ceg-20211231x10kxexh1016






                CONSTELLATION SUPPLEMENTAL MANAGEMENT RETIREMENT PLAN  (Effective February 1, 2022)    





 






    CONSTELLATION SUPPLEMENTAL MANAGEMENT RETIREMENT PLAN  (Effective February 1, 2022)  ARTICLE I    Purpose  1.1. Purpose.  Constellation Energy Corporation (the “Company”) hereby establishes  this Constellation Supplemental Management Retirement Plan (the “Supplemental Plan”). The  Company maintains the tax-qualified retirement plans listed on Exhibit A hereto, as may be  updated by the Plan Administrator from time to time (the “Qualified Plans”), to provide retirement  benefits to its employees and those of certain affiliated entities which have adopted the Qualified  Plans (collectively, the “Employers”).  The Supplemental Plan is intended to provide benefits equal  to the benefits that would be paid under the Qualified Plans but for the application of Sections  401(a)(17) and 415 of the Internal Revenue Code of 1986, as amended (the “Code”), and any other  similar provisions set forth in the Code that limit or reduce such benefits (hereinafter collectively  referred to as the “Limitations”).  The portion of the Supplemental Plan that provides benefits  described in the first sentence of Section 4.1 is intended to be an “excess benefit plan” as defined  in Section 3(36) of the Employee Retirement Income Security Act of 1974, as amended  (“ERISA”).  The Supplemental Plan is otherwise intended to be a “top hat plan” within the  meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA.  The Supplemental Plan shall be  effective as of the date on which shares of common stock of the Company are distributed to the  stockholders of Exelon Corporation (“Exelon,” and such date, the “Effective Date”) pursuant to  the Separation Agreement between the Company and Exelon, entered into in connection with such  distribution (the “Separation Agreement”).  The distribution of shares of common stock of the  Company to the stockholders of Exelon pursuant to the Separation Agreement shall be referred to  hereinafter as the “Spin-Off.”  1.2. References to the Qualified Plans.  References to the Qualified Plans, whenever  used herein, shall mean the Qualified Plans as in effect on the date a determination of benefits is  made under the Supplemental Plan.  ARTICLE II    Definitions  2.1. All capitalized terms used herein shall have the respective meanings assigned to  such terms under the Qualified Plans, except as otherwise set forth herein.  ARTICLE III    Eligibility and Participation  3.1. Qualified Plans Participants.    (A) All Constellation Employees, as defined in the Separation Agreement, who were  participants in the Exelon Corporation Supplemental Management Retirement Plan  (the “Exelon Supplemental Plan”) immediately prior to the Effective Date shall  





 






  2  automatically be Participants hereunder as of the Effective Date, and all elections  made by such Constellation Employees under the Exelon Supplemental Plan shall  automatically apply to this Supplemental Plan unless and until such elections are  modified after the Effective Date.    (B) Each Eligible Employee who is on the management payroll of an Employer and  who becomes entitled to a benefit under any of the Qualified Plans which is reduced  or limited by the application of Section 415 of the Code (the “415 Limitation”) shall  participate in the Supplemental Plan when such individual would be entitled to  receive benefits hereunder if such individual’s employment then terminated under  the Qualified Plans.  In addition, each Eligible Employee who is classified by an  Employer as an executive, key management employee or other employee selected  by the Plan Administrator (a “Key Management Employee”) and who becomes  entitled to a benefit under the Qualified Plan which is reduced or limited by the  Limitations shall participate in the Supplemental Plan when such individual would  be entitled to receive benefits hereunder if such individual’s employment then  terminated under the Qualified Plans.  3.2. Agreement Participants.  Each individual who, under the terms of a written  employment, change in control or separation plan or agreement (each such plan or agreement,  including any plan or agreement assumed by the Company in connection with the Spin-Off, an  “Agreement”), is entitled to retirement benefits or a grant of compensation or service credit  hereunder shall, subject to Section 4.4, participate in the Supplemental Plan when such individual  would be entitled to receive benefits hereunder (or would, after giving effect to the terms of the  applicable Agreement, be entitled to receive benefits) if such individual’s employment then  terminated under the Qualified Plans.  3.3. Other Participants.  Each individual entitled to a survivors’ benefit with respect to  a Participant described in Sections 3.1 or 3.2 shall participate in this Supplemental Plan when such  individual becomes entitled to receive benefits (or would, under the terms of the applicable  Agreement, become entitled to receive benefits) under the Qualified Plans.  3.4. Termination of Participation.  Each Participant shall remain a Participant until such  individual is no longer entitled to benefits hereunder.  3.5. Spin-Off.    (A) As of the Effective Date, the Company and the Supplemental Plan shall assume all  liabilities under the Exelon Supplemental Plan for any benefits under such plan of  all Constellation Employees, as defined in the Separation Agreement, who  participated in the Exelon Supplemental Plan immediately prior to the Spin-Off,  and such benefits shall be administered and paid under the terms of this  Supplemental Plan. All elections made by such Participants under the Exelon  Supplemental Plan prior to the Effective Date will continue to apply and shall be  administered under this Supplemental Plan.  





