Exhibit 10.16


 


IHOP Corp.


Deferred
Compensation Plan


Master Plan Document


 


 


Effective January 1,
2003


 


 


Copyright © 2002


By Clark/Bardes Consulting, Inc.


Executive Benefits Practice


All Rights Reserved


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  1

  	
   

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  	
   

  	
  Selection,
  Enrollment, Eligibility

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Selection
  by Committee

  	
  7

  
	
  2.2

  	
   

  	
  Enrollment
  Requirements

  	
  7

  
	
  2.3

  	
   

  	
  Eligibility;
  Commencement of Participation

  	
  7

  
	
  2.4

  	
   

  	
  Termination
  of Participation and/or Deferrals

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  	
   

  	
  Deferral
  Commitments/Company Contribution Amounts/Company Restoration Contribution
  Amounts/Stock Option Gain Amounts/Vesting/Crediting/Taxes

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Minimum
  Deferrals

  	
  8

  
	
  3.2

  	
   

  	
  Maximum
  Deferral

  	
  8

  
	
  3.3

  	
   

  	
  Election
  to Defer; Effect of Election Form

  	
  9

  
	
  3.4

  	
   

  	
  Withholding
  and Crediting of Annual Deferral Amounts

  	
  10

  
	
  3.5

  	
   

  	
  Annual
  Company Contribution Amount

  	
  10

  
	
  3.6

  	
   

  	
  Annual
  Company Restoration Contribution Amount

  	
  11

  
	
  3.7

  	
   

  	
  Annual
  Stock Option Gain Amount

  	
  11

  
	
  3.8

  	
   

  	
  Vesting

  	
  11

  
	
  3.9

  	
   

  	
  Crediting/Debiting
  of Account Balances

  	
  12

  
	
  3.10

  	
   

  	
  FICA
  and Other Taxes

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  	
   

  	
  Deduction
  Limitation

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  4.1

  	
   

  	
  Deduction
  Limitation on Benefit Payments

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  5

  	
   

  	
  In-Service
  Distribution; Unforeseeable Financial Emergencies; Withdrawal Election

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  In-Service
  Distribution

  	
  15

  
	
  5.2

  	
   

  	
  Other
  Benefits Take Precedence Over In-Service Distributions

  	
  15

  
	
  5.3

  	
   

  	
  Withdrawal
  Payout/Suspensions for Unforeseeable Financial Emergencies

  	
  15

  
	
  5.4

  	
   

  	
  Withdrawal
  Election

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  	
   

  	
  Retirement
  Benefit

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  6.1

  	
   

  	
  Retirement
  Benefit

  	
  17

  
	
  6.2

  	
   

  	
  Payment
  of Retirement Benefit

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  	
   

  	
  Termination
  Benefit

  	
  17

  



 


i

















 


	
  7.1

  	
   

  	
  Termination
  Benefit

  	
  17

  
	
  7.2

  	
   

  	
  Payment
  of Termination Benefit

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  	
  Disability
  Waiver and Benefit

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  8.1

  	
   

  	
  Disability
  Waiver

  	
  17

  
	
  8.2

  	
   

  	
  Continued
  Eligibility; Disability Benefit

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  	
  Survivor
  Benefit

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  9.1

  	
   

  	
  Survivor
  Benefit

  	
  19

  
	
  9.2

  	
   

  	
  Payment
  of Survivor Benefit

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  	
  Beneficiary
  Designation

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  10.1

  	
   

  	
  Beneficiary

  	
  19

  
	
  10.2

  	
   

  	
  Beneficiary
  Designation; Change; Spousal Consent

  	
  19

  
	
  10.3

  	
   

  	
  Acknowledgement

  	
  19

  
	
  10.4

  	
   

  	
  No
  Beneficiary Designation

  	
  20

  
	
  10.5

  	
   

  	
  Doubt
  as to Beneficiary

  	
  20

  
	
  10.6

  	
   

  	
  Discharge
  of Obligations

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  	
  Leave
  of Absence

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  11.1

  	
   

  	
  Paid
  Leave of Absence

  	
  20

  
	
  11.2

  	
   

  	
  Unpaid
  Leave of Absence

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
   

  	
  Termination,
  Amendment or Modification

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  12.1

  	
   

  	
  Termination

  	
  21

  
	
  12.2

  	
   

  	
  Amendment

  	
  21

  
	
  12.3

  	
   

  	
  Plan
  Agreement

  	
  22

  
	
  12.4

  	
   

  	
  Effect
  of Payment

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
   

  	
  Administration

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  13.1

  	
   

  	
  Committee
  Duties

  	
  22

  
	
  13.2

  	
   

  	
  Administration
  Upon Change In Control

  	
  22

  
	
  13.3

  	
   

  	
  Agents

  	
  23

  
	
  13.4

  	
   

  	
  Binding
  Effect of Decisions

  	
  23

  
	
  13.5

  	
   

  	
  Indemnity
  of Committee

  	
  23

  
	
  13.6

  	
   

  	
  Employer
  Information

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14

  	
   

  	
  Other
  Benefits and Agreements

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  14.1

  	
   

  	
  Coordination
  with Other Benefits

  	
  23

  



 


ii

















 


	
  ARTICLE
  15

  	
   

  	
  Claims
  Procedures

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  15.1

  	
   

  	
  Presentation
  of Claim

  	
  24

  
	
  15.2

  	
   

  	
  Notification
  of Decision

  	
  24

  
	
  15.3

  	
   

  	
  Review
  of a Denied Claim

  	
  24

  
	
  15.4

  	
   

  	
  Decision
  on Review

  	
  25

  
	
  15.5

  	
   

  	
  Legal
  Action

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  16

  	
   

  	
  Trust

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  16.1

  	
   

  	
  Establishment
  of the Trust

  	
  25

  
	
  16.2

  	
   

  	
  Interrelationship
  of the Plan and the Trust

  	
  25

  
	
  16.3

  	
   

  	
  Distributions
  From the Trust

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  17

  	
   

  	
  Miscellaneous

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  17.1

  	
   

  	
  Status
  of Plan

  	
  26

  
	
  17.2

  	
   

  	
  Unsecured
  General Creditor

  	
  26

  
	
  17.3

  	
   

  	
  Employer’s
  Liability

  	
  26

  
	
  17.4

  	
   

  	
  Nonassignability

  	
  26

  
	
  17.5

  	
   

  	
  Not a
  Contract of Employment

  	
  26

  
	
  17.6

  	
   

  	
  Furnishing
  Information

  	
  26

  
	
  17.7

  	
   

  	
  Terms

  	
  27

  
	
  17.8

  	
   

  	
  Captions

  	
  27

  
	
  17.9

  	
   

  	
  Governing
  Law

  	
  27

  
	
  17.10

  	
   

  	
  Notice

  	
  27

  
	
  17.11

  	
   

  	
  Successors

  	
  27

  
	
  17.12

  	
   

  	
  Spouse’s
  Interest

  	
  27

  
	
  17.13

  	
   

  	
  Validity

  	
  27

  
	
  17.14

  	
   

  	
  Incompetent

  	
  27

  
	
  17.15

  	
   

  	
  Court
  Order

  	
  28

  
	
  17.16

  	
   

  	
  Distribution
  in the Event of Taxation

  	
  28

  
	
  17.17

  	
   

  	
  Insurance

  	
  28

  
	
  17.18

  	
   

  	
  Legal
  Fees To Enforce Rights After Change in Control

  	
  28

  



 


iii

















 


IHOP CORP.


DEFERRED
COMPENSATION PLAN


Effective January 1, 2003


 


Purpose


 


The purpose of this Plan is to provide specified benefits to a select
group of management or highly compensated Employees and Directors who
contribute materially to the continued growth, development and future business
success of IHOP Corp., a Delaware corporation, and its subsidiaries, if any,
that sponsor this Plan. This Plan shall be unfunded for tax purposes and for
purposes of Title I of ERISA.


 


ARTICLE 1


Definitions


 


For the purposes of this Plan, unless otherwise clearly apparent from
the context, the following phrases or terms shall have the following indicated
meanings:


 


1.1           “Account Balance” shall
mean, with respect to a Participant, a credit on the records of the Employer
equal to the sum of (i) the Deferral Account balance, (ii) the
Company Contribution Account balance, (iii) the Company Restoration
Contribution Account balance, and (iv) the Stock Option Gain Account
balance. The Account Balance, and each other specified account balance, shall
be a bookkeeping entry only and shall be utilized solely as a device for the
measurement and determination of the amounts to be paid to a Participant, or
his or her designated Beneficiary, pursuant to this Plan.


 


1.2           “Annual Bonus” shall mean
any compensation, in addition to Base Annual Salary, Commissions and LTIP
Amounts payable to a Participant during a Plan Year, under any Employer’s
annual bonus and cash incentive plans, excluding stock options.


 


1.3           “Annual Company Contribution
Amount” shall mean, for any one Plan Year, the amount determined in accordance
with Section 3.5.


 


1.4           “Annual Company Restoration
Contribution Amount” for any one Plan Year shall be the amount determined in
accordance with Section 3.6.


 


1.5           “Annual Deferral Amount”
shall mean that portion of a Participant’s Base Annual Salary, Annual Bonus,
Commissions, Director Fees and LTIP Amounts that a Participant defers in
accordance with Article 3 for any one Plan Year. In the event of a Participant’s
Retirement, Disability (if deferrals cease in accordance with Section 8.1),
death or a Termination of Employment prior to the end of a Plan Year, such year’s
Annual Deferral Amount shall be the actual amount withheld prior to such event.


 


1.6           “Annual Installment Method”
shall be an annual installment payment over the number of years selected by the
Participant in accordance with this Plan, calculated as follows: (i) for
the first annual installment, the vested Account Balance of the Participant shall
be calculated as of the close of business on or around the date on which the
Participant Retires, as determined by the Committee in its sole discretion, and
(ii) for remaining annual installments, the vested Account


 


1

















 


Balance of the Participant shall be
calculated on every applicable anniversary of the date on which the Participant
Retires. Each annual installment shall be calculated by multiplying this
balance by a fraction, the numerator of which is one and the denominator of
which is the remaining number of annual payments due the Participant. By way of
example, if the Participant elects a ten (10) year Annual Installment
Method, the first payment shall be 1/10 of the vested Account Balance, calculated
as described in this definition. The following year, the payment shall be 1/9
of the vested Account Balance, calculated as described in this definition.
Shares of Stock that shall be distributable from the Stock Option Gain Account
shall be distributable in shares of actual Stock in the same manner previously
described. However, the Committee may, in its sole discretion, (i) adjust
the annual installments in order to distribute whole shares of actual Stock
and/or (ii) accelerate the distribution of such actual shares of Stock by
payment of a lump sum.


