EX-10.1






EBAY INC.




DEFERRED COMPENSATION PLAN




1




TABLE OF CONTENTS




Page




	 	 	 
	ARTICLE I. TITLE AND DEFINITIONS

	1.1

1.2

	 	Title.

Definitions.






	 	 	 
	ARTICLE II. PARTICIPATION

	ARTICLE III. CONTRIBUTIONS

	3.1

3.2

3.3

3.4

	 	Elections to Defer Compensation

Distribution Elections.

Company Contributions

FICA and Other Taxes.






	 	 	 
	ARTICLE IV. INVESTMENTS

	4.1

4.2

4.3

	 	Measurement Funds.

Investment Elections.

Compliance with Section 16 of the Exchange Act.






	 	 	 
	ARTICLE V. ACCOUNTS

	5.1

5.2

	 	Accounts.

Subaccounts.






	 	 	 
	ARTICLE VI. VESTING

	ARTICLE VII. DISTRIBUTIONS

	7.1

7.2

7.3

7.4

7.5

	 	Distribution of Accounts.

Hardship Distribution.

Effect of a Change in Control.

Inability to Locate Participant.

Prohibition on Acceleration of Distributions.






	 	 	 
	ARTICLE VIII. ADMINISTRATION

	8.1

8.2

8.3

8.4

8.5

8.6

8.7

8.8

8.9

8.10

8.11

	 	Committee.

Administrator.

Committee Action.

Powers and Duties of the Committee.

Delegation of Authority..

Construction and Interpretation.

Information.

Compensation, Expenses and Indemnity.

Quarterly Statements.

Disputes.

Compliance with Section 409A of the Code






	 	 	 
	ARTICLE IX. MISCELLANEOUS

	9.1

9.2

9.3

9.4

9.5

9.6

9.7

9.8

9.9

9.10

9.11

9.12

9.13

9.14

9.15

9.16

	 	Unsecured General Creditor.

Restriction Against Assignment.

Withholding.

Amendment, Modification, Suspension or Termination.

Designation of Beneficiary.

Governing Law.

Compliance with Code Section 162(m)

Payments on Behalf of Persons Under Incapacity.

Limitation of Rights

Exempt ERISA Plan

Notice

Errors and Misstatements

Pronouns and Plurality

Severability

Status

Headings.






2




eBay Inc., a Delaware corporation (the “Company”), and its direct and indirect
subsidiaries hereby establish and maintain this eBay Inc. Deferred Compensation Plan (the
“Plan”) which is designed to provide certain benefits for a select group of management and
highly compensated employees through deferrals of salary and incentive compensation. This Plan
shall be effective as of January 1, 2008.



The Plan is intended to comply with the requirements of Sections 409A(a)(2), (3) and (4) of
the Code and the Treasury Regulations and other guidance issued by the Secretary of the Treasury
thereunder. To the extent permitted by such Treasury Regulations or other guidance, the Plan may
be amended to conform to the requirements of Section 409A of the Code.



ARTICLE I.




TITLE AND DEFINITIONS




1.1 Title. This Plan shall be known as the eBay Inc. Deferred Compensation Plan.



1.2 Definitions.



Whenever the following words and phrases are used in this Plan, with the first letter
capitalized, they shall have the meanings specified below.



(a) “Account” or “Accounts” shall mean a Participant’s Deferral Account and/or Company
Account.



(b) “Administrator” shall mean the individuals designated by the Committee (who need not be a
member of the Committee) to handle the day-to-day Plan administration. If the Committee does not
make such a designation, the Administrator shall be the Vice-President of Human Resources
Operations of the Company, or any successor position.



(c) “Affiliate” has the meaning ascribed to such term in Rule 12b-2 promulgated under the
Exchange Act.



(d) “Base Salary” shall mean a Participant’s annual base salary, excluding bonus, incentive
and all other remuneration for services rendered to the Company, prior to reduction for any salary
contributions to a plan established pursuant to Section 125 or 423 of the Code or intended to be
qualified pursuant to Section 401(k) of the Code and prior to reduction for deferrals under this
Plan.



(e) “Beneficial Owner” has the meaning set forth in Rule 13d-3 under the Exchange Act.



(f) “Beneficiary” or “Beneficiaries” shall mean the person or persons, including a trustee,
personal representative or other fiduciary, last designated in writing by a Participant to receive
the benefits specified hereunder in the event of the Participant’s death in accordance with Section
9.5.



(g) “Board of Directors” or “Board” shall mean the Board of Directors of the Company.



(h) “Bonus” shall mean an incentive award earned by a Participant under the Company’s
short-term incentive plan.



(i) “Change in Control” shall be deemed to have occurred when any event or transaction
described in paragraph (1), (2), (3) or (4) occurs, subject to paragraph (5):



(1) Any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of
the Company representing fifty percent (50%) or more of the combined voting power of the Company’s
then outstanding securities; or



(2) The following individuals cease for any reason to constitute a majority of the number of
directors then serving: individuals who, on the Effective Date, constitute the Board and any new
director (other than a director whose initial assumption of office is in connection with an actual
or threatened election contest, including, but not limited to, a consent solicitation, relating to
the election of directors of the Company) whose appointment or election by the Board or nomination
for election by the Company’s stockholders was approved or recommended by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors on the date hereof
or whose appointment, election or nomination for election was previously so approved or
recommended; or



(3) There is consummated a merger or consolidation of the Company or any direct or indirect
subsidiary of the Company with any other corporation, other than (A) a merger or consolidation
which would result in the voting securities of the Company outstanding immediately prior to such
merger or consolidation continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent thereof), in combination
with the ownership of any trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any subsidiary of the Company, at least a majority of the combined voting
power of the securities of the Company or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no Person is or
becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including
in the securities beneficially owned by such Person any securities acquired directly from the
Company or its affiliates other than in connection with the acquisition by the Company or its
affiliates of a business) representing fifty percent (50%) or more of the combined voting power of
the Company’s then outstanding securities; or



(4) The stockholders of the Company approve a plan of complete liquidation or dissolution of
the Company or there is consummated an agreement for the sale or disposition by the Company of all
or substantially all of the Company’s assets, other than a sale or disposition by the Company of
all or substantially all of the Company’s assets to an entity, at least a majority of the combined
voting power of the voting securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the Company immediately prior to such
sale.



(5) An event or transaction described in paragraph (1), (2), (3), or (4) shall be a “Change in
Control” only if such event or transaction is a “change in the ownership or effective control of
the corporation, or in the ownership of a substantial portion of the assets of the corporation,”
within the meaning of Section 409A(a)(2)(A)(v) of the Code, to the extent provided by the Secretary
of the Treasury.



(j) “Code” shall mean the Internal Revenue Code of 1986, as amended.



(k) “Committee” shall mean the Compensation Committee of the Board of Directors.



(l) “Company” shall mean eBay Inc. and any successor corporations. Company shall also include
each corporation which is a member of a controlled group of corporations (within the meaning of
Section 414(b) of the Code) of which eBay Inc. is a component member.



