EX-10.10



 





Exhibit 10.10




THE KITCHEN COLLECTION, LLC

EXCESS RETIREMENT PLAN

( EFFECTIVE JANUARY 1, 2008)





 









 








THE KITCHEN COLLECTION, LLC

EXCESS RETIREMENT PLAN




          The Kitchen Collection, Inc. (to be known as The Kitchen Collection, LLC effective January 1,
2008 or such later date specified in the applicable certificate of merger) (the “Company”) does
hereby adopt this Excess Retirement Plan effective January 1, 2008.




ARTICLE I

PREFACE




     Section 1.1 Effective Date. The effective date of this Plan is January 1, 2008.



     Section 1.2 Purpose of the Plan. The purpose of this Plan is to provide for certain
Employees the benefits they would have received under the Savings Plan but for (a) the limitations
imposed under Code Sections 402(g), 401(a)(17), 401(k)(3), 401(m) and 415 or (b) as a result of
their deferral of Compensation hereunder.



     Section 1.3 Governing Law. This Plan shall be regulated, construed and administered
under the laws of the State of Ohio, except when preempted by federal law.



     Section 1.4 Gender and Number. For purposes of interpreting the provisions of this
Plan, the masculine gender shall be deemed to include the feminine, the feminine gender shall be
deemed to include the masculine, and the singular shall include the plural unless otherwise clearly
required by the context.



     Section 1.5 Application of Code Section 409A.



          (a) The Excess 401(k) Sub-Accounts under the Plan are subject to the requirements of Code
Section 409A. The Excess Matching Sub-Account and the Excess Profit Sharing Sub-Account are
intended to be exempt from the requirements of Code Section 409A.




          (b) It is intended that the compensation arrangements under the Plan be in full compliance
with the requirements of, or the exceptions to, Code Section 409A. The Plan shall be interpreted
and administered in a manner to give effect to such intent. Notwithstanding the foregoing, the
Company does not guarantee any particular tax result to Participants or Beneficiaries with respect
to any amounts deferred or any payments provided hereunder, including tax treatment under Code
Section 409A.




ARTICLE II

DEFINITIONS




          Except as otherwise provided in this Plan, terms defined in the Savings Plan as they may be
amended from time to time shall have the same meanings when used herein, unless a different meaning is clearly required by the context of this Plan. In addition, the
following words and phrases shall have the following respective meanings for purposes of this Plan.




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     Section 2.1 Account shall mean the record maintained in accordance with Section 3.4 by
the Company as the sum of the Participant’s Excess Retirement Benefits hereunder. The
Participant’s Account shall be further divided into the Sub-Accounts described in Article III
hereof.



     Section 2.2 Beneficiary shall mean the person or persons designated by the Participant
as his Beneficiary under this Plan on a form acceptable to the Plan Administrator prior to the
Participant’s death. In the absence of a valid designation, a Participant’s Beneficiary shall be
the Beneficiary(ies) designated (or deemed designated) under the Savings Plan.



     Section 2.3 Bonus shall mean any bonus under the Company’s Annual Incentive
Compensation Plan that would be taken into account as Compensation under the Savings Plan, which is
earned with respect to services performed by a Participant during a Plan Year (whether or not such
Bonus is actually paid to the Participant during such Plan Year). An election to defer a Bonus
under this Plan must be made before the period in which the services are performed which gives rise
to such Bonus.



     Section 2.4 Company shall mean The Kitchen Collection, Inc. or any entity that
succeeds The Kitchen Collection, Inc. by merger, reorganization or otherwise. Effective January 1,
2008 (or such other date specified in the applicable certificate of merger), the Company shall be
known as The Kitchen Collection, LLC.



     Section 2.5 Compensation shall have the same meaning as under the Savings Plan, except
that Compensation shall be deemed to include (a) the amount of compensation deferred by the
Participant under this Plan and (b) amounts in excess of the limitation imposed by Code Section
401(a)(17). Notwithstanding the foregoing, the timing and crediting of Bonuses hereunder shall be
as specified in Section 3.1.



