Filed by Bowne Pure Compliance





Exhibit 10.5




UST INC.




BENEFIT RESTORATION PLAN

409A Document

(January 1, 2005 Restatement, as Amended Through September 2008)





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	PREAMBLE
	 	 	ii	 
	 
	 	 	 	 
	ARTICLE 1. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 2. AMOUNT OF BENEFITS; FORM AND TIME OF PAYMENT OF BENEFITS
	 	 	5	 
	 
	 	 	 	 
	ARTICLE 3. FINANCING THE PLAN
	 	 	9	 
	 
	 	 	 	 
	ARTICLE 4. EMPLOYEE PLANS ADMINISTRATION COMMITTEE
	 	 	10	 
	 
	 	 	 	 
	ARTICLE 5. AMENDMENT OR TERMINATION
	 	 	13	 
	 
	 	 	 	 
	ARTICLE 6. SPECIAL TERMINATION BENEFIT
	 	 	13	 
	 
	 	 	 	 
	ARTICLE 7. PAYMENT OF FICA TAXES
	 	 	20	 
	 
	 	 	 	 
	ARTICLE 8. COMPLIANCE WITH CODE SECTION 409A
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 9. CLAIMS PROCEDURE
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 10. CONSTRUCTION OF THE PLAN
	 	 	25	 
	 
	 	 	 	 
	APPENDIX A
	 	 	A-1	 
	 
	 	 	 	 
	ARTICLE 1. APPLICABILITY
	 	 	A-1	 
	 
	 	 	 	 
	ARTICLE 2. APPLICABLE RULES FOR PAYMENT OF
TRANSITION BENEFITS
	 	 	A-1	 
	 
	 	 	 	 
	ARTICLE 3. APPLICABLE RULES FOR NON-DISTRIBUTED
TRANSITION BENEFITS
	 	 	A-1	 
	 
	 	 	 	 
	ARTICLE 4. TRANSITION RULE FOR PARTICIPANTS WHOSE BENEFITS
COMMENCE PRIOR TO MARCH 31, 2007
	 	 	A-2	 






 


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PREAMBLE




The Plan is an unfunded nonqualified plan that is established to provide for the payment of
excess retirement income benefits and/or excess survivor income benefits directly to any
Participant in the UST Inc. Retirement Income Plan for Salaried Employees or the Survivor Income
Plan for Employees of UST Inc. whose benefits are reduced because of the limitation on compensation
under Code Section 401(a)(17) or 505(b)(7). The Plan shall benefit those Employees who participate
in the Plan on or after January 1, 1989.



The Plan was originally effective January 1, 1989. It was amended in 2001 to change the
mortality table and interest rate specified at section 6.1 and to add a new section 6.1(b),
providing for a lump-sum distribution to participants in current pay status in the event of a
change in control. The Plan was amended in February of 2007 to add provisions providing for
accelerated payments from the Plan (as well as the UST Inc. Officers’ Supplemental Retirement Plan
and the UST Inc. Excess Retirement Benefit Plan) in order to pay any taxes due under FICA, in
compliance with the requirements of Code Section 409A.



Effective January 1, 2005, the terms of the Plan became set forth in two separate plan
documents. The first plan document consists of the Plan as originally effective on January 1, 1989
and as amended in 2001; that plan document applies to all benefits under the Plan that were earned
and vested on or before December 31, 2004. The second plan document — the 409A document set forth
in this document — applies to all benefits under the Plan that are earned and vested after
December 31, 2004.


 


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UST INC.

BENEFIT RESTORATION PLAN

409A Document

(January 1, 2005 Restatement, as Amended Through September 2008)




ARTICLE 1. DEFINITIONS



The following words and phrases as used herein (including the Preamble) shall, for the purpose of
this Plan and any subsequent amendment thereof, have the following meanings unless a different
meaning is plainly required by the context:




	1.1	 	“Beneficiary” means a person eligible to receive a benefit under the Survivor Income Plan or
to receive a benefit under the Retirement Income Plan in the event of the death of the
Participant.
	 
	1.2	 	“Board of Directors” means the Board of Directors of UST Inc. as constituted from time to
time.
	 
	1.3	 	“BRP 409A Benefit” means the portion of a Participant’s Section 409A Benefits that accrue
under the UST Inc. Benefit Restoration Plan.
	 
	1.4	 	“Code” means the Internal Revenue Code of 1986, as amended from time to time. All references
herein to particular Code Sections shall also refer to any successor provisions and shall
include all related regulations, interpretations and other guidance.
	 
	1.5	 	“Company” means UST Inc., a Delaware corporation, any division of the Company to which the
Plan is extended by the Board of Directors, United States Tobacco Company (a wholly owned
subsidiary of UST Inc.), and any other subsidiary or affiliated corporation which, with the
approval of the Board of Directors and subject to such conditions as it may impose, adopts
this Plan, and any successor or successors of any of them.




 


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	1.6	 	“Distribution Date” shall mean the day on which the Participant is to receive the first
payment of his Post-2008 409A Excess Retirement Income Benefit under this Plan, determined in
accordance with Section 2.2.
	 
	1.7	 	“Effective Date” means January 1, 1989.
	 
	1.8	 	“Eligible Spouse” means the spouse of a Participant to whom the Participant is married on the
earlier of the Participant’s Distribution Date or the date of the Participant’s death.
	 
	1.9	 	“Employee” means any person who is an Employee under the terms of the Retirement Income Plan
and/or the Survivor Income Plan.
	 