(m) “Company Account” shall mean the bookkeeping account maintained by the Company for each
Participant that is credited with an amount equal to the Company Contribution, if any, debited by
amounts equal to all distributions to and withdrawals made by the Participant and/or his
Beneficiary and adjusted for investment earnings and losses pursuant to Article V.



(n) “Company Contributions” shall mean any discretionary employer contribution, if any, made
to the Plan on behalf of Eligible Individuals.



(o) “Compensation” shall mean Base Salary and Bonus, and at the Committee’s discretion,
Restricted Stock Units that the Participant who is an employee is entitled to receive for services
rendered to the Company.



(p) “Deferral Account” shall mean the bookkeeping account maintained by the Company for each
Participant that is credited with amounts equal to the portion of the Participant’s Compensation
that he elects to defer pursuant to Section 3.1, debited by amounts equal to all distributions to
and withdrawals made by the Participant and/or his Beneficiary and adjusted for investment earnings
and losses pursuant to Article V. The Deferral Account may be further subdivided into subaccounts
as determined by the Committee.



(q) “Deferral Election Form” shall mean the form designated by the Committee for purposes of
making deferrals under Section 3.1.



(r) “Disability” or “Disabled” means, with respect to a Participant, that the Participant:



(1) is unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve (12) months, or



(2) is, by reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period of not less than
twelve (12) months, receiving income replacement benefits for a period of not less than three
months under an accident or health plan covering employees of such Participant’s Employer,



as determined in accordance with Section 409A(a)(2)(C) of the Code and the Treasury Regulations
thereunder.



(s) “Distributable Amount” of a Participant’s subaccounts with respect to a Plan Year shall
mean the sum of the vested balance of the subaccount in a Participant’s Deferral Account and
Company Account with respect to such Plan Year.



(t) “Effective Date” shall mean January 1, 2008.



(u) “Election Period” with respect to a Plan Year shall mean the period designated by the
Committee; provided, however, that such period shall be no less than ten business days. The
Election Period with respect to a Plan Year shall end not later than the last day of the prior Plan
Year; provided, however, that, in the case of an Eligible Individual who first becomes eligible to
participate in the Plan during a Plan Year, the Election Period may be the thirty (30) day period
commencing on the date such Eligible Individual first becomes eligible to participate in accordance
with Section 409A(a)(4)(B)(ii) of the Code and the Treasury Regulations thereunder; and provided,
further, in the case of an Eligible Individual’s election to defer a Bonus (or portion thereof) for
a Plan Year that is performance-based compensation based on services over a period of at least
twelve (12) months, within the meaning of Section 409A(a)(4)(B)(iii) of the Code and the Treasury
Regulations thereunder, the Election Period may be a period designated by the Committee during such
Plan Year that satisfies the requirements of Section 409A(a)(4)(B)(iii) of the Code and the
Treasury Regulations thereunder.



(v) “Eligible Individual” shall mean those Executives selected by the Committee. The
Committee may, in its sole discretion, select such other individuals to participate in the Plan who
do not otherwise meet the foregoing designation.



(w) “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.



(x) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
applicable rules and regulations thereunder.



(y) “Executive” shall mean an executive of the Company who is on the U.S. payroll and who
holds a position as Vice President or who holds a position with a more senior grade level than Vice
President, or is otherwise designated by the Committee.



(z) “401(k) Plan” shall mean the eBay Inc. 401(k) Savings Plan maintained by the Company under
Code Section 401(k), as in effect from time to time or as applicable for any Participant, a plan
maintained by a direct or indirect subsidiary of the Company under Code Section 401(k).



(aa) “Measurement Fund” shall mean one or more of the investment funds selected by the
Committee pursuant to Section 4.1.



(bb) “Participant” shall mean any Eligible Individual who becomes a Participant in accordance
with Article II and who has not received a complete distribution of the amounts credited to his
Accounts.



(cc) “Payroll Date” shall mean, with respect to any Participant, the date on which he would
otherwise be paid Compensation.



(dd) “Payment Date” shall mean the time as soon as practicable after one of the following
dates as designated by the Participant in his distribution form election with respect to a Plan
Year:



(1) the first business day of the seventh calendar month following the date of the
Participant’s Separation from Service or Disability, or



(2) the earlier of: (i) the first business day of June of a calendar year specified by the
Participant that is no earlier than the year after the year in which the Compensation would have
been paid but for the Participant’s election to defer such Compensation, or (ii) the first business
day of the seventh calendar month following the date of the Participant’s Separation from Service
or Disability.



“Payment Date” shall also mean the Scheduled In-Service Withdrawal Date elected in accordance
with the provisions of Section 7.1(b).



(ee) “Person” means any person, entity or “group” within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act, except that such term shall not include (1) the Company or
any of its Affiliates, (2) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Affiliates, (3) an underwriter temporarily holding
securities pursuant to an offering of such securities, (4) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, or (5) a person or group as used in Rule 13d-1(b) under the
Exchange Act.



(ff) “Plan” shall mean the eBay Inc. Deferred Compensation Plan set forth herein, as amended
from time to time.



(gg) “Plan Year” shall mean the twelve (12) consecutive month period beginning on each January
1 and ending on each December 31.



(hh) “Restricted Stock Units” shall mean restricted stock units granted to Executives under
the eBay Inc. 2008 Incentive Award Plan, eBay Inc. 1999 Global Equity Incentive Plan and eBay Inc.
1998 Equity Incentive Plan, or any other equity compensation plans approved by the Company’s
Stockholders.



(ii) “Rule 16b-3” shall mean that certain Rule 16b-3 under the Exchange Act, as such Rule may
be amended from time to time.



(jj) “Scheduled In-Service Withdrawal Date” shall mean the earlier of: (i) the first business
day of June of a calendar year specified by the Participant that is no earlier than the year after
the year in which the Compensation would have been paid but for the Participant’s election to defer
such Compensation, or (ii) the first business day of the seventh calendar month following the date
of the Participant’s Separation from Service or Disability.



(kk) “Separation from Service” shall mean with respect to a Participant, such Participant’s
Termination, if such Termination is a “separation from service,” within the meaning of Section
409A(a)(2)(A)(i) of the Code, as determined by the Secretary of the Treasury (or such Participant’s
other “separation from service,” as so defined).



(ll) “Subaccount” or “Subaccounts” shall mean the subaccount or subaccounts maintained with
respect to a Participant’s Deferral Account or Company Account.



(mm) “Termination” shall mean for any Participant who is an employee, ceasing to be an
employee of the Company for reasons other than death or Disability. If a Participant is both an
employee of the Company and a member of the Board of Directors, he shall not have a Termination
until he resigns from both positions.



(nn) “Valuation Date”, with respect to the Measurement Funds that are available under the
401(k) Plan, shall have the same meaning as under the 401(k) Plan. For purposes of other
Measurement Funds, “Valuation Date” shall be as determined by the Committee.



ARTICLE II.




PARTICIPATION




(a) An Eligible Individual shall become a Participant in the Plan by (1) electing to make
deferrals in accordance with Section 3.1 or receiving a Company Contribution and (2) filing with
the Company such other forms as the Committee may reasonably require for participation hereunder.



(b) An Eligible Individual who completes the requirements of the preceding subsection of this
Article II shall commence participation in this Plan as of the first day of the Plan Year with
respect to which Compensation is elected to be deferred.