 


1.7           “Annual Stock Option Gain
Amount” shall mean, with respect to a Participant for any one Plan Year, the
portion of Qualifying Gains deferred with respect to an Eligible Stock Option
exercise, in accordance with Section 3.7 of this Plan. In the event of a
Participant’s Retirement, Disability (if deferrals cease in accordance with Section 8.1),
death or a Termination of Employment prior to the end of a Plan Year, such year’s
Annual Stock Option Gain Amount shall be the actual amount withheld prior to
such event.


 


1.8           “Base Annual Salary” shall
mean the annual cash compensation relating to services performed during any
calendar year, excluding bonuses, commissions, overtime, fringe benefits, stock
options, relocation expenses, incentive payments, non-monetary awards, director
fees and other fees, and automobile and other allowances paid to a Participant
for employment services rendered (whether or not such allowances are included
in the Employee’s gross income). Base Annual Salary shall be calculated before
reduction for compensation voluntarily deferred or contributed by the
Participant pursuant to all qualified or non-qualified plans of any Employer
and shall be calculated to include amounts not otherwise included in the
Participant’s gross income under Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant
to plans established by any Employer; provided, however, that all such amounts
will be included in compensation only to the extent that had there been no such
plan, the amount would have been payable in cash to the Employee.


 


1.9           “Beneficiary” shall mean one
or more persons, trusts, estates or other entities, designated in accordance
with Article 10, that are entitled to receive benefits under this Plan upon
the death of a Participant.


 


1.10         “Beneficiary Designation
Form” shall mean the form established from time to time by the Committee that a
Participant completes, signs and returns to the Committee to designate one or
more Beneficiaries.


 


1.11         “Board” shall mean the board
of directors of the Company.


 


1.12         “Change in Control” shall
mean the first to occur of any of the following events:


 


(a)           Any “person” (as that term
is used in Section 13 and 14(d)(2) of the Securities Exchange Act of
1934 (“Exchange Act”)) becomes the beneficial owner (as that term is used in


 


2

















 


Section 13(d) of the Exchange Act), directly or indirectly,
of fifty percent (50%) or more of the Company’s capital stock entitled to vote
in the election of directors;


 


(b)           During any period of not
more than two consecutive years, not including any period prior to the adoption
of this Plan, individuals who, at the beginning of such period constitute the
board of directors of the Company, 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 (a), (c), (d) or (e) of this
Section 1.12) whose election by the board of directors or nomination for
election by the Company’s stockholders was approved by a vote of at least
three-fourths (3/4ths) 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;


 


(c)           The shareholders of the
Company approve any consolidation or merger of the Company, other than a
consolidation or merger of the Company in which the holders of the common stock
of the Company immediately prior to the consolidation or merger hold more than
fifty percent (50%) of the common stock of the surviving corporation
immediately after the consolidation or merger;


 


(d)           The shareholders of the
Company approve any plan or proposal for the liquidation or dissolution of the
Company; or


 


(e)           The shareholders of the
Company approve the sale or transfer of all or substantially all of the assets
of the Company to parties that are not within a “controlled group of
corporations” (as defined in Code Section 1563) in which the Company is a
member.


 


1.13         “Claimant” shall have the
meaning set forth in Section 15.1.


 


1.14         “Code” shall mean the
Internal Revenue Code of 1986, as it may be amended from time to time.


 


1.15         “Commissions” shall mean the
cash commissions payable to a Participant by any Employer for services rendered
during a Plan Year, excluding Annual Bonus, LTIP Amounts or other additional
incentives or awards payable to the Participant.


 


1.16         “Committee” shall mean the
committee described in Article 13.


 


1.17         “Company” shall mean IHOP
Corp., a Delaware corporation, and any successor to all or substantially all of
the Company’s assets or business.


 


1.18         “Company Contribution
Account” shall mean (i) the sum of the Participant’s Annual Company
Contribution Amounts, plus (ii) amounts credited or debited in accordance
with all the applicable crediting and debiting provisions of this Plan that
relate to the Participant’s Company Contribution Account, less (iii) all
distributions made to the Participant or his or her Beneficiary pursuant to
this Plan that relate to the Participant’s Company Contribution Account.


 


1.19         “Company Restoration
Contribution Account” shall mean (i) the sum of all of a Participant’s
Annual Company Restoration Contribution Amounts, plus (ii) amounts
credited in accordance with all the applicable crediting and debiting
provisions of this Plan that relate to the Participant’s Company Restoration
Contribution Account, less (iii) all distributions made to the


 


3

















 


Participant or his or her Beneficiary pursuant to this Plan that relate
to the Participant’s Company Restoration Contribution Account.


 


1.20         “Deduction Limitation” shall
mean the limitation on a benefit that may otherwise be distributable pursuant
to the provisions of this Plan, as set forth in Article 4.


 


1.21         “Deferral Account” shall
mean (i) the sum of all of a Participant’s Annual Deferral Amounts, plus (ii) amounts
credited in accordance with all the applicable crediting and debiting
provisions of this Plan that relate to the Participant’s Deferral Account, less
(iii) all distributions made to the Participant or his or her Beneficiary
pursuant to this Plan that relate to his or her Deferral Account.


 


1.22         “Director” shall mean any
member of the board of directors of any Employer.


 


1.23         “Director Fees” shall mean
the annual fees paid by any Employer, including retainer fees and meetings
fees, as compensation for serving on the board of directors.


 


1.24         “Disability” or “Disabled”
shall mean a determination that a Participant is disabled made by either (i) the
carrier of any individual or group disability insurance policy, sponsored by
the Participant’s Employer, or (ii) the Social Security Administration.
Upon request by the Employer, the Participant must submit proof of the carrier’s
or Social Security Administration’s determination.


 


1.25         “Disability Benefit” shall
mean the benefit set forth in Article 8.


 


1.26         “Election Form” shall mean
the form established from time to time by the Committee that a Participant
completes, signs and returns to the Committee to make an election under the
Plan.


 


1.27         “Eligible Stock Option”
shall mean one or more non-qualified stock option(s) selected by the
Committee in its sole discretion and exercisable under a plan or arrangement of
IHOP Corp. or any Employer permitting a Participant under this Plan to defer
gain with respect to such option.


 


1.28         “Employee” shall mean a
person who is an employee of any Employer.


 


1.29         “Employer(s)” shall mean the
Company and/or any of its subsidiaries (now in existence or hereafter formed or
acquired) that have been selected by the Board to participate in the Plan and
have adopted the Plan as a sponsor.


 


1.30         “ERISA” shall mean the
Employee Retirement Income Security Act of 1974, as it may be amended from time
to time.


 


1.31         “ESOP Plan” shall be that
certain IHOP Employee Stock Ownership Plan, adopted by the Company.


 


1.32         “In-Service Distribution”
shall mean the distribution set forth in Section 5.1.


 


1.33         “LTIP Amounts” shall mean
any compensation payable to a Participant as an Employee under any Employer’s
long-term incentive plan or any other long-term incentive arrangement
designated by the Committee.


 


1.34         “Participant” shall mean any
Employee or Director (i) who is selected to participate in the Plan, (ii) who
elects to participate in the Plan, (iii) who signs a Plan Agreement, an
Election Form and a Beneficiary Designation Form,  (iv) whose  signed Plan 
Agreement,  Election Form 
and


 


4

















 


Beneficiary Designation Form are accepted by the Committee, (v) who
commences participation in the Plan, and (vi) whose Plan Agreement has not
terminated. A spouse or former spouse of a Participant shall not be treated as
a Participant in the Plan or have an account balance under the Plan, even if he
or she has an interest in the Participant’s benefits under the Plan as a result
of applicable law or property settlements resulting from legal separation or
divorce.


 


1.35         “Plan” shall mean the IHOP
Corp. Deferred Compensation Plan, which shall be evidenced by this instrument
and by each Plan Agreement, as they may be amended from time to time.


 


1.36         “Plan Agreement” shall mean
a written agreement, as may be amended from time to time, which is entered into
by and between an Employer and a Participant. Each Plan Agreement executed by a
Participant and the Participant’s Employer shall provide for the entire benefit
to which such Participant is entitled under the Plan; should there be more than
one Plan Agreement, the Plan Agreement bearing the latest date of acceptance by
the Employer shall supersede all previous Plan Agreements in their entirety and
shall govern such entitlement. The terms of any Plan Agreement may be different
for any Participant, and any Plan Agreement may provide additional benefits not
set forth in the Plan or limit the benefits otherwise provided under the Plan;
provided, however, that any such additional benefits or benefit limitations
must be agreed to by both the Employer and the Participant.


 


1.37         “Plan Year” shall mean a
period beginning on January 1 of each calendar year and continuing through
December 31 of such calendar year.


 


1.38         “Qualifying Gain” shall mean
the incremental value inuring to a Participant upon the exercise of an Eligible
Stock Option, using a Stock-for-Stock payment method, during any Plan Year. For
purposes of this section, the phrase “Stock-for-Stock payment method” shall, in
all events, be limited to the Participant’s delivery of a properly executed
statement in which he or she attests to ownership of the number of shares
required to exercise the Eligible Stock Option, rather than actual delivery of
such shares. Such incremental value shall be deliverable to the Participant in
the form of additional shares of Stock and shall be computed as follows: (i) the
total fair market value of the shares of Stock held/acquired as a result of the
exercise of an Eligible Stock Option using a Stock-for-Stock payment method,
minus (ii) the total exercise price. For example, assume a Participant
elects to exercise an Eligible Stock Option to purchase 1,000 shares of Stock
at an exercise price of $20 per share (i.e., a total exercise price of
$20,000), when the Stock has a current fair market value of $25 per share
(i.e., a total current fair market value of $25,000) and elects to defer one
hundred (100) percent of the Qualifying Gain (i.e., $5,000). Using the
Stock-for-Stock payment method, the Participant would deliver a properly
executed statement attesting to ownership of 800 shares of Stock (worth $20,000
at exercise) to exercise the Eligible Stock Option and would receive, in
return, 800 shares of Stock (worth $20,000 at exercise) plus a Qualifying Gain,
in the form of an unfunded and unsecured promise by the Company for 200
additional shares of Stock in the future (worth $5,000 at exercise). The number
of additional shares of Stock deliverable to the Participant in the future as a
result of the Qualifying Gain shall be fixed and determined as of the date of
the exercise of the Eligible Stock Option using the closing price of the Stock
as of the end of the business day closest to the date of such exercise.