	1.10	 	“Employee Plans Administration Committee” means the committee referred to in Article 4
hereof. Said committee shall be comprised of the same membership as the committee established
pursuant to Article 10 of the Retirement Income Plan.
	 
	1.11	 	“ERISA” means the Employee Retirement Income Security Act of 1974, including any amendments
thereto, any similar subsequent federal laws, and any rules and regulations from time to time
in effect under any of such laws.
	 
	1.12	 	“ERP 409A Benefit” means the portion of a Participant’s Section 409A Benefit accrued under
the UST Inc. Excess Retirement Benefit Plan.
	 
	1.13	 	“Excess Benefit Plan” means the UST Inc. Excess Retirement Benefit Plan, as it may be amended
from time to time.
	 
	1.14	 	“FICA Amount” means the Participant’s share of the Federal Insurance Contributions Act (FICA)
tax imposed on the Total Benefit of the Participant under Code Sections 3101, 3121(a) and
3121(v)(2).




 


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	1.15	 	“Nonqualified Plans” means collectively the UST Inc. Benefit Restoration Plan, the UST Inc.
Officers’ Supplemental Retirement Plan, and the UST Inc. Excess Retirement Benefit Plan.
	 
	1.16	 	“Participant” means an Employee who is covered by the Retirement Income Plan or Survivor
Income Plan whose benefits thereunder are reduced because of the compensation limits contained
in Code Section 401(a)(17) or 505(b)(7).
	 
	1.17	 	“Post-2008 409A Excess Retirement Income Benefit” means an Excess Retirement Income Benefit
due under the terms of this Plan to a Participant who is not entitled to a Transition Benefit
under this Plan.
	 
	1.18	 	“Plan” means the UST Inc. Benefit Restoration Plan; except where the context indicates to the
contrary, any reference herein to the “Plan” shall be a reference to the terms of the Plan as
set forth in this 409A Document, as it may be amended from time to time.
	 
	1.19	 	“Pre-409A Document” means the UST Inc. Benefit Restoration Plan as it existed on October 3,
2004, with certain changes adopted thereafter that are intended to conform that document to
the two-plan-document structure that applies to the Plan effective as of January 1, 2005.
	 
	1.20	 	“Qualified Joint and Survivor Annuity” means an annuity that is payable to the Participant
for life with 50 percent of the amount of such annuity payable after the Participant’s death
to his surviving Eligible Spouse for life. If the Eligible Spouse predeceases the
Participant, no survivor benefit under the Qualified Joint and Survivor Annuity shall be
payable to any person.
	 
	1.21	 	“Retirement Income Plan” means UST Inc. Retirement Income Plan for Salaried Employees, as it
may be amended from time to time.




 


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	1.22	 	“Section 409A Benefit” means the portion of a Participant’s Total Benefit that accrues or
becomes vested after December 31, 2004.
	 
	1.23	 	“Separation from Service” means a Participant’s separation from service with the Company,
within the meaning of Code Section 409A(a)(2)(A)(i). The term may also be used as a verb
(i.e., “Separates from Service”) with no change in meaning. Notwithstanding the preceding
sentence, a Participant’s transfer to an entity owed 20% or more by the Company will not
constitute a Separation of Service to the extent permitted by Code Section 409A.
	 
	1.24	 	“Single Life Annuity” means a level monthly annuity payable to a Participant for his life
only, with no survivor benefits to his Eligible Spouse or any other person.
	 
	1.25	 	“SOP 409A Benefit” means the portion of a Participant’s Section 409A Benefits accrued under
the UST Inc. Officers’ Supplemental Retirement Plan.
	 
	1.26	 	“Survivor Income Plan” means the Survivor Income Plan for Employees of UST Inc., as it may be
amended from time to time.
	 
	1.27	 	“Total Benefit” means the sum of a Participant’s benefits under the UST Inc. Benefit
Restoration Plan, the UST Inc. Officers’ Supplemental Retirement Plan and the UST Inc. Excess
Retirement Benefit Plan.
	 
	1.28	 	“Transition Benefit” means the benefit that is subject to Code Section 409A and that is due
to a Participant under the terms of this Plan on account of the Participant’s entitlement to
distribution under the terms of the Retirement Income Plan on or prior to December 31, 2008.
Calculation and payment of a Transition Benefit are made under Appendix A.




 


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	1.29	 	“Trust Agreement” means the Indentures of Trust between the Company and the Trustee under (i)
the Retirement Income Plan and (ii) the Survivor Income Plan.
	 
	1.30	 	“Trust Fund” means all such money or other property that shall be held by the Trustee
pursuant to the terms of the Trust Agreement.
	 
	1.31	 	“Trustee” means the trustee or trustees acting as such under the Trust Agreement, including
any successor or successors.






			
	ARTICLE 2.	 	AMOUNT OF BENEFITS; FORM AND TIME OF PAYMENT OF BENEFITS






	2.1	 	Excess Retirement Income Benefit. An individual who is a Participant in the Plan
pursuant to the terms of this 409A Document shall be entitled to an Excess Retirement Income
Benefit that is either (i) a Transition Benefit or (ii) a Post-2008 409A Excess Retirement
Income Benefit. If a Participant is entitled to a Transition Benefit, the rules in Appendix A
apply for determining the amount, the form of payment, and the time of payment of the
Transition Benefit. If a Participant is entitled to a Post-2008 409A Excess Retirement Income
Benefit, the amount of the Post-2008 409A Excess Retirement Income Benefit shall be determined
under section 2.2.
	 