 






  3  (B) As of the Effective Date, the Supplemental Plan shall assume and honor the terms  of all domestic relations orders in effect under the Exelon Supplemental Plan in  respect of Participants who participated in the Exelon Supplemental Plan  immediately prior to the Spin-Off.  ARTICLE IV    Benefits  4.1. Restored Benefits.  If the retirement benefit payable under the Qualified Plans to a  Participant described in Section 3.1, other than a Participant who is a Key Management Employee,  is less than the retirement benefit that would be payable to such Participant under the Qualified  Plans but for the application of the 415 Limitation, then such Participant shall be entitled to an  annual benefit under the Supplemental Plan in an amount equal to the excess of (A) minus (B)  where:  (A) equals the amount of the annual unreduced benefit payable to such Participant  under the Qualified Plans if payments thereunder were calculated without regard to  the 415 Limitation, and  (B) equals the amount of annual unreduced benefit payable to such Participant under  the Qualified Plans.  The resulting excess is then adjusted in accordance with the procedures used under the applicable  Qualified Plan with respect to age and service at the benefit commencement date.  If a Participant who is a Key Management Employee begins receiving benefits under the Qualified  Plans on his or her Annuity Starting Date and, on that date, the retirement benefit payable under  the Qualified Plans to such Participant is less than the retirement benefit that would be payable to  such Participant under the Qualified Plan but for the application of the Limitations, then such  Participant shall be entitled to an annual benefit under the Supplemental Plan in an amount equal  to the excess of (A) minus (B) where:  (A) equals the amount of annual unreduced benefit payable to such Participant under  the Qualified Plans if payments thereunder were calculated without regard to the  Limitations, and  (B) equals the amount of the annual unreduced benefit payable to such Participant  under the Qualified Plans.  The resulting excess is then adjusted in accordance with the procedures used under the applicable  Qualified Plan with respect to age and service at the benefit commencement date.  4.2. Supplemental Benefits.  The benefits, if any, payable under Section 4.1 to a  Participant described in Section 3.2 shall be increased by an amount equal to the excess of (A)  minus (B) where:  





 






