressly relating to such Employer Contribution.


 


4.5.                              Disposition of Contributions.  At the discretion of the Plan
Administrator, Contributions may be delivered to the Trust or the funds may be
retained by the Employer.


 


9
















 


SECTION 
V.




PARTICIPANT’S
ACCOUNTS AND INVESTMENTS


 


5.1.                              Establishment of Account. 
The Committee shall establish separate Accounts for each Participant, to
which shall be credited or debited the Participant’s share of Contributions and
Earnings, and to which shall be debited the Account’s share of expenses and
distributions.  Grandfathered Benefits
shall be accounted for separately within the Participant’s Account.


 


5.2.                              Earnings Credited to Accounts.  Earnings on amounts credited to an Account
shall be credited or debited to such Account on each Business Day based on the
value of the Account’s Measurement Preferences on such Business Day, all in the
manner determined by the Committee in accordance with Rules of General
Application.


 


5.3.                              Investment Direction. 
Effective as of each Investment Date, in accordance with Rules of
General Application, each Participant may select investments (“Measurement
Preferences”) from among the different investment alternatives which are made
available by the Committee, for existing balances in his Account and for future
Contributions, such selection of Measurement Preferences to be made in
increments of five percent (5%), and such percentages to apply equally to the
amount credited to the Participant’s Account on the immediately preceding
Valuation Date, and to Contributions credited to such Account subsequent to
such Valuation Date.  No actual
investments shall be made by Participants. 
The Measurement Preferences, and the Applicable Interest Rate, are only
for the purpose of determining the Employer’s payment obligation under the Plan
and such Measurement Preferences do not control any actual investments.


 


5.4.                              Statements. 
In accordance with Rules of General Application, but not less
frequently than one statement for each Plan Year, each Participant shall have a
statement made available setting forth: (a) the amount in his Account, (b) the
amount of Contributions, separately showing the Salary Deferral Contributions
and Employer Contributions, credited to his Account since the previous
statement, (c) the Earnings credited or debited to his Account since the
previous statement, (d) any debited charges to, or distributions from, his
Account since the previous statement, and (e) any other information or
disclosures determined appropriate by the Committee.


 


SECTION 
VI.



VESTING


 


6.1.                              Salary Deferral Account. 
Participant shall always be one hundred percent (100%) Vested in the
amounts credited to his Salary Deferral Account.


 


6.2.                              Employer Account. 
A Participant shall Vest in the amount credited to his Employer Account
in accordance with the Vesting Schedule set forth on the Addendum which
evidences such Employer Contribution, and otherwise shall be zero percent (0%)
Vested.  Notwithstanding any other
provision in this Plan, a Participant’s Employer Account will become one
hundred percent (100%) Vested upon the first occurrence of a Change in Control,
or 


 


10

















 


Separation from Service
for reason of death, disability, or normal retirement at or after attaining age
sixty-five (65).


 


SECTION 
VII.



DISTRIBUTION OF BENEFIT


 


7.1.                              Form and Timing of Distribution.  Unless the Participant is entitled to a
Deferred Payment or is a Specified Employee, upon a Participant’s Separation
from Service he shall receive a Lump Sum distribution within sixty (60) days
after the Valuation Date next following his Separation from Service.  The amount of such Lump Sum distribution
shall be equal to his Benefit determined as of the Valuation Date preceding the
date of distribution.


 


7.2.                              Special Rules for Specified  Employees. 
Notwithstanding anything to the contrary, distributions of Grandfathered
Benefits to Specified Employees shall be made in the form and timing set forth
in Section 7.1 above.


 


(a)                               To the extent (i) any payments to which the Participant becomes
entitled under this Plan in connection with the Participant’s Separation from
Service constitute deferred compensation subject to Section 409A of the
Code, and (ii) the Participant is deemed at the time of such Separation
from Service to be a Specified Employee, then such payment or payments shall
not be made or commence until the earliest of (x) the expiration of the
six (6) month period measured from the date of the Participant’s
Separation from Service with an Employer; and (y) the date of the
Participant’s death following such Separation from Service.  Upon the expiration of the applicable
deferral period, any payments which would have otherwise been made during that
period (whether in a single sum or in installments) in the absence of this Section 7.2
shall be paid to the Participant or the Participant’s beneficiary in one Lump
Sum.