 


1.39         “Retirement”, “Retire(s)” or
“Retired” shall mean, with respect to an Employee, severance from employment
from all Employers for any reason other than a leave of absence, death or
Disability


 


5

















 


on or after the date on which such Participant’s age plus Years of
Service equals at least seventy; and shall mean with respect to a Director who
is not an Employee, severance of his or her directorships with all Employers on
or after the later of (y) the attainment of age seventy (70), or (z) in
the sole discretion of the Committee, an age later than age seventy (70). If a
Participant is both an Employee and a Director, Retirement shall not occur
until he or she Retires as both an Employee and a Director, which Retirement
shall be deemed to be a Retirement as a Director; provided, however, that such
a Participant may elect, at least three years prior to Retirement and in
accordance with the policies and procedures established by the Committee, to
Retire for purposes of this Plan at the time he or she Retires as an Employee,
which Retirement shall be deemed to be a Retirement as an Employee.


 


1.40         “Retirement Benefit” shall
mean the benefit set forth in Article 6.


 


1.41         “Stock” shall mean IHOP
Corp. common stock, $.01 par value, or any other equity securities of the
Company designated by the Committee.


 


1.42         “Stock Option Gain Account”
shall mean the aggregate value, measured on any given date, of (i) the
number of shares of Stock deferred by a Participant as a result of all Annual
Stock Option Gain Amounts, plus (ii) the number of additional shares credited
as a result of the deemed reinvestment of dividends in accordance with all of
the applicable crediting provisions of the IHOP Corp. Stock Unit Fund that
relate to the Participant’s Stock Option Gain Account, less (iii) the
number of such shares of Stock previously distributed to the Participant or his
or her Beneficiary pursuant to this Plan, subject in each case to any
adjustments to the number of such shares determined by the Committee with
respect to the IHOP Corp. Stock Unit Fund pursuant to Section 3.9. This
portion of the Participant’s Account Balance shall only be distributable in
actual shares of Stock.


 


1.43         “Survivor Benefit” shall
mean the benefit set forth in Article 9.


 


1.44         “Termination Benefit” shall
mean the benefit set forth in Article 7.


 


1.45         “Termination of Employment”
shall mean the severing of employment with all Employers, or service as a
Director of all Employers, voluntarily or involuntarily, for any reason other
than Retirement, Disability, death or an authorized leave of absence.  If a Participant is both an Employee and a
Director, a Termination of Employment shall occur only upon the termination of
the last position held; provided, however, that such a Participant may elect,
at least three years before Termination of Employment and in accordance with
the policies and procedures established by the Committee, to be treated for
purposes of this Plan as having experienced a Termination of Employment at the
time he or she ceases employment with an Employer as an Employee.


 


1.46         “Trust” shall mean one or
more trusts established pursuant to that certain Master Trust Agreement, dated
as of December 27, 2002 between the Company and the trustee named therein,
as amended from time to time.


 


1.47         “Unforeseeable Financial
Emergency” shall mean an unanticipated emergency that is caused by an event
beyond the control of the Participant that would result in severe financial
hardship to the Participant resulting from (i) a sudden and unexpected
illness or accident of the Participant or a


 


6

















 


dependent of the Participant, (ii) a loss of the Participant’s
property due to casualty, or (iii) such other extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant, all as determined in the sole discretion of the Committee.


 


1.48         “Years of Service” shall
mean the total number of full years in which a Participant has been employed by
one or more Employers. For purposes of this definition, a year of employment
shall be a 365 day period (or 366 day period in the case of a leap year) that,
for the first year of employment, commences on the Employee’s date of hiring
and that, for any subsequent year, commences on an anniversary of that hiring
date. The Committee shall make a determination as to whether any partial year
of employment shall be counted as a Year of Service.


 


ARTICLE 2


Selection, Enrollment,
Eligibility


 


2.1           Selection by Committee. Participation
in the Plan shall be limited to a select group of management and highly
compensated Employees and Directors of the Employer, as determined by the
Committee in its sole discretion. From that group, the Committee shall select,
in its sole discretion, Employees and Directors to participate in the Plan.


 


2.2           Enrollment
Requirements. As a condition to
participation, each selected Employee or Director shall complete, execute and
return to the Committee a Plan Agreement, an Election Form and a
Beneficiary Designation Form, all within thirty (30) days after he or she is
selected to participate in the Plan. In addition, the Committee shall establish
from time to time such other enrollment requirements as it determines in its
sole discretion are necessary.


 


2.3           Eligibility;
Commencement of Participation. Provided an Employee or
Director selected to participate in the Plan has met all enrollment
requirements set forth in this Plan and required by the Committee, including
returning all required documents to the Committee within the specified time
period, that Employee or Director shall commence participation in the Plan on
the first day of the month following the month in which the Employee or
Director completes all enrollment requirements. If an Employee or a Director
fails to meet all such requirements within the period required, in accordance
with Section 2.2, that Employee or Director shall not be eligible to
participate in the Plan until the first day of the Plan Year following the
delivery to and acceptance by the Committee of the required documents.


 


2.4           Termination
of Participation and/or Deferrals. If the Committee determines
in good faith that a Participant no longer qualifies as a member of a select
group of management or highly compensated employees, as membership in such
group is determined in accordance with Sections 201(2), 301(a)(3) and
401(a)(1) of ERISA, the Committee shall have the right, in its sole
discretion, to (i) terminate any deferral election the Participant has
made for the remainder of the Plan Year in which the Participant’s membership
status changes, (ii) prevent the Participant from making future deferral
elections and/or (iii) immediately distribute the Participant’s then
vested Account Balance as a Termination Benefit and terminate the Participant’s
participation in the Plan.


 


7














 


ARTICLE 3


Deferral Commitments/Company
Contribution Amounts/Company Restoration Contribution


Amounts/Stock Option Gain
Amounts/Vesting/Crediting/Taxes


 


3.1           Minimum Deferrals.


 


(a)                                  Annual
Deferral Amount. For each Plan Year, a
Participant may elect to defer, as his or her Annual Deferral Amount, Base
Annual Salary, Annual Bonus, Commissions, LTIP Amounts and/or Director Fees in
the following minimum amounts for each deferral elected:


 


	
   

  	
  Deferral

  	
   

  	
  Minimum Amount

  	
   

  	
   

  
	
   

  	
  Base
  Annual Salary, Annual Bonus, Commissions and/or LTIP Amounts

  	
   

  	
  $5,000 aggregate

  	
   

  	
   

  
	
   

  	
  Director
  Fees

  	
   

  	
  $0

  	
   

  	
   

  



 


If an election is made for less than the stated minimum amounts, or if
no election is made, the amount deferred shall be zero.


 


(b)                                 Annual
Stock Option Gain Amount.  For each Eligible Stock Option, a Participant
may elect to defer, as his or her Annual Stock Option Gain Amount, the
following minimum percentage of Qualifying Gain with respect to exercise of the
Eligible Stock Option:


 


	
   

  	
  Deferral

  	
   

  	
  Minimum Percentage

  	
   

  	
   

  
	
   

  	
  Qualifying
  Gain

  	
   

  	
  0

  	
  %

  	
   

  



 


If no election is made, the amount deferred shall be zero.


 


(c)                                  Short
Plan Year. Notwithstanding the foregoing, if a Participant
first becomes a Participant after the first day of a Plan Year, the minimum
Annual Deferral Amount shall be an amount equal to the minimum set forth above,
multiplied by a fraction, the numerator of which is the number of complete
months remaining in the Plan Year and the denominator of which is 12.


 


3.2           Maximum Deferral.


 


(a)                                  Annual
Deferral Amount. For each Plan Year, a
Participant may elect to defer, as his or her Annual Deferral Amount, Base
Annual Salary, Annual Bonus, Commissions, LTIP Amounts and/or Director Fees up
to the following maximum percentages for each deferral elected:


 


	
   

  	
  Deferral

  	
   

  	
  Maximum Amount

  	
   

  	
   

  
	
   

  	
  Base
  Annual Salary

  	
   

  	
  90

  	
  %

  	
   

  
	
   

  	
  Annual
  Bonus

  	
   

  	
  100

  	
  %

  	
   

  



 


8

















 


	
   

  	
  Commissions

  	
   

  	
  100

  	
  %

  	
   

  
	
   

  	
  LTIP
  Amounts

  	
   

  	
  100

  	
  %

  	
   

  
	
   

  	
  Director
  Fees

  	
   

  	
  100

  	
  %

  	
   

  



 


(b)                                 Annual Stock Option Gain Amount. For each
Eligible Stock Option, a Participant may elect to defer, as his or her Annual
Stock Option Gain Amount, Qualifying Gain up to the following maximum
percentage with respect to exercise of the Eligible Stock Option:


 


	
   

  	
  Deferral

  	
   

  	
  Maximum Percentage

  	
   

  	
   

  
	
   

  	
  Qualifying
  Gain

  	
   

  	
  100

  	
  %

  	
   

  



 


Annual Stock Option Gain Amounts may also be limited by other terms or
conditions set forth in the stock option plan or agreement under which such
options are granted.


 


(c)                                  Short Plan Year. Notwithstanding
the foregoing, if a Participant first becomes a Participant after the first day
of a Plan Year, the maximum Annual Deferral Amount (i) with respect to
Base Annual Salary and Director Fees shall be limited to the amount of
compensation not yet earned by the Participant as of the date the Participant
submits a Plan Agreement and Election Form to the Committee for
acceptance, and (ii) with respect to Annual Bonus, LTIP Amounts and
Commissions shall be limited to those amounts deemed eligible for deferral, in
the sole discretion of the Committee.