     Section 2.6 Excess Retirement Benefit or Benefit shall mean an Excess 401(k) Benefit,
an Excess Matching Benefit or an Excess Profit Sharing Benefit (all as described in Article III)
which is payable to or with respect to a Participant under this Plan.



     Section 2.7 Fixed Income Fund shall mean the Vanguard Retirement Savings Trust IV
investment fund under the Savings Plan or any equivalent fixed income fund thereunder which is
designated by the NACCO Industries, Inc. Retirement Funds Investment Committee as the successor
thereto.



     Section 2.8 Key Employee. Effective April 1, 2008, a Participant shall be classified
as a Key Employee if he meets the following requirements:




	 	•	 	The Participant, with respect to the Participant’s relationship with the
Company and the Controlled Group Members, met the requirements of Section
416(i)(1)(A)(i), (ii) or (iii) of the Code (without regard to Section 416(i)
(5)) and the Treasury Regulations issued thereunder at any time during the
12-month period ending on the most recent Identification Date (defined below)
and his Termination of Employment occurs during the 12-month period beginning
on the most recent Effective Date (defined below).





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	 	 	 	When applying the
provisions of Code Section 416(i)(1)(A)(i), (ii) or (iii) for this purpose:
(i) the definition of “compensation” (A) shall be the definition contained in
Treasury Regulation Section 1.415(c)-2(d)(4) (i.e., wages and other
compensation for which the Employer is required to furnish the Employee with
a Form W-2 under Code Sections 6041, 6051 and 6052, plus amounts deferred at
the election of the Employee under Code Sections 125, 132(f)(4) or 401(k))
and (B) shall apply the rule of Treasury Regulation Section 1.415-2(g)(5)(ii)
which excludes compensation of non-resident alien employees and (ii) the
number of officers described in Code Section 416(i)(A)(i) shall be 60 instead
of 50.






	 	•	 	The Identification Date for Key Employees is each December 31st
and the Effective Date is the following April 1st. As such, any
Employee who is classified as a Key Employee as of December 31st
of a particular Plan Year shall maintain such classification for the 12-month
period commencing on the following April 1st.
	 
	 	•	 	Notwithstanding the foregoing, a Participant shall not be classified as a
Key Employee unless the stock of NACCO Industries, Inc. (or a related entity)
is publicly traded on an established securities market or otherwise on the
date of the Participant’s Termination of Employment.





     Section 2.9 Participant.



          (a) For purposes of Sections 3.1 through 3.3 of the Plan, the term Participant shall mean a
participant in the Savings Plan (i) who is unable to make all of the Salary Deferral Contributions
that he has elected to make to the Savings Plan, or unable to receive the maximum amount of
Matching Company Contributions under the Savings Plan, or unable to receive the maximum amount of
Profit Sharing Contributions under the Savings Plan because of the limitations imposed under
Section 402(g), 401(a)(17), 401(k)(3), 401(m) or 415 of the Code or as a result of his deferral of
Compensation under this Plan; (ii) whose total compensation from the Controlled Group for the year
in which the deferral election is required is at least $125,000; and (iii) who is designated as a
Participant in this Plan by the President of the Company.




          (b) The term “Participant” shall also include any other person who has an Account balance
hereunder.




     Section 2.10 Plan shall mean The Kitchen Collection, LLC Excess Retirement Plan, as
herein set forth or as duly amended.



     Section 2.11 Plan Administrator shall mean the Administrative Committee appointed
under the Savings Plan.



     Section 2.12 Plan Year shall mean the calendar year.



     Section 2.13 Savings Plan shall mean The Kitchen Collection, Inc. Retirement Savings
Plan (or any successor plan).



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     Section 2.14 Termination of Employment shall mean, with respect to any Participant’s
relationship with the Company and the Controlled Group Members, a separation from service as
defined in Code Section 409A (and the regulations or other guidance issued thereunder).