  4  (A) equals the amount of the annual unreduced benefit payable to such Participant  under the Qualified Plans if payments thereunder were calculated taking into  account the compensation deferred, benefits provided or the compensation and/or  years of service credited under the Agreement under which the Participant is  covered, and  (B) equals the amount of the annual unreduced benefit payable to such Participant  under the Qualified Plans.  The resulting excess is then adjusted in accordance with the procedures used under the applicable  Qualified Plan with respect to age and service at the benefit commencement date.  Any payments  made under this Section 4.2 shall be in satisfaction of the obligations of the Participant’s Employer  under the Agreement and under this Supplemental Plan.  4.3. Pre-Retirement Survivor’s Benefits.  Except as otherwise provided in an  Agreement, if a Participant dies prior to his or her Annuity Starting Date and the benefit payable  under the Qualified Plans to a Participant described in Section 3.3 is less than the survivors’ benefit  that would be payable under the Qualified Plans (I) but for, in the case of a Participant described  in Section 3.3 who is entitled to a survivor benefit with respect to a Participant who is not a Key  Management Employee, application of the 415 Limitation, and in the case of a Participant  described in Section 3.3 who is entitled to a survivor benefit with respect to a Participant who is a  Key Management Employee, application of any Limitations, and (II) treating any benefits, service  or compensation payable or credited under the terms of an Agreement as having accrued under the  Qualified Plans, then such Participant shall be entitled to receive a supplemental survivor benefit  under this Supplemental Plan in an amount equal to (A) minus (B) where:  (A) equals the survivors’ benefit that would be payable under the Qualified Plans if  such benefit were determined (I) without giving effect to, in the case of a Participant  described in Section 3.3 who is entitled to a survivor benefit with respect to a  Participant who is not a Key Management Employee, the 415 Limitation, and in  the case of a Participant described in Section 3.3 who is entitled to a survivor benefit  with respect to a Participant who is a Key Management Employee, any Limitations,  and (II) by treating any benefits, service or compensation payable or credited under  the terms of an Agreement as having accrued under the Qualified Plans; and  (B) equals the survivors’ benefit actually payable to the Participant under the Qualified  Plans.  Any payments made to a Participant under this Section 4.3 shall be in satisfaction of any  obligations of the Employer under an Agreement under which the Participant described in Section  3.3 is covered and under this Supplemental Plan.  4.4. Limitation on Benefits Payable under Agreements.  Notwithstanding any other  provision of this Supplemental Plan to the contrary, no Agreement entered into on or after  December 31, 2003 (including agreements entered into with Exelon prior to the Spin-Off) shall  credit to any individual service for periods while such individual is not employed by any Employer  





 






  5  or compensation not earned by such individual from an Employer, unless one of the following  applies:  (A) such service and/or compensation is credited to an individual to provide such  individual the excess of (i) the actuarial equivalent of the pension benefits the  individual would have received from the individual’s prior employer had the  individual remained employed by such prior employer, as determined by the Plan  Administrator, in consultation with independent actuaries engaged with respect to  the Qualified Plan and/or the Supplemental Plan, over (ii) the actuarial equivalent  of the pension benefits the individual will receive from such prior employer and the  Company without the application of this Section 4.4;  (B) such service is credited to an individual to permit such individual to commence  pension benefits at the time the individual would have commenced pension benefits  had the individual remained employed by the individual’s prior employer;  (C) the crediting of such service and/or compensation is based upon a specified  performance measure set forth in the Agreement; or  (D) such service is credited to the individual pursuant to a severance plan or  arrangement or pursuant to a change in control agreement, but only for the period  in respect of which the individual receives salary continuation, severance or change  in control payments, and such compensation does not exceed (i) the payments made  to the individual under such a plan, arrangement or agreement nor (ii) with respect  to any such plan, arrangement or agreement first entered into on or after January 1,  2004 (including agreements entered into with Exelon prior to the Spin-Off), two  years of service.  Nothing herein shall be interpreted to prohibit grants of service credits in excess of two years under  existing plans, arrangements or agreements, nor require reduction of such grants under  amendments or successors to such plans, arrangements or agreements.  4.5. Pre-Spin-Off Service Crediting.  Notwithstanding anything herein to the contrary,  a Participant’s service with Exelon and its subsidiaries prior to the Spin-Off shall be taken into  account for purposes of determining such Participant’s service under the Supplemental Plan.  ARTICLE V    Time and Manner of Payments  5.1. Time and Manner of Payment of Benefits Commencing Prior to January 1, 2009.   The distribution of any Supplemental Plan benefit that commenced under the Exelon Supplemental  Plan prior to January 1, 2009 shall continue to be paid in accordance with the terms of the Exelon  Supplemental Plan, as in effect as of the date such distribution commenced; provided, however,  that, in the case of benefits commencing on or after January 1, 2005, any such distribution shall be  subject to administrative procedures established by the Company or the Plan Administrator from  time to time for the purpose of complying with Section 409A of the Code.  