 


3.3           Election
to Defer; Effect of Election Form.


 


(a)                                  First Plan Year. In connection
with a Participant’s commencement of participation in the Plan, the Participant
shall make an irrevocable deferral election for the Plan Year in which the
Participant commences participation in the Plan, along with such other
elections as the Committee deems necessary or desirable under the Plan. For
these elections to be valid, the Election Form must be completed and
signed by the Participant, timely delivered to the Committee (in accordance
with Section 2.2 above) and accepted by the Committee.


 


(b)                                 Subsequent Plan Years. For each
succeeding Plan Year, an irrevocable deferral election for that Plan Year, and
such other elections as the Committee deems necessary or desirable under the
Plan, shall be made by timely delivering a new Election Form to the
Committee, in accordance with its rules and procedures, before the end of
the Plan Year preceding the Plan Year for which the election is made. If no
such Election Form is timely delivered for a Plan Year, the Annual Deferral
Amount shall be zero for that Plan Year.


 


(c)           Stock Option Gain Deferral.


 


(i)                                     For an election
to defer gain upon the exercise of an Eligible Stock Option exercise to be
valid: (i) a separate Election Form must be completed and signed by
the Participant with respect to the Eligible Stock Option; (ii) such
election must be irrevocable; (iii) the executed Election Form must
be timely delivered to the Committee or its designee at least six (6) months
prior to the date the Participant


 


9

















 


elects to exercise the Eligible Stock Option; (iv) the Participant
must agree not to exercise the Eligible Stock Option prior to six (6) months
from the date the executed, irrevocable Election Form is submitted to the
Committee or its designee; (v) the Eligible Stock Option must be exercised
using the “Stock-for-Stock payment method”; and (vi) the Stock
constructively delivered by the Participant to exercise the Eligible Stock
Option must have been owned by the Participant during the entire six (6) month
period prior to its delivery and/or otherwise qualify the Eligible Stock Option
for favorable accounting treatment, as determined in the sole discretion of the
Committee.


 


(ii)                                  Notwithstanding
any other provision of this Plan to the contrary, (i) an Eligible Stock
Option may be exercised prior to the end of the six (6) month period
following the date on which the executed Election Form is delivered to the
Committee or its designee, and (ii) the resulting Qualifying Gain will not
be deferred into this Plan, if (a) a Change in Control occurs, or (b) the
Participant Retires, dies while an Employee or Director, or experiences a
Termination of Employment, and the Eligible Stock Option would otherwise expire
prior to the end of the six (6) month period following the date on which
the executed Election Form was delivered to the Committee or its designee.


 


3.4                                 Withholding
and Crediting of Annual Deferral
Amounts. For each Plan Year, the
Base Annual Salary portion of the Annual Deferral Amount shall be withheld from
each regularly scheduled Base Annual Salary payroll in equal amounts, as
adjusted from time to time for increases and decreases in Base Annual Salary.
The Annual Bonus, Commissions, LTIP Amounts and/or Director Fees portion of the
Annual Deferral Amount shall be withheld at the time the Annual Bonus,
Commissions, LTIP Amounts or Director Fees are or otherwise would be paid to
the Participant, whether or not this occurs during the Plan Year itself. Annual
Deferral Amounts shall be credited to a Participant’s Deferral Account at the
time such amounts would otherwise have been paid to the Participant.


 


3.5           Annual Company Contribution Amount.


 


(a)                                  For each Plan
Year, an Employer may be required to credit amounts to a Participant’s Company
Contribution Account in accordance with employment or other agreements entered
into between the Participant and the Employer. Such amounts shall be credited
on the date or dates prescribed by such agreements.


 


(b)                                 For each Plan
Year, an Employer, in its sole discretion, may, but is not required to, credit
any amount it desires to any Participant’s Company Contribution Account under
this Plan, which amount shall be for that Participant the Annual Company
Contribution Amount for that Plan Year. The amount so credited to a Participant
may be smaller or larger than the amount credited to any other Participant, and
the amount credited to any Participant for a Plan Year may be zero, even though
one or more other Participants receive an Annual Company Contribution Amount
for that Plan Year. The Annual Company Contribution Amount described in this Section 3.5(b),
if any, shall be credited as of the last day of the Plan Year. If a Participant
is not employed by an Employer as of


 


10

















 


the last day of a Plan Year other than by reason of his or her
Retirement or death while employed, the Annual Company Contribution Amount for
that Plan Year shall be zero.


 


3.6                                 Annual
Company Restoration Contribution Amount. A Participant’s
Annual Company Restoration Contribution Amount for any Plan Year shall be a
number of shares of Stock equal in value to the difference between (i) the
“contributions” and “forfeitures” that would have been allocated to the
Participant’s “account” under the ESOP Plan for such Plan Year, pursuant to the
terms of the ESOP Plan in effect for such year, based on such Participant’s “compensation”
calculated as if such Participant had not deferred any amounts under this Plan,
and without regard to any qualified plan limits that would otherwise apply to
the ESOP Plan; and (ii) the amount of the “contributions” and “forfeitures”
actually allocated to the Participant’s “account” under the ESOP Plan during
such Plan Year. However, if a Participant is not employed by an Employer as of
the last day of a Plan Year other than by reason of his or her Retirement or
death while employed, the Annual Company Restoration Contribution Amount for
that Plan Year shall be zero. The amount so credited to a Participant, if any, under
this Plan shall be for that Participant the Annual Company Restoration
Contribution Amount for that Plan Year, and shall be credited to the
Participant’s Company Restoration Contribution Account in shares of Stock on a
date or dates to be determined by the Committee, in its sole discretion. The
portion of any Annual Company Restoration Contribution Amount shall be
reflected on the books of the Company as an unfunded, unsecured promise to
deliver to the Participant a specific number of actual shares of Stock in the
future.


 


3.7                                 Annual
Stock Option Gain Amount. Subject to any terms and
conditions imposed by the Committee, Participants may elect to defer, under the
Plan, all or some portion of Qualifying Gains attributable to an Eligible Stock
Option exercise, which amount shall be for that Participant the Annual Stock
Option Gain Amount for that Plan Year. The portion of any Qualifying Gains
shall be reflected on the books of the Company as an unfunded, unsecured
promise to deliver to the Participant a specific number of actual shares of
Stock in the future. Such shares of Stock would otherwise have been delivered
to the Participant, pursuant to the Eligible Stock Option exercise, but for the
Participant’s election to defer.


 


3.8                                 Vesting.


 


(a)                                  A Participant shall
at all times be 100% vested in his or her Deferral Account and Stock Option
Gain Account.


 


(b)                                 A Participant
shall be vested in his or her Company Contribution Account in accordance with
the vesting schedule(s) set forth in his or her Plan Agreement, employment
agreement or any other agreement entered into between the Participant and his
or her Employer. If not addressed in such agreements, a Participant shall vest
in his or her Company Contribution Account in accordance with the schedule
declared by the Committee in its sole discretion.


 


(c)                                  A Participant
shall be vested in his or her Company Restoration Contribution Account only to
the extent that the Participant would be vested in such amounts under the
provisions of the ESOP Plan, as determined by the Committee in its sole
discretion.


 


11

















 


3.9                                 Crediting/Debiting
of Account Balances. In accordance with, and subject to, the rules and
procedures that are established from time to time by the Committee, in its sole
discretion, amounts shall be credited or debited to a Participant’s Account
Balance in accordance with the following rules:


 


(a)                                  Measurement
Funds. Subject to the restrictions found in Section 3.9(c) below,
the Participant may elect one or more of the measurement funds selected by the
Committee, in its sole discretion, which are based on certain mutual funds (the
“Measurement Funds”), for the purpose of crediting or debiting additional
amounts to his or her Account Balance. As necessary, the Committee may, in its
sole discretion, discontinue, substitute or add a Measurement Fund. Each such
action will take effect as of the first day of the first calendar quarter that
begins at least thirty (30) days after the day on which the Committee gives
Participants advance written notice of such change.


 


(b)                                 Election
of Measurement Funds. Subject to the restrictions
found in Section 3.9(c) below, a Participant, in connection with his
or her initial deferral election in accordance with Section 3.3(a) above,
shall elect, on the Election Form, one or more Measurement Fund(s) (as
described in Section 3.9(a) above) to be used to determine the
amounts to be credited or debited to his or her Account Balance. If a
Participant does not elect any of the Measurement Funds as described in the
previous sentence, the Participant’s Account Balance shall automatically be
allocated into the lowest-risk Measurement Fund, as determined by the
Committee, in its sole discretion. Subject to the restrictions found in Section 3.9(c) below,
the Participant may (but is not required to) elect, by submitting an Election Form to
the Committee that is accepted by the Committee, to add or delete one or more
Measurement Fund(s) to be used to determine the amounts to be credited or
debited to his or her Account Balance, or to change the portion of his or her
Account Balance allocated to each previously or newly elected Measurement Fund.
If an election is made in accordance with the previous sentence, it shall apply
as of the first business day deemed reasonably practicable by the Committee, in
its sole discretion, and shall continue thereafter for each subsequent day in
which the Participant participates in the Plan, unless changed in accordance
with the previous sentence.


 


(c)                                  IHOP Corp. Stock Unit Fund.


 


(i)                                     A Participant’s
Company Restoration Contribution Account and Stock Option Gain Account will be
automatically allocated to the IHOP Corp. Stock Unit Fund Measurement Fund.
Participants may not select any other Measurement Fund to be used to determine
the amounts to be credited or debited to their Company Restoration Contribution
Account and Stock Option Gain Account. Furthermore, no other portion of the
Participant’s Account Balance can be either initially allocated or re-allocated
to the IHOP Corp. Stock Unit Fund.


 


(ii)                                  Any stock
dividends, cash dividends or other non-cash dividends that would have been
payable on the Stock credited to a Participant’s Account Balance shall be
credited to the Participant’s Account Balance in the form of additional shares
of Stock and shall automatically and irrevocably be deemed to be re-invested in
the IHOP Corp. Stock Unit Fund until such amounts are distributed to the
Participant.