     Section 2.15 Valuation Date shall mean the last business day of each calendar month
and any other date chosen by the Plan Administrator.



ARTICLE III

EXCESS RETIREMENT BENEFITS — CALCULATION OF AMOUNT




     Section 3.1 Basic and Additional Excess 401(k) Benefits.



          (a) Amount of Excess 401(k) Benefits. For periods on and after January 1, 2008, each
Participant may, prior to each December 31st, by completing an approved deferral election form,
direct the Company to reduce his Compensation for the next Plan Year, by the difference between
(i) a certain percentage, in 1% increments, with a maximum of 25%, of his Compensation for the Plan
Year, and (ii) the maximum Salary Deferral Contributions actually permitted to be contributed for
him to the Savings Plan by reason of the application of the limitations under Sections 402(g),
401(a)(17), 401(k)(3) and 415 of the Code (which amounts shall be referred to as the “Excess 401(k)
Benefits”). Notwithstanding the foregoing, a Participant’s direction to reduce a Bonus earned
during a particular Plan Year shall be made no later than December 31st of the Plan Year
preceding the Plan Year in which the Bonus commences to be earned. Elections to defer Bonuses that
were earned in 2007 were made prior to December 31, 2006 under The Kitchen Collection, Inc.
Deferred Compensation Plan for Management Employees and shall continue in effect hereunder;
provided, however, that the payment of those amounts shall be as specified in Article VI hereof.




          (b) Classification of Excess 401(k) Benefits. The Excess 401(k) Benefits for a
particular Plan Year shall be calculated monthly and shall be further divided into the “Basic
Excess 401(k) Benefits” and the “Additional Excess 401(k) Benefits” as follows:





	 	(i)	 	The Basic Excess 401(k) Benefits shall be determined by
multiplying each Excess 401(k) Benefit by a fraction, the numerator of which is
the lesser of the percentage of Compensation elected to be deferred in the deferral election form
for such Plan Year or 6% and the denominator of which is the percentage of
Compensation elected to be deferred; and
	 
	 	(ii)	 	The Additional Excess 401(k) Benefits (if any) shall be
determined by multiplying such Excess 401(k) Benefit by a fraction, the
numerator of which is the excess (if any) of (1) the percentage of
Compensation elected to be deferred in the deferral election form for such Plan
Year over (2) 6%, and the denominator of which is the percentage of
Compensation elected to be deferred.




The Basic Excess 401(k) Benefits shall be credited to the Basic Excess 401(k) Sub-Account under
this Plan and the Additional Excess 401(k) Benefits shall be credited to the Additional



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Excess 401(k) Sub-Account hereunder. The Basic and Additional Excess 401(k) Sub-Accounts shall be
referred to collectively as the “Excess 401(k) Sub-Account.”




          (c)  Consequences of Deferral Election. Any direction by a Participant to defer
Compensation under Subsection (a) shall be effective with respect to Compensation otherwise
payable to the Participant for the Plan Year for which the deferral election form is effective,
and the Participant shall not be eligible to receive such Compensation. Instead, such amounts
shall be credited to the Participant’s Basic and Additional Excess 401(k) Sub-Accounts (as
applicable) hereunder. Any such direction shall be irrevocable with respect to Compensation earned
for such Plan Year, but shall have no effect on Compensation that is earned in subsequent Plan
Years. A new deferral election will be required for each Plan Year.




     Section 3.2 Excess Matching Benefits. A Participant shall have credited to his
Excess Matching Sub-Account an amount equal to the Matching Company Contributions attributable to
his Basic Excess 401(k) Benefits that he is prevented from receiving under the Savings Plan because
of the limitations imposed under Code Sections 402(g), 401(a)(17), 401(k)(3), 401(m) and 415 of the
Code (the “Excess Matching Benefits”).