ARTICLE III.




CONTRIBUTIONS




3.1 Elections to Defer Compensation



(a) General Rule. Each Eligible Individual may defer Compensation for a Plan Year by filing
with the Administrator a Deferral Election Form for such Plan Year that conforms to the
requirements of this Section 3.1, no later than the last day of the applicable Election Period for
such Plan Year. The Committee may permit an Eligible Individual who first becomes eligible to
participate in the Plan during a Plan Year to have his first Election Period during such Plan Year.
An election to defer Compensation for a Plan Year must be filed during the Election Period prior
to the effective date of such election and shall be effective only for Compensation that
constitutes compensation for services performed during periods during the Plan Year beginning after
the effective date of such election. Notwithstanding the previous sentence, if an Eligible
Individual’s Bonus (or portion thereof) is a performance-based compensation based on services
performed over a period of at least twelve (12) months, within the meaning of Section
409A(a)(4)(B)(iii) and the Treasury Regulations thereunder, the Committee may permit such Eligible
Individual to file an election to defer such Bonus (or such portion thereof), or change such
Eligible Individual’s prior election to defer such Bonus (or such portion thereof), no later than
six months before the end of the period over which such services are to be performed, under the
terms and conditions specified by the Committee, in accordance with Section 409A(a)(4)(B)(iii) of
the Code and the Treasury Regulations thereunder. A Participant shall make a separate election to
defer Compensation for each Plan Year.



(b) Special Rules. Notwithstanding the above, the following restrictions apply to deferrals
of Restricted Stock Units.



(1) Restricted Stock Units. A Participant may elect to defer Restricted Stock Units (or a
portion thereof), to the extent permitted by the Committee. In order to defer Restricted Stock
Units (or a portion thereof), an eligible Participant must file the appropriate Deferral Election
Form no later than the election date required under Section 409A of the Code and the Treasury
Regulations thereunder. A Participant’s election to defer Restricted Stock Units shall be
effective only for the Restricted Stock Units (or a portion thereof) that constitute compensation
for services performed during periods during the Plan Year (or a subsequent Plan Year) after the
effective date of the Participant’s deferral election, or as otherwise permitted under Section 409A
of the Code and the Treasury Regulations thereunder.



(2) Limitation on Deferrals. A Participant may elect to defer Restricted Stock Units or any
portion thereof, only to the extent such deferral satisfies the requirements of Section 409A of the
Code and the Treasury Regulations thereunder.



(c) Deferral Amounts.



(1) The amount of Compensation which a Participant may elect to defer for a Plan Year is such
Compensation earned on or after the time at which the Participant elects to defer each Plan Year in
accordance with Section 3.1(a), and which is earned during such Plan Year. The applicable
limitations for any Participant shall be determined by the Committee, determined as of the first
day of the Election Period for such Plan Year.



(2) Each Participant shall be permitted to defer, in any whole percentage: (A) from 5% to 50%
of Base Salary, (B) from 5% to 100% of his Bonus and (C) from 5% to 100% of his Restricted Stock
Units, subject to Section 3.1(b), rounded down to the nearest whole share.



(c) Notwithstanding the limitations established above, the total amount deferred by a
Participant shall be limited in any calendar year, if necessary, to satisfy the Participant’s
income and employment tax withholding obligations (including Social Security, unemployment and
Medicare), and the Participant’s employee benefit plan contribution requirements, determined on the
first day of the Election Period for such Plan Year, as determined by the Committee.



(d) Duration of Deferral Election.



(1) A Participant shall not modify or suspend his election to defer Compensation during a Plan
Year.



(2) A Participant must file a new deferral election for each subsequent Plan Year. In the
event a Participant fails to file a timely deferral election for the next Plan Year, he shall be
deemed to have elected not to defer any Compensation for such Plan Year.



(e) Elections. Subject to the limitations of subsection (b), any Eligible Individual who does
not elect to defer Compensation during his Election Period for a Plan Year may subsequently become
a Participant.



3.2 Distribution Elections.



(a) General Rule. Each Participant shall make a separate distribution election with respect
to each Plan Year for which such Participant elects to defer Compensation in accordance with
Section 3.1. A Participant’s distribution election with respect to a Plan Year shall apply to:
(1) the subaccount in his Deferral Account to which shall be credited the amount equal to the
portion of his Compensation earned during such Plan Year that he elects to defer pursuant to
Section 3.1; and (2) the subaccount in his Company Account to which shall be credited the amount
equal to the Company Contribution for such Plan Year, if any. A Participant’s distribution
election with respect to a Plan Year shall elect the Payment Date and the form of distribution of
his Distributable Amount with respect to such Plan Year for purposes of distributions under
subsection 7.1(a) in the event of such Participant’s Separation from Service or Disability. Such
Payment Date and distribution form elections shall be made on such Participant’s Deferral Election
Form during the Election Period for which such Participant elects to defer Compensation under
Section 3.1 for such Plan Year, and such Payment Date and distribution form elections with respect
to such Plan Year shall be irrevocable, except as provided in subsection (b). A Participant may
elect any Payment Date described in Section 1.2(dd), and may elect distribution in the normal form,
as described in paragraph 7.1(a)(1), or an optional form described in subparagraphs 7.1(a)(2)(A),
(B) or (C). In the event a Participant fails to elect a Payment Date for his Distributable Amount
with respect to a Plan Year, his Payment Date for his Distributable Amount with respect to such
Plan Year shall be the date described in Section 1.2(dd)(1). In the event a Participant fails to
make a distribution form election for his Distributable Amount with respect to a Plan Year, his
Distributable Amount with respect to such Plan Year shall be distributed in the normal form, as
described in paragraph 7.1(a)(1) in the event of his Separation from Service or Disability, except
as provided in subsection (b). Except as provided in subsection (b), a Participant’s distribution
for his Distributable Amount with respect to a Plan Year shall be made or commence as soon as
administratively practicable after such Participant’s Payment Date.



(b) Changes to Distribution Form Election. Subject to subsection (e), a Participant may
change his distribution form election for his Distributable Amount with respect to a Plan Year in
accordance with this subsection (b) as follows:



(1) Change from Lump Sum. If such Participant elected to receive the distribution of his
Distributable Amount with respect to a Plan Year in the event of his Separation from Service or
Disability in the normal form, as described in paragraph 7.1(a)(1) ( i.e., a lump sum), such
Participant may change such distribution form election by making a new distribution form election
for his Distributable Amount with respect to such Plan Year providing for distribution in one of
the following forms, with such distribution made or commencing on the fifth anniversary of his
initially elected Payment Date:



(A) a lump sum, or



(B) annual installments (calculated as set forth at Section 7.1(a)(6)) over a period of from
two (2) up to fifteen (15) years.