 


12

















 


The number of shares credited to the Participant for a particular stock
dividend shall be equal to (a) the number of shares of Stock credited to
the Participant’s Account Balance as of the payment date for such dividend in
respect of each share of Stock, multiplied by (b) the number of additional
shares of Stock actually paid as a dividend in respect of each share of Stock.
The number of shares credited to the Participant for a particular cash dividend
or other non-cash dividend shall be equal to (a) the number of shares of
Stock credited to the Participant’s Account Balance as of the payment date for
such dividend in respect of each share of Stock, multiplied by (b) the
fair market value of the dividend, divided by (c) the “fair market value”
of the Stock on the payment date for such dividend.


 


(iii)                               The number of
shares of Stock credited to the Participant’s Account Balance may be adjusted
by the Committee, in its sole discretion, to prevent dilution or enlargement of
Participants’ rights with respect to the portion of his or her Account Balance
allocated to the IHOP Corp. Stock Unit Fund, in the event of any
reorganization, reclassification, stock split, or other unusual corporate
transaction or event which affects the value of the Stock, provided that any
such adjustment shall be made taking into account any crediting of shares of
Stock to the Participant under Section 3.9.


 


(iv)                              For purposes of
this Section 3.9, the fair market value of the Stock shall be determined
by the Committee in its sole discretion.


 


(d)                              Proportionate
Allocation. In making any election
described in Section 3.9(b) above, the Participant shall specify on
the Election Form, in increments of one percent (1%), the percentage of his or
her Account Balance to be allocated to a Measurement Fund (as if the
Participant was making an investment in that Measurement Fund with that portion
of his or her Account Balance).


 


(e)                               Crediting
or Debiting Method. The performance of each
elected Measurement Fund (either positive or negative) will be determined by
the Committee, in its reasonable discretion, based on the performance of the
Measurement Funds themselves. A Participant’s Account Balance shall be credited
or debited on a daily basis based on the performance of each Measurement Fund
selected by the Participant, such performance being determined by the
Committee in its sole discretion.


 


(f)                                 No
Actual Investment. Notwithstanding any other
provision of this Plan that may be interpreted to the contrary, the Measurement
Funds are to be used for measurement purposes only, and a Participant’s
election of any such Measurement Fund, the allocation to his or her Account
Balance thereto, the calculation of additional amounts and the crediting or
debiting of such amounts to a Participant’s Account Balance shall not
be considered or construed in any manner as an actual investment of his or her
Account Balance in any such Measurement Fund. In the event that the Company or
the Trustee (as that term is defined in the Trust), in its own discretion,
decides to invest funds in any or all of the investments on which the
Measurement Funds are based, no Participant shall have any rights in or to such
investments themselves. Without limiting the foregoing, a Participant’s Account
Balance shall at all times be a bookkeeping entry only and shall not


 


13

















 


represent any investment made on his or her behalf by the Company or
the Trust; the Participant shall at all times remain an unsecured creditor of
the Company.


 


3.10         FICA
and Other Taxes.


 


(a)                                  Annual Deferral Amounts. For each Plan
Year in which an Annual Deferral Amount is being withheld from a Participant,
the Participant’s Employer(s) shall withhold from that portion of the
Participant’s Base Annual Salary, Annual Bonus, Commissions and LTIP Amounts
that are not being deferred, in a manner determined by the Employer(s), the
Participant’s share of FICA and other employment taxes on such Annual Deferral
Amount. If necessary, the Committee may reduce the Annual Deferral Amount in
order to comply with this Section 3.10.


 


(b)                                 Company
Restoration Contribution Account
and Company Contribution Account. When a
participant becomes vested in a portion of his or her Company Restoration
Contribution Account or Company Contribution Account, the Participant’s Employer(s)
shall withhold from the Participant’s Base Annual Salary, Annual Bonus,
Commissions and/or LTIP Amounts that are not deferred, in a manner determined
by the Employer(s), the Participant’s share of FICA and other employment taxes.
If necessary, the Committee may reduce the vested portion of the Participant’s
Company Restoration Contribution Account or Company Contribution Account, as
applicable, in order to comply with this Section 3.10.


 


(c)                                  Annual Stock Option Gain Amounts. For each Plan
Year in which an Annual Stock Option Gain Amount is being first withheld from a
Participant, the Participant’s Employer(s) shall withhold from that portion of
the Participant’s Base Annual Salary, Annual Bonus, Commissions, LTIP Amounts
and Qualifying Gains that are not being deferred, in a manner determined by the
Employer(s), the Participant’s share of FICA and other employment taxes on such
Annual Stock Option Gain Amount. If necessary, the Committee may reduce the
Annual Stock Option Gain Amount in order to comply with this Section 3.10.


 


(d)                                 Distributions. The
Participant’s Employer(s), or the trustee of the Trust, shall withhold from any
payments made to a Participant under this Plan all federal, state and local
income, employment and other taxes required to be withheld by the Employer(s), or the trustee of the Trust, in
connection with such payments, in amounts and in a manner to be determined in
the sole discretion of the Employer(s) and the trustee of the Trust.


 


ARTICLE 4


Deduction
Limitation


 


4.1                                 Deduction Limitation on Benefit Payments. If an Employer determines in good faith prior to a
Change in Control that there is a reasonable likelihood that any compensation
paid to a Participant for a taxable year of the Employer would not be
deductible by the Employer solely by reason of the limitation under Code Section 162(m),
then to the extent deemed necessary by the Employer to ensure that the entire
amount of any distribution to the Participant pursuant to this Plan prior to
the Change in Control is deductible, the Employer may defer all or any portion
of a


 


14

















 


distribution under this Plan. Any amounts deferred pursuant to this
limitation shall continue to be credited/debited with additional amounts in
accordance with Section 3.9 above, even if such amount is being paid out
in installments. The amounts so deferred and amounts credited thereon shall be
distributed to the Participant or his or her Beneficiary (in the event of the
Participant’s death) at the earliest possible date, as determined by the
Employer in good faith, on which the deductibility of compensation paid or
payable to the Participant for the taxable year of the Employer during which
the distribution is made will not be limited by Section 162(m), or if
earlier, the effective date of a Change in Control. Notwithstanding anything to
the contrary in this Plan, the Deduction Limitation shall not apply to any
distributions made after a Change in Control.


 


ARTICLE 5


In-Service Distribution;
Unforeseeable Financial Emergencies;


Withdrawal Election


 


5.1                                 In-Service
Distribution. In connection with each
election to defer an Annual Deferral Amount, a Participant may irrevocably
elect to receive an In-Service Distribution from the Plan with respect to all
or a portion of (i) the Annual Deferral Amount and (ii) the Annual
Company Contribution Amount. The In-Service Distribution shall be a lump sum
payment in an amount that is equal to the portion of the Annual Deferral Amount
and the vested portion of the Annual Company Contribution Amount that the
Participant elected to have distributed as an In-Service Distribution, plus
amounts credited or debited in the manner provided in Section 3.9 above on
that amount, calculated as of the close of business on or around the date on
which the In-Service Distribution becomes payable, as determined by the
Committee in its sole discretion. Subject to the other terms and conditions of
this Plan, each In-Service Distribution elected shall be paid out during a
ninety (90) day period commencing immediately after the first day of any Plan
Year designated by the Participant. The Plan Year designated by the Participant
must be at least three Plan Years after the end of the Plan Year in which the
Annual Deferral Amount is actually deferred or the vested portion of the Annual
Company Contribution Amount is actually contributed. By way of example, if an
In-Service Distribution is elected for Annual Deferral Amounts that are
deferred in the Plan Year commencing January 1, 2003, the In-Service
Distribution would become payable during a ninety (90) day period commencing January 1,
2007. Notwithstanding the language set forth above, the Committee shall, in its
sole discretion, adjust the amount distributable as an In-Service Distribution
if any portion of the Annual Company Contribution Amount is unvested on the
In-Service Distribution Date.


 


5.2                                 Other
Benefits Take Precedence Over In-Service Distributions. Should an
event occur that triggers a benefit under Article 6, 7, 8 or 9, any Annual
Deferral Amount, plus amounts credited or debited thereon, that is subject to
an In-Service Distribution election under Section 5.1 shall not be paid in
accordance with Section 5.1 but shall be paid in accordance with the other
applicable Article.


 


5.3                                 Withdrawal
Payout/Suspensions for Unforeseeable Financial Emergencies.  If the Participant experiences an
Unforeseeable Financial Emergency, the Participant may petition the Committee (i) to
suspend deferrals of Base Annual Salary, Annual Bonus, Commissions,


 


15

















 


Director Fees, LTIP Amounts and Qualifying Gains required to be made by
such Participant, to the extent deemed necessary by the Committee to satisfy
the Unforeseeable Financial Emergency, or (ii) to suspend deferrals of Base
Annual Salary, Annual Bonus, Commissions, Director Fees, LTIP Amounts and
Qualifying Gains required to be made by such Participant, to the extent deemed
necessary by the Committee to satisfy the Unforeseeable Financial Emergency,
and receive a partial or full payout from the Plan. The payout shall not exceed
the lesser of the Participant’s vested Account Balance, excluding the portion
of the Account Balance attributable to the Company Restoration Contribution
Account and Stock Option Gain Account, calculated as if such Participant were
receiving a Termination Benefit, or the amount reasonably needed to satisfy the
Unforeseeable Financial Emergency. A Participant may not receive a payout from
the Plan to the extent that the Unforeseeable Financial Emergency is or may be
relieved (i) through reimbursement or compensation by insurance or
otherwise, (ii) by liquidation of the Participant’s assets, to the extent
the liquidation of such assets would not itself cause severe financial hardship
or (iii) by suspension of deferrals under this Plan.


 


If the Committee, in its sole discretion, approves a Participant’s
petition for suspension, the Participant’s deferrals under this Plan shall be
suspended as of the date of such approval. If the Committee, in its sole discretion,
approves a Participant’s petition for suspension and payout, the Participant’s
deferrals under this Plan shall be suspended as of the date of such approval
and the Participant shall receive a payout from the Plan within ninety (90)
days of the date of such approval.


