exv10w16



 





Exhibit 10.16




FAMOUS DAVE’S OF AMERICA, INC. 

SECOND AMENDED AND RESTATED NON-QUALIFIED DEFERRED

COMPENSATION PLAN



THIS SECOND AMENDED AND RESTATED NON-QUALIFIED DEFERRED COMPENSATION PLAN (the “Plan”) is adopted
effective as of the 1st day of January, 2008, by Famous Dave’s of America, Inc., a Minnesota
corporation (the “Company”), as follows:




RECITALS



The Company established the Famous Dave’s of America, Inc. NON-QUALIFIED DEFERRED COMPENSATION PLAN
effective February 25, 2005 to provide additional retirement benefits and income tax deferral
opportunities for eligible employees; and



The Company amended and restated the Famous Dave’s of America, Inc. Non-qualified Deferred
Compensation Plan as the FIRST AMENDED AND RESTATED NON-QUALIFIED DEFERRED COMPENSATION PLAN in
order to comply with the Internal Revenue Code and the Regulations promulgated thereunder; and



The Company wishes to amend and restate the Famous Dave’s of America, Inc. FIRST AMENDED AND
RESTATED NON-QUALIFIED DEFERRED COMPENSATION PLAN as the SECOND AMENDED AND RESTATED NON-QUALIFIED
DEFERRED COMPENSATION PLAN in order to comply with the Applicable Tax Law (defined below); and



The Company intends that the Plan shall at all times be administered and interpreted in such a
manner as to constitute an unfunded nonqualified deferred compensation plan for a select group of
management or highly compensated employees and to qualify for all available exemptions from the
provisions of ERISA, where the benefits payable pursuant to this Plan are not subject to taxation
until they are paid to the Participant (defined below) or the Participant’s Beneficiary (defined
below).



NOW, THEREFORE, the Company hereby adopts the following Plan.




ARTICLE 1

DEFINITIONS



Certain words and phrases are defined when first used in later sections of this plan. Whenever any
words are used herein in the masculine, they shall be construed as though they were in the feminine
in all cases where they would so apply; and whenever any words are used herein in the singular or
in the plural, they shall be construed as though they were used in the plural or the singular, as
the case may be, in all cases where they would so apply. In addition, the following words and
phrases when used herein, unless the context clearly requires otherwise, shall have the following
respective meanings:



1.1 402(g) Amount. The maximum amount of deferrals permitted in a particular year under Code
Section 402(g) ($15,500 in 2007).




 









 







1.2 Accrued Benefit. The sum of all of a Participant’s Deferral Accounts.



1.3 Affiliate. Any corporation, partnership, joint venture, association, or similar organization
or entity, which is a member of a controlled group of companies which includes, or which is under
common control with, the Company under Section 414 of the Code.



1.4 Aggregated Arrangement. All agreements, methods, programs, or other arrangements of the
Employer Group with respect to which deferrals of compensation are treated as having been deferred
under a single deferred compensation plan that includes the Deferral Elections under this Plan
pursuant to §1.409A-1(c)(2) of the Applicable Tax Law.



1.5 Annual Deferral Election. A written notice other than an Initial Deferral Election filed by
the Participant with the Plan Administrator in accordance with Section 3.1.2 and in substantially
the form attached hereto as Exhibit 1.5, or such other form as is acceptable to the Plan
Administrator, specifying the amount (if any) of Compensation to be deferred, the Deferral Period
and the Payout Period of the Deferred Compensation which is deferred under the election. Such
Annual Deferral Election shall be effective for the Plan Years indicated on the Annual Deferral
Election.



1.6 Annual Deferral Election Deadline. Except with respect to an Participant making an Initial
Deferral, the Deferral Election Deadline is the earlier of (a) December 31 of the year prior to the
year in which the personal services giving rise to the Compensation to be deferred under the
Deferral Election or (b) the date set by the Plan Administrator as the last day that a Participant
can file a Deferral Election with respect to Compensation to be paid for personal services to be
rendered by the Participant in a calendar year after the calendar year in which the Deferral
Election is filed.



1.7 Applicable Tax Law. Section 409A of the Code, the regulations issued by the Department of the
Treasury pursuant thereto, and such other rulings and guidance issued by the IRS concerning Section
409A of the Code.



1.8 Beneficiary. The persons or entities determined in accordance with the following provisions.




     1.8.1 Beneficiary Designation. The Participant shall have the right, at any time, to
submit a Beneficiary Designation Form specifying one (1) or more persons or entities as the
Participant’s Beneficiary. If a Participant files a duly executed Beneficiary Designation Form
with the Plan Administrator, the Beneficiary shall be the one (1) or more persons or entities
designated on such Beneficiary Designation Form to receive the Participant’s Accrued Benefit. No
Beneficiary Designation Form shall be effective unless it is submitted to the Plan Administrator
prior to the Participant’s death and the Beneficiary Designation Form is approved by the Plan
Administrator. The Participant may change the persons or entities who are the Participant’s
Beneficiary named in any Beneficiary Designation Form at any time by filing a new duly executed
Beneficiary Designation Form with the Plan Administrator without the consent of any person or
entity then designated as a Beneficiary. Any attempt to designate a Beneficiary other than as
provided in this Section shall be ineffective.



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     1.8.2 Deceased Beneficiary. If a person designated as a Beneficiary on a Beneficiary
Designation Form predeceases the Participant, the interest in the Participant’s Accrued Benefit
that would have been payable to such deceased Beneficiary shall pass to those persons or entities
as specified on the Beneficiary Designation Form. If the Beneficiary Designation Form is either
ambiguous or fails to specify who is to receive the interest in the Participant’s Accrued Benefit
that would have been paid to the deceased Beneficiary, the interest of the deceased Beneficiary
shall be distributed to the deceased Beneficiary’s descendants by right of representation if the
deceased Beneficiary is a descendant or sibling of the Participant and, if not, the interest of the
deceased Beneficiary shall lapse and the interest of the deceased Beneficiary shall pass as if the
deceased Beneficiary had not been listed as a Beneficiary. For purposes of any Beneficiary
Designation Form, no person shall be deemed to have survived the Participant if that person dies
within thirty (30) days of the Participant’s death.



     1.8.3 Revocation of Spouse’s Interest. A Participant’s designation of the
Participant’s Spouse as a beneficiary shall be automatically revoked if the Participant or the
Spouse subsequently files for divorce or legal separation or if the Spouse dies prior to the
Participant. Without limiting the generality of the foregoing, the interest in the benefits
hereunder of a Spouse of a Participant who has predeceased the Participant or where either have
filed for divorce or a legal separation shall automatically pass to the Participant and shall not
be transferable by such Spouse in any manner, including, but not limited to, such Spouse’s will.



     1.8.4 No Surviving Beneficiaries. If all of the persons named on the Beneficiary
Designation Form are deceased and there are no entities listed which are still in existence on the
date of Payment of the Participant’s unpaid Accrued Benefit under the Plan, then the Beneficiary
shall be the Participant’s surviving Spouse, if any, provided neither the Participant nor the
Participant’s Spouse has filed for divorce or legal separation. If the Participant is not survived
by a Spouse or if the Participant or Participant’s Spouse has filed for divorce, the Participant’s
descendants by right of representation shall be the Beneficiary. If there are no surviving
descendants, the legal representative of the Participant’s estate shall be the Beneficiary.



     1.8.5 No Beneficiary Designation Form. If no duly executed Beneficiary Designation
Form has been received by the Company, the Beneficiary shall be the Participant’s surviving Spouse,
if any, provided neither the Participant nor the Participant’s Spouse has filed for divorce or
legal separation. If the Participant is not survived by a Spouse or if the Participant or
Participant’s Spouse has filed for divorce, the Participant’s descendants by right of
representation shall be the Beneficiary. If there are no surviving descendants, the legal
representative of the Participant’s estate shall be the Beneficiary.