 


(b)                              Each Participant will be responsible for discussing the tax
consequences of this Plan and the transactions contemplated hereby with his or
her own tax advisors.  The Company, in
its sole discretion, may request that each Participant represent to the Company
that he or she is relying solely on his or her tax advisors and not on any
statements or representations of an Employer or any of their agents and
acknowledge that he or she understands that the Participant (and not an
Employer) shall be responsible for the Participant’s own tax liability that may
arise as a result of this Plan or the transactions contemplated hereby, except
as otherwise specifically provided in this Plan.


 


7.3.                              Election of Deferred Payments.  At the time a Participant completes an
Election Form with respect to a Plan Year, the Participant shall elect the
timing and form of payment of Benefits (the “Initial Deferred Payment Date”) in
the event the Participant is entitled to a Deferred Payment upon his Separation
from Service.  A Participant shall be
entitled to a Deferred Payment if his Separation from Service is not by reason
of his death, and if on his date of Separation from Service: (a) he has
attained the age of fifty-five (55) and completed at least five (5) Years
of Service, and (b) has filed an Election Form on which he has (i) selected
a Deferred Payment Date, and (ii) selected a form of payment.  A Participant’s Deferred Payments


 


11

















 


may be made or commenced at
any time, after age fifty-five (55) and prior to the later of age sixty-five
(65) or his Separation from Service, and may be paid either in a Lump Sum or in
five, ten, or fifteen Installment Payments, as elected by the Participant on
his Election Form.  A Participant must
submit his Election Form prior to the Plan Year in which the Salary
Deferral Contributions and/or Employer Contributions occur in accordance with Section 4.1(b),
unless such Participant became a Participant in such Plan Year and filed an
Election Form in accordance with Section 4.1(a).


 


A Participant may make a subsequent election to
change the Initial Deferred Payment Date or form of a payment provided the
following requirements are met:


 


(a)                               The Deferred Payment with respect to which the subsequent election is
made must be deferred for a period of not less than five (5) years from
the Initial Deferred Payment Date (in the case of Installment Payments, five
years from the date the first Installment Payment was scheduled to be paid);
and


 


(b)                              The subsequent election must be made not less than twelve (12) months
before the Deferred Payment Date (in the case of Installment Payments, twelve
(12) months before the date the first Installment Payment was scheduled to be
paid.


 


7.4.                              Installment Payments. 
If the Participant elects a Deferred Payment in the form of  Installment Payments, each installment shall
be equal to the product of: (i) his Benefit on the Valuation Date next
preceding the date of payment, multiplied by (ii) a fraction, the
numerator of which is one (1), and the denominator of which is the total number
of installments originally elected less the number of installments previously
paid.


 


7.5.                              Change in Control. 
Notwithstanding any other provision to the contrary, upon a Change in
Control, all Benefits hereunder (including, without limitation, Benefits
subject to Deferred Payment elections or which are being paid in Installment
Payments), shall be distributed to Participants in a Lump Sum as soon as
reasonably possible, but not more than thirty (30) days, after such Change in
Control.


 


7.6.                              Hardship Distribution. 
A Participant may not withdraw funds credited to the Participant’s
Account, unless the Participant has an Unforeseeable Emergency.  An “Unforeseeable Emergency” is a severe
financial hardship to the Participant resulting from (a) an illness or
accident of the Participant, or the Participant’s spouse, Beneficiary, or
dependent (as defined in Section 152 of the Code, without regard to
Sections 152(b)(1), (b)(2), and (d)(1)(B) of the Code), (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 Participant’s control, all as determined by the Committee based on
the relevant facts and circumstances and as provided for in Treas. Reg.
§1.409A-3(i)(3) or any successor provision.


 


Whether a Participant is
faced with an Unforeseeable Emergency under the Plan is to be determined based
on the relevant facts and circumstances of each case, but in any case, a
withdrawal on account of Unforeseeable Emergency may not be made to the extent
that such emergency is or may be relieved (a) through reimbursement or
compensation from insurance or 


 


12

















 


otherwise, (b) by liquidation of the Participant’s
assets, to the extent the liquidation of such assets would not cause severe
financial hardship, or (c) by cessation of deferrals under the Plan.