 






  6  5.2. Time and Manner of Payment of Grandfathered Benefits.  All Supplemental Plan  benefits to which a Participant is entitled that had accrued and were vested under the Exelon  Supplemental Plan as of December 31, 2004 (“Grandfathered Benefits”) shall be paid in  accordance with this Section 5.2, and such benefits are intended to be exempt from Section 409A  of the Code, and the Supplemental Plan shall be construed and administered in accordance with  such intent.  The portion of a Supplemental Plan benefit that is the Grandfathered Benefit shall be  determined in accordance with Treasury Regulation §1.409A-6(a)(3).  (a) Manner of Payment.  Except as otherwise provided in an Agreement or under  Section 5.2(c), Supplemental Plan benefits shall be paid in the same manner, including optional  forms of payment, and shall be subject to the same conditions (other than the application of the  415 Limitation or any Limitations, whichever is applicable) as are applicable to benefits payable  (or which would, after giving effect to the terms of the applicable Agreement, be payable) to the  Participant under the Qualified Plans.  (b) Time of Payment.  Benefits described in Section 4.1 or 4.2 of the Supplemental  Plan shall become payable at such time as the Participant becomes entitled to receive (or would  become entitled to receive, after giving effect to the terms of the applicable Agreement) benefits  under the Qualified Plans.  Except as otherwise provided in an Agreement, benefits described in  Section 4.3 of the Supplemental Plan shall become payable at the same time as benefits would  become payable (after giving effect to the terms of an Agreement, if applicable) to such Participant  under the Qualified Plans.  Plan benefits shall be paid at the same time as benefits are paid under  the Qualified Plans.  (c) Lump Sum Option.  Except as otherwise provided in an Agreement and  notwithstanding the provisions of Section 5.2(a) and (b), each Participant described in Section 3.1  or 3.2 shall be entitled to elect by written election to the Company, to receive his or her benefits  hereunder in a single lump sum payment.  Any such election shall be required to be made no later  than the last day of the calendar year preceding the year in which occurs the Participant’s  termination of employment.  An election under this Section 5.2(c) shall be revocable until the last  day prescribed for an election under the preceding sentence of this Section 5.2(c), and thereafter  shall be irrevocable.  Payment of benefits in a lump sum will be made within ninety days following  such termination of employment.  The amount of the lump sum payment shall be equal to the actuarial present value of the  Participant’s Grandfathered Benefit determined under Article III as of the date of the Participant’s  benefit commencement date (but taking into account any applicable additional service or  compensation granted pursuant to an Agreement), as determined by the independent actuaries then  engaged with respect to the Qualified Plans using the life expectancies and interest assumptions  then used under the Qualified Plans.  Payment pursuant to this Section 5.2(c) shall be in lieu of  any other Grandfathered Benefits payable hereunder and shall be in complete satisfaction of all of  the Employer’s and the Company’s liabilities to or on behalf of the Participant, including Section  4.3, notwithstanding any subsequent amendment of the Qualified Plans or of this Supplemental  Plan.  5.3. Time and Manner of Payment of Non-Grandfathered Benefits.  All Supplemental  Plan benefits other than those payable pursuant to Sections 5.1 and 5.2 shall be paid in accordance  





 