1.9 Beneficiary Designation Form. The form attached hereto as Exhibit 1.9, or such other
substantially similar form as the Plan Administrator acknowledges in writing as an acceptable
substitute, which is duly executed by the Participant and received by the Company or the Plan
Administrator prior to the Participant’s death.



1.10 Board. The “Board” means the Board of Directors of the Company.



1.11 Change in Control Event. Except as otherwise provided under the Applicable Tax Law, a Change
in Control Event is the occurrence of any of the events described in Sections 1.11.1,




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1.11.2, or 1.11.3, provided that such event relates to (i) the corporation for whom the Participant
is performing services at the time of the Change in Control Event, (ii) the corporation that is
liable for the payment of the deferred compensation (or all corporations liable for the payment if
more than one corporation is liable) but only if either the deferred Compensation is attributable
to the performance of service by the Participant for such corporation (or corporations) or there is
a bona fide business purpose for such corporation or corporations to be liable for such payment
and, in either case, no significant purpose of making such corporation or corporations liable for
such payment is the avoidance of Federal income tax, or (iii) a corporation that is a majority
shareholder of a corporation identified in (i) or (ii), or any corporation in a chain of
corporations in which each corporation is a majority shareholder of another corporation in the
chain, ending in a corporation identified in (i) or (ii). For purposes of this Section 1.11, a
majority shareholder is a shareholder owning more than fifty percent (50%) of the total fair market
value and total voting power of such corporation.




     1.11.1 A Change In The Ownership Of A Corporation.




     1.11.1.1 A Change In The Ownership Of A Corporation occurs on the date that any one (1)
person, or more than one (1) person acting as a group (as defined in Section 1.11.1.2),
acquires ownership of stock of the corporation that, together with stock held by such person
or group, constitutes more than fifty percent (50%) of the total fair market value or total
voting power of the stock of such corporation. However, if any one (1) person or more than
one (1) person acting as a group, is considered to own more than fifty percent (50%) of the
total fair market value or total voting power of the stock of a corporation, the acquisition
of additional stock by the same person or persons is not considered to cause a change in the
ownership of the corporation (or to cause a change in the effective control of the
corporation (within the meaning of Section 1.11.2)). An increase in the percentage of stock
owned by any one (1) person, or Persons Acting As A Group, as a result of a transaction in
which the corporation acquires its stock in exchange for property will be treated as an
acquisition of stock for purposes of this section. This Section 1.11.1 applies only when
there is a transfer of stock of a corporation (or issuance of stock of a corporation) and
stock in such corporation remains outstanding after the transaction (see Section 1.11.3 for
rules regarding the transfer of assets of a corporation).




     1.11.1.2 For purposes of this Section 1.11.1, persons will not be considered to be
acting as a group solely because they purchase or own stock of the same corporation at the
same time, or as a result of the same public offering. However, persons will be considered
to be acting as a group if they are owners of a corporation that enters into a merger,
consolidation, purchase or acquisition of stock, or similar business transaction with the
corporation. If a person, including an entity, owns stock in both corporations that enter
into a merger, consolidation, purchase or acquisition of stock, or similar transaction, such
shareholder is considered to be acting as a group with other shareholders in a corporation
prior to the transaction giving rise to the change and not with respect to the ownership
interest in the other corporation.



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     1.11.2 A Change In Effective Control Of A Corporation.




     1.11.2.1 Definition. A Change In Effective Control Of A Corporation occurs
only on either of the following dates:




     (a) The date any one (1) person, or more than one (1) person acting as a group
(as determined under Section 1.11.2.4), acquires (or has acquired during the twelve
(12)-month period ending on the date of the most recent acquisition by such person
or persons) ownership of stock of the corporation possessing thirty-five percent
(35%) or more of the total voting power of the stock of such corporation; or




     (b) The date a majority of members of the corporation’s Board is replaced
during any twelve (12)-month period by directors whose appointment or election is
not endorsed by a majority of the members of the Company’s Board prior to the date
of the appointment or election, provided that for purposes of this Section the term
corporation refers solely to the relevant corporation identified in Section 1.11 for
which no other corporation is a majority shareholder for purposes of that Section.




     1.11.2.2 Multiple Change in Control Events. A Change In Effective Control also
may occur in any transaction in which either of the two (2) corporations involved in the
transaction has a Change in Control Event.




     1.11.2.3 Acquisition Of Additional Control. If any one (1) person, or more
than one (1) person acting as a group, is considered to effectively control a corporation,
the acquisition of additional control of the corporation by the same person or persons is
not considered to cause a change in the effective control of the corporation (or to cause a
change in the ownership of the corporation).




     1.11.2.4 Persons Acting As A Group. Persons will not be considered to be
acting as a group solely because they purchase or own stock of the same corporation at the
same time, or as a result of the same public offering. However, persons will be considered
to be acting as a group if they are owners of a corporation that enters into a merger,
consolidation, purchase or acquisition of stock, or similar business transaction with the
corporation. If a person, including an entity, owns stock in both corporations that enter
into a merger, consolidation, purchase or acquisition of stock, or similar transaction, such
shareholder is considered to be acting as a group with other shareholders in a corporation
only with respect to the ownership in that corporation prior to the transaction giving rise
to the change and not with respect to the ownership interest in the other corporation.



     1.11.3 A Change In The Ownership Of A Substantial Portion Of The Assets Of A
Corporation. A Change In The Ownership Of A Substantial Portion Of The Assets Of A Corporation
occurs on the date that any one (1) person, or more than one (1) person acting as a group (as
determined in Section 1.11.3.3), acquires (or has acquired during the twelve (12)-month period
ending on the date of the most recent acquisition by such person or persons) assets



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from the corporation that have a total gross fair market value equal to or more than forty
percent (40%) of the total gross fair market value of all of the assets of the corporation
immediately prior to such acquisition or acquisitions. For this purpose, gross fair market value
means the value of the assets of the corporation, or the value of the assets being disposed of,
determined without regard to any liabilities associated with such assets.




     1.11.3.1 Transfers to a Related Person. There is no Change in Control Event
when there is a transfer to an entity that is controlled by the shareholders of the
transferring corporation immediately after the transfer, as provided in this Section
1.11.3.1. A transfer of assets by a corporation is not treated as a change in the ownership
of such assets if the assets are transferred to




     (a) a shareholder of the corporation (immediately before the asset transfer) in
exchange for or with respect to its stock;




     (b) an entity, fifty percent (50%) or more of the total value or voting power
of which is owned, directly or indirectly, by the corporation;




     (c) a person, or more than one (1) person acting as a group, that owns,
directly or indirectly, fifty percent (50%) or more of the total value or voting
power of all the outstanding stock of the corporation; or




     (d) an entity, at least fifty percent (50%) of the total value or voting power
of which is owned, directly or indirectly, by a person described in paragraph (c)
above.




     1.11.3.2 Status. For purposes of Section 1.11.3.1 and except as otherwise
provided, a person’s status is determined immediately after the transfer of the assets.




     1.11.3.3 Persons Acting As A Group. Persons will not be considered to be
acting as a group solely because they purchase assets of the same corporation at the same
time. However, persons will be considered to be acting as a group if they are owners of a
corporation that enters into a merger, consolidation, purchase or acquisition of assets, or
similar business transaction with the corporation. If a person, including an entity
shareholder, owns stock in both corporations that enter into a merger, consolidation,
purchase or acquisition of assets, or similar transaction, such shareholder is considered to
be acting as a group with other shareholders in a corporation only to the extent of the
ownership in that corporation prior to the transaction giving rise to the change and not
with respect to the ownership interest in the other corporation.