 


Withdrawal because of an Unforeseeable Emergency
must be limited to the amount reasonably necessary to satisfy the emergency
need (which may include amounts necessary to pay any federal, state, local, or
foreign income taxes or penalties reasonably anticipated to result from the
distribution), as determined by the Committee, in its sole discretion.  The Participant must apply in writing for a
payment upon an “Unforeseeable Emergency,” using the form prescribed by the
Committee.  The Committee retains the
sole and absolute discretion to grant or deny a payment upon an Unforeseeable
Emergency.  In the event of approval of a
payment upon an Unforeseeable Emergency, the Participant’s outstanding deferral
elections under the Plan shall be cancelled.


 


The Participant shall receive a Lump Sum cash
payment of the amount approved by the Committee within ninety (90) days of
approval, and such amount shall be deducted from his Account in accordance with
Rules of General Application.  If a
Participant receives a hardship distribution he shall be ineligible to elect
Salary Deferral Contributions for the following Plan Year.


 


7.7.                              Grandfathered Benefits. 
Prior to a Participant’s termination of employment with an Employer, in
accordance with Rules of General Application, a Participant may elect to
receive a distribution of all (subject to the forfeiture), or a portion of his
Grandfathered Benefit.  If a Participant
elects to receive such a distribution, he shall permanently and irrevocably
forfeit from his Grandfathered Benefit an amount equal to twenty percent (20%)
of the amount so distributed and such Participant shall be ineligible to elect
Salary Deferral Contributions for the following Plan Year.  The amount forfeited shall inure to the
benefit of the Employer in the manner determined by the Committee, and such
amount shall be deducted from his Measurement Preferences in accordance with Rules of
General Application.  Upon termination of
employment with an Employer for any reason, Grandfathered Benefits shall be
distributable in accordance with the provisions of the Predecessor Plan.


 


7.8.                              Source of Distribution.  All payments of Benefits shall be in cash from the
funds in the Trust or, in the discretion or the Employer, from the Employer’s
funds held outside of the Trust.  Nothing
contained in the Plan, nor any action taken pursuant to the provisions of the
Plan, shall create or be construed to create a fiduciary relationship between
the Company, an Employer, Participant, Beneficiary, or Employee or other
person.  To the extent that any person
acquires a right to be paid Benefits, such right shall be no greater than the
right of an unsecured general creditor of his Employer.


 


SECTION 
VIII.



DESIGNATION OF BENEFICIARIES


 


8.1.                              Designation by Participant.  Participant’s written designation of one or
more persons or entities as his Beneficiary shall operate to designate the
Participant’s Beneficiary under this Plan. 
The Participant shall file with the Committee a copy of his Beneficiary
designation under the Plan.  The last
such designation received by the Committee shall be 


 


13

















 


controlling, and no
designation, or change or revocation of a designation shall be effective unless
received by the Committee prior to the Participant’s death, and in no event
shall it be effective as of a date prior to such receipt.


 


8.2.                              Lack of Designation.  If no
Beneficiary designation is in effect at the time of Participant’s death, if no
designated Beneficiary survives the Participant or if the otherwise applicable
Beneficiary designation conflicts with applicable law, the Participant’s estate
shall be the Beneficiary.  The Committee
may direct the Employer or Trustee to retain any unpaid Benefits, without
crediting for either Measurement Preferences or Applicable Interest Rate, until
all rights to the unpaid Benefits are determined.  Alternatively, the Committee may direct the
Employer or Trustee to pay the Benefits 
into any court of appropriate jurisdiction.  Any such payment shall completely discharge
each Employer, the Trustee, and the Committee from any liability under the
Plan.


 


SECTION 
IX.