(2) Change from Installments. If such Participant elected to receive the distribution of his
Distributable Amount with respect to a Plan Year in the event of his Separation from Service or
Disability in an optional form, as provided in subparagraph 7.1(a)(2) (i.e., annual installments
over a period of years), such Participant may change such distribution form election by making a
new distribution form election for his Distributable Amount with respect to such Plan Year
providing for distribution in one of the following forms, with such distribution commencing on the
fifth anniversary of his initially elected Payment Date:



(i) a lump sum, provided that no installments have commenced with respect to such Plan Year,



(ii) annual installments (calculated as set forth at Section 7.1(a)(6)) over the period of
years specified in such Participant’s initial distribution form election, provided that no
installments have commenced with respect to such Plan Year, or



(iii) annual installments (calculated as set forth at Section 7.1(a)(6)) over a period of from
two (2) up to fifteen (15) years, provided that such period exceeds the period of years specified
in such Participant’s initial distribution form election, and provided, further, that no
installments have commenced with respect to such Plan Year.



(3) A Participant may make only one change to his distribution form election with respect to a
Plan Year under this subsection (b).



(c) Election of Scheduled In-Service Withdrawal Date. A Participant may elect a Scheduled
In-Service Withdrawal Date with respect to his deferrals of Compensation (including any investment
earnings on such amounts) plus any Company Contributions to the extent vested, if any, (the
“Withdrawal Amount”) with respect to a Plan Year. Such election of a Scheduled In-Service
Withdrawal Date for such Participant’s Withdrawal Amount with respect to a Plan Year shall be made
by such Participant during the Election Period for which such Participant elects to defer
Compensation under Section 3.1 for such Plan Year, and such election of a Scheduled In-Service
Withdrawal Date shall be irrevocable, except as provided in subsection (d). A Participant may make
separate Scheduled In-Service Withdrawal Date elections for his deferrals of Compensation
(including any investment earnings on such amounts) with respect to different Plan Years. A
Participant’s Withdrawal Amount with respect to a Plan Year shall be credited to subaccounts under
such Participant’s Accounts for such Plan Year. A Participant shall not be required to elect a
Scheduled In-Service Withdrawal Date with respect to his deferrals of Compensation for a Plan Year
and, if a Participant fails to make an election of a Scheduled In-Service Withdrawal Date for a
Plan Year, no Scheduled In-Service Withdrawal Date shall apply with respect to his deferrals of
Compensation for such Plan Year.



(d) Change of Scheduled In-Service Withdrawal Date. Subject to subsection (e), if a
Participant elected a Scheduled In-Service Withdrawal Date with respect to his deferrals of
Compensation (including any investment earnings on such amounts) with respect to a Plan Year, such
Participant may change such Scheduled In-Service Withdrawal Date for the Withdrawal Amount with
respect to such Plan Year by electing a new Scheduled In-Service Withdrawal Date for the Withdrawal
Amount with respect to such Plan Year that is not less than five years later than the Scheduled
In-Service Withdrawal Date previously elected by such Participant for such Plan Year. A
Participant who has not elected a Scheduled In-Service Withdrawal Date for his deferrals of
Compensation (including any investment earnings on such amounts) for a Plan Year may not
subsequently elect a Scheduled In-Service Withdrawal Date for his deferrals of Compensation
(including any investment earnings on such amounts) for such Plan Year. A Participant may make
only one change to the Scheduled In-Service Withdrawal Date with respect to each Plan Year under
this subsection (d).



(e) Limitation on Distribution Changes. A Participant’s election to change his distribution
form election with respect to a Plan Year under subsection (b), or change of a Scheduled In-Service
Withdrawal Date with respect to a Plan Year under subsection (d), shall be subject to the following
limitations:



(1) The Participant’s election to change his distribution election form with respect to a Plan
Year, or change his Scheduled In-Service Withdrawal Date with respect to a Plan Year, shall not
take effect until at least twelve (12) months after his election to change the distribution form
election, or Scheduled In-Service Withdrawal Date, is made. If the distribution of such
Participant’s Distributable Amount with respect to a Plan Year (in the case of a change in his
distribution election form), or the distribution of the Withdrawal Amount with respect to such Plan
Year (in the case of a change in his Scheduled In-Service Withdrawal Date), is made or commenced
before the election to change his distribution form election or Scheduled In-Service Withdrawal
Date, as the case may be, becomes effective, the election to change his distribution form election
or Scheduled In-Service Withdrawal Date shall not thereafter become effective, and distributions
shall be made in accordance with the distribution form election, and Scheduled In-Service
Withdrawal Date (if any), as applicable, in effect prior to the Participant’s election to change.



(2) The Participant’s election to change his distribution election form with respect to a Plan
Year, or change his Scheduled In-Service Withdrawal Date with respect to a Plan Year, shall provide
that each payment with respect to such new distribution form election, or new Scheduled In-Service
Withdrawal Date, shall be deferred for a period of not less than five years from the date such
payment would otherwise have been made.



(3) The Participant’s election to change his Scheduled In-Service Withdrawal Date with respect
to a Plan Year shall not be made less than twelve (12) months prior to the date of the first
scheduled payment under the Participant’s initial election of the Scheduled In-Service Withdrawal
Date with respect to such Plan Year.



The limitations under this subsection (e) shall be applied in accordance with Section 409A(a)(4)(C)
of the Code and the Treasury Regulations thereunder.



3.3 Company Contributions



(a) For any Plan Year, the Company may, but is under no obligation to, make contributions on
behalf of a Participant in addition to the Participant’s elective deferrals. Such contributions
may be in any amount or form (for example, matching or profit sharing contributions) and subject to
any conditions or terms as the Company, in its sole discretion, deems appropriate.



(b) The Company Contribution for a Plan Year shall be credited to a Participant’s Company
Account in the manner determined by the Committee.



3.4 FICA and Other Taxes.



(a) Annual Deferral Amounts. For each Plan Year in which a Participant who is an employee
makes a deferral under Section 3.1, the Company shall withhold from that portion of the
Participant’s Compensation that is not being deferred, in a manner determined by the Company, the
Participant’s share of FICA and other employment taxes on such amount. If necessary, the Committee
may reduce the Participant’s deferrals under Section 3.1 or make deductions from his Deferral
Account in order to comply with this Section, to the extent permitted under Section 409A of the
Code and the Treasury Regulations thereunder.



(b) Company Amounts. For each Plan Year in which a Participant is credited with a
contribution to his Company Account under Section 3.3, the Company shall withhold from the
Participant’s Compensation that is not deferred, in a manner determined by the Company, the
Participant’s share of FICA and other employment taxes. If necessary, the Committee may reduce the
Participant’s Company Account in order to comply with this Section, to the extent permitted under
Section 409A of the Code and the Treasury Regulations thereunder.



ARTICLE IV.




INVESTMENTS




4.1 Measurement Funds.



(a) In the manner designated by the Committee, Participants may elect one or more Measurement
Funds to be used to determine the additional amounts to be credited to their Accounts. Although
the Participant may designate the Measurement Funds, the Committee shall not be bound by such
designation. The Committee shall select from time to time, in its sole discretion, the Measurement
Funds to be available under the Plan.



(b) 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 Accounts thereto,
the calculation of additional amounts and the crediting or debiting of such amounts to a
Participant’s Accounts shall not be considered or construed in any manner as an actual investment
of his Accounts in any such Measurement Fund. In the event that the Company, in its own
discretion, decides to invest funds in any or all of the Measurement Funds, no Participant shall
have any rights in or to such investments themselves. Without limiting the foregoing, a
Participant’s Accounts shall at all times be a bookkeeping entry only and shall not represent any
investment made on his behalf by the Company. The Participant shall at all times remain an
unsecured creditor of the Company.