	2.2	 	Post-2008 409A Excess Retirement Income Benefit. A Participant’s Post-2008 409A
Excess Retirement Income Benefit that is payable under this Plan shall equal:






	 	(1)	 	The Post-2008 Excess Retirement Income Benefit, reduced by
	 
	 	(2)	 	The Grandfathered Excess Retirement Income Benefit.





 


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	2.3	 	Post-2008 Excess Retirement Income Benefit. A Participant’s Post-2008 Excess
Retirement Income Benefit shall be the excess, if any, of the amount determined under
subparagraph (A) over the amounts determined under subparagraphs (B) and (C):






	 	(A)	 	The amount that would have been payable to the Participant (or his Beneficiary)
under the Retirement Income Plan but for the effects of the limitations in the
Retirement Income Plan pursuant to Code Sections 401(a)(17) and 415, expressed in the
form of a Single Life Annuity beginning on the Distribution Date.
	 
	 	(B)	 	The amount payable to the Participant (or his Beneficiary) under the Retirement
Income Plan, expressed in the form of a Single Life Annuity beginning on the
Distribution Date.
	 
	 	(C)	 	The amount payable to the Participant (or his Beneficiary) under the Excess
Benefit Plan, expressed in the form of a Single Life Annuity beginning on the
Distribution Date.






	2.4	 	Grandfathered Excess Retirement Income Benefit. A Participant’s Grandfathered Excess
Retirement Income Benefit is the portion of the Participant’s Post-2008 Excess Retirement
Income Benefit determined pursuant to the requirements of Treasury Regulation Section
1.409A-6(a)(3)(i) and expressed in the form of a Single Life Annuity commencing at the
Distribution Date.
	 
	2.5	 	Time of Payment of the Post-2008 409A Excess Retirement Income Benefit. Payment of
the Post-2008 409A Excess Retirement Income Benefit shall begin on the first day of the month
following the month in which occurs the later of the following: (i) a Participant’s Separation
from Service or (ii) a Participant’s attainment of age 55. Such date shall be the
Distribution Date for such benefit.




 


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	2.6	 	Form of Payment of the Post-2008 409A Excess Retirement Income Benefit. The form of
payment of the Post-2008 409A Excess Retirement Income Benefit shall be determined under
subsections (A) and (B) below.






	 	(A)	 	If (i) as of the day prior to the commencement of the Participant’s benefit
under the Retirement Income Plan (the “Prior Day”), the Participant’s benefit under the
Retirement Income Plan is scheduled to commence on the same date as the Participant’s
Post-2008 409A Excess Retirement Income Benefit under this Plan (as specified in
Section 2.5 above) and (ii) the Participant has on file, on the Prior Day, with the
Administrator of the Retirement Income Plan, a valid election form with respect to the
form of the Participant’s Retirement Income Plan benefit, then such elected form shall
be the form of payment for the Participant’s Post-2008 409A Excess Retirement Income
Benefit. For purposes of the preceding sentence, the validity of the form shall be
determined under the terms of the Retirement Income Plan, but disregarding any
requirement to have the election remain in effect to a date beyond the Prior Day.
	 
	 	(B)	 	A Participant’s benefit under the Plan that is not paid under (A) above shall
be paid in the form elected by the Participant under this Plan, or if no such election
is validly submitted by the day before the Distribution Date, then as a Qualified Joint
and Survivor Annuity if the Participant is married on the day prior to the Distribution
Date or a Single Life Annuity if he is not married on the day prior to the Distribution
Date.






	2.7	 	Forms of Payment and Actuarial Equivalence. The forms of payment that are available
under this Plan are the annuity forms of payment that are available under the Retirement
Income Plan (provided that such annuity either was available under the Retirement Income Plan
as of January 1, 2005, or is actuarially equivalent to the annuities available as of such
date). If a Participant is to be paid in a form other than a Single Life Annuity,
then such form shall be the actuarial equivalent of the Participant’s benefit calculated for
the Participant in the form of a Single Life Annuity. For all purposes under this Plan,
unless otherwise specified, actuarial equivalence shall be determined using the factors
specified under the Retirement Income Plan.




 


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	2.8	 	Excess Survivor Income Benefit. A Beneficiary of a Participant shall receive, in any
month, the excess, if any, of the amount determined under subsection (A) over the amount
determined under subsection (B):






	 	(A)	 	The amount that would have been payable to the Beneficiary under the Survivor
Income Plan in such month but for the effects of the limitations in the Survivor Income
Plan pursuant to Code Section 505(b)(7).
	 
	 	(B)	 	The amount payable to the Beneficiary under the Survivor Income Plan in such
month.






	2.9	 	Time of Payment of Excess Survivor Income Benefit. The Excess Survivor Income
Benefit shall be paid on the first day of the calendar month next following the Participant’s
death.
	 
	2.10	 	Form of Payment of Excess Survivor Income Benefit. The Excess Survivor Income
Benefit shall be paid in monthly installments for the life of the Beneficiary if the
Participant’s spouse is the Beneficiary; provided, however, that if the spouse/Beneficiary
dies prior to payment of 120 monthly installments, then monthly installment payments will
continue to any other Beneficiary named by the Participant to receive such benefits until at
least 120 monthly installment payments (including monthly installment payments made to a
Beneficiary-spouse) have been made. If the Beneficiary is not the spouse of the Participant
at the Participant’s death, all payments after 120 monthly installments
shall be forfeited. If the form of payment
provided above in this section 2.10 is not
permissible under Code Section 409A, then
the Excess Survivor Income Benefit shall be
paid in monthly installments for the life
of the Beneficiary, irrespective of whether
the Beneficiary is the spouse of the
Participant; provided, however that at
least 120 monthly installment payments will
be made to such Beneficiary or any
secondary Beneficiary named by the
Participant.