AMENDMENT AND TERMINATION


 


The Plan, without cause and
without prior notice, may be terminated, in whole or in part, by the Board, in
which case the Employer Account of any affected Participant shall become one
hundred percent (100%) Vested on such date of termination.  In the event of a Plan termination, no new
deferral elections shall be permitted for the affected Participants and such
Participants shall no longer be eligible to receive contributions to his or her
Employer Account.  However, the
Participants’ Accounts shall continue to be credited with amounts attributable
to a deferral election that was in effect prior to the Plan termination to the
extent deemed necessary to comply with Section 409A of the Code and
related Treasury Regulations.  The
Measurement Preferences available to Participants following the termination of
the Plan shall be comparable in number and type to those Measurement
Preferences available to Participants under the Plan prior to termination.  In addition, following a Plan termination,
amounts in Participant Accounts shall remain in the Plan and shall not be distributed
until such amounts become eligible for distribution in accordance with the
applicable provisions of the Plan. 
Notwithstanding the preceding sentence, to the extent permitted by
Treas. Reg. §1.409A-3(j)(4)(ix), an Employer may provide that upon termination
of the Plan, all Account balances of the Participants shall be distributed,
subject to and in accordance with any rules established by such Employer
deemed necessary to comply with the applicable requirements and limitations of
Treas. Reg. §1.409A-3(j)(4)(ix).


 


The Plan may be amended at
any time by the Board or the Committee and, without limiting the generality of
any other provision hereof, if the Committee determines that an amendment to
the Plan would result in a substantial prospective reduction in either the
rights or benefits of one or more Participants with respect to their Benefit
determined as of the effective date of such amendment, the Committee must give
each affected Participant notice of the amendment not less than ninety (90) days
prior to the taxable year for which the amendment is effective.  No such amendment, modification, or
alteration shall be exercised retroactively to alter or change the rights of
Participants or their Beneficiaries insofar as they relate to past deferrals, nor
shall any such amendment divest any Participant of any deferral made prior to
the amendment.  In addition, no such
amendment shall modify the Plan in any way that would 


 


14

















 


violate
Section 409A of the Code.  The
Company intends to continue this Plan indefinitely, but nevertheless assumes no
contractual obligation to continue this Plan or makes any promise to pay
benefits other than as provided under this Plan.


 


SECTION 
X.



CLAIMS PROVISIONS


 


10.1.                        Presentation of Claim.  Any Participant or
Beneficiary of a deceased Participant (such Participant or Beneficiary being
referred to below as a “Claimant”) may deliver to the Committee a written claim
for a determination with respect to the amounts distributable to such Claimant
from the Plan.  If such a claim relates
to the contents of a notice received by the Claimant, the claim must be made
within sixty (60) days after such notice was received by the Claimant.  All other claims must be made within one
hundred eighty (180) days of the date on which the event that caused the claim
to arise occurred.  The claim must state
with particularity the determination desired by the Claimant.


 


10.2.                        Notification of Decision.  The Committee shall
consider a Claimant’s claim within a reasonable time, but no later than ninety
(90) days after receiving the claim.  If
the Committee determines that special circumstances require an extension of
time for processing the claim, written notice of the extension shall be
furnished to the Claimant prior to the termination of the initial ninety (90)
day period.  In no event shall such
extension exceed a period of ninety (90) days from the end of the initial
period.  The extension notice shall
indicate the special circumstances requiring an extension of time and the date
by which the Committee expects to render the benefit determination.  The Committee shall notify the Claimant in
writing:


 


(a)                                  that
the Claimant’s requested determination has been made, and that the claim has
been allowed in full; or


 


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


 


(i)                                     the
specific reason(s) for the denial of the claim, or any part of it;


 


(ii)                                  specific
reference(s) to pertinent provisions of the Plan upon which such denial
was based;


 


(iii)                               a
description of any additional material or information necessary for the
Claimant to perfect the claim, and an explanation of why such material or
information is necessary;


 


(iv)                              an
explanation of the claim review procedure set forth in Section 10.3 below;
and


 


(v)                                 a
statement of the Claimant’s right to bring a civil action under Section 502(a) of
ERISA following an adverse benefit determination on review.


 


15

















 


10.3.                        Review of a Denied Claim.  On or before sixty
(60) days after receiving a notice from the Committee that a claim has been
denied, in whole or in part, a Claimant (or the Claimant’s duly authorized
representative) must file with the Committee a written request for a review of
the denial of the claim.  The Claimant
(or the Claimant’s duly authorized representative) may:


 


(a)                                   upon request and free of charge, have
reasonable access to, and copies of, all documents, records and other
information relevant to the claim for benefits;


 


(b)                                  submit written comments or other documents;
and


 


(c)                                  request
a hearing, which the Committee, in its sole discretion, may grant.