  7  with this Section 5.3, and such benefits (the “Non-Grandfathered Benefits”) are intended to comply  with Section 409A of the Code, and the Supplemental Plan shall be construed and administered in  accordance with such intent.  (a) Elections of Time and Form of Payment.  Subject to the delay in the receipt of  payments pursuant to Section 5.3(c) below, a Participant’s Non-Grandfathered Benefit shall  commence within ninety days after (i) the date of the Participant’s separation from service, within  the meaning of Section 409A of the Code, or (ii) the later to occur of (A) the date of the  Participant’s separation from service and (B) the date on which the Participant attains an age, not  earlier than age 50 and not later than age 65, as elected by the Participant in accordance with  procedures prescribed by the Plan Administrator (such commencement date, the “Non- Grandfathered Commencement Date”).  Each Participant shall elect his or her Non-Grandfathered  Commencement Date not later than 30 days after the first day of the calendar year immediately  following the first year in which the Participant accrues a Non-Grandfathered Benefit under the  Supplemental Plan; provided that, to the extent a Non-Grandfathered Benefit provided under  Section 4.2 hereof is not an “excess benefit plan,” within the meaning of Treasury Regulation  §1.409A-2(a)(7)(iii), the Participant shall elect his or her Non-Grandfathered Commencement  Date not later than 30 days after the date on which such Participant enters into the Agreement  pursuant to which the Participant becomes entitled to the Non-Grandfathered Benefit, or such  earlier date as of which the Participant is otherwise required to elect his or her Non-Grandfathered  Commencement Date pursuant to Section 5.3(a).  Non-Grandfathered Benefits shall be paid in the  form of a lump sum payment or as an annuity, as elected by the Participant at the time the  Participant elects his or her Non-Grandfathered Commencement Date.  A Participant may change  his or her Non-Grandfathered Commencement Date or the form of payment made pursuant to this  Section 5.3(a) by making a new election in accordance with procedures prescribed by the Plan  Administrator, but only if (A) such new election does not take effect until 12 months after the date  on which such new election is made, (B) the Non-Grandfathered Commencement Date elected  pursuant to such new election is at least five years after the Non-Grandfathered Commencement  Date previously elected by the Participant and (C) such new election is made at least 12 months  before the previously scheduled Non-Grandfathered Commencement Date.  A Participant who  elects to receive his or her Non-Grandfathered Benefit in the form of an annuity may elect the form  of such annuity prior to the Non-Grandfathered Commencement Date in accordance with  procedures prescribed by the Plan Administrator, provided that the form of annuity elected by the  Participant (1) is an annuity option that is available under the Qualified Plan at the time such  election is made and (2) is the actuarial equivalent (under section 409A of the Code) of the single  life annuity option available under the Qualified Plan.  (b) Actuarial Adjustment of Non-Grandfathered Benefits.  If a Participant elects to  receive his or her Non-Grandfathered Benefit in the form of a lump sum or an annuity other than  a single life annuity for the life of the Participant or if the Participant’s Supplemental Plan benefit  commences earlier or later than the Participant’s Normal Retirement Age, the Participant’s Non- Grandfathered Benefit shall be actuarially adjusted to reflect such other form of pension benefit or  pension starting date, or both, as the case may be, using the same actuarial factors (including any  applicable defined early retirement factors that would apply to a distribution prior to normal  retirement) that would be used to make comparable adjustments to the Participant’s pension benefit  under the Qualified Plans.  





 






  8  (c) Six-Month Delay for Specified Employees.  Pursuant to Section 409A of the Code,  if payment of the Non-Grandfathered Benefit would commence as of the Participant’s separation  from service pursuant to Section 5.3(a) and such Participant is a “specified employee,” within the  meaning of Section 409A of the Code, then no payments with respect to such benefit shall be made  prior to the month following the six-month anniversary of such separation from service, and (i)  during such month the Participant electing annuity payments shall receive an initial payment equal  to seven times the amount of the monthly payment determined in accordance with Sections 5.3(a)  and (b) above, and thereafter the Participant shall receive the regular monthly payments  determined pursuant to Sections 5.3(a) and (b) above, or (ii) the Participant electing a lump sum  distribution shall receive such distribution plus interest for such six-month period using the  discount rate for December of the year preceding the year that includes the distribution date.  If a  Participant dies following the Participant’s separation from service but prior to the commencement  of payments pursuant to this Section 5.3(c), the amount that would have been paid to the Participant  prior to the date of death, without regard to the six-month delay in payment pursuant to this Section  5.3(c), shall be paid to the Participant’s beneficiary within ninety (90) days after the date of the  Participant’s death.  (d) Survivors’ Benefits.  Any survivors’ benefit described in Section 4.3 that is payable  with respect to a Non-Grandfathered Benefit shall be payable to the Participant’s surviving spouse  in accordance with the form of payment election in effect with respect to the Participant and shall  commence within 90 days after the calendar quarter in which the Participant’s death occurs.  5.4. Withholding.  Notwithstanding any provision of this Supplemental Plan to the  contrary, amounts payable hereunder shall be reduced by the amounts required to be withheld by  the Company under federal or state law.  5.5. Facility of Payment.  Whenever and as often as any Participant entitled to payments  under the Supplemental Plan shall be incompetent or, in the opinion of the Plan Administrator  would fail to derive benefit from distribution of funds under the Supplemental Plan, the Plan  Administrator, in its sole and exclusive discretion, may direct that any or all payments hereunder  be made (a) directly to or for the benefit of such Participant, (b) to the Participant’s legal guardian  or conservator, or (c) to relatives of the Participant.  The decision of the Plan Administrator in such  matters shall be final, binding and conclusive upon each Employer and Participant and every other  person or party interested or concerned.  An Employer and the Plan Administrator shall not be  under any duty to see to the proper application of such payments made to a participant, conservator,  guardian or relatives of a Participant.  5.6. Gross-Up Payment for Certain State Income Taxes.  In the event it shall be  determined that any payment to a Participant or beneficiary pursuant to the terms of this  Supplemental Plan that would have been paid under a Qualified Plan but for the Limitations (a  “Payment”) is subject to state income tax, but that such Payment would not be subject to state  income tax if it were paid under such Qualified Plan, then such Participant or beneficiary shall be  entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after  payment of all related federal and state income taxes, the Participant or beneficiary retains an  amount of the Gross-Up Payment equal to the state income tax imposed upon the Payment.  All  determinations under this Section 5.6, including whether and when a Gross-Up Payment is  required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at  