 


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ARTICLE 3. FINANCING THE PLAN





	3.1	 	The Plan shall be administered as an unfunded nonqualified plan that is maintained primarily
for the purpose of providing deferred compensation or benefits for a select group of
management or highly compensated employees. The Plan is not intended to meet the qualification
requirements of Section 401 of the Code or of any similar provisions of subsequent revenue
laws, and is exempt from Title IV and Parts 4 (only the benefit provided under section 2.1),
2, and 3 of Title I of ERISA, as well as certain provisions of Part 1.
	 
	3.2	 	There shall be no contributions to the Trust Fund or to any other fund to prefund or
otherwise cover the cost of the Plan.
	 
	3.3	 	No Participant or his Beneficiary shall be entitled to receive any payments due under this
Plan from the Retirement Income Plan, the Excess Benefit Plan or the Survivor Income Plan.
	 
	3.4	 	Benefits provided under the Plan shall be paid by the Company directly to any Participant or
his Beneficiary from the general assets of the Company.




 


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ARTICLE 4. EMPLOYEE PLANS ADMINISTRATION COMMITTEE





	4.1	 	The Employee Plans Administration Committee shall consist of not less than three persons, to
be appointed by the Board of Directors. Any member of the Employee Plans Administration
Committee may resign or be removed by the Board of Directors and new members may be appointed
by the Board of Directors.
	 
	4.2	 	Any member of the Employee Plans Administration Committee may resign by delivering his
written resignation to the Board of Directors in care of the Secretary of the Company, and
such resignation shall become effective upon delivery or upon any date specified therein.
	 
	4.3	 	The Board of Directors shall select a Chairman and a Secretary (which Secretary may, but need
not, be a member of the Employee Plans Administration Committee) to keep its records or to
assist it in the doing of any act or thing to be done or performed by the Employee Plans
Administration Committee.
	 
	4.4	 	A majority of the members of the Employee Plans Administration Committee at the time in
office shall constitute a quorum for the transaction of business at any meeting. Any
determination or action of the Employee Plans Administration Committee may be made or taken by
a majority of members present at any meeting thereof, or without a meeting by a resolution or
written memorandum concurred in by a majority of the members then in office.




 


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	4.5	 	The Employee Plans Administration Committee shall administer the Plan and shall have the
power and the duty to take all action and to make all decisions necessary or proper to carry
out the Plan, including without limitation the discretionary authority to determine
eligibility for benefits or to construe the terms of the Plan. The determination of the
Employee Plans Administration Committee as to any question involving the general
administration and interpretation of the Plan shall be final, conclusive and binding. Any
discretionary actions to be taken under the Plan by the Employee Plans Administration
Committee with respect to the classification of Employees, Participants, or benefits, shall
be uniform in their nature and applicable to all persons similarly situated. Without
limiting the generality of the foregoing, the Employee Plans Administration Committee shall
have the following powers and duties:






	 	(A)	 	To require any person to furnish such information as it may request for the
purpose of the proper administration of the Plan as a condition to receiving any
benefit under the Plan;
	 
	 	(B)	 	To make and enforce such rules and regulations and prescribe the use of such
forms as it shall deem necessary for the efficient administration of the Plan;
	 
	 	(C)	 	To interpret the Plan, and to resolve ambiguities, inconsistencies and
omissions;
	 
	 	(D)	 	To decide on questions concerning the Plan and the eligibility of any Employee
to participate in the Plan, in accordance with the provisions of the Plan; and
	 
	 	(E)	 	To determine the amount of benefits that shall be payable to any person in
accordance with the provisions of the Plan.






	4.6	 	The Employee Plans Administration Committee or any person to whom it may delegate any duty or
power in connection with administering the Plan shall maintain accounts showing fiscal
transactions under the Plan and shall keep in convenient form such data as may be necessary
with respect to the operation and administration of the Plan.





 


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	4.7	 	The Employee Plans Administration Committee and any person to whom it may delegate any duty
or power in connection with administering the Plan, and the Company and the
officers, directors and employees thereof, shall be entitled to rely conclusively upon, and
shall be fully protected in any action taken or suffered by them in good faith in reliance
upon (1) any actuary, accountant, counsel, other specialist or other person selected by the
Employee Plans Administration Committee, or (ii) any tables, valuations, certificates,
opinions or reports that shall be furnished by any of the persons mentioned in (i) or by the
Trustee. No member of the Employee Plans Administration Committee nor the Company nor the
officers nor directors thereof shall be liable for any neglect, omission or wrongdoing of
the Trustee.
	 
	4.8	 	In administering the Plan, neither the Employee Plans Administration Committee nor any person
to whom it may delegate any duty or power in connection with administering the Plan, nor the
Company, nor its officers, directors, or employees, shall be liable for any action or failure
to act except for its or his own gross negligence or willful misconduct, nor shall anyone
other than the Company be liable for the payment of any benefit amount under the Plan. No
member of the Employee Plans Administration Committee shall be personally liable under any
contract, agreement, bond or other instrument made or executed by him on his behalf as a
member of the Employee Plans Administration Committee; nor for any mistake of judgment made by
him on his behalf as a member of the Employee Plans Administration Committee nor for any
action, failure to act, or loss unless resulting from his own gross negligence or willful
misconduct; nor for the neglect, omission or wrongdoing of any other member of the Employee
Plans Administration Committee.