     Section 3.3 Excess Profit Sharing Benefits. Effective for Plan Years commencing on or
after January 1, 2008, a Participant shall have credited to his Excess Profit Sharing Sub-Account
an amount equal to the excess, of any, of (i) the Profit Sharing Contribution which would have been
made to the Savings Plan if such Plan did not contain the limitations imposed under Code Sections
401(a)(17) and 415 and the term “Compensation” (as defined in Section 2.5 of this Plan) were used
for purposes of determining the amount of Profit Sharing Contributions under the Savings Plan, over
(ii) the amount of Profit Sharing Contributions which are actually made to the Savings Plan on
behalf of the Participant for such Plan Year (the “Excess Profit Sharing Benefits”).



     Section 3.4 Participant’s Accounts. The Company shall establish and maintain on its
books an Account for each Participant which shall contain the following entries:



          (a) Credits to a Basic Excess 401(k) Sub-Account for the Basic Excess 401(k) Benefits
described in Section 3.1(b)(i), which shall be credited to the Sub-Account when a Participant is
prevented from making a Salary Deferral Contribution under the Savings Plan.




          (b) Credits to an Excess Matching Sub-Account for the Excess Matching Benefits described in
Section 3.2, which shall be credited to the Sub-Account when a Participant is prevented from
receiving Matching Company Contributions under the Savings Plan.




          (c) Credits to an Additional Excess 401(k) Sub-Account for the Additional Excess 401(k)
Benefits described in Section 3.1(b)(ii), which shall be credited to the Sub-Account when a
Participant is prevented from making a Salary Deferral Contribution under the Savings Plan.




          (d) Credits to an Excess Profit Sharing Sub-Account for the Excess Profit Sharing Benefits
described in Section 3.3, which shall be credited to the Sub-Account at the time the




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Profit Sharing Contributions are otherwise credited to the Participant’s account under the Savings Plan.




          (e) Credits to all Sub-Accounts for the earnings and the uplift described in Article IV.




          (f) Debits for any distributions made from the Sub-Accounts.




ARTICLE IV

EARNINGS/UPLIFT




     Section 4.1 Earnings. Subject to Section 4.3, at the end of each calendar month
during a Plan Year, the Excess 401(k) Sub-Account and Excess Matching Sub-Account of each
Participant shall be credited with earnings in an amount determined by multiplying such
Participant’s average Sub-Account balance during such month by the blended rate earned during such
month by the Fixed Income Fund. However, no earnings shall be credited for the month in which the
Participant receives a distribution from his Sub-Account.



     Section 4.2 Uplift on Plan Payments. In addition to the earnings described in Section
4.1, the balance of the Basic Excess 401(k) Sub-Account, The Excess Matching Sub-Account and the
Excess Profit Sharing Sub-Account as of the last day of the month prior to the payment date shall
each be increased by an additional 15%.



     Section 4.3 Changes/Limitations.



          (a) The Compensation Committee may change (or suspend) (i) the earnings rate credited on
Accounts and/or (ii) the amount of the uplift under the Plan at any time.




          (b) Notwithstanding any provision of the Plan to the contrary, in no event will earnings on
Accounts for a Plan Year (excluding the uplift described in Section 4.2) be credited at a rate
which exceeds 14%.




ARTICLE V

VESTING




     Section 5.1 Vesting. All Participants shall be immediately 100% vested in all amounts
credited to their Account hereunder.



ARTICLE VI

 DISTRIBUTION OF BENEFITS 




     Section 6.1 Time and Form of Payment. All amounts credited to a Participant’s
Sub-Accounts for each Plan Year (including the Excess Profit Sharing Benefits for the Plan Year,
the uplift and any earnings that are credited after the end of the Plan Year) shall automatically
be



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paid to the Participant (or his Beneficiary) in the form of a single lump sum payment on March
15th of the immediately following Plan Year.




     Section 6.2 Other Payment Rules and Restrictions.