4.2 Investment Elections.



(a) Deferral Accounts and Company Accounts. Except as provided in Section 4.3, Participants
may designate how their Deferral Accounts and Company Accounts, if any, shall be deemed to be
invested under the Plan.



(1) Such Participants may make separate investment elections for (i) their future deferrals of
Compensation, (ii) future Company Contributions and (iii) the existing balances of their Accounts.



(2) Such Participants may make and change their investment elections by choosing from the
Measurement Funds designated by the Committee in accordance with the procedures established by the
Committee.



(3) Except as otherwise designated by the Committee, the available Measurement Funds under
this Section 4.2(a)(1) shall generally be the investment funds under the 401(k) Plan (excluding any
brokerage account option).



(4) If a Participant fails to elect a Measurement Fund under this Section, he shall be deemed
to have elected the default Measurement Fund (as designated by the Committee) for all of his
Accounts.



(b) Continuing Investment Elections. Participants who have had a Termination but not yet
commenced distributions under Article VII or Participants or Beneficiaries who are receiving
installment payments may continue to make investment elections pursuant to subsection (a) and (b)
above, as applicable, except as otherwise determined by the Committee.



(c) Certain Deferral Subaccounts. A Participant may not direct the investment of the
Restricted Stock Unit subaccounts of the Deferral Accounts.



4.3 Compliance with Section 16 of the Exchange Act.



(a) Any Participant or Beneficiary who is subject to Section 16 of the Exchange Act shall have
his Measurement Fund elections under the Plan subject to the requirements of the Exchange Act, as
interpreted by the Committee.



(b) Notwithstanding any other provision of the Plan or any rule, instruction, election form or
other form, the Plan and any such rule, instruction or form shall be subject to any additional
conditions or limitations set forth in any applicable exemptive rule under Section 16 of the
Exchange Act (including any amendment to Rule 16b-3) that are requirements for the application of
such exemptive rule. To the extent permitted by applicable law, such Plan provision, rule,
instruction or form shall be deemed amended to the extent necessary to conform to such applicable
exemptive rule.



ARTICLE V.




ACCOUNTS




5.1 Accounts.



(a) The Committee shall establish and maintain a Deferral Account, and a Company Account for
each Participant under the Plan. Each Participant’s Accounts shall be divided into separate
subaccounts in accordance with Section 5.2. Each such subaccount shall be further divided into
separate investment fund subaccounts, each of which corresponds to a Measurement Fund elected by
the Participant pursuant to Section 4.2. In addition, participants’ Deferral Accounts may be
further divided into subaccounts consisting of deferred Restricted Stock Units.



(b) The performance of each elected Measurement Fund (either positive or negative) shall be
determined by the Committee, in its reasonable discretion, based on the performance of the
Measurement Funds themselves. A Participant’s Accounts shall be credited or debited on each
Valuation Date based on the performance of each Measurement Fund selected by the Participant, as
determined by the Committee in its sole discretion, as though (i) a Participant’s Accounts were
invested in the Measurement Fund(s) selected by the Participant, in the percentages applicable to
such period, as of the close of business on the first business day of such period, at the closing
price on such date; (ii) the portion of the Participant’s Compensation that was actually deferred
pursuant to Section 3.1 during any period were invested in the Measurement Fund(s) selected by the
Participant, in the percentages applicable to such period, no later than the close of business on
the first business day after the day on which such amounts are actually deferred from the
Participant’s Compensation, at the closing price on such date; and (iii) any withdrawal or
distribution made to a Participant that decreases such Participant’s Accounts ceased being invested
in the Measurement Fund(s), in the percentages applicable to such period, no earlier than one
business day prior to the distribution, at the closing price on such date. The Participant’s
Company Contributions, if any, shall be credited to his Company Account for purposes of this
Section, in the manner determined by the Committee.




	5.2	 	Subaccounts.





(a) The Committee shall establish and maintain, with respect to a Participant’s Deferral
Account, a subaccount with respect to each Plan Year, to which shall be credited the amount equal
to the portion of the Participant’s Compensation earned during such Plan Year that he elects to
defer pursuant to Section 3.1, debited by amounts equal to distributions to and withdrawals made by
the Participant and/or his Beneficiary and adjusted for investment earnings and losses pursuant to
Article V.



(b) The Committee shall establish and maintain, with respect to a Participant’s Company
Account, a subaccount with respect to each Plan Year, to which shall be credited the amount equal
to the Company Contributions, if any, made pursuant to Section 3.3 on behalf of such Participant
during such Plan Year, debited by amounts equal to distributions to and withdrawals made by the
Participant and/or his Beneficiary and adjusted for investment earnings and losses pursuant to
Article V.



ARTICLE VI.




VESTING




Each Participant shall be 100% vested in his Deferral Account at all times, provided, however,
that any Restricted Stock Units a Participant elects to defer shall remain subject to the
conditions for vesting specified in any applicable award notice or agreement. The Company will set
conditions for the vesting of any Company Contributions on or before the date they are contributed
to the Plan.



ARTICLE VII.




DISTRIBUTIONS




7.1 Distribution of Accounts.



(a) Distribution of Accounts.



(1) Normal Form. Except as provided in paragraph (2), paragraph (3) or Section 7.3, a
Participant’s Distributable Amount with respect to each Plan Year shall be paid to the Participant
in a single lump sum in cash on the Participant’s Payment Date.



(2) Optional Forms. Instead of receiving his Distributable Amount with respect to each Plan
Year as described at Section 7.1(a)(1), the Participant may elect in accordance with Section 3.2 an
optional form of payment (on the form provided by Company) at the time of his deferral election for
such Plan Year to receive his Distributable Amount in equal annual installments in cash (calculated
as set forth in Section 7.1(a)(6)) over a period of from two (2) up to fifteen (15) years beginning
on the Participant’s Payment Date. The payment of such Participant’s Distributable Amount with
respect each Plan Year shall be made or commence on such Participant’s Payment Date.



(3) Distribution Election Changes. In the event that a Participant changes his distribution
form election with respect to a Plan Year in accordance with Section 3.2(b), and such new
distribution form election becomes effective upon the Separation from Service or Disability of such
Participant, the Distributable Amount with respect to such Plan Year shall be paid to the
Participant in accordance with such new distribution form election.



(4) Small Accounts. Notwithstanding any provision to the contrary, in the event the total of
a Participant’s Distributable Amounts with respect to all Plan Years is equal to or less than
$50,000 on the Participant’s Payment Date, such Distributable Amounts shall be distributed to the
Participant (or his Beneficiary, as applicable) in a lump sum.



(5) Investment Adjustments. The Participant’s Accounts shall continue to be adjusted for
investment earnings and losses pursuant to Section 4.2 and Section 4.3 of the Plan until all
amounts credited to his Accounts under the Plan have been distributed.