     1.11.4 Stock Attribution Rules. Code §318(a) shall apply for purposes of determining
stock ownership. Stock underlying a vested option is considered owned by the individual who holds
the vested option (and the stock underlying an unvested option is not considered owned by the
individual who holds the unvested option). For purposes of the preceding sentence, however, if a
vested option is exercisable for stock that is not substantially vested (as defined by Code
Sections 1.83-3(b) and (j)), the stock underlying the option is not treated as owned by the
individual who holds the option. In addition, mutual and cooperative corporations are treated as
having stock for purposes of this section.



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1.12 Code. The Internal Revenue Code of 1986, as amended from time to time.



1.13 Commencement Date.




     1.13.1 If a Participant is not a Key Employee, the first day of the third month beginning
after the first to occur of any of the Permissible Payment Events.



     1.13.2 If a Participant is a Key Employee,




     1.13.2.1 Unless the first Permissible Payment Event is a Termination of Employment, the
first day of the third month beginning after the first of the Permissible Payment Events to
occur, other than a Termination of Employment;




     1.13.2.2 If the first Permissible Payment Event to occur is a Termination of
Employment, the earlier of (a) the date which is six (6) months and one (1) day after the
Participant’s Termination of Employment where the first Permissible Payment Event to occur
is a Termination of Employment, or (b) the first day of the third month beginning after the
date of the Participant’s death.


1.14 Compensation. The salary, bonuses, and commissions which would be payable by the Employer
Group to a Participant during a Plan Year but for any Deferral Election pursuant to this Plan
deferring the receipt of such salary, bonuses, and commissions.



1.15 Contingent Beneficiary. The Contingent Beneficiary, if any, designated on a Participant’s
Beneficiary Designation Form.



1.16 Declared Rate. The percentage rate established from time to time by the Company, which rate
may be determined by reference to a rate established by an unrelated third party.



1.17 Deferral Account. Book entries maintained by the Company reflecting the amount of the
Participant’s Accrued Benefit attributable to the Participant’s Deferred Contributions pursuant to
the Participant’s Deferral Elections, the Investment Adjustments with respect to the balance of the
Deferral Account, the Plan Expenses allocated thereto (if any), and the Discretionary Contributions
allocated thereto, if any, provided, however, that the existence of such book entries shall not
create, and shall not be deemed to create a trust of any kind or a fiduciary relationship between
the Company and the Participant and the Participant’s Beneficiaries. The Plan Administrator shall
maintain a separate Deferral Account for each Participant for each Plan Year in which the
Participant makes a Deferral Election or in which the Participant is allocated a Discretionary
Contribution. The Plan Administrator may maintain additional Deferral Accounts or sub-accounts as
it deems necessary to accurately track and reflect (a) the Investment Adjustments, and (b) any
conditions established by the Company with respect to any Discretionary Contributions, e.g.
vesting.



1.18 Deferral Account Balance. The amount of the Deferral Account as of a given Determination Date
as determined under Section 4.2.



1.19 Deferral Contribution. The amount of Compensation a Participant elects to defer under this
Plan for a specific Plan Year.




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1.20 Deferral Election. An Initial, Annual or Revised Deferral Election as applicable.



1.21 Deferral Election Form. The form specified by or otherwise acceptable to the Plan
Administrator for making a Deferral Election.



1.22 Deferral Period. The period elected by the Participant on the Participant’s Deferral Election
Form and approved by the Company during which the Participant is not entitled to receive the
Compensation the Participant has elected to defer for a Plan Year pursuant to a Deferral Election.
Each Deferral Period begins on the date specified by the Company prior to the beginning of the Plan
Year and shall end on the last day of the Deferral Period as specified by the Company prior to the
beginning of the Plan Year. Unless otherwise designated by the Company, if the Deferral Period is
specified in terms of Plan Year or calendar years, the Deferral Period for an Initial Deferral
Election begins on the first day of the first Plan Year beginning after the end of the Initial Plan
Year and shall end on the last day of the last Plan Year which is the same number of Plan Years
after the Initial Plan Year as the number of Plan Years of calendar years specified in the Deferral
Election. Unless otherwise designated by the Company, if the Deferral Period is specified in terms
of Plan Years or calendar years, the Deferral Period for an Annual Deferral Election shall begin on
the first day of the second Plan Year beginning after Plan Year in which the Annual Deferral
Election is made and shall end on the last day of the last Plan Year which is the same number of
Plan Years after the Plan Year in which the Deferral Election is made as the number of Plan Years
or calendar years specified in the Annual Deferral Election as the Deferral Period. For example:
if the Annual Deferral Election is made in the Plan Year ending December 31, 2004 and the Deferral
Period of four (4) calendar years is elected, the first year of the Deferral Period is Plan Year
ending December 31, 2006, and the last Plan Year of the Deferral Period is the Plan Year ending on
December 31, 2009, with the Deferral Account being paid beginning on the Commencement Date in 2010.



1.23 Deferred Compensation. The Compensation deferred pursuant to a Deferral Election.



1.24 Designated Employee. An Eligible Employee designated by the Board or its designee as eligible
to participate in the Plan and make Deferral Elections under this Plan. Once an Eligible Employee
becomes a Designated Employee, the Eligible Employee shall remain a Designated Employee until the
earlier of (a) the Designated Employee’s Separation From Service, (b) the date the Eligible
Employee ceases to be an Eligible Employee, or (c) the date the Board or its designee declares the
Designated Employee is no longer a Designated Employee.



1.25 Determination Date. The last day of the last month ending on or before the first to occur of
an applicable Permissible Payment Event.



1.26 Disability. A Participant has a Disability if any of the following apply:




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



     1.26.2 The Participant is, by reason of any medically determinable physical or mental
impairment that 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



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not less than three (3) months under an accident and health plan covering employees of the
Company.



     1.26.3 The Participant is determined to be totally disabled by the Social Security
Administration.


1.27 Discretionary Contributions. Contributions made to the Plan by the Company as it may
determine from time to time, and allocated pursuant to Section 3.2 at the Company’s discretion.



1.28 Effective Date. January 1, 2008.



1.29 Eligible Employee. Any employee of the Employer Group who is (a) a “director level” and above
employee (as defined by the Company from time to time), and (b) a member of a select group of
management or highly compensated employees, as defined by ERISA.



1.30 Employer Group. The Company and all other business entities or other persons with whom the
Company would be treated as a single employer as part of either (a) a controlled group of
corporations described in Code Section 414(b), or (b) a group of trades or businesses (whether or
not incorporated) that are under common control as described in Code Section 414(c), or some
combination of such groups; and such groups shall be determined in each case by applying an eighty
percent (80%) ownership test.



1.31 ERISA. The Employee Retirement Income Security Act of 1974, as amended from time to time.



1.32 Initial Deferral Election. A written notice filed by an Initial Designated Employee with the
Plan Administrator in accordance with Section 3.1.1 and in substantially the form attached hereto
as Exhibit 1.5, or such other form as is acceptable to the Plan Administrator, whereby the Initial
Designated Employee elects to defer the receipt of a specified amount or percentage of the Initial
Designated Employee’s Initial Year Compensation earned in the Initial Year of Participation after
the date the Participant files the Initial Deferral Election to be deferred, the Deferral Period
and the Payout Period of the Compensation which is deferred under the election. Such Deferral
Election shall be effective for the Plan Years indicated on the Deferral Election.



1.33 Initial Deferral Election Deadline. The Initial Deferral Election Deadline is the earlier of:
(a) the date which is thirty (30) days after the date an Initial Designated Employee first becomes
an Initial Designated Employee in the Plan, or (b) the date set by the Plan Administrator as the
last day that a Initial Designated Employee can file an Initial Deferral Election with respect to
Initial Designated Employee’s Initial Year Compensation.