 


5.4                                 Withdrawal
Election. A Participant may elect, at
any time, to withdraw all or a portion of his or her vested Account Balance,
excluding the portion of the Account Balance attributable to the Company
Restoration Contribution Account and Stock Option Gain Account. For purposes of
this Section 5.4, the value of a Participant’s vested Account Balance
shall be calculated as of the close of business on or around the date on which
receipt of the Participant’s election is acknowledged by the Committee, as
determined by the Committee in its sole discretion, less a withdrawal penalty
equal to 10% of the amount withdrawn (the net amount shall be referred to as
the “Withdrawal Amount”). This election can be made at any time, before or
after Retirement or Disability, and whether or not the Participant is in the
process of being paid pursuant to an installment payment schedule. The
Participant shall make this election by giving the Committee advance written
notice of the election in a form determined from time to time by the Committee.
The Participant shall be paid the Withdrawal Amount within ninety (90) days of
his or her election. Once the Withdrawal Amount is paid, the Participant’s
participation in the Plan shall be suspended for the remainder of the Plan Year
in which the withdrawal is elected and for one (1) full Plan Year
thereafter (the “Suspension Period”). During the Suspension Period, the
Participant will continue to be eligible for the benefits provided in Articles
5, 6, 7, 8 or 9 in accordance with the provisions of those Articles, and any
previously elected deferrals of Qualifying Gains will continue to be withheld.
However, the portion of such Participant’s Annual Deferral Amount which is
attributable to Base Annual Salary, Annual Bonus, Commissions, LTIP Amounts
and/or Director Fees shall not be withheld during the Suspension Period, and
the Participant shall not be allowed to make any deferral elections during the
Suspension Period.


 


16

















 


ARTICLE 6


Retirement Benefit


 


6.1                                 Retirement
Benefit. A Participant who Retires
shall receive, as a Retirement Benefit, his or her vested Account Balance,
calculated as of the close of business on or around the date on which the
Participant Retires, as determined by the Committee in its sole discretion.


 


6.2                                 Payment
of Retirement Benefit. A Participant, in
connection with his or her commencement of participation in the Plan, shall
elect on an Election Form to receive the Retirement Benefit in a lump sum
or pursuant to an Annual Installment Method of up to 10 years. The Participant
may change his or her election to an allowable alternative payout period by
submitting a new Election Form to the Committee, provided that any such
Election Form is submitted to and accepted by the Committee in its sole
discretion at least thirteen (13) months prior to the Participant’s Retirement.
The Election Form most recently accepted by the Committee shall govern the
payout of the Retirement Benefit. If a Participant does not make any election
with respect to the payment of the Retirement Benefit, then such benefit shall
be payable in a lump sum. The lump sum payment shall be made, or installment
payments shall commence, no later than ninety (90) days after the date on which
the Participant Retires. Remaining installments, if any, shall be paid no later
than ninety (90) days after each anniversary of the date on which the
Participant Retires.


 


ARTICLE 7


Termination Benefit


 


7.1                                 Termination
Benefit. A Participant who
experiences a Termination of Employment shall receive a Termination Benefit,
which shall be equal to the Participant’s vested Account Balance, calculated as
of the close of business on or around the date on which the Participant
experiences a Termination of Employment, as determined by the Committee in its
sole discretion.


 


7.2                                 Payment
of Termination Benefit. The Termination Benefit
shall be paid to the Participant in a lump sum payment no later than ninety
(90) days after the date on which the Participant experiences the Termination
of Employment.


 


ARTICLE 8


Disability Waiver and Benefit


8.1          Disability
Waiver.


 


(a)                                  Waiver
of Deferral.  If a Participant is determined to be both (i) suffering
from a Disability, and (ii) receiving 100 percent of his or her Base
Annual Salary or Director Fees during the period of Disability, then the
Participant’s Annual Deferral Amount and Qualifying Gains shall continue to be
withheld during such period of Disability. If a Participant is determined to be
both (i) suffering from a Disability, and (ii) receiving less than
100 percent of his or her Base Annual Salary or Director Fees during the period
of such Disability, then such Participant shall be excused from fulfilling that
portion of the


 


17

















 


Annual Deferral Amount commitment that would otherwise have been
withheld from a Participant’s Base Annual Salary, Annual Bonus, Commissions,
LTIP Amounts and/or Director Fees for the Plan Year during which the
Participant first suffers a Disability. However, any previously elected
deferrals of Qualifying Gains shall continue to be withheld during such
Disability. During the period of Disability, the Participant shall not be
allowed to make any additional deferral elections, but will continue to be eligible
for the benefits provided in Articles 5, 6, 7, 8 or 9 in accordance with the
provisions of those Articles.


 


(b)                                 Deferral
Following Disability. If a Participant (i) returns
to employment, or service as a Director, with an Employer after a Disability ceases,
and (ii) payment of 100 percent of his or her Base Annual Salary or
Director Fees recommences, the Participant may elect to defer an Annual
Deferral Amount and Annual Stock Option Gain Amount for the Plan Year following
his or her return to employment or service and for every Plan Year thereafter
while a Participant in the Plan; provided such deferral elections are otherwise
allowed and an Election Form is delivered to and accepted by the Committee
for each such election in accordance with Section 3.3 above.


 


8.2           Continued Eligibility;
Disability Benefit.


 


(a)                                  Continued
Eligibility. A Participant suffering a
Disability shall, for benefit purposes under this Plan, continue to be
considered to be employed, or in the service of an Employer as a Director, and
shall be eligible for the benefits provided for in Articles 5, 6, 7 or 9 in
accordance with the provisions of those Articles. Notwithstanding the above,
the Committee shall have the right to, in its sole and absolute discretion and
for purposes of this Plan only, deem the Participant’s employment to have
terminated at any time after such Participant is determined to be suffering a
Disability.


 


(b)                                 Deemed
Termination of Employment. If, in the Committee’s
discretion, the Disabled Participant’s employment has terminated, and such
Participant is not otherwise eligible to Retire, the Participant shall be
deemed to have experienced a Termination of Employment for purposes of this
Plan and will receive a Disability Benefit. The Disability Benefit shall be equal
to his or her vested Account Balance, calculated as of the close of business on
or around the date on which the Disabled Participant is deemed to have
experienced a Termination of Employment, as determined by the Committee in its
sole discretion. The Participant shall receive his or her Disability Benefit in
a lump sum payment no later than ninety (90) days after the date on which the
Committee deems the Disabled Participant to have experienced a Termination of
Employment.


 


(c)                                  Deemed
Retirement. If, in the Committee’s
discretion, the Disabled Participant’s employment has terminated, and such
Participant is otherwise eligible to Retire, the Participant shall be deemed to
have Retired for purposes of this Plan and will receive a Disability Benefit.
The Disability Benefit shall be equal to his or her vested Account Balance,
calculated as of the close of business on or around the date on which the
Participant is deemed to have Retired, as determined by the Committee in its
sole discretion. The Participant shall receive his or her Disability Benefit in
the same form in which such Participant elected to receive his or her
Retirement Benefit.  The lump sum


 


18

















 


payment shall be made, or installment payments shall commence, no later
than ninety (90) days after the date on which the Disabled Participant is
deemed to have Retired. Remaining installments, if any, shall be paid no later
than ninety (90) days after each anniversary of the date on which the Disabled
Participant is deemed to have Retired.


 


ARTICLE 9


Survivor Benefit


 


9.1                                 Survivor
Benefit. The Participant’s
Beneficiary(ies) shall receive a Survivor Benefit upon the Participant’s death
which will be equal to (i) the Participant’s vested Account Balance,
calculated as of the close of business on or around the date of the Participant’s
death, as selected by the Committee in its sole discretion, if the Participant
dies prior to his or her Retirement, Termination of Employment or Disability,
or (ii) the Participant’s unpaid Retirement Benefit, .calculated as of the
close of business on or around the date of the Participant’s death, as selected
by the Committee in its sole discretion, if the Participant dies before his or
her Retirement Benefit is paid in full.


 


9.2                                 Payment
of Survivor Benefit. The Survivor Benefit shall
be paid to the Participant’s Beneficiary(ies) in a lump sum payment no later
than ninety (90) days after the date on which the Committee is provided with
proof that is satisfactory to the Committee of the Participant’s death.


 


ARTICLE 10


Beneficiary Designation


 


10.1                           Beneficiary. Each
Participant shall have the right, at any time, to designate his or her
Beneficiary(ies) (both primary as well as contingent) to receive any benefits
payable under the Plan to a beneficiary upon the death of a Participant. The
Beneficiary designated under this Plan may be the same as or different from the
Beneficiary designation under any other plan of an Employer in which the Participant
participates.


 


10.2                           Beneficiary
Designation; Change; Spousal Consent. A Participant shall
designate his or her Beneficiary by completing and signing the Beneficiary
Designation Form, and returning it to the Committee or its designated agent. A
Participant shall have the right to change a Beneficiary by completing, signing
and otherwise complying with the terms of the Beneficiary Designation Form and
the Committee’s rules and procedures, as in effect from time to time. If
the Participant names someone other than his or her spouse as a Beneficiary and
if the Committee requires that a spousal consent be obtained with respect to
such Participant, a spousal consent, in the form designated by the Committee,
must be signed by that Participant’s spouse and returned to the Committee. Upon
the acceptance by the Committee of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be canceled. The Committee
shall be entitled to rely on the last Beneficiary Designation Form filed
by the Participant and accepted by the Committee prior to his or her death.


 


10.3                           Acknowledgment. No designation
or change in designation of a Beneficiary shall be effective until received and
acknowledged in writing by the Committee or its designated agent.


 


19














 


10.4                           No
Beneficiary Designation. If a Participant fails to
designate a Beneficiary as provided in Sections 10.1, 10.2 and 10.3 above or,
if all designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant’s benefits, then the Participant’s
designated Beneficiary shall be deemed to be his or her surviving spouse. If
the Participant has no surviving spouse, the benefits remaining under the Plan
to be paid to a Beneficiary shall be payable to the executor or personal
representative of the Participant’s estate.


 


10.5                           Doubt
as to Beneficiary. If the Committee has any doubt as to the
proper Beneficiary to receive payments pursuant to this Plan, the Committee
shall have the right, exercisable in its discretion, to cause the Participant’s
Employer to withhold such payments until this matter is resolved to the
Committee’s satisfaction.


 


10.6                           Discharge
of Obligations. The payment of benefits
under the Plan to a Beneficiary shall fully and completely discharge all
Employers and the Committee from all further obligations under this Plan with
respect to the Participant, and that Participant’s Plan Agreement shall
terminate upon such full payment of benefits.