(6) Calculating Installments. All installment payments made under the Plan shall be
determined in accordance with the annual fractional payment method, calculated as follows: the
balance of subaccounts in the Participant’s Accounts with respect to a Plan Year shall be
calculated as of the close of business on the last business day of the year. The 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 10 year installments for the
distribution of the subaccounts in his Accounts with respect to a Plan Year, the first payment
shall be 1/10 of the balance of such subaccounts in his Accounts calculated as described in this
definition. The following year, the payment shall be 1/9 of such subaccounts in the balance of the
Participant’s Accounts, calculated as described in this definition. Each annual installment shall
be paid on or as soon as practicable after the last business day of the applicable year.



(b) Distribution on a Scheduled In-Service Withdrawal Date.



(1) In the case of a Participant who has elected a Scheduled In-Service Withdrawal Date for a
distribution to be made while still in the employ of the Company, such Participant shall receive
his Withdrawal Amount as shall have been elected by the Participant to be subject to the Scheduled
In-Service Withdrawal Date. A Participant’s Scheduled In-Service Withdrawal Date with respect to
amounts of Compensation deferred in a given Plan Year must be at least one year from the last day
of the Plan Year for which such deferrals are made.



(2) The Participant may elect, in accordance with Section 3.2, to have the Withdrawal Amount
paid in a lump sum in cash or in equal annual installments in cash (calculated as set forth in
Section 7.1(a)(6)) over a period of from two (2) up to fifteen (15) years beginning on the
Participant’s Payment Date.



(3) A Participant may elect to change the Scheduled In-Service Withdrawal Date for the
Withdrawal Amount for any Plan Year in accordance with Section 3.2(d).



(4) In the event of Participant’s Separation from Service or Disability prior to a Scheduled
In-Service Withdrawal Date, the Participant’s entire Withdrawal Amount shall be paid in accordance
with the Participant’s election with respect to such Plan Year under Section 7.1(a).



(c) Distribution upon Death. In the event a Participant dies, any remaining balance in his
Accounts shall be paid to his Beneficiary in a lump sum in cash on the first business day of the
seventh calendar month following the date of the Participant’s death.



7.2 Hardship Distribution.



A Participant shall be permitted to elect a Hardship Distribution of all or a portion of his
Accounts under the Plan prior to the Payment Date, subject to the following restrictions:



(a) The election to take a Hardship Distribution shall be made by filing the form provided by
the Committee before the date established by the Committee.



(b) The Committee shall have made a determination that the requested distribution constitutes
a Hardship Distribution in accordance with subsection (d).



(c) The amount determined by the Committee as a Hardship Distribution shall be paid in a
single lump sum in cash as soon as practicable after the end of the calendar month in which the
Hardship Distribution election is made and approved by the Committee. The Hardship Distribution
shall be distributed proportionately from the subaccounts in the Participant’s Accounts.



(d) If a Participant receives a Hardship Distribution, the Participant shall be ineligible to
contribute deferrals to the Plan for the following Plan Year. “Hardship Distribution” shall mean a
severe financial hardship to the Participant resulting from (i) an illness or accident of the
Participant, the Participant’s spouse or of his dependent (as defined in Section 152(a) of the
Code), (ii) loss of a Participant’s property due to casualty, or (iii) other similar extraordinary
and unforeseeable circumstances arising as a result of events beyond the control of the
Participant, as determined by the Committee in accordance with Section 409A(a)(2)(B)(ii)(I) of the
Code and the Treasury Regulations thereunder. The amount of the Hardship Distribution with
respect to a severe financial hardship shall not exceed the amounts necessary to satisfy such
hardship, plus amounts necessary to pay taxes reasonably anticipated as a result of the
distribution, after taking into account the extent to which such hardship is or may be relieved
through reimbursement or compensation by insurance or otherwise or by liquidation of the
Participant’s assets (to the extent the liquidation of such assets would not itself cause severe
financial hardship), as determined by the Committee in accordance with Section
409A(a)(2)(B)(ii)(II) of the Code and the Treasury Regulations thereunder.



7.3 Effect of a Change in Control.



(a) In the event there is a Change in Control, the person who is the chief executive officer
(or, if not so identified, the Company’s highest ranking officer) shall name a third-party
fiduciary as the sole member of the Committee immediately prior to such Change in Control. The
appointed fiduciary, shall oversee the administration of the Plan and provide for the distributions
of the accounts under the Plan in accordance with the terms of the Plan and the elections of the
Participants.



(b) Upon and after the occurrence of a Change in Control, the Company must (i) pay all
reasonable administrative fees and expenses of the appointed fiduciary, (ii) indemnify the
appointed fiduciary against any costs, expenses and liabilities including, without limitation,
attorney’s fees and expenses arising in connection with the appointed fiduciary’s duties hereunder,
other than with respect to matters resulting from the gross negligence of the appointed fiduciary
or its agents or employees and (iii) timely provide the appointed fiduciary with all necessary
information related to the Plan, the Participants and Beneficiaries.



(c) Notwithstanding Section 9.4, in the event there is a Change in Control no amendment may be
made to this Plan except as approved by the third-party fiduciary. Upon a Change in Control, the
Company shall establish an irrevocable trust and contribute assets to such trust in an amount equal
to the aggregate amount credited to the Participants’ Accounts, as determined by the appointed
fiduciary, plus any deferred payments as they are deferred by the Participants. Such trust shall
conform to the model “rabbi trust” agreement provided by the Internal Revenue Service in Revenue
Procedure 92-64, as revised from time to time, and shall be structured as an unfunded arrangement.



7.4 Inability to Locate Participant.



In the event that the Committee is unable to locate a Participant or Beneficiary within two
years following the required Payment Date, the amount allocated to the Participant’s Accounts shall
be forfeited. If, after such forfeiture, the Participant or Beneficiary later claims such benefit,
such benefit shall be reinstated without interest or earnings from the date of forfeiture, subject
to applicable escheat laws.



7.5 Prohibition on Acceleration of Distributions.



The time or schedule of payment of any withdrawal or distribution under the Plan shall not be
subject to acceleration, except as provided under Treasury Regulations promulgated in accordance
with Section 409A(a)(3) of the Code.



ARTICLE VIII.




ADMINISTRATION




8.1 Committee. The Committee shall administer the Plan in accordance with this Article.



8.2 Administrator.



The Administrator, unless restricted by the Committee, shall exercise the powers under
Sections 8.4 and 8.5 except when the exercise of such authority would materially affect the cost of
the Plan to the Company or materially increase benefits to Participants.



8.3 Committee Action.



The Committee shall act at meetings by affirmative vote of a majority of the members of the
Committee. Any action permitted to be taken at a meeting may be taken without a meeting if, prior
to such action, a written consent to the action is signed by all members of the Committee and such
written consent is filed with the minutes of the proceedings of the Committee. A member of the
Committee shall not vote or act upon any matter which relates solely to himself or herself as a
Participant. The chairman or any other member or members of the Committee designated by the
chairman may execute any certificate or other written direction of behalf of the Committee.