1.34 Initial Designated Employee.




     1.34.1 A Designated Employee during the period beginning on the first day the Designated
Employee becomes a Designated Employee and ending on the last day of the Plan Year in which the
Designated Employee becomes a Designated Employee, who, except as otherwise provided in the
Applicable Tax Law, has not previously been eligible to participate in any deferred compensation
arrangement sponsored by any member of the Employer Group



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which is of the same type of deferred compensation arrangement as the Plan as determined under
the Applicable Tax Law.



     1.34.2 Such other Designated Employee during any Plan Year in which such Designated Employee
is entitled to make an “initial deferral election” as such term is used under the Applicable Tax
Law.


1.35 Initial Year Compensation. The Compensation to be earned by the Initial Designated Employee
during the period (i) beginning after the later of (a) date Initial Designated Employee files the
Initial Deferral Election or (b) such later date as specified by the Plan Administrator and (ii)
ending on the last day of the Initial Year of Participation.



1.36 Initial Year of Participation. The Plan Year in which the Participant is an Initial
Designated Employee in the Plan.



1.37 Investment Adjustments. The amount to be added to the Participant’s Accounts based upon the
Declared Rate established by the Company from time to time.



1.38 IRS. The Internal Revenue Service of the Department of the Treasury.



1.39 Key Employee.




     1.39.1 A Participant is a Key Employee if (a) the Company’s stock is publicly tradable on an
established stock exchange or otherwise, and (b) the Participant either (i) holds a position with
the Employer Group at the vice president level or above in accordance with the Company’s employment
policies established from time to time, or (ii) is a “key employee” as defined in Section 416(i) of
the Code (without regard to paragraph (5) thereof). Generally, the term “key employee” for
purposes of Section 416(i) of the Code means an employee who, at any time during the Plan Year, is
(i) an officer of the Company having an annual compensation greater than $130,000 (as adjusted
under the Code), (ii) a five percent (5%) owner of the Company, or (iii) a one percent (1%) owner
of the Company having an annual compensation from the employer of more than $150,000 (as adjusted
under the Code).



     1.39.2 The determination shall be based upon the twelve (12)-month period ending on December
31 of each Plan Year. Participants who meet the definition of key employee on such date shall be
considered key employees for the twelve (12)-month period commencing on the first day of the 4th
month following the end of the twelve (12)-month period.


1.40 Participant. An employee of the Employer Group who satisfies the conditions of Section 2.1.



1.41 Payment. In general, except as provided in Sections 1.41.1 and 1.41.2 of this section, the
term Payment refers to each separately identified amount to which a Participant is entitled to
payment under the Plan on a determinable date, and includes amounts applied for the benefit of the
Participant. An amount is separately identified only if the amount may be objectively determined.
For example, an amount identified as ten percent (10%) of the account balance as of a specified
Payment Date would be a separately identified amount. A payment includes the provision of any
taxable benefit, including payment in cash or in kind. In addition, a payment


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includes, but is not limited to, the transfer, cancellation or reduction of an amount of deferred
compensation in exchange for benefits under a welfare benefit plan, fringe benefit excludible under
Code §§119 or 132, or any other benefit that is excluded from gross income.




     1.41.1 Life annuities. The entitlement to a life annuity is treated as the
entitlement to a single payment. For purposes of this paragraph, the term life annuity means a
series of substantially equal periodic payments, payable not less frequently than annually, for the
life (or life expectancy) of the Participant or the joint lives (or life expectancies) of the
Participant and the Participant’s designated beneficiary. A change in the form of a payment from
one type of life annuity to another type of life annuity before any annuity payment has been made
is not considered a change in the time and form of a payment, provided that the annuities are
actuarially equivalent applying reasonable actuarial assumptions.



     1.41.2 Installment payments. The entitlement to a series of installment payments that
is not a life annuity is treated as the entitlement to a series of separate payments, unless the
arrangement provides at all times with respect to the amount deferred that the right to the series
of installment payments is to be treated as a right to a single payment. For purposes of this
paragraph 1.41.2, a series of installment payments refers to an entitlement to the payment of a
series of substantially equal periodic amounts to be paid over a predetermined period of years,
except to the extent any increase in the amount reflects reasonable earnings through the date the
amount is paid.


1.42 Payment Date. Any date upon which a Payment is due under the terms of this Plan.



1.43 Payout Period. The period of time chosen by the Participant on the Participant’s Deferral
Election or such other period over which the Participant’s Accrued Benefit will be paid in
accordance with the provisions of the Plan and the Applicable Tax Law.



1.44 Permissible Payment Event. Any of the following events:




     1.44.1 the Participant’s Separation from Service;



     1.44.2 the Participant’s Disability;



     1.44.3 the occurrence of a Change in Control Event; or



     1.44.4 the expiration of the Deferral Period selected by the Participant on a Deferral
Election Form with respect to a Deferral Account established for a Plan Year.


1.45 Plan. The Famous Dave’s of America, Inc. SECOND AMENDED AND RESTATED NON-QUALIFIED DEFERRED
COMPENSATION PLAN, as herein stated, together with any and all amendments or supplements thereto.



1.46 Plan Administrator. The Board of Directors of the Company or their designee. A Participant
in the Plan shall not serve alone as Plan Administrator. If a Participant is part of a group or
committee designated as Plan Administrator, then the Participant may not participate in any
activity or decision relating solely to the Participant’s individual benefits under the Plan.




11









 







Matters solely affecting the applicable Participant will be resolved by the remaining committee
members or by the Board of Directors.



1.47 Plan Expenses. Any expense incurred in connection with the formation and/or operation of the
Plan.



1.48 Plan Year. The calendar year.



1.49 Revised Deferral Election. A written notice filed by the Participant with the Plan
Administrator and in substantially the form attached hereto as Exhibit 1.49, or such other form as
is acceptable to the Plan Administrator, specifying a change to the Initial Deferral Election or an
Annual Deferral Election with respect to the Deferral Period or the Payout Period of the
Compensation which was deferred under the Initial Deferral Election or an Annual Deferral Election
as applicable. Such Revised Deferral Election shall be effective only as and to the extent
permitted under the Applicable Tax Law.



1.50 Spouse. An individual who is married, for Federal income tax law purposes, to another
individual of the opposite sex. The Plan Administrator may, from time to time, require documentary
evidence that any individual covered as the Spouse of a Participant under the Plan satisfies this
definition.



1.51 Separation from Service. Any of the following:




     1.51.1 The Participant’s death; or



     1.51.2 The Participant’s Termination of Employment.


1.52 Termination of Employment.




     1.52.1 The date the Participant completely ceases to provide any services to the Employer
Group (both as an employee or as an independent contractor and whether such cessation is voluntary
or involuntary, other than by reason of death) under circumstances where the Employer Group and the
Participant reasonably anticipate that no further services would be performed by the Participant
for any member of the Employer Group after such date.



     1.52.2 The date of the reduction of the average level of bona fide services performed by the
Participant for the Employer Group (whether as an employee or an independent contractor and whether
such reduction is voluntary or involuntary), to no more than twenty percent (20%) of the level
during the immediately preceding thirty-six (36) month period (or the full period of services to
the Employer Group if the Participant has been providing services to the Employer Group for less
than thirty-six (36) months) under circumstances in which the Participant and the Employer Group
reasonably anticipated that the average level of bona fide services to be performed after a
specified date would be no more than twenty percent (20%) of the level during the immediately
preceding thirty-six (36) month period (or the full period of services to the Employer Group if the
Participant has been providing services to the Employer Group for less than thirty-six (36)
months).