	4.9	 	Unless otherwise agreed to by the Company, the members of the Employee Plans Administration
Committee shall serve without compensation for their services as such,
but all reasonable expenses incurred in the
performance of their duties shall be paid by the
Company. Unless otherwise determined by the Board
of Directors, no member of the Employee Plans
Administration Committee shall be required to
give any bond or other security in any
jurisdiction.





 


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ARTICLE 5. AMENDMENT OR TERMINATION





	5.1	 	Amendment. The Board of Directors reserves the right at any time and from time to
time to modify or amend in whole or in part any or all of the provisions of the Plan;
provided, however, that no such amendment or modification violates Code Section 409A, or makes
it possible to deprive any Participant or Beneficiary of a Participant of a previously
acquired vested or accrued right (except as necessary to comply with Code Section 409A).
	 
	5.2	 	Termination. While the Company intends to continue the Plan indefinitely,
nevertheless, it assumes no contractual obligation as to its continuance. The Plan may be
terminated for any reason at any time by the Board of Directors.





ARTICLE 6. SPECIAL TERMINATION BENEFIT





	6.1	(A)	 	Notwithstanding any other provision of the
Plan, if, during the two-year period
following a “Change in Control of the
Company” (as defined at subsection 6.2(A)
below), the employment of a Participant who
is entitled to a benefit under section 2.1
of the Plan (the “Excess Retirement Income
Benefit”) is terminated, unless such
termination is (i) because of the
Participant’s death or Disability (as
defined below), (ii) by the Company for
Cause (as defined below) or (iii) by the
Participant other than for Good Reason (as
defined below), then the Participant’s
Post-2008 409A Excess 




 


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	 	 	 	Retirement Income
Benefit shall fully vest on the day of the Participant’s termination. Notwithstanding any other provision of the Plan, if,
during the two-year period following a “change in control” of the Company (as
“change in control” is defined at Treasury Regulation 1.409A-3(i)(5) (hereafter, a
“409A change in control”)), the employment of a Participant who is entitled to an
Excess Retirement Income Benefit is terminated, the Company shall pay to the
Participant, no later than the fifth day following the date of such termination of
employment, a lump-sum amount equal to the present value of the Excess Retirement
Income Benefit. For purposes of determining such present value (1) it shall be
assumed that a Participant’s Excess Retirement Income Benefit would otherwise
commence at the earliest possible benefit commencement date under section 2.5 or
Appendix A (whichever is applicable), and (2) the present value of such annual
amount shall be determined by using the mortality table prescribed by the Secretary
of the Treasury under Code Section 417(e)(3)(A)(ii)(1), as in effect on the date the
Participant terminates employment, and the annual rate of interest on 30-year
Treasury Securities as specified by the Commissioner of Internal Revenue for the
second full month preceding the month in which the Participant terminates
employment.






	 	(B)	 	Notwithstanding any other provision of the Plan, if a Participant who is in
current receipt of a benefit from the Plan on the date of a 409A change in control of
the Company shall not have received a complete distribution of his Excess Retirement
Income Benefit on the date of the occurrence of a 409A change in control, the Company
shall pay, no later than the fifth day following the occurrence of such 409A change in
control, a lump-sum amount equal to the
present value of the undistributed portion of the Participant’s Excess Retirement
Income Benefit, determined as of the date of such 409A change in control. For
purposes of the preceding sentence, present value shall be determined in accordance
with provisions, to the extent applicable, of the final sentence of section 6.1(A)
hereof.




 


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	6.2	 	The following definitions apply to the terms used in this Article:






	 	(A)	 	“Change in Control of the Company” shall be deemed to have occurred if
(i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), other than the Company, any
“person” who on the date hereof is a director or officer of the Company, any trustee or
other fiduciary holding securities under an employee benefit plan of the Company, or
any corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company, is or
becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company’s then outstanding securities, or (ii) during any
period of two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors, and any new director (other than a director
designated by a person who has entered into an agreement with the Company to effect a
transaction described in clause (i) or (iii) of this section) whose election by the
Board of Directors or nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute at least a majority thereof; or (iii) the consummation of a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation that would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity) more than 80%
of the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or the
shareholders of the Company approve a plan of complete liquidation of the Company or
an agreement for the sale or disposition by the Company of all or substantially all
of the Company’s assets.




 


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	 	(B)	 	“Disability.” If as a result of the Participant’s incapacity due to
physical or mental illness, he shall have been absent from the full—time performance
of his duties with the Company for six (6) consecutive months, and within thirty (30)
days after written notice of termination is given he shall not have returned to the
full—time performance of his duties, his employment may be terminated for
“Disability.”
	 
	 	(C)	 	“Cause.” Termination by the Company of the Participant’s employment for
“cause” shall mean termination upon an act or acts of dishonesty constituting a felony
under the laws of the United States or any State thereof and resulting or intended to
result directly or indirectly in gain or personal enrichment at the expense of the
Company. Notwithstanding the foregoing, the Participant shall not
be deemed to have been terminated for Cause unless and until there shall have been
delivered to him a copy of a resolution duly adopted by the affirmative vote of not
less than three-quarters (3/4) of the entire membership of the Board of Directors at
a meeting of the Board of Directors called and held for such purpose (after
reasonable notice to him and an opportunity for him, together with his counsel, to
be heard before the Board of Directors), finding that in the good faith opinion of
the Board of Directors he was guilty of conduct set forth above in this subsection
and specifying the particulars thereof in detail.