 


ARTICLE 11


Leave of Absence


 


11.1                           Paid
Leave of Absence. If a Participant is
authorized by the Participant’s Employer to take a paid leave of absence from
the employment of the Employer, (i) the Participant shall continue to be
considered eligible for the benefits provided in Articles 5, 6, 7, 8 or 9 in
accordance with the provisions of those Articles, and (ii) the Annual
Deferral Amount and any previously elected deferrals of Qualifying Gains shall
continue to be withheld during such paid leave of absence in accordance with Section 3.3.


 


11.2                           Unpaid
Leave of Absence. If a Participant is
authorized by the Participant’s Employer to take an unpaid leave of absence
from the employment of the Employer for any reason, such Participant shall
continue to be eligible for the benefits provided in Articles 5, 6, 7, 8 or 9
in accordance with the provisions of those Articles, and any previously elected
deferrals of Qualifying Gains shall continue to be withheld during such unpaid
leave of absence in accordance with Section 3.3. However, the Participant
shall be excused from fulfilling that portion of the Annual Deferral Amount
commitment that would otherwise have been withheld from such Participant’s Base
Annual Salary, Annual Bonus, Commissions, LTIP Amounts and/or Director Fees
during the remainder of the Plan Year in which the unpaid leave of absence is
taken. During the unpaid leave of absence, the Participant shall not be allowed
to make any additional deferral elections. However, if the Participant returns
to employment, the Participant may elect to defer an Annual Deferral Amount and
Annual Stock Option Gain Amount for the Plan Year following his or her return
to employment and for every Plan Year thereafter while a Participant in the
Plan.


 


20

















 


ARTICLE 12


Termination, Amendment or
Modification


 


12.1                           Termination. Although each
Employer anticipates that it will continue the Plan for an indefinite period of
time, there is no guarantee that any Employer will continue the Plan or will
not terminate the Plan at any time in the future. Accordingly, each Employer
reserves the right to discontinue its sponsorship of the Plan and/or to
terminate the Plan at any time with respect to any or all of its participating
Employees and Directors, by action of its board of directors. Upon the termination
of the Plan with respect to any Employer, the Plan Agreements of the affected
Participants who are employed by that Employer, or in the service of that
Employer as Directors, shall terminate and their vested Account Balances shall
be determined (i) as if they had experienced a Termination of Employment
on the date of Plan termination; or (ii) if Plan termination occurs after
the date upon which a Participant was eligible to Retire, then with respect to
that Participant as if he or she had Retired on the date of Plan termination.
Such benefits shall be paid to the Participants as follows: (i) prior to a
Change in Control, if the Plan is terminated with respect to all of its
Participants, an Employer shall have the right, in its sole discretion, and
notwithstanding any elections made by the Participant, to pay such benefits in
a lump sum or pursuant to an Annual Installment Method of up to 15 years, with
amounts credited and debited during the installment period as provided herein;
or (ii) prior to a Change in Control, if the Plan is terminated with respect to
less than all of its Participants, an Employer shall be required to pay such
benefits in a lump sum; or (iii) after a Change in Control, if the Plan is
terminated with respect to some or all of its Participants, the Employer shall
be required to pay such benefits in a lump sum. The termination of the Plan
shall not adversely affect any Participant or Beneficiary who has become
entitled to the payment of any benefits under the Plan as of the date of termination;
provided however, that the Employer shall have the right to accelerate
installment payments without a premium or prepayment penalty by paying the
vested Account Balance in a lump sum or pursuant to an Annual Installment
Method using fewer years (provided that the present value of all payments that
will have been received by a Participant at any given point of time under the
different payment schedule shall equal or exceed the present value of all
payments that would have been received at that point in time under the original
payment schedule).


 


12.2                           Amendment. Any Employer
may, at any time, amend or modify the Plan in whole or in part with respect to
that Employer by the action of its board of directors; provided, however, that:
(i) no amendment or modification shall be effective to decrease or
restrict the value of a Participant’s vested Account Balance in existence at
the time the amendment or modification is made, calculated as if the
Participant had experienced a Termination of Employment as of the effective
date of the amendment or modification or, if the amendment or modification
occurs after the date upon which the Participant was eligible to Retire, the
Participant had Retired as of the effective date of the amendment or
modification, and (ii) no amendment or modification of this Section 12.2
or Section 13.2 of the Plan shall be effective. The amendment or
modification of the Plan shall not affect any Participant or Beneficiary who
has become entitled to the payment of benefits under the Plan as of the date of
the amendment or modification; provided, however, that the Employer shall have
the right to accelerate installment payments by paying the vested Account
Balance in a lump sum or pursuant to an Annual Installment Method using fewer
years (provided


 


21

















 


that the present value of all payments that will have been received by
a Participant at any given point of time under the different payment schedule
shall equal or exceed the present value of all payments that would have been
received at that point in time under the original payment schedule).


 


12.3                           Plan
Agreement. Despite the provisions of
Sections 12.1 and 12.2 above, if a Participant’s Plan Agreement contains
benefits or limitations that are not in this Plan document, the Employer may
only amend or terminate such provisions with the written consent of the
Participant.


 


12.4                           Effect
of Payment. The full payment of the
Participant’s vested Account Balance under Articles 5, 6, 7, 8 or 9 of the Plan
shall completely discharge all obligations to a Participant and his or her
designated Beneficiaries under this Plan and the Participant’s Plan Agreement
shall terminate.


 


ARTICLE 13


Administration


 


13.1                           Committee
Duties. Except as otherwise provided in this Article 13,
this Plan shall be administered by a Committee, which shall consist of the
Board, or such committee as the Board shall appoint. Members of the Committee
may be Participants under this Plan. The Committee shall also have the
discretion and authority to (i)make, amend, interpret, and enforce all
appropriate rules and regulations for the administration of this Plan and (ii) decide
or resolve any and all questions including interpretations of this Plan, as may
arise in connection with the Plan. Any individual serving on the Committee who
is a Participant shall not vote or act on any matter relating solely to himself
or herself. When making a determination or calculation, the Committee shall be
entitled to rely on information furnished by a Participant or the Company.


 


13.2                           Administration
Upon Change In Control. For purposes of this Plan,
the Committee shall be the “Administrator” at all times prior to the occurrence
of a Change in Control. Within one-hundred and twenty (120) days following a
Change in Control, an independent third party “Administrator” may be selected
by the individual who, immediately prior to the Change in Control, was the
Company’s Chief Executive Officer or, if not so identified, the Company’s
highest ranking officer (the “Ex-CEO”), and approved by the Trustee. The
Committee, as constituted prior to the Change in Control, shall continue to be
the Administrator until the earlier of (i) the date on which such
independent third party is selected and approved, or (ii) the expiration of
the one-hundred and twenty (120) day period following the Change in Control. If
an independent third party is not selected within one-hundred and twenty (120)
days of such Change in Control, the Committee, as described in Section 13.1
above, shall be the Administrator. The Administrator shall have the
discretionary power to determine all questions arising in connection with the
administration of the Plan and the interpretation of the Plan and Trust
including, but not limited to benefit entitlement determinations; provided,
however, upon and after the occurrence of a Change in Control, the
Administrator shall have no power to direct the investment of Plan or Trust
assets or select any investment manager or custodial firm for the Plan or
Trust. Upon and after the occurrence of a Change in Control, the Company must: (1) pay
all reasonable administrative expenses and fees of the Administrator;  (2) indemnify the


 


22

















 


Administrator against any costs, expenses and liabilities including,
without limitation, attorney’s fees and expenses arising in connection with the
performance of the Administrator hereunder, except with respect to matters
resulting from the gross negligence or willful misconduct of the Administrator or
its employees or agents; and (3) supply full and timely information to the
Administrator on all matters relating to the Plan, the Trust, the Participants
and their Beneficiaries, the Account Balances of the Participants, the date and
circumstances of the Retirement, Disability, death or Termination of Employment
of the Participants, and such other pertinent information as the Administrator
may reasonably require. Upon and after a Change in Control, the Administrator
may be terminated (and a replacement appointed) by the Trustee only with the
approval of the Ex-CEO. Upon and after a Change in Control, the Administrator
may not be terminated by the Company.


 


13.3                           Agents. In the
administration of this Plan, the Committee may, from time to time, employ
agents and delegate to them such administrative duties as it sees fit
(including acting through a duly appointed representative) and may from time to
time consult with counsel who may be counsel to any Employer.


 


13.4                           Binding
Effect of Decisions. The decision or action of
the Administrator with respect to any question arising out of or in connection
with the administration, interpretation and application of the Plan and the rules and
regulations promulgated hereunder shall be final and conclusive and binding
upon all persons having any interest in the Plan.


 


13.5                           Indemnity
of Committee. All Employers shall
indemnify and hold harmless the members of the Committee, any Employee to whom
the duties of the Committee may be delegated, and the Administrator against any
and all claims, losses, damages, expenses or liabilities arising from any
action or failure to act with respect to this Plan, except in the case of
willful misconduct by the Committee, any of its members, any such Employee or
the Administrator.


 


13.6                           Employer
Information. To enable the Committee
and/or Administrator to perform its functions, the Company and each Employer
shall supply full and timely information to the Committee and/or Administrator,
as the case may be, on all matters relating to the compensation of its
Participants, the date and circumstances of the Retirement, Disability, death
or Termination of Employment of its Participants, and such other pertinent
information as the Committee or Administrator may reasonably require.


 


ARTICLE 14


Other Benefits and Agreements


 


14.1                           Coordination
with Other Benefits. The benefits provided for a
Participant and Participant’s Beneficiary under the Plan are in addition to any
other benefits available to such Participant under any other plan or program
for employees of the Participant’s Employer. The Plan shall supplement and
shall not supersede, modify or amend any other such plan or program except as
may otherwise be expressly provided.


 


23

















 


ARTICLE 15 


Claims Procedures


 


15.1                           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 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.


 


15.2                           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 15.3 below; and


 


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


 


15.3                           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) may 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):


 


(a)                                  may, 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;


 


24

















 


(b)                                 may submit
written comments or other documents; and/or


 


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


 


15.4                           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 ERISA Section 502(a).


 


15.5                           Legal
Action. A Claimant’s compliance
with the foregoing provisions of this Article 15 is a mandatory
prerequisite to a Claimant’s right to commence any legal action with respect to
any claim for benefits under this Plan.