12









 





     1.52.3 A cessation or reduction in services shall not include any reduction due to an approved
leave of absence, military leave, sick leave, or other bona fide leave of absence (such as
temporary employment by the government) if the period of such leave does not exceed six (6) months,
or if longer, so long as the Participant’s right to reemployment with the Company is provided
either by statute or by contract. If the period of leave exceeds six (6) months and the
Participant’s right to reemployment is not provided either by statute or by contract, the
Termination of Employment will be deemed to have occurred on the first date immediately following
such six (6)-month period.



     1.52.4 For periods during which the Participant is on a paid bona fide leave of absence and
has not otherwise terminated employment whether voluntarily or involuntarily, the Participant shall
be treated as providing bona fide services at a level equal to the level of services that the
Participant would have been required to perform to receive the compensation paid with respect to
such leave of absence. Periods during which a Participant is on an unpaid bona fide leave of
absence and has not otherwise terminated the employment relationship are disregarded for purposes
of this section (including for purposes of determining the applicable thirty-six (36)-month (or
shorter) period).



1.53 Unforeseeable Emergency.




     1.53.1 A severe financial hardship to the Participant resulting from an illness or accident of
the Participant, the Participant’s spouse, the Participant’s beneficiary, or the Participant’s
dependent (as defined in Code §152, without regard to §§152(b)(1), (b)(2), and (d)(1)(B)); loss of
the Participant’s property due to casualty (including the need to rebuild a home following damage
to a home not otherwise covered by insurance; for example, not as a result of a natural disaster);
other similar extraordinary and unforeseeable circumstances arising as a result of events beyond
the control of the Participant, and such other circumstances as permitted under the Applicable Tax
Law.



     1.53.2 Whether a Participant is faced with an Unforeseeable Emergency permitting a
distribution under this Plan is to be determined based on the relevant facts and circumstances of
each case, but, in any case, a distribution on account of Unforeseeable Emergency may not be made
to the extent that such emergency is or may be relieved through reimbursement or compensation from
insurance or otherwise, by liquidation of the Participant’s assets, to the extent the liquidation
of such assets would not cause severe financial hardship, or by cessation of deferrals under the
plan. An Unforeseeable Emergency may include: the imminent foreclosure of or eviction from the
Participant’s primary residence; the need to pay for medical expenses, including non-refundable
deductibles, as well as for the costs of prescription drug medication; the need to pay for the
funeral expenses of a spouse, a beneficiary, or a dependent (as defined in Code Section 152,
without regard to Code Sections 152(b)(1), (b)(2), and (d)(1)(B)). The purchase of a home and the
payment of college tuition are not Unforeseeable Emergencies.


1.54 Valuation Date. The last day of each quarter of the calendar year, each Determination Date,
and such other dates as may be specified by the Plan Administrator from time to time.




13









 








ARTICLE 2

ELIGIBILITY AND PARTICIPATION



2.1 Eligibility; Participation. A Designated Employee shall become a Participant in the Plan
immediately upon becoming a Designated Employee unless a different date is specified by the
Company. Once a Designated Employee becomes a Participant, the Eligible Employee shall remain a
Participant until the later of (a) the date the Eligible Employee ceases to be a Designated
Employee or (b) the payment of all of the Participant’s Accrued Benefits.




ARTICLE 3

DEFERRALS AND CONTRIBUTIONS



3.1 Deferral Elections.




     3.1.1 Initial Deferral Election.




     3.1.1.1 An Initial Designated Employee may make an Initial Deferral Election by filing
a Deferral Election Form with the Plan Administrator on or before the Initial Deferral
Election Deadline.




     3.1.1.2 An Initial Deferral Election shall apply only to Initial Year Compensation. If
Initial Designated Employee fails to file an Initial Deferral Election by the Initial
Deferral Election Deadline, no part of the Initial Designated Employee’s Initial Year
Compensation may be deferred.




     3.1.1.3 No Initial Deferral Election shall be effective until accepted by the Plan
Administrator. The Plan Administrator may, before the Initial Deferral Election Deadline,
limit the amount of an Initial Designated Employee’s Initial Year Compensation that the
Initial Designated Employee can defer during a Plan Year pursuant to any Initial Deferral
Election.



     3.1.2 Annual Deferral Elections. A Participant who is a Designated Employee may make
an Annual Deferral Election by filing a Deferral Election Form with the Plan Administrator on or
before the Annual Deferral Election Deadline. Each such Annual Deferral Election shall apply only
to Compensation earned with respect to services rendered during a Plan Year beginning after the
date the Annual Deferral Election is filed with the Plan Administrator. No Annual Deferral
Election shall be effective until accepted in writing by the Plan Administrator. The Plan
Administrator may, before the beginning of a Plan Year, limit the amount of the Participant’s
Compensation that the Participant can defer during a Plan Year pursuant to any Annual Deferral
Election.



     3.1.3 Payroll Adjustment. Upon receipt of a Deferral Election, the Plan Administrator
shall notify the Company to adjust the Participant’s Compensation otherwise payable to the
Participant as necessary to take into account the amount of the Participant’s Compensation that the
Participant has elected to defer pursuant to a Deferral Election. On the Deferral Election Form,
the Participant shall specify the amount of the Participant’s Compensation to be deferred, which
specification may be separate and distinct for the individual components of



14









 







Compensation, and may be expressed as percentages or fixed dollar amounts as and to the extent
approved by the Plan Administrator.



     3.1.4 Revocation or Change of Deferral Election.




     3.1.4.1 Except as otherwise permitted under the Applicable Tax Law and by the Plan
Administrator, this Section 3.1.4 and Section 3.1.5, each Deferral Election shall be
irrevocable.




     3.1.4.2 No revocation or change of any Deferral Election shall be effective unless and
until it complies with the Applicable Tax Law and unless and until it is accepted by the
Plan Administrator in writing.




     3.1.4.3 Notwithstanding the foregoing, a Deferral Election, which is filed with the
Plan Administrator prior to the Initial Deferral Election Deadline or the Annual Deferral
Election Deadline, as applicable, may be revoked or changed at anytime prior to the Initial
Deferral Election Deadline or the Annual Deferral Election Deadline, as applicable.




     3.1.4.4 A Participant who has incurred an Unforeseeable Emergency as determined by the
Plan Administrator may revoke the Participant’s Deferral Election as applicable with the
consent of the Plan Administrator as and to the extent permitted under the Applicable Tax
Law.



     3.1.5 Revised Deferral Elections — Changes to the Deferral Period, Payout Period, or Time
and Form of Payment.




     3.1.5.1 Reduction of Deferral Period/Acceleration of Time of Payment. Except
as provided below or as otherwise permitted herein, under the Applicable Tax Law, and by the
Plan Administrator, neither the Deferral Period nor the Payout Period may be reduced nor may
the time of any Payment be otherwise accelerated.




     3.1.5.2 Extensions/Delays. With the consent of the Plan Administrator and to
the extent permitted under the Applicable Tax Law, the Deferral Period may be extended, the
Payout Period increased, and the time for any Payment delayed at the written election of the
Participant by submitting a Revised Deferral Election to the Plan Administrator, provided
that




     3.1.5.2.1 any Revised Deferral Election may not be made with respect to any
Payment which would be paid on a date which is less than twelve (12) months after
the date the Revised Deferral Election is filed with the Plan Administrator without
regard to the Revised Deferral Election (or, in the case of a life annuity or
installment payments treated as a single Payment, less than twelve (12) months after
the date the Revised Deferral Election is filed with the Plan Administrator without
regard to the Revised Deferral Election);




     3.1.5.2.2 the Payment which is to be deferred pursuant to such Revised Deferral
Election is deferred for a period of not less than five (5) years



15









 







from the date such Payment would otherwise have been paid but for the Revised
Deferral Election (or, in the case of a life annuity or installment payments treated
as a single Payment, five (5) years from the date the first amount was scheduled to
be paid); and




     3.1.5.2.3 such extension of the Deferral Period or the Payout Period or delay
in the time of any Payment is in accordance with the Applicable Tax Law.