 


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	 	(D)	 	“Good Reason.” The Participant shall be entitled to terminate his
employment for Good Reason. For purposes of this Agreement, “Good Reason” shall mean,
without the Participant’s express written consent, the occurrence after a Change in
Control of the Company of any of the following circumstances unless, in the case of
paragraphs (1), (5), (6) or (7), such circumstances are fully corrected prior to the
Participant’s date of termination specified in his notice of termination given in
respect thereof:






	 	(1)	 	the assignment to the Participant of any duties inconsistent
with the position in the Company that he held immediately prior to the Change
in Control of the Company, or a significant adverse alteration in the nature or
status of his responsibilities from those in effect immediately prior to such
change;
	 
	 	(2)	 	a reduction by the Company in his annual base salary as in
effect on the date hereof or as the same may be increased from time to time;




 


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	 	(3)	 	the relocation of the Company’s principal executive offices to
a location outside the Greenwich Metropolitan Area (or, if different, the
metropolitan area in which such offices are located immediately prior to the
Change in Control of the Company) or the Company’s requiring the Participant to
be based anywhere other than the Company’s principal executive offices except
for required travel on the Company’s business to an extent substantially
consistent with his present business travel obligations;
	 
	 	(4)	 	the failure by the Company to pay him any portion of his
current compensation except pursuant to an across-the-board compensation
deferral similarly affecting all officers of the Company and all officers of
any person whose actions resulted in a Change of Control of the Company or any
person affiliated with the Company or such person, or to pay to him any portion
of an installment of deferred compensation under any deferred compensation
program of the Company, within seven (7) days of the date such compensation is
due;
	 
	 	(5)	 	the failure by the Company to continue in effect any
compensation plan in which he participates immediately prior to the Change in
Control of the Company that is material to his total compensation, including
but not limited to the Company’s Retirement Income Plan for Salaried Employees,
Employees’ Savings Plan, Officers’ Supplemental Retirement Plan, Incentive
Compensation Plan, 1982 Stock Option Plan, Excess Retirement Benefit Plan,
Survivor Income Plan, or any substitute plans adopted prior to the Change in
Control of the Company, unless an
equitable arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan, or the failure by the Company
to continue his participation therein (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms of the amount
of benefits provided and the level of his participation relative to other
participants, as existed at the time of the Change in Control of the
Company;




 


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	 	(6)	 	the failure by the Company to continue to provide him with
benefits substantially similar to those he enjoyed under any of the Company’s
life insurance, medical, health and accident, or disability plans in which he
was participating at the time of the Change in Control of the Company, the
taking of any action by the Company that would directly or indirectly
materially reduce any of such benefits or deprive him of any material fringe
benefit he enjoyed at the time of the Change of Control of the Company, or the
failure by the Company to provide him with the number of paid vacation days to
which he is entitled on the basis of years of service with the Company in
accordance with the Company’s normal vacation policy in effect at the time of
the Change in Control of the Company; or
	 
	 	(7)	 	the failure of the Company to obtain a satisfactory agreement
from any successor to assume and agree to pay benefits under this Plan.
Notwithstanding the above, in the case of a Participant who has entered into an employment
agreement with the Company, “Good Reason” shall have the meaning set forth in such employment
agreement.




 


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ARTICLE 7. PAYMENT OF FICA TAXES





	7.1	 	Payment of FICA and Related Income Taxes. As provided in subsections (A) through (D)
below, a portion of a Participant’s Section 409A Benefit shall be paid as a single lump sum
and remitted directly to the Internal Revenue Service (“IRS”) in satisfaction of the
Participant’s FICA Amount and the related withholding of income tax at source on wages
(imposed under Code Section 3401 or the corresponding withholding provisions of the applicable
state, local or foreign tax laws as a result of the payment of the FICA Amount) and the
additional withholding of income tax at source on wages that is attributable to the pyramiding
of wages and taxes. Notwithstanding the prior sentence, in the event the Participant is due
to be paid a bonus between (1) the date the Participant’s Total Benefit is taken into account
as a FICA wages, and (2) the date that income taxes related to the lump sum payment are
deposited with the IRS, the related income taxes shall be satisfied (to the extent possible)
from the Participant’s bonus, and the amount of the lump sum payment provided for in the prior
sentence shall be reduced accordingly. Payment of related income taxes out of such a bonus is
referred to below as “Bonus Withholding.”






	 	(A)	 	Timing of Payment. Upon the date that the Participant’s FICA Amount
and related income tax withholding are due to be deposited with the IRS, a lump sum
payment equal to the Participant’s FICA Amount and any related income tax withholding,
after taking into account any Bonus Withholding, shall be paid from
the Participant’s Section 409A Benefit and remitted to the IRS (or other applicable
tax authority) in satisfaction of such FICA Amount and income tax withholding. The
classification of a Participant as a “specified employee” under Code Section 409A
shall have no effect on the timing of the lump sum payment under this subsection
(A).