 


10.4.                        Decision on Review.  The Committee shall
render its decision on review promptly, and no later than sixty (60) days after
the Committee receives the Claimant’s written request for a review of the
denial of the claim.  If the Committee
determines that special circumstances require an extension of time for
processing the claim, written notice of the extension shall be furnished to the
Claimant prior to the termination of the initial sixty (60) day period.  In no event shall such extension exceed a
period of sixty (60) days from the end of the initial period.  The extension notice shall indicate the
special circumstances requiring an extension of time and the date by which the
Committee expects to render the benefit determination.  In rendering its decision, the Committee
shall take into account all comments, documents, records and other information
submitted by the Claimant relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit determination.  The decision must be written in a manner
calculated to be understood by the Claimant, and it must contain:


 


(a)                                   specific reasons for the decision;


 


(b)                                  specific reference(s) to the pertinent
Plan provisions upon which the decision was based;


 


(c)                                   a statement that the Claimant is entitled to
receive, upon request and free of charge, reasonable access to and copies of,
all documents, records and other information relevant (as defined in applicable
ERISA regulations) to the Claimant’s claim for benefits; and


 


(d)                                 a
statement of the Claimant’s right to bring a civil action under Section 502(a) of
ERISA.


 


10.5.                        Legal Action.  A Claimant’s
compliance with the foregoing provisions of this Article 10 is a mandatory
prerequisite to a Claimant’s right to commence any legal action with respect to
any claim for benefits under the Plan.


 


16

















 


SECTION 
XI.



GENERAL PROVISIONS


 


11.1.                        No Assignment.  The right of any Participant to Benefits
shall not be assigned, transferred, pledged or encumbered, either voluntarily
or by operation of law, except as provided in Section 8 with respect to
designations of Beneficiaries.


 


11.2.                        Incapacity.  If the Committee shall find that any person
to whom any Benefit is payable under the Plan is unable to care for his affairs
because of illness or accident or is a minor, any payment due shall be paid to
the duly appointed guardian, committee or other legal representative for such
person.  Any such payment shall be a
complete discharge of the liabilities of each Employer and the Committee as to
the amount paid.


 


11.3.                        Final Resolution of Disputes Relating to Plan.  If, after the exhaustion of the claims
procedure set forth in Article 10 one or more disputes remain with regard
to the rights under the Plan of any Employee, Participant, Beneficiary or
person claiming under them, such person(s) and the Committee
(collectively, “Interested Parties”) may agree to attempt to resolve same by
telephone conference with an agreed mediator. 
If the Interested Parties cannot resolve their differences by such
telephone conference, then the Interested Parties may agree to schedule a one
day mediation with a mediator who is mutually agreeable to the Interested
Parties, within thirty (30) days to resolve the disputes and to share equally
the costs of such mediation.  The costs
and expenses of mediation will be paid by the Company.  If the Interested Parties agree to mediation
and are unable to resolve their dispute by mediation, then the Interested
Parties may institute an arbitration proceeding under the auspices of the
American Arbitration Association to construe or enforce the provisions of the
Plan.  The Interested Party prevailing in
any such arbitration shall recover from the adverse party its actual damages
and reasonable costs and expenses, including, without limitation, reasonable
attorneys’ fees incurred in connection with such dispute and arbitration.  If the Interested Parties seek resolution
through mediation and arbitration then they will waive their right to institute
litigation in a court of law to resolve a dispute concerning the construction
or enforcement of this Plan.


 


11.4.                        Information Required.  Each Participant shall file with the
Committee such pertinent information concerning the Participant and any
Beneficiary as the Committee may specify, and no Participant or Beneficiary or
other person shall have any rights or be entitled to any benefits under the
Plan, unless such information is properly filed.


 


11.5.                        Communications by, and Information from, Participant.  All elections, selections, designations,
requests, notices, instructions and other Participant communications to the
Committee, Third-Party Record Keeper, Company, or Employer required or
permitted under the Plan shall be in such form as is prescribed in the Rules of
General Application.  If the Committee
notifies the Participant or Beneficiary at his last known electronic address or
mailing address that he is entitled to a distribution, and the Participant or
Beneficiary fails to claim his benefits under the Plan within one year after
such notification, his Benefit will be forfeited and inure to the benefit of
the Employer in the manner determined by the Committee.  If the 


 


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Participant or Beneficiary
is subsequently located, such Benefit will be restored, but without Earnings
being credited subsequent to the date of the forfeiture.