 






  9  such determination, shall be made by the Plan Administrator in its sole discretion.  The Plan  Administrator may, but need not, employ a certified public accountant (which may be the  Company’s public accounting firm) to assist the Plan Administrator in any such determination.   Each Gross-Up Payment shall be paid within 30 days after the amount of the Gross-Up Payment  is determined, but in no event later than the last day of the calendar year following the calendar  year in which the related taxes are paid to the applicable governmental authority.  ARTICLE VI    Application of ERISA, Funding  6.1. Application of ERISA.  Benefits provided under the first sentence of Section 4.1  (and, to the extent they restore benefits reduced by application of the 415 Limitations, benefits  provided under Section 4.3) of the Supplemental Plan are intended to be an excess benefit plan  within the meaning of Section 3(36) of the Employee Retirement Income Security Act of 1974, as  amended (“ERISA”).  Benefits provided under the second sentence of Section 4.1 and under  Sections 4.2 (and, to the extent they provide benefits that supplement those payable to the  Participant under the Qualified Plans other than as described in the first sentence of Section 4.1,  benefits provided under Section 4.3) are intended to constitute an unfunded plan maintained  primarily for the purpose of providing deferred compensation to a select group of management or  highly compensated employees within the meaning of sections 201(2), 301(a)(3) and 401(a)(1) of  ERISA and Department of Labor Regulation § 2520.104-23.  6.2. Funding.  The Supplemental Plan shall not be a funded plan, and neither the  Company nor any of the Employers shall be under any obligation to set aside any funds for the  purpose of making payments under this Supplemental Plan.  Any payments hereunder shall be  made out of the general assets of the Company and the Employers.  6.3. Trust.  The Company, in its sole discretion, may establish, but is not required to  establish, a trust for the purpose of administering assets of the Company and the Employers to be  used for the purpose of satisfying their obligations under the Supplemental Plan.  Any such trust  shall be established in such manner so as to be a “grantor trust” of which the Company is the  grantor, within the meaning of section 671 et. seq. of the Code.  The existence of any such trust  shall not relieve the Company or any Employer of their liabilities under the Supplemental Plan,  but the obligation of the Company and the Employers under the Supplemental Plan shall be  deemed satisfied to the extent paid from the trust.  ARTICLE VII    Administration  7.1. Plan Administrator.  The Supplemental Plan shall be administered by the  Company’s Vice President, Benefits or such other person designated by the Company’s Chief  Human Resources Officer from time to time (the “Plan Administrator”).  The Plan Administrator  shall have such duties and powers as may be necessary to discharge its duties, including, but not  by way of limitation, sole discretion to construe and interpret the Supplemental Plan and determine  the amount and time of payment of benefits hereunder.  The Plan Administrator shall have no  





 