 


ARTICLE 16


Trust


 


16.1                           Establishment
of the Trust. In order to provide assets
from which to fulfill the obligations of the Participants and their
beneficiaries under the Plan, the Company may establish a Trust by a trust
agreement with a third party, the trustee, to which each Employer may, in its
discretion, contribute cash or other property, including securities issued by
the Company, to provide for the benefit payments under the Plan.


 


16.2                           Interrelationship
of the Plan and the Trust. The provisions of the Plan
and the Plan Agreement shall govern the rights of a Participant to receive
distributions pursuant to the Plan. The provisions of the Trust shall govern
the rights of the Employers, Participants and the creditors of the Employers to
the assets transferred to the Trust.  Each
Employer shall at all times remain liable to carry out its obligations under
the Plan.


 


16.3                           Distributions
From the Trust. Each Employer’s obligations
under the Plan may be satisfied with Trust assets distributed pursuant to the
terms of the Trust, and any such distribution shall reduce the Employer’s
obligations under this Plan.


 


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ARTICLE 17


Miscellaneous


 


17.1                           Status
of Plan. The Plan is intended to be
a plan that is not qualified within the meaning of Code Section 401(a) and
that “is unfunded and is maintained by an employer primarily for the purpose of
providing deferred compensation for a select group of management or highly compensated
employees” within the meaning of ERISA Sections 201(2), 301(a)(3) and
401(a)(1). The Plan shall be administered and interpreted to the extent
possible in a manner consistent with that intent.


 


17.2                           Unsecured
General Creditor. Participants and their
Beneficiaries, heirs, successors and assigns shall have no legal or equitable
rights, interests or claims in any property or assets of an Employer. For
purposes of the payment of benefits under this Plan, any and all of an Employer’s
assets shall be, and remain, the general, unpledged unrestricted assets of the
Employer. An Employer’s obligation under the Plan shall be merely that of an
unfunded and unsecured promise to pay money in the future.


 


17.3                           Employer’s
Liability. An Employer’s liability for
the payment of benefits shall be defined only by the Plan and the Plan
Agreement, as entered into between the Employer and a Participant. An Employer
shall have no obligation to a Participant under the Plan except as expressly
provided in the Plan and his or her Plan Agreement.


 


17.4                           Nonassignability. Neither a
Participant nor any other person shall have any right to commute, sell, assign,
transfer, pledge, anticipate, mortgage or otherwise encumber, transfer,
hypothecate, alienate or convey in advance of actual receipt, the amounts, if
any, payable hereunder, or any part thereof, which are, and all rights to which
are expressly declared to be, unassignable and non-transferable. No part of the
amounts payable shall, prior to actual payment, be subject to seizure,
attachment, garnishment or sequestration for the payment of any debts,
judgments, alimony or separate maintenance owed by a Participant or any other
person, be transferable by operation of law in the event of a Participant’s or
any other person’s bankruptcy or insolvency or be transferable to a spouse as a
result of a property settlement or otherwise.


 


17.5                           Not
a Contract of Employment. The terms and conditions of
this Plan shall not be deemed to constitute a contract of employment between
any Employer and the Participant. Such employment is hereby acknowledged to be
an “at will” employment relationship that can be terminated at any time for any
reason, or no reason, with or without cause, and with or without notice, unless
expressly provided in a written employment agreement. Nothing in this Plan
shall be deemed to give a Participant the right to be retained in the service
of any Employer, either as an Employee or a Director, or to interfere with the
right of any Employer to discipline or discharge the Participant at any time.


 


17.6                           Furnishing
Information. A Participant or his or her
Beneficiary will cooperate with the Committee by furnishing any and all
information requested by the Committee and take such other actions as may be
requested in order to facilitate the administration of the Plan and the
payments of benefits hereunder, including but not limited to taking such
physical examinations as the Committee may deem necessary.


 


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17.7                           Terms. Whenever any
words are used herein in the masculine, they shall be construed as though they
were in the feminine in all cases where they would so apply; and whenever any
words are used herein in the singular or in the plural, they shall be construed
as though they were used in the plural or the singular, as the case may be, in
all cases where they would so apply.


 


17.8                           Captions. The captions
of the articles, sections and paragraphs of this Plan are for convenience only
and shall not control or affect the meaning or construction of any of its
provisions.


 


17.9                           Governing
Law. Subject to ERISA, the provisions of this Plan shall
be construed and interpreted according to the internal laws of the State of
California without regard to its conflicts of laws principles.


 


17.10                     Notice. Any notice or
filing required or permitted to be given to the Committee under this Plan shall
be sufficient if in writing and hand-delivered, or sent by registered or
certified mail, to the address below:


 


IHOP Corp.


450 N. Brand Boulevard


Glendale, CA 91203


Attn: General Counsel


 


Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the receipt
for registration or certification.


 


Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered, or sent
by mail, to the last known address of the Participant.


 


17.11                     Successors. The provisions
of this Plan shall bind and inure to the benefit of the Participant’s Employer
and its successors and assigns and the Participant and the Participant’s
designated Beneficiaries.


 


17.12                     Spouse’s
Interest. The interest in the
benefits hereunder of a spouse of a Participant who has predeceased the
Participant shall automatically pass to the Participant and shall not be
transferable by such spouse in any manner, including but not limited to such
spouse’s will, nor shall such interest pass under the laws of intestate
succession.


 


17.13                     Validity. In case any
provision of this Plan shall be illegal or invalid for any reason, said
illegality or invalidity shall not affect the remaining parts hereof, but this
Plan shall be construed and enforced as if such illegal or invalid provision
had never been inserted herein.


 


17.14                     Incompetent. If the
Committee determines in its discretion that a benefit under this Plan is to be
paid to a minor, a person declared incompetent or to a person incapable of
handling the disposition of that person’s property, the Committee may direct
payment of such benefit to the guardian, legal representative or person having
the care and custody of such minor, incompetent or incapable person. The
Committee may require proof of minority, incompetence, incapacity or
guardianship, as it may deem appropriate prior to distribution of the benefit.
Any payment of a benefit shall be a payment for the account of the Participant
and the Participant’s Beneficiary, as


 


27

















 


the case may be, and shall be a complete discharge of any liability
under the Plan for such payment amount.


 


17.15                     Court
Order. The Committee is authorized to make any payments
directed by court order in any action in which the Plan or the Committee has
been named as a party. In addition, if a court determines that a spouse or
former spouse of a Participant has an interest in the Participant’s benefits
under the Plan in connection with a property settlement or otherwise, the
Committee, in its sole discretion, shall have the right, notwithstanding any
election made by a Participant, to immediately distribute the spouse’s or
former spouse’s interest in the Participant’s benefits under the Plan to that
spouse or former spouse.


 


17.16                     Distribution
in the Event of Taxation.


 


(a)                                  In
General. If, for any reason, all or
any portion of a Participant’s benefits under this Plan becomes taxable to the
Participant prior to receipt, a Participant may petition the Committee before a
Change in Control, or the trustee of the Trust after a Change in Control, for a
distribution of that portion of his or her benefit that has become taxable.
Upon the grant of such a petition, which grant shall not be unreasonably
withheld (and, after a Change in Control, shall be granted), a Participant’s
Employer shall distribute to the Participant immediately available funds in an
amount equal to the taxable portion of his or her benefit (which amount shall
not exceed a Participant’s unpaid vested Account Balance under the Plan). If
the petition is granted, the tax liability distribution shall be made within 90
days of the date when the Participant’s petition is granted. Such a
distribution shall affect and reduce the benefits to be paid under this Plan.


 


(b)                                 Trust. If the Trust
terminates in accordance with its terms and benefits are distributed from the
Trust to a Participant in accordance therewith, the Participant’s benefits
under this Plan shall be reduced to the extent of such distributions.


 


17.17                     Insurance. The Employers,
on their own behalf or on behalf of the trustee of the Trust, and, in their
sole discretion, may apply for and procure insurance on the life of the
Participant, in such amounts and in such forms as the Trust may choose. The
Employers or the trustee of the Trust, as the case may be, shall be the sole
owner and beneficiary of any such insurance. The Participant shall have no
interest whatsoever in any such policy or policies, and at the request of the
Employers shall submit to medical examinations and supply such information and
execute such documents as may be required by the insurance company or companies
to whom the Employers have applied for insurance.


 


17.18                     Legal
Fees To Enforce Rights After Change in Control. The Company
and each Employer is aware that upon the occurrence of a Change in Control, the
Board or the board of directors of a Participant’s Employer (which might then
be composed of new members) or a shareholder of the Company or the Participant’s
Employer, or of any successor corporation might then cause or attempt to cause
the Company, the Participant’s Employer or such successor to refuse to comply
with its obligations under the Plan and might cause or attempt to cause the
Company or the Participant’s Employer to institute, or may institute,
litigation seeking to deny Participants the benefits intended under the Plan.
In these circumstances, the purpose of the Plan could be frustrated.   Accordingly, if, following a Change in
Control, it should appear to any Participant


 


28

















 


that the Company, the Participant’s Employer or any successor
corporation has failed to comply with any of its obligations under the Plan or
any agreement thereunder or, if the Company, such Employer or any other person
takes any action to declare the Plan void or unenforceable or institutes any
litigation or other legal action designed to deny, diminish or to recover from
any Participant the benefits intended to be provided, then the Company and the
Participant’s Employer irrevocably authorize such Participant to retain counsel
of his or her choice at the expense of the Company and the Participant’s
Employer (who shall be jointly and severally liable) to represent such
Participant in connection with the initiation or defense of any litigation or
other legal action, whether by or against the Company, the Participant’s
Employer or any director, officer, shareholder or other person affiliated with
the Company, the Participant’s Employer or any successor thereto in any
jurisdiction.


 


IN
WITNESS WHEREOF, the Company has signed this Plan document as of December 27,
2002.


 


	
   

  	
  “Company”

  
	
   

  	
  IHOP
  Corp., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Mark D. Weisberger

  
	
   

  	
   

  	
   

  	
  Mark
  D. Weisberger

  
	
   

  	
   

  	
   

  	
  Vice
  President, Legal, Secretary &

  
	
   

  	
   

  	
   

  	
  General
  Counsel

  



 


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