8.4 Powers and Duties of the Committee.



(a) The Committee, on behalf of the Participants and their Beneficiaries, shall enforce the
Plan in accordance with its terms, shall be charged with the general administration of the Plan,
and shall have all powers necessary to accomplish its purposes as set forth herein, including, but
not by way of limitation, the following:



(1) To select the Measurement Funds in accordance with Section 4.1 hereof;



(2) To construe and interpret the terms and provisions of the Plan and to remedy any
inconsistencies or ambiguities hereunder;



(3) To select employees eligible to participate in the Plan;



(4) To compute and certify to the amount and kind of benefits payable to Participants and
their Beneficiaries;



(5) To maintain all records that may be necessary for the administration of the Plan;



(6) To provide for the disclosure of all information and the filing or provision of all
reports and statements to Participants, Beneficiaries or governmental agencies as shall be required
by law;



(7) To make and publish such rules for the regulation of the Plan and procedures for the
administration of the Plan as are not inconsistent with the terms hereof;



(8) To appoint a plan administrator or any other agent, and to delegate to them such powers
and duties in connection with the administration of the Plan as the Committee may from time to time
prescribe; and



(9) To take all actions necessary for the administration of the Plan.



8.5 Delegation of Authority



To the extent permitted by applicable law, the Committee may from time to time delegate to a
committee of one or more members of the Board or one or more executives or employees of the Company
its powers and duties under the Plan, including its power and authority under Section 9.4. Any
delegation hereunder shall be subject to the restrictions and limits that the Committee specifies
at the time of such delegation, and the Committee may at any time rescind the authority so
delegated or appoint a new delegatee. At all times, the delegatee appointed under this Section 8.5
shall serve in such capacity at the pleasure of the Committee.



8.6 Construction and Interpretation.



The Committee shall have full discretion to construe and interpret the terms and provisions of
this Plan, which interpretations or construction shall be final and binding on all parties,
including but not limited to the Company and any Participant or Beneficiary. The Committee shall
administer such terms and provisions in a uniform and nondiscriminatory manner and in full
accordance with any and all laws applicable to the Plan.



8.7 Information.



To enable the Committee to perform its functions, the Company shall supply full and timely
information to the Committee on all matters relating to the Compensation of all Participants, their
death or other events which cause termination of their participation in this Plan, and such other
pertinent facts as the Committee may require.



8.8 Compensation, Expenses and Indemnity.



(a) The members of the Committee shall serve without compensation for their services
hereunder.



(b) The Committee is authorized at the expense of the Company to employ such legal counsel and
other advisors as it may deem advisable to assist in the performance of its duties hereunder.
Expenses and fees in connection with the administration of the Plan shall be paid by the Company.



(c) To the extent permitted by applicable state law, the Company shall indemnify and save
harmless the Committee and each member thereof, the Board of Directors and any delegate of the
Committee who is an employee of the Company against any and all expenses, liabilities and claims,
including legal fees to defend against such liabilities and claims arising out of their discharge
in good faith of responsibilities under or incident to the Plan, other than expenses and
liabilities arising out of willful misconduct. This indemnity shall not preclude such further
indemnities as may be available under insurance purchased by the Company or provided by the Company
under any bylaw, agreement or otherwise, as such indemnities are permitted under state law.



8.9 Quarterly Statements.



Under procedures established by the Committee, a Participant shall receive a statement with
respect to such Participant’s Accounts on a quarterly basis as of each March 31, June 30, September
30 and December 31.



8.10 Disputes.



(a) Claim.



A person who believes that he is being denied a benefit to which he is entitled under this
Agreement (hereinafter referred to as “Claimant”) may file a written request for such benefit with
the Administrator, setting forth his claim. The request must be addressed to the Administrator at
the Company at its then principal place of business.



(b) Claim Decision.



Upon receipt of a claim, the Administrator shall advise the Claimant that a reply shall be
forthcoming within 90 days and shall, in fact, deliver such reply within such period. The
Administrator may, however, extend the reply period for an additional 90 days for special
circumstances.



If the claim is denied in whole or in part, the Administrator shall inform the Claimant in
writing, using language calculated to be understood by the Claimant, setting forth: (i) the
specified reason or reasons for such denial; (ii) the specific reference to pertinent provisions of
this Agreement on which such denial is based; (iii) a description of any additional material or
information necessary for the Claimant to perfect his claim and an explanation of why such material
or such information is necessary; (iv) appropriate information as to the steps to be taken if the
Claimant wishes to submit the claim for review; and (v) the time limits for requesting a review
under subsection (c).



(c) Request For Review.



Within 60 days after the receipt by the Claimant of the written decision described above, the
Claimant may request in writing a review the determination of the Administrator. Such review shall
be completed by the Committee. Such request must be addressed to the Secretary of the Company, at
its then principal place of business. The Claimant or his duly authorized representative may, but
need not, review the pertinent documents and submit issues and comments in writing for
consideration by the Committee. If the Claimant does not request a review within such 60-day
period, he shall be barred and estopped from challenging the Administrator’s determination.



(d) Review of Decision.



Within 60 days after the receipt of a request for review by the Committee, as applicable,
after considering all materials presented by the Claimant, the Committee shall inform the
Participant in writing, in a manner calculated to be understood by the Claimant, the decision
setting forth the specific reasons for the decision contained specific references to the pertinent
provisions of this Plan on which the decision is based. If special circumstances require that the
60 day time period be extended, the Committee, as applicable, shall so notify the Claimant and
shall render the decision as soon as possible, but no later than 120 days after receipt of the
request for review.




	8.11	 	Compliance with Section 409A of the Code.





The Plan shall be interpreted, construed and administered in a manner that satisfies the
requirements of Sections 409A(a)(2), (3) and (4) of the Code and the Treasury Regulations
thereunder.



ARTICLE IX.




MISCELLANEOUS




9.1 Unsecured General Creditor.



Participants and their Beneficiaries, heirs, successors, and assigns shall have no legal or
equitable rights, claims, or interest in any specific property or assets of the Company. No assets
of the Company shall be held in any way as collateral security for the fulfilling of the
obligations of the Company under this Plan. Any and all of the Company’s assets shall be, and
remain, the general unpledged, unrestricted assets of the Company. The Company’s obligation under
the Plan shall be merely that of an unfunded and unsecured promise of the Company to pay money in
the future, and the rights of the Participants and Beneficiaries shall be no greater than those of
unsecured general creditors. It is the intention of the Company that this Plan be unfunded for
purposes of the Code and Title I of ERISA.



9.2 Restriction Against Assignment.



(a) The Company shall pay all amounts payable hereunder only to the person or persons
designated by the Plan and not to any other person or entity. No right, title or interest in the
Plan or in any account may be sold, pledged, assigned or transferred in any manner other than by
will or the laws of descent and distribution. No right, title or interest in the Plan or in any
Account shall be liable for the debts, contracts or engagements of the Participant or his
successors in interest or shall be subject to disposition by transfer, alienation, anticipation,
pledge, encumbrance, assignment or any other means whether such disposition be voluntary or
involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or
equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null
and void and of no effect, except to the extent that such disposition is permitted by the preceding
sentence.



(b) Notwithstanding the provisions of subsection (a), a Participant’s interest in his Account
may be transferred by the Participant pursuant to a domestic relations order that constitutes a
“qualified domestic relations order” as defined by the Code or Title I of ERISA.