     3.1.5.3 Separate Payments. To the extent provided under the Applicable Tax
Law, each payment to be made to the Participant shall be treated as a “Separate Payment.”
Consistent with the Applicable Tax Law and with the consent of the Plan Administrator, the
Participant may extend the Deferral Period or the date of Payment separately with respect
each Separate Payment.




     3.1.5.4 Conflict of Interest Payments. Notwithstanding the foregoing, the time
or schedule of a Payment under the Plan may be modified as may be necessary to comply with a
certificate of divestiture (as defined in Code § 1043(b)(2)) as and to the extent permitted
under the Applicable Tax Law.


3.2 Discretionary Contributions.




     3.2.1 The Company may allocate Discretionary Contributions to the Plan and may direct that
such contributions be allocated among the Deferral Accounts of those Participants that it may
select in the manner specified by the Company. In the event of Disability or death, a Participant
shall be entitled to the Participant’s share of the Discretionary Contributions (if any) for the
Plan Year in which the Participant incurs a Disability or dies.



     3.2.2 A Participant’s share of the Discretionary Contributions for a Plan Year shall be
deferred for the Deferral Period applicable to Deferral Elections made by the Participant for the
Plan Year.



     3.2.3 A Participant’s share of Discretionary Contributions shall be added to the Participant’s
Deferral Account for the Plan Year for which the Discretionary Contribution is made.



     3.2.4 No Participant shall have a right to compel the Company to make a contribution under
this Section 3.2 and no Participant shall have the right to share in the allocation of any such
contribution for any Plan Year unless selected by the Company, in its sole discretion.



ARTICLE 4

DEFERRAL ACCOUNTS AND ALLOCATIONS TO DEFERRAL ACCOUNTS



4.1 Deferral Accounts. The Plan Administrator shall establish a separate Deferral Account for each
Participant for each Plan Year for which the Participant makes a timely Deferral Election or
receives a Discretionary Contribution from the Company.




16









 







4.2 Allocations and Adjustments to Deferral Accounts.




     4.2.1 The Deferral Account of each Participant shall be increased by the amount of
Compensation that the Participant would have received but for the Deferral Election, which amount
shall be added to the Deferral Account on the date and in the amount that the Compensation which is
deferred would otherwise have been paid to the Participant but for the Deferral Election or such
other date as established by the Plan Administrator in compliance with the Applicable Tax Law.



     4.2.2 Company Discretionary Contributions (if any) shall be added to the Participant’s
Deferral Account at such time as directed by the Plan Administrator.



     4.2.3 Each Deferral Account shall be reduced by the amount of all Payments from such Deferral
Account made to the Participant. All amounts paid from a Deferral Account are assumed to be paid
on the first day of the month or such other time as specified by the Plan Administrator.



     4.2.4 The Participant’s Deferral Account shall be increased by the Investment Adjustments at
such times as may be specified by the Company, but not less often than quarterly.



     4.2.5 The Company may, at any time, change the timing or methods for adding Investment
Adjustments, Deferral Contributions and Discretionary Contributions to the Deferral Accounts, and
reduce such Deferral Accounts by payments of benefits and Withdrawals for Unforeseen Emergencies
under this Plan; provided, however, that the times and methods for increasing or decreasing the
Deferral Accounts for such items in effect at any particular time shall be uniform among all
similarly situated Participants and Beneficiaries as determined by the Company in its sole
discretion. and provided further than any such change shall be permitted under the Applicable Tax
Law.


4.3 Determination of Accounts. A Participant’s Accrued Benefit as of each Valuation Date shall
consist of the balance of the Participant’s Deferral Accounts, adjusted as provided in Section 4.2
through such date.



4.4 Statement of Accounts. The Company shall provide to each Participant, within one hundred
twenty (120) days after the close of each Plan Year, a statement in such form as the Company
selects setting forth the amount of each of the Participant’s Deferral Accounts as of the last day
of the Plan Year just ended.



4.5 Accounting Device Only. A Participant’s Deferral Accounts shall be utilized solely as a device
for the measurement and determination of the amounts to be paid to the Participant under this Plan.
A Participant’s Deferral Account shall not constitute or be treated as a trust fund of any kind or
give any Participant any right to any of the assets of the Company other than as a general creditor
of the Company.




17









 








ARTICLE 5

PAYMENT OF BENEFITS



5.1 Payment Events. Except as otherwise provided below in this ARTICLE 5, the Deferral Account
Balance of a Participant’s Deferral Account shall be payable after the occurrence of a Permissible
Payment Event at the time and in the manner specified below.



5.2 Commencement of Payment. Except as otherwise provided in this ARTICLE 5 and Sections 7.2 and
8.2, beginning on the Commencement Date of any Deferral Account, the Company shall pay to the
Participant the value of the Participant’s Deferral Account (determined as of the applicable
Determination Date as provided herein).



5.3 Form of Payment.




     5.3.1 General. Except as otherwise provided in this ARTICLE 5, the value of such
Deferral Account shall be paid in the manner and over the Payout Period specified in the
Participant’s applicable Deferral Election. Any Deferral Election which provides for the payment
of the Deferral Account over a Payout Period shall be paid in substantially equal monthly,
quarterly or annual payments over the Payout Period as elected by the Participant in the
Participant’s Deferral Election. If the Deferral Election does not specify the frequency of the
Payments, such Payments shall be monthly.



     5.3.2 Change in Control. Notwithstanding the foregoing, upon the occurrence of a
Change in Control Event, the Participant’s Accrued Benefit shall be paid to the Participant in a
lump sum notwithstanding any Deferral Election to the contrary.



     5.3.3 Death of Participant.




     5.3.3.1 In the event of the Participant’s death, the Company shall pay the
Participant’s entire unpaid Accrued Benefit to the Participant’s Beneficiary in a single
lump sum Payment notwithstanding any Deferral Period or Payout Period specified in a
Deferral Election.




     5.3.3.2 If the Beneficiary consists of more than one (1) person or entity, then the
Payment shall be divided among such person or entities designated as the Beneficiary on the
Beneficiary Designation Form as and to the extent provided in the Beneficiary Designation
Form. In the event of any ambiguity in the Beneficiary Designation Form, the Plan
Administrator’s interpretation of the Beneficiary Designation Form shall be final and
conclusive as to the persons or entities who are entitled to received the Participant’s
unpaid Accrued Benefit under the Plan and the amount which each such person or entity is
entitled to receive.




     5.3.3.3 If any Payment shall be payable to any trust, the Company shall not be liable
to see to the application by the trustee of any Payment hereunder at any time, and may rely
upon the sole signature of the Trustee to any receipt, release or waiver, or to any transfer
or other instrument to whomsoever made purporting to affect this nomination or any right
hereunder.



18









 




5.4 Permitted Delay of Payments. Except as otherwise provided in this Section 5.4, and except as
otherwise permitted pursuant to a timely Revised Deferral Election, the Payment Date may not be
delayed. A Payment may be delayed to a date after the Commencement Date or other applicable
Payment Date under any of the circumstances described in this Section 5.4, provided the Company
treats all Payments to similarly situated Participants on a reasonably consistent basis.




     5.4.1 Payments Subject To Section 162(m). A Payment may be delayed to the extent that
the Participant reasonably anticipates that if the Payment were made as scheduled, the
Participant’s deduction with respect to such Payment would not be permitted due to the application
of Code Section 162(m), provided that the Payment is made either during the Participant’s first
taxable year in which the Participant reasonably anticipates, or should reasonably anticipate, that
if the Payment is made during such year, the deduction of such Payment will not be barred by
application of Code Section 162(m) or during the period beginning with the date of the
Participant’s Separation From Service and ending on the later of (a) the last day of the taxable
year of the Participant in which the Participant has a Separation From Service or (b) the 15th day
of the third month following the Participant’s Separation From Service, and provided further that
where any scheduled Payment to a specific Participant in a Participant’s taxable year is delayed in
accordance with this Section, the delay in Payment will be treated as a Revised Deferral Election
unless all scheduled Payments to that Participant that could be delayed in accordance with this
Section are also delayed.