 


11.6.                        No Rights Implied.  Without limitation,
nothing contained in this Plan, nor any modification or amendment to the Plan,
nor the creation of any Account on the books of the Company, shall give any
Employee or Participant any legal or equitable right against the Company or any
officer, director, or Employee of the Company, except as expressly provided by
the Plan.


 


11.7.                        Communications by Committee or Employer.  All notices,
statements, reports and other communications from the Committee or any Employer
to any person required or permitted under the Plan shall be deemed to have been
duly given when sent either (a) electronically or (b) via first-class
mail, postage prepaid, and addressed to such person at his address last
appearing on the Plan’s records.


 


11.8.                        Interpretations and Adjustments.  To the extent
permitted by law, each interpretation of the Plan and each decision on any
matter relating to the Plan made by the Board, the Company, or the Committee,
within their scope of their authority hereunder, shall be made in their sole
discretion and shall be binding on all persons. 
A misstatement or other mistake of fact shall be corrected when it
becomes known and the person responsible shall make such adjustment on account
thereof as he considers equitable and practicable.


 


11.9.                        No Liability for Good Faith Determinations.  Neither the Company,
the Board, nor the Committee shall be liable for any act, omission, or
determination taken or made with respect to the Plan which is not judicially
determined to be due to willful misconduct, and members of the Board, and the
Committee, shall be entitled to indemnification and reimbursement by the
Company in respect of any claim, loss, damage, or expense (including attorneys’
fees, the costs of settling any suit, provided such settlement is approved by
independent legal counsel selected by the Company, and amounts paid in satisfaction
of a judgment, except a judgment based on a finding of willful misconduct)
arising therefrom to the full extent permitted by law and under any directors’
and officers’ liability or similar insurance coverage that may from time to
time be in effect.


 


11.10.                  No Employment Rights.  Neither the Plan nor any action taken under
the Plan shall be construed as giving to any Employee the right to be retained
in the employ of an Employer or as affecting the right of an Employer to
dismiss any Employee at any time, with or without cause.


 


11.11.                  Withholding of Taxes.  An Employer shall deduct from Participant’s
Salary or the amount of any payment made pursuant to this Plan any amounts
required to be paid or withheld by the federal government or any state or local
government.  By his participation in the
Plan, the Participant agrees to all such deductions.


 


11.12.                  Waivers.  Any waiver of any right granted pursuant to
this Plan shall not be valid unless the same is in writing and signed by the
party waiving such right.  Any such
waiver shall not be deemed to be a waiver of any other rights.


 


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11.13.                  Records.  Records of the Company, and of the Committee,
as to any matters relating to this Plan will be conclusive on all persons.


 


11.14.                  Securities Laws.  The Plan intends to comply with and be exempt
under The Securities Act of 1933, as amended. 
The Participants under the Plan are final purchasers and not
underwriters or conduits to other beneficial owners or subsequent purchasers.


 


11.15.                  Severability.  In case any one or more of the provisions
contained in this Plan shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
in this Plan shall not in any way be affected or impaired.


 


11.16.                  Captions and Gender.  The captions preceding the Sections and
Subsections of this Plan have been inserted solely as a matter of convenience
and in no way define or limit the scope or intent of any provisions of this
Plan.  Where the context admits or
requires, words used in the masculine gender shall be construed to include the
feminine and the neuter also, the plural shall include the singular, and the
singular shall include the plural.


 


11.17.                  Choice of Law.  The Plan and all rights under this Plan shall
be governed by and construed in accordance with the laws of the State of Texas,
except to the extent preempted by ERISA.


 


11.18.                  Effective Date and Termination Date.  This amendment and restatement is effective January 1,
2009, and shall terminate on the date no further Benefits are credited
hereunder, or on such earlier date as the Plan is terminated pursuant to Section IX.


 


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IN WITNESS WHEREOF, the
Company has executed this Second Amended and Restated Plan on this the 27th day
of October, 2008.


 


	
   

  	
  FOSSIL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael W. Barnes

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  President
  and COO

  



 


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