	 	(a)	 	Payments Violating Applicable Law.  Notwithstanding any provision of the Plan
to the contrary, the payment of all or any portion of the amounts payable hereunder will be
deferred to the extent that the Company reasonably anticipates that the making of such
payment would violate Federal securities laws or other applicable law (provided that the
making of a payment that would cause income taxes or penalties under the Code shall not be
treated as a violation of applicable law). The deferred amount shall become payable at the
earliest date at which the Company reasonably anticipates that making the payment will not
cause such violation.
	 
	 	(b)	 	Delayed Payments Due to Solvency Issues. Notwithstanding any provision of the
Plan to the contrary, the Company shall not be required to make any payment hereunder to
any Participant or Beneficiary if the making of the payment would jeopardize the ability
of the Company to continue as a going concern; provided that any missed payment is made
during the first calendar year in which the funds of the Company are sufficient to make the
payment without jeopardizing the going concern status of the Company.
	 
	 	(c)	 	Key Employees. Notwithstanding any provision of the Plan to the contrary,
distributions to Key Employees made on account of a Termination of Employment may not be
made before the 1st day of the seventh month following such Termination of
Employment (or, if earlier, the date of death) except for payments made on account of (i) a
QDRO (as specified in Section 7.5) or (ii) a conflict of interest or the payment of FICA
taxes (as specified in Subsection (e) below). Any amounts that are otherwise payable to
the Key Employee during the 6-month period following his Termination of Employment shall be
accumulated and paid in a lump sum make-up payment within 10 days following the
1st day of the 7th month following Termination of Employment.
	 
	 	(d)	 	Acceleration of Payments. Notwithstanding any provision of the Plan to the
contrary, to the extent permitted under Code Section 409A and the Treasury Regulations
issued thereunder, payments of Sub-Accounts that are subject to Code Section 409A may be
accelerated (i) to the extent necessary to comply with federal, state, local or foreign
ethics or conflicts of interest laws or agreements or (ii) to the extent necessary to pay
the FICA taxes imposed on benefits hereunder under Code Section 3101, and the income
withholding taxes related thereto. Payments may also be accelerated if the Plan (or a
portion thereof) fails to satisfy the requirements of Code Section 409A; provided that the
amount of such payment may not exceed the amount required to be included as income as a
result of the failure to comply with Code Section 409A.





     Section 6.3 Withholding/Taxes. To the extent required by applicable law, the Company
shall withhold from the Excess Retirement Benefits hereunder any income, employment or other taxes
required to be withheld therefrom by any government or governmental agency.



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ARTICLE VII

MISCELLANEOUS




     Section 7.1 Liability of Company. Nothing in this Plan shall constitute the creation
of a trust or other fiduciary relationship between the Company and any Participant, Beneficiary or
any other person.



     Section 7.2 Limitation on Rights of Participants and Beneficiaries — No Lien. The
Plan is designed to be an unfunded, nonqualified plan. Nothing contained herein shall be deemed to
create a trust or lien in favor of any Participant or Beneficiary on any assets of the Company.
The Company shall have no obligation to purchase any assets that do not remain subject to the
claims of the creditors of the Company for use in connection with the Plan. No Participant or
Beneficiary or any other person shall have any preferred claim on, or any beneficial ownership
interest in, any assets of the Company prior to the time that such assets are paid to the
Participant or Beneficiary as provided herein. Each Participant and Beneficiary shall have the
status of a general unsecured creditor of the Company.



     Section 7.3 No Guarantee of Employment. Nothing in this Plan shall be construed as
guaranteeing future employment to Participants. A Participant continues to be an Employee of the
Company solely at the will of the Company subject to discharge at any time, with or without cause.



     Section 7.4 Payment to Guardian. If a Benefit payable hereunder is payable to a
minor, to a person declared incompetent or to a person incapable of handling the disposition of his
property, the Plan Administrator may direct payment of such Benefit to the guardian, legal representative or person having the care and custody of such minor, incompetent or person.
The Plan Administrator may require such proof of incompetency, minority, incapacity or guardianship
as it may deem appropriate prior to distribution of the Benefit. Such distribution shall
completely discharge the Company from all liability with respect to such Benefit.