     5.4.2 Payments That Would Violate Federal Securities Laws Or Other Applicable Law. A
Payment may be delayed where the Participant reasonably anticipates that the making of the Payment
will violate Federal securities laws or other applicable law; provided that the Payment is made at
the earliest date at which the Participant reasonably anticipates that the making of the Payment
will not cause such violation. The making of a Payment that would cause inclusion in gross income
or the application of any penalty provision or other provision of the Code is not treated as a
violation of applicable law.



     5.4.3 USERRA Rights. Any change in the time or form of a Payment necessary to satisfy
the requirements of the Uniformed Services Employment and Reemployment Rights Act of 1994, as
amended, 38 U.S.C. 4301-4344.


5.5 Payments Deemed Made on Specified Date.




     5.5.1 A Payment is treated as made upon the Payment Date specified under the Plan if (a) the
Payment is made at such date or a later date within the same taxable year of the Participant or, if
later, by the 15th day of the third calendar month following the date specified under the Plan and
(b) the Participant is not permitted, directly or indirectly, to designate the taxable year of the
Payment.



     5.5.2 In addition, a Payment is treated as made upon the date specified under the Plan and is
not treated as an accelerated Payment if (a) the Payment is made no earlier than thirty (30) days
before the date specified in the Plan and (b) the Participant is not permitted, directly or
indirectly to designate the taxable year of the Payment.



19









 





     5.5.3 For purposes of this paragraph, if the date specified is only a designated taxable year
of the Participant, or a period of time during such a taxable year, the date specified under the
Plan for a Payment is treated as the first day of such taxable year or the first day of the period
of time during such taxable year, as applicable.


5.6 Permitted Acceleration of Payments. Except as otherwise provided in this Section, and
Applicable Tax Law, a Payment Date may not be accelerated.




     5.6.1 Cash-out of De Minimus Accrued Benefit. Notwithstanding the foregoing, if the
Participant’s entire Accrued Benefit under the Plan and all Aggregated Arrangements is less than
the 402(g) Amount, or such lesser amount specified by the Company, then, notwithstanding the Payout
Periods elected by the Participant or the other terms of this Plan, the Company may, in its sole
discretion, pay to the Participant the Participant’s entire Accrued Benefit in a lump sum provided
that the Participant receives the Participant’s entire Accrued Benefit under the Aggregated
Arrangements.



     5.6.2 Domestic Relations Order. Notwithstanding the foregoing provisions of this Plan
or the Participant’s Deferral Election, the Plan Administrator may accelerate the time or schedule
of a Payment under this Plan to an individual other than the Participant, or a Payment may be made
to an individual other than the Participant, to the extent necessary to fulfill a domestic
relations order (as defined in section 414(p)(1)(B) of the Code).



     5.6.3 Conflicts Of Interest.




     5.6.3.1 Compliance With Ethics Agreements With The Federal Government. The
Plan Administrator may accelerate the time or schedule of a Payment under this Plan, or a
Payment may be made under this Plan, to the extent necessary for any Federal officer or
employee in the executive branch to comply with an ethics agreement with the Federal
government.




     5.6.3.2 Compliance With Ethics Laws Or Conflicts Of Interest Laws. The Plan
Administrator may accelerate the time or schedule of a Payment under this Plan, or a Payment
may be made under this Plan, to the extent reasonably necessary to avoid the violation of an
applicable Federal, state, local, or foreign ethics law or conflicts of interest law
(including where such Payment is reasonably necessary to permit the Participant to
participate in activities in the normal course of his or her position in which the
Participant would otherwise not be able to participate under an applicable rule). A Payment
is reasonably necessary to avoid the violation of a Federal, state, local, or foreign ethics
law or conflicts of interest law if the Payment is a necessary part of a course of action
that results in compliance with a Federal, state, local, or foreign ethics law or conflicts
of interest law that would be violated absent such course of action, regardless of whether
other actions would also result in compliance with the Federal, state, local, or foreign
ethics law or conflicts of interest law. For this purpose, a provision of foreign law is
considered applicable only to foreign earned income (as defined under section 911(b)(1) of
the Code without regard to section 911(b)(1)(B)(iv) of the Code and without regard to the
requirement that the income be attributable to services performed



20









 







during the period described in section 911(d)(1)(A) or (B) of the Code) from sources
within the foreign country that promulgated such law.



     5.6.4 Payment Of Employment Taxes.




     5.6.4.1 The Plan Administrator may accelerate the time or schedule of a Payment, or a
Payment may be made under this Plan, to pay the Federal Insurance Contributions Act (FICA)
tax imposed under section 3101, section 3121(a), and section 3121(v)(2) of the Code, or the
Railroad Retirement Act tax imposed under section 3201, section 3211, section 3231(e)(1),
and section 3231(e)(8) of the Code, where applicable, on Compensation deferred under the
Plan (the FICA or RRTA Amount).




     5.6.4.2 The Plan Administrator may also accelerate the time or schedule of a Payment,
or a Payment may be made under this Plan, to pay the income tax at source on wages imposed
under section 3401 of the Code or the corresponding withholding provisions of applicable
state, local, or foreign tax laws as a result of the Payment of the FICA or RRTA Amount, and
to pay the additional income tax at the source on wages attributable to the pyramiding
section 3401 of the Code wages and taxes.




     5.6.4.3 Notwithstanding the foregoing, the total Payment under this Section 5.6.4
provision must not exceed the aggregate of the FICA or RRTA Amount, and the income tax
withholding related to such FICA or RRTA Amount.



     5.6.5 Payment Upon Income Inclusion Under Section 409A. The Plan Administrator may
accelerate the time or schedule of a Payment, or a Payment under this Plan may be made, at any time
the Plan fails to meet the requirements of the Applicable Tax Law. Such Payment may not exceed the
amount required to be included in income as a result of the failure to comply with the requirements
of the Applicable Tax Law.



     5.6.6 Withdrawals for Unforeseeable Emergencies.




     5.6.6.1 Amount of Withdrawal. In the event that the Plan Administrator, upon
written request of a Participant, determines, in its sole discretion in compliance with the
Applicable Tax Law, that the Participant has suffered an Unforeseeable Emergency, the Plan
Administrator shall pay to the Participant from the Participant’s Deferral Accounts as soon
as practicable following such determination, an amount equal to the lesser of (a) the amount
requested by the Participant, (b) the balance of such Participant’s Deferral Accounts as of
the Determination Date immediately preceding such Payment, or (c) the amount, as determined
under the Applicable Tax Law necessary to satisfy such Unforeseeable Emergency, plus amounts
necessary to pay any Federal, state, or local income taxes or penalties reasonably
anticipated to result from the distribution, determined after taking into account the extent
to which such Unforeseeable Emergency 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) or a
reduction in the Participant’s Deferral Election, if any, then in effect for the Plan Year
in which the request is made and any subsequent Plan Years. Distributions because of an
Unforeseeable Emergency must



21









 







be limited to the amount necessary to satisfy the emergency need (which may include
amounts necessary to pay any Federal, state, or local income taxes or penalties reasonably
anticipated to result from the distribution). A distribution on account of an
Unforeseeable Emergency may not be made to the extent that such emergency is or may be
relieved through reimbursement or compensation from insurance or otherwise, by liquidation
of the Participant’s assets (to the extent the liquidation of such assets would not cause
severe financial hardship), or by cessation of deferrals under the arrangement.