 


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	 	(B)	 	Reduction of Section 409A Benefit. To reflect the payment of a
Participant’s FICA Amount and any related income tax liability, after taking into
account any Bonus Withholding, as provided in subsection (A) above, the Participant’s
Section 409A Benefit shall be reduced on an equal and consistent basis, effective as of
the date for payment of the lump sum in accordance with subsection (A) above, with such
reduction being the actuarial equivalent of the lump sum payment used to satisfy the
Participant’s FICA Amount and related income tax withholding, and with actuarial
equivalence determined using the applicable year-end disclosure rate and related
factors for the year in which the Participant Separates from Service. It is expressly
contemplated that this reduction may occur effective as of a date that is after the
date payment of a Participant’s BRP Pension, SOP Pension or ERP Pension commences. The
reduction of the Participant’s Section 409A Benefit shall be made according to the
ordering rules of subsection (C) below.
	 
	 	(C)	 	Order of Payment from the Nonqualified Plans. The reduction under
subsection (B) above shall apply first to the Participant’s BRP 409A Benefit. To the
extent the BRP 409A Benefit is insufficient to satisfy the reduction, the Participant’s
SOP 409A Benefit shall be reduced next. To the extent the Participant’s BRP
409A Benefit and SOP 409A Benefit are insufficient to satisfy the reduction, the
Participant’s ERP 409A Benefit shall be reduced next. To the extent the
Participant’s total Section 409A Benefit is insufficient to satisfy the reduction,
the Participant shall be responsible for paying the difference to the Company.





 


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	 	(D)	 	No Effect on Commencement of Section 409A Benefit. The Participant’s
Section 409A Benefit shall commence in accordance with the terms of the Nonqualified
Plans. The lump sum payment to satisfy the Participant’s FICA Amount and related
income tax withholding shall not affect the time of payment of the Participant’s
actuarially reduced Section 409A Benefit, including not affecting any required delay in
payment to a Participant who is classified as a “specified employee” under Section
409A.





ARTICLE 8. COMPLIANCE WITH CODE SECTION 409A





	8.1	 	Specified Employee. With respect to Participants who are “specified employees” (as
defined in Code Section 409A), a distribution due to Separation from Service may not be made
before the date that is six months after the date of Separation from Service (or, if earlier,
the date of death of the Participant), except as may be otherwise permitted pursuant to Code
Section 409A. Notwithstanding the foregoing sentence, a Participant who is due Transition
Benefits and who commences distribution of those benefits on or before December 31, 2008 in
accordance with the linked-plan transition rules contained in Notice 2007-86 shall not be
subject to this section 8.1. To the extent that a Participant is subject to this section and
a distribution is to be paid in installments, through an annuity, or in some other manner
where payment will be periodic, the Participant shall be paid, during the seventh month
following Separation from Service, the aggregate amount
of payments he would have received but for the application of this section; all remaining
payments shall be made in their ordinary course.




	8.2	 	In General. It is the intention of the Company that the Plan shall be construed in
accordance with the applicable requirements of Code Section 409A. Further, in the event that
the Plan shall be deemed not to comply with Code Section 409A, then neither the Company, the
Board of Directors, the Employee Plans Administration Committee nor its or their designees or
agents shall be liable to any Participant or other persons for actions, decisions or
determinations made in good faith.





 


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ARTICLE 9. CLAIMS PROCEDURE




The Employee Plans Administration Committee (“Plan Committee”) shall have the exclusive
discretionary authority to construe and interpret the Plan, to decide all questions of eligibility
for benefits and to determine the amount of such benefits, and its decisions on such matters are
final and conclusive. As a result, benefits under this Plan will be paid only if the Plan
Committee decides in its discretion that the person claiming such benefits (a “claimant” ) is
entitled to them. This discretionary authority is intended to be absolute, and in any case where
the extent of this discretion is in question, the Plan Committee is to be accorded the maximum
discretion possible. Any exercise of this discretionary authority shall be reviewed by a court,
arbitrator or other tribunal under the arbitrary and capricious standard (i.e., the abuse of
discretion standard). If, pursuant to the discretionary authority provided for above, an assertion
of any right to a benefit by or on behalf of a claimant is wholly or partially denied, the Plan
Committee, or a party designated by the Plan Committee, will provide such claimant the claims
review process described in this section. The Plan Committee has the discretionary right to modify
the claims process described in this section in any manner so long as the claims review process, as
modified, includes the steps described below. Within a 90-day response period following the
receipt of the claim by the Plan Committee, the Plan Committee will notify the claimant of:




	 	(a).	 	The specific reason or reasons for the denial;
	 
	 	(b).	 	Specific reference to pertinent Plan provisions on which the denial is based;




 


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	 	(c).	 	A description of any additional material or information necessary for the
claimant to submit to perfect the claim and an explanation of why such material or
information is necessary; and
	 
	 	(d).	 	A description of the claims review process (including the time limits
applicable to such process and a statement of the claimant’s right to bring a civil
action under ERISA following a further denial on review).