     Section 7.5 Assignment. No right or interest under this Plan of any Participant or
Beneficiary shall be assignable or transferable in any manner or be subject to alienation,
anticipation, sale, pledge, encumbrance or other legal process or in any manner be liable for or
subject to the debts or liabilities of the Participant or Beneficiary. Notwithstanding the
foregoing, the Plan Administrator shall honor a qualified domestic relations order (“QDRO”) from a
state domestic relations court which requires the payment of part of all or a Participant’s or
Beneficiary’s Account under this Plan to an “alternate payee” as defined in Code Section 414(p).



     Section 7.6 Severability. If any provision of this Plan or the application thereof to
any circumstance(s) or person(s) is held to be invalid by a court of competent jurisdiction, the
remainder of the Plan and the application of such provision to other circumstances or persons shall
not be affected thereby.



     Section 7.7 Effect on Other Benefits. Benefits payable to or with respect to a
Participant under the Savings Plan or any other Company-sponsored (qualified or nonqualified) plan,
if any, are in addition to those provided under this Plan.



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     Section 7.8 Liability for Payment/Expenses. The Company shall be liable for the
payment of the Excess Retirement Benefits that are payable hereunder. Expenses of administering
the Plan shall be paid by the Company.



ARTICLE VIII

ADMINISTRATION OF PLAN




     Section 8.1 Administration. (a) In general. The Plan shall be administered
by the Plan Administrator. The Plan Administrator shall have sole and absolute discretion to
interpret where necessary all provisions of the Plan (including, without limitation, by supplying
omissions from, correcting deficiencies in, or resolving inconsistencies or ambiguities in, the
language of the Plan), to make factual findings with respect to any issue arising under the Plan,
to determine the rights and status under the Plan of Participants, or other persons, to resolve
questions (including factual questions) or disputes arising under the Plan and to make any
determinations with respect to the benefits payable under the Plan and the persons entitled thereto
as may be necessary for the purposes of the Plan. Without limiting the generality of the
foregoing, the Plan Administrator is hereby granted the authority (i) to determine whether a
particular employee is a Participant, and (ii) to determine if a person is entitled to Excess
Retirement Benefits hereunder and, if so, the amount and duration of such Benefits. The Plan
Administrator’s determination of the rights of any person hereunder shall be final and binding
on all persons, subject only to the claims procedures outlined in Section 8.3 hereof.



          (b) Delegation of Duties. The Plan Administrator may delegate any of its
administrative duties, including, without limitation, duties with respect to the processing,
review, investigation, approval and payment of Excess Retirement Benefits, to a named administrator
or administrators.




     Section 8.2 Regulations. The Plan Administrator may promulgate any rules and
regulations it deems necessary in order to carry out the purposes of the Plan or to interpret the
provisions of the Plan; provided, however, that no rule, regulation or interpretation shall be
contrary to the provisions of the Plan. The rules, regulations and interpretations made by the
Plan Administrator shall, subject only to the claims procedure outlined in Section 8.3 hereof, be
final and binding on all persons.



     Section 8.3 Claims Procedures. The Plan Administrator shall determine the rights of
any person to any Excess Retirement Benefits hereunder. Any person who believes that he has not
received the Excess Retirement Benefits to which he is entitled under the Plan may file a claim in
writing with the Plan Administrator. The Plan Administrator shall, no later than 90 days after the
receipt of a claim (plus an additional period of 90 days if required for processing, provided that
notice of the extension of time is given to the claimant within the first 90 day period), either
allow or deny the claim in writing.



          A denial of a claim by the Plan Administrator, wholly or partially, shall be written in a
manner calculated to be understood by the claimant and shall include:





	 	(a)	 	the specific reasons for the denial;




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	 	(b)	 	specific reference to pertinent Plan provisions on which the
denial is based;
	 
	 	(c)	 	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; and
	 
	 	(d)	 	an explanation of the claim review procedure and the time
limits applicable thereto (including a statement of the claimant’s right to
bring a civil action under Section 502(a) of ERISA following an adverse benefit
determination on review).