9.3 Withholding.



There shall be deducted from each payment made under the Plan or any other Compensation
payable to the Participant (or Beneficiary) all taxes which are required to be withheld by the
Company in respect to such payment or this Plan. The Company shall have the right to reduce any
payment (or compensation) by the amount of such of cash sufficient to provide the amount of said
taxes.



9.4 Amendment, Modification, Suspension or Termination.



(a) Subject to Section 7.3, the Committee may amend, modify, suspend or terminate the Plan in
whole or in part, except that no amendment, modification, suspension or termination shall have any
retroactive effect to reduce any vested amounts allocated to a Participant’s Accounts. In the event
of Plan termination, distributions shall continue to be made in accordance with the terms of the
Plan.



(b) Notwithstanding anything to the contrary in the Plan, if and to the extent the Company
shall determine that the terms of the Plan may result in the failure of the Plan, or amounts
deferred by or for any Participant under the Plan, to comply with the requirements of Section 409A
of the Code, or any applicable regulations or guidance promulgated by the Secretary of the Treasury
in connection therewith, the Company shall have authority to take such action to amend, modify,
cancel or terminate the Plan or distribute any or all of the amounts deferred by or for a
Participate, as it deems necessary or advisable, including without limitation:



(1) Any amendment or modification of the Plan to conform the Plan to the requirements of
Section 409A of the Code or any regulations or other guidance thereunder (including, without
limitation, any amendment or modification of the terms of any applicable to any Participant’s
Accounts regarding the timing or form of payment).



(2) Any cancellation or termination of any unvested interest in a Participant’s Accounts
without any payment to the Participant.



(3) Any cancellation or termination of any vested interest in any Participant’s Accounts, with
immediate payment to the Participant of the amount otherwise payable to such Participant.



Any such amendment, modification, cancellation, or termination of the Plan may adversely affect the
rights of a Participant without the Participant’s consent.



9.5 Designation of Beneficiary.



(a) Each Participant shall have the right to designate, revoke and redesignate Beneficiaries
hereunder and to direct payment of his Distributable Amount to such Beneficiaries upon his death.



(b) Designation, revocation and redesignation of Beneficiaries must be made in writing in
accordance with the procedures established by the Committee and shall be effective upon delivery to
the Committee.



(c) No designation of a Beneficiary other than the Participant’s spouse shall be valid unless
consented in writing by such spouse. If there is no Beneficiary designation in effect, or the
designated beneficiary does not survive the Participant, then the Participant’s spouse shall be the
Beneficiary. If there is no surviving spouse, the duly appointed and currently acting personal
representative of the Participant’s estate (which shall include either the Participant’s probate
estate or living trust) shall be the Beneficiary.



(d) After the Participant’s death, any Beneficiary (other than the Participant’s estate) who
is to receive installment payments may designate a secondary beneficiary to receive amounts due
under this Plan to the Beneficiary in the event of the Beneficiary’s death prior to receiving full
payment from the Plan. If no secondary beneficiary is designated, it shall be the Beneficiary’s
estate.



9.6 Governing Law.



Subject to ERISA, this Plan shall be construed, governed and administered in accordance with
the laws of the State of California.



9.7 Compliance with Code Section 162(m).



It is the intent of the Company that any Compensation which is deferred under the Plan by a
person who is, with respect to the year of distribution, deemed by the Committee to be a “covered
employee” within the meaning of Code Section 162(m) and regulations thereunder, which Compensation
constitutes either “qualified performance-based compensation” within the meaning of Code Section
162(m) and regulations thereunder or compensation not otherwise subject to the limitation on
deductibility under Section 162(m) and regulations thereunder, shall not, as a result of deferral
hereunder, become compensation with respect to which the Company in fact would not be entitled to a
tax deduction under Code Section 162(m). If the Company 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 Company would not be deductible by the Company solely by reason of the
limitation under Code Section 162(m), then to the extent deemed necessary by the Committee 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 Company may defer all or any portion of a distribution
under this Plan. Any amounts deferred pursuant to this limitation shall continue to be
credited/debited with additional amounts in accordance with Article IV, 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 Beneficiary (in the event of the Participant’s death)
commencing as soon as reasonably practicable following the Plan Year in which such Participant’s
Separation from Service, Disability or Death occurs, or if earlier, the effective date of a Change
in Control. Notwithstanding anything to the contrary in this Plan, this Section shall not apply to
any distributions made after a Change in Control.



9.8 Payments on Behalf of Persons Under Incapacity.



In the event that any amount becomes payable under the Plan to a person who, in the sole
judgment of the Committee, is considered by reason of physical or mental condition to be unable to
give a valid receipt therefore, the Committee may direct that such payment be made to any person
found by the Committee, in its sole judgment, to have assumed the care of such person. Any payment
made pursuant to such termination shall constitute a full release and discharge of the Committee
and the Company.



9.9 Limitation of Rights.



Neither the establishment of the Plan nor any modification thereof, nor the creating of any
fund or account, nor the payment of any benefits shall be construed as giving to any Participant or
other person any legal or equitable right against the Company except as provided in the Plan. In
no event shall the terms of employment of, or membership on the Board by, any Participant be
modified or in any way be effected by the provisions of the Plan.



9.10 Exempt ERISA Plan



The Plan is intended to be an unfunded plan maintained primarily to provide deferred
compensation benefits for a select group of management or highly compensated employees within the
meaning of Sections 201, 301 and 401 of ERISA and therefore to be exempt from Parts 2, 3 and 4 of
Title I of ERISA.



9.11 Notice



Any notice or filing required or permitted to be given to the Committee under the Plan shall
be sufficient if in writing and hand delivered, or sent by registered or certified mail, to the
principal office of the Company, directed to the attention of the General Counsel and Secretary of
the Company. 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.



9.12 Errors and Misstatements



In the event of any misstatement or omission of fact by a Participant to the Committee or any
clerical error resulting in payment of benefits in an incorrect amount, the Committee shall
promptly cause the amount of future payments to be corrected upon discovery of the facts and shall
pay or, if applicable, cause the Plan to pay, the Participant or any other person entitled to
payment under the Plan any underpayment in a lump sum or to recoup any overpayment from future
payments to the Participant or any other person entitled to payment under the Plan in such amounts
as the Committee shall direct or to proceed against the Participant or any other person entitled to
payment under the Plan for recovery of any such overpayment.



9.13 Pronouns and Plurality



The masculine pronoun shall include the feminine pronoun, and the singular the plural where
the context so indicates.



9.14 Severability



In the event that any provision of the Plan shall be declared unenforceable or invalid for any
reason, such unenforceability or invalidity shall not affect the remaining provisions of the Plan
but shall be fully severable, and the Plan shall be construed and enforced as if such unenforceable
or invalid provision had never been included herein.



9.15 Status



The establishment and maintenance of, or allocations and credits to, the Accounts of any
Participant shall not vest in any Participant any right, title or interest in and to any Plan
assets or benefits except at the time or times and upon the terms and conditions and to the extent
expressly set forth in the Plan.



9.16 Headings.



Headings and subheadings in this Plan are inserted for convenience of reference only and are
not to be considered in the construction of the provisions hereof.




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