If the Plan Committee determines that special circumstances require an extension of time for
processing the claim, it may extend the response period from 90 to 180 days. If this occurs, the
Plan Committee will notify the claimant before the end of the initial 90-day period, indicating the
special circumstances requiring the extension and the date by which the Plan Committee expects to
make the final decision. Further review of a claim is available upon request by the claimant to the
Plan Committee made in writing or such other form as is acceptable to the Plan Committee within 60
days after the claimant receives the denial of the claim. Upon review, the Plan Committee shall
provide the claimant a full and fair review of the claim, including the opportunity to submit to
the Plan Committee comments, documents, records and other information relevant to the claim and the
Plan Committee’s review shall take into account such comments, documents, records and information
regardless of whether it was submitted or considered at the initial determination. The decision on
review shall be made within 60 days after receipt of the request for review, unless circumstances
warrant an extension of time not to
exceed an additional 60 days. If this occurs, notice of the extension will be furnished to claimant
before the end of the initial 60-day period, indicating the special circumstances requiring the
extension and the date by which the Plan Committee expects to make the final decision. The final
decision shall be drafted in a manner calculated to be understood by the claimant, and shall
include the specific reasons for the decision with references to the specific Plan provisions on
which the decision is based. Any claim referenced in this section that is reviewed by a court,
arbitrator, or any other tribunal shall be reviewed solely on the basis of the record before the
Plan Committee. In addition, any such review shall be conditioned on the claimant’s having fully
exhausted all rights under this section. Any notice or other notification that is required to be
sent to a claimant under this section may be sent pursuant to any method approved under Department
of Labor Regulation Section 2520.104b-1 or other applicable guidance.


 


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ARTICLE 10. CONSTRUCTION OF THE PLAN




The terms of the Plan shall be construed in accordance with this Article.




	10.1	 	Gender and Number. The masculine gender, where appearing in the Plan, shall be
deemed to include the feminine gender, and the singular may include the plural, unless the
context clearly indicates to the contrary.
	 
	10.2	 	Compounds of the Word “Here”: The words “hereof”, “hereunder” and other similar
compounds of the word “here” shall mean and refer to the entire Plan, not to any particular
provision or section.
	 
	10.3	 	Subdivisions of the Plan Document. This Plan document is divided and subdivided
using the following progression: articles, section, subsections, and paragraphs. Articles are
designated by the word “ARTICLE” in all-capital letters and Arabic numerals that do not
contain a decimal point. Sections are designated by Arabic numerals containing a
decimal point. Subsections are designated by upper-case letters in parentheses. Paragraphs
are designated by Arabic numerals in parentheses. Any reference in a section to a
subsection (with no accompanying section reference) shall be read as a reference to the
subsection with the specified designation contained in that same section. A similar rule
shall apply with respect to paragraph references within a subsection.




 


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	10.4	 	Invalid Provisions. If any provision of this Plan is, or is hereafter declared to be
void, voidable, invalid or otherwise unlawful, the remainder of the Plan shall not be affected
thereby.
	 
	10.5	 	Interpreting Article 5. In all circumstances, the provisions of Article 5 shall be
interpreted in the manner that imposes the least limitation on the Company’s claimed right of
amendment or termination (or both). In this regard, it is specifically intended that any
ambiguities in the Plan are to be resolved in the manner that minimizes the limitation on any
right to amendment or termination that is claimed directly or indirectly against one or more
Participants or Beneficiaries.




 


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APPENDIX A




ARTICLE 1. APPLICABILITY




This Appendix sets forth the rules applicable to Transition Benefits. As specified in section 1.28
above, Transition Benefits are Plan benefits subject to Code Section 409A that are due a
Participant who was entitled to commence distribution of his benefits under the Retirement Income
Plan from January 1, 2005 through December 31, 2008. This Appendix sets forth rules for payment of
any Plan benefits due a Participant who was due Transition Benefits and commenced or commences his
benefits on or before December 31, 2008; those rules are set forth in Article 2 of this Appendix A.
This Appendix also sets forth rules for payment of any Plan benefits due a Participant who was due
Transition Benefits but did not commence distribution of his benefit on or before December 31, 2008
(“Non-Distributed Transition Benefits”).



ARTICLE 2. APPLICABLE RULES FOR PAYMENT OF TRANSITION BENEFITS




With respect to the payment of Transition Benefits that commenced on or prior to December 31, 2008,
the Plan operated and complied with Code Section 409A pursuant to the transition rules for
so-called “linked plans.” Accordingly, for such Transition Benefits, the Plan operated as it did
prior to January 1, 2005 (under the terms of the Pre-409A Document), except as otherwise required
to comply with Code Section 409A.



ARTICLE 3. APPLICABLE RULES FOR NON-DISTRIBUTED TRANSITION BENEFITS




Non-Distributed Transition Benefits shall be paid beginning on January 1, 2009. The form of
payment for Participants who are married on December 31, 2008 shall be a Qualified Joint and
Survivor Annuity and the form of payment for Participants who are not married on December 31, 2008
shall be a Single Life Annuity.


 


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	ARTICLE 4.	 	TRANSITION RULE FOR PARTICIPANTS WHOSE BENEFITS COMMENCE PRIOR TO MARCH 31, 2007





Notwithstanding anything else in the Plan to the contrary, the Section 409A Benefit of the
Participants listed below shall initially be paid without regard to the actuarial reduction for the
lump sum payment to satisfy such Participant’s FICA Amount and related income tax withholding.
Effective March 1, 2007, the Participant’s remaining Section 409A Benefit payments shall be
actuarially reduced as provided above at Article 7 to the extent necessary to recover the lump sum
payment for the payment of such Participant’s FICA Amount and any related income tax withholding,
after taking into account any Bonus Withholding. The transitional rule in this Appendix A, Article
4 applies to the following Participants:



	 	 	 	 	 
	Name	 	Retirement Date	 
	Robert Fitzmaurice
	 	June 1, 2006
	Valerie Held
	 	June 1, 2006
	Vincent Gierer
	 	January 1, 2007







 


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