          A claimant whose claim is denied (or his duly authorized representative) may within 60 days
after receipt of denial of a claim file with the Plan Administrator a written request for a review
of such claim. If the claimant does not file a request for review of his claim within such 60-day
period, the claimant shall be deemed to have acquiesced in the original decision of
the Plan Administrator on his claim. If such an appeal is so filed within such 60 day period,
the Compensation Committee (or its delegate) shall conduct a full and fair review of such claim.
During such review, the claimant shall be given the opportunity to review documents that are
pertinent to his claim and to submit issues and comments in writing. For this purpose, the
Compensation Committee (or its delegate) shall have the same power to interpret the Plan and make
findings of fact thereunder as is given to the Plan Administrator under Section 8.1(a) above.




          The Compensation Committee (or its delegate) shall mail or deliver to the claimant a written
decision on the matter based on the facts and the pertinent provisions of the Plan within 60 days
after the receipt of the request for review (unless special circumstances require an extension of
up to 60 additional days, in which case written notice of such extension shall be given to the
claimant prior to the commencement of such extension). Such decision shall be written in a manner
calculated to be understood by the claimant, shall state the specific reasons for the decision and
the specific Plan provisions on which the decision was based and shall, to the extent permitted by
law, be final and binding on all interested persons. In addition, the notice of adverse
determination shall also include statements 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 to the claimant’s claim for benefits and a statement of the claimant’s right
to bring a civil action under Section 502(a) of ERISA.




     Section 8.4 Revocability of Action. Any action taken by the Plan Administrator or the
Compensation Committee with respect to the rights or benefits under the Plan of any person shall
be revocable as to payments not yet made to such person. In addition, the acceptance of any
Excess Retirement Benefits under the Plan constitutes acceptance of and agreement to the Plan
making any appropriate adjustments in future payments to any person (or to recover from such
person) any excess payment or underpayment previously made to him.



     Section 8.5 Amendment. The Company (with the approval or ratification of the
Compensation Committee) may at any time amend any or all of the provisions of this Plan,



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except that, without the prior written consent of the affected Participant, no such amendment may (a)
reduce the amount of any Participant’s vested Benefit as of the date of such amendment or (b) alter
the time of payment provisions described in Article VI of the Plan, except for any amendments that
are required to bring such provisions into compliance with the requirements of, or exceptions to,
Code Section 409A or that accelerate the time of payment (in a manner permitted by Code Section
409A but solely with respect to Sub-Accounts that are subject to Code Section 409A). Any amendment
shall be in the form of a written instrument executed by an officer of the Company. Subject to the
foregoing provisions of this Section, such amendment shall become effective as of the date
specified in such instrument or, if no such date is specified, on the date of its execution.



     Section 8.6 Termination.




The Company, in its sole discretion, may terminate this Plan at any time and for any
reason whatsoever, except that, without the prior written consent of the affected
Participant, no such termination may (i) reduce the amount of any Participant’s
vested Benefit as of the date of such termination or (ii) alter the time of
payment provisions described in Article VI of the Plan, except for a termination
that accelerates the time of payments (in a manner permitted by Code Section 409A,
solely for the Sub-Accounts that are subject to Code Section 409A). Any such
termination shall be expressed in the form of a written instrument executed by an
officer of the Company, with the approval or ratification of the Compensation
Committee. Subject to the foregoing provisions of this Section, such termination
shall become effective as of the date specified in such instrument or, if no such
date is specified, on the date of its execution. Written notice of any termination
shall be provided to the Participants at a time determined by the Plan
Administrator.



     Executed this 14th day of December, 2007.



	 	 	 	 	 
	 	THE KITCHEN COLLECTION, INC.

 	 
	 	By:  	/s/ Charles A. Bittenbender
 	 
	 	 	Title: Assistant Secretary 	 
	 	 	 	 
	 




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