  10  power to add to, subtract from or modify any of the terms of the Supplemental Plan, or to change  or add to any benefit provided under the Supplemental Plan, or to waive or fail to apply any  requirements of eligibility for a benefit under the Supplemental Plan.  The Plan Administrator’s  decisions in any matter involving the Supplemental Plan shall be final, binding and conclusive.  7.2. Claims Procedure.  In accordance with the regulations of the U.S. Department of  Labor, the Plan Administrator shall (i) provide adequate notice in writing to any Participant or  beneficiary whose claim for benefits is denied, setting forth the specific reasons for such denial  and written in a manner calculated to be understood by such Participant or beneficiary and (ii)  afford a reasonable opportunity to any Participant or beneficiary whose claim for benefits has been  denied for a full and fair review by a designated officer of the Company of the decision denying  the claim.  7.3. Expenses.  All costs and expenses incurred in administering the Supplemental Plan,  including the expenses of the Plan Administrator, the fees of counsel and any agents of the Plan  Administrator and other administrative expenses shall be paid by the Company and the Employers.   The Plan Administrator, in its sole discretion, having regard to the nature of a particular expense,  shall determine the portion of such expense which is to be borne by the Company or a particular  Employer.  ARTICLE VIII    Amendment and Termination  8.1. Amendment and Termination.  The Company intends to maintain the Supplemental  Plan indefinitely.  However, the Supplemental Plan shall be subject to the same reserved powers  of amendment and termination as the Qualified Plans (without regard to any limitations imposed  on such powers by the Code or ERISA), except that no such amendment or termination shall reduce  or otherwise adversely affect the rights of Participants in respect of amounts accrued hereunder as  of the date of such amendment or termination without their written consent or shall change the  time or form of payment of benefits in a manner that would result in additional taxes, interest or  penalties under Section 409A of the Code.  The Plan Administrator shall have the discretion and  authority to amend the Supplemental Plan at any time to satisfy any requirements under Section  409A of the Code or guidance provided by the U.S. Treasury Department to the extent applicable  hereto.  ARTICLE IX    Miscellaneous  9.1. Nonassignment of Benefits.  Notwithstanding anything contained in the Qualified  Plans to the contrary, it shall be a condition of the payment of benefits under this Supplemental  Plan that neither such benefits nor any portion thereof shall be assigned, alienated or transferred  to any person voluntarily or by operation of any law, including any assignment, division or  awarding of property under state domestic relations law (including community property law).  If  any person shall endeavor or purport to make any such assignment, alienation or transfer, amounts  otherwise provided hereunder shall cease to be payable to any person.  





 






  11  9.2. No Guarantee of Employment.  Nothing contained in this Supplemental Plan shall  be construed as a contract of employment between any Employer and any employee or as  conferring a right on any employee to be continued in the employment of any Employer, or as a  limitation of the right of an Employer to discharge any of its Employees, with or without cause.  9.3. Adoption by Employers.  Any business entity which is or becomes an “Employer”  under the Qualified Plans may, with the consent of the Company, become an Employer under this  Supplemental Plan by delivery to the Company of a resolution of its board of directors or duly  authorized committee to such effect, which resolution shall specify the date for which this  Supplemental Plan shall be effective with respect to the employees of such business entity, or in  such other manner determined by the Plan Administrator.  9.4. Gender and Number.  Except when the context indicates to the contrary, when used  herein, masculine terms shall be deemed to include the feminine and singular the plural.  9.5. Headings.  The headings of Articles and Sections are included solely for  convenience of reference, and if there is any conflict between such headings and the text of the  Supplemental Plan, the text shall control.  9.6. Invalidity.  If any provision of this Supplemental Plan shall be held invalid or  unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof, and  the Supplemental Plan shall be enforced and construed as if such provisions, to the extent invalid  or unenforceable, had not been included.  9.7. Successors and Assigns.  The provisions of the Supplemental Plan shall bind and  inure to the benefit of the Company and each Employer and their successors and assigns, as well  as each Participant and his successors.  9.8. Law Governing.  Except as preempted by ERISA or other applicable federal law,  the provisions of the Supplemental Plan shall be construed in accordance with and governed by  the laws of the state of Illinois.  





 






    EXHIBIT A    QUALIFIED PLANS    [to come]  276677475v.4