     5.6.6.2 Determination of Unforeseeable Emergency. Whether a Participant is
faced with an Unforeseeable Emergency permitting a distribution under this Section is to be
determined based on the relevant facts and circumstances of each case.




     5.6.6.3 Rules Adopted by Plan Administrator. The Plan Administrator shall have
the authority to adopt additional rules relating to Withdrawals for Unforeseeable
Emergencies provided such rules are consistent with the Applicable Tax Law. In
administering these rules, the Plan Administrator shall act in accordance with the
Applicable Tax Law, the principle being that the primary purpose of this Plan is to provide
additional retirement income, not additional funds for current consumption. Such rules may
limit the ability of a Participant receiving a distribution as a result of a Withdrawal for
Unforeseeable Emergencies to make Deferral Elections.




     5.6.6.4 Cancellation Of Deferrals Following An Unforeseeable Emergency Or Hardship
Distribution. The Plan Administrator may cancel a Participant’s Deferral Election, or
such a cancellation may be made, due to an Unforeseeable Emergency or a hardship
distribution pursuant to §1.401(k)-1(d)(3) of the Treasury Regulations. The Deferral
Election shall be cancelled and not merely postponed or otherwise delayed. Any later
Deferral Election will be subject to the provisions governing Initial Deferral Elections
under Section 3.1.1 and §1.409A-2(a) of the Applicable Tax Law.



     5.6.7 Certain Distributions To Avoid A Nonallocation Year Under Section 409(p). The
Plan Administrator may accelerate the time and form of a Payment, or a Payment may be made under
this Plan, to prevent the occurrence of a nonallocation year (within the meaning of Code Section
409(p)(3)) in a Plan Year of an employee stock ownership plan next following the Plan Year in which
such Payment is made, provided that the amount distributed may not exceed one hundred twenty-five
percent (125%) of the minimum amount of distribution necessary to avoid the occurrence of a
nonallocation year. For purposes of determining permissible distributions under this Section,
synthetic equity (within the meaning of section 409(p)(6)(C) of the Code and §1.409(p)-1(f) of the
Applicable Tax Law) granted during the Plan Year of the employee stock ownership plan in which such
Payment is made is disregarded for purposes of determining whether the subsequent Plan Year would
result in a nonallocation year.



     5.6.8 Payment Of State, Local, Or Foreign Taxes.




     5.6.8.1 The Plan Administrator may accelerate the time and form of a Payment, or a
Payment may be made under this Plan, to reflect payment of state, local, or foreign tax
obligations arising from participation in the Plan that apply to an amount of Compensation
deferred under this Plan before the amount is paid or made available to the



22









 







Participant (the state, local, or foreign tax amount). Such Payment may not exceed the
amount of such taxes due as a result of participation in the Plan. Such Payment may be made
by distributions to the Participant in the form of withholding pursuant to provisions of
applicable state, local, or foreign law or by distribution directly to the Participant.




     5.6.8.2 The Plan Administrator may also accelerate the time or schedule of Payment, or
a Payment may be made under this Plan, to pay the income tax at source on wages imposed
under section 3401 of the Code as a result of such Payment and to pay the additional income
tax at source on wages imposed under section 3401 of the Code attributable to such
additional section 3401 wages and taxes.




     5.6.8.3 Notwithstanding the foregoing, the total Payment under this Section 5.6.8 must
not exceed the aggregate of the state, local, and foreign tax amount, and the income tax
withholding related to such state, local, and foreign tax amount.



     5.6.9 Cancellation Of Deferral Elections Due To Disability. The Plan Administrator may
cancel a Participant’s Deferral Election, or cancellation of such Deferral Election may be made,
where such cancellation occurs by the later of (a) the end of the taxable year of the Participant
or (b) the 15th day of the third month following the date the Participant incurs a disability as
defined below. For purposes of this Section, a disability is any medically determinable physical
or mental impairment resulting in the Participant’s inability to perform the duties of the
Participant’s position or any substantially similar position, where such impairment can be expected
to result in death or can be expected to last for a continuous period of not less than six (6)
months.



     5.6.10 Certain offsets. The Plan Administrator may accelerate the time or schedule of
a Payment, or a Payment may be made under the Plan, as satisfaction of a debt of the Participant to
the Company, where such debt is incurred in the ordinary course of the employment or independent
contractor relationship between the Company and the Employer Group, provided that the entire amount
of reduction in any of the Company’s taxable years does not exceed five thousand dollars ($5,000),
and the reduction is made at the same time and in the same amount as the debt otherwise would have
been due and collected from the Participant.



     5.6.11 Bona Fide Disputes As To A Right To A Payment. The Plan Administrator may
accelerate the time or schedule of one or more Payments, or a Payment may be made under the Plan,
where such Payments occur as part of a settlement between the Participant and the Employer Group of
an arm’s length, bona fide dispute as to the Participant’s right to the Accrued Benefit as provided
under the Applicable Tax Law. The Plan Administrator may not exercise any discretion to accelerate
Payments other than due to an arm’s length settlement of a bona fide dispute as to the
Participant’s right to the Accrued Benefit. Under Applicable Tax Law, (a) a Payment will be
presumed not to meet the foregoing requirements unless the Payment is a substantial reduction to
the amount that would have been payable had there been no dispute as to the Participant’s right to
the Payment, (b) a reduction that is less than twenty-five percent (25%) of the present value of
the Accrued Benefit in dispute is not a substantial reduction, and (c) a Payment is presumed not to
qualify under this Section 5.6.11 if the Payment is made proximate to a downturn in the financial
health of the Company.



23









 





     5.6.12 Changes In Elections Under A Cafeteria Plan. A change in an election under a
cafeteria plan (as defined in section 125(d)) of the Code does not result in an accelerated Payment
of an amount deferred under this Plan to the extent that the change in the amount deferred under
the Plan results solely from the application of the change in amount eligible to be treated as
Compensation under the terms of the Plan resulting from the election change under the cafeteria
plan, to a benefit formula under the Plan based upon the Participant’s eligible Compensation, and
only to the extent that such change applies in the same manner as any other increase or decrease in
Compensation would apply to such benefit formula.



     5.6.13 Termination of Plan




     5.6.13.1 Except as provided below and to the extent permitted under the Applicable Tax
Law, upon the termination of the Plan as provided for herein, the Plan Administrator shall
pay to the Participant or the Participant’s Beneficiary, as the case may be, the
Participant’s Accrued Benefit at the times and in the amounts specified in the Participant’s
Deferral Election.




     5.6.13.2 Notwithstanding the foregoing, the time and form of a Payment under this Plan
may be accelerated upon a termination and liquidation of the Plan provided that the
acceleration of the Payment is made in accordance with one of the following:




     5.6.13.2.1 The Company’s termination and liquidation of the Plan within twelve
(12) months of a corporate dissolution taxed under section 331 of the Code, or with
the approval of a bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided
that the Accrued Benefits are included in the Participants’ gross incomes in the
latest of the following years (or, if earlier, the taxable year in which the amount
is actually or constructively received):




     (1) The calendar year in which the Plan termination and
liquidation occurs.




     (2) The first calendar year in which the amount is no longer
subject to a substantial risk of forfeiture.




     (3) The first calendar year in which the Payment is
administratively practicable.




     5.6.13.2.2 The irrevocable termination and liquidation of the Plan within the
thirty (30) days preceding or the twelve (12) months following a Change In Control
Event, provided that this Section will only apply to a Payment under the Plan if all
Aggregated Arrangements are terminated and liquidated with respect to each
Participant that experienced the Change In Control Event, so that under the terms of
the termination and liquidation all such Participants are required to receive all
amounts of compensation deferred under the Aggregated Arrangements within twelve
(12) months of the date the Company irrevocably
takes all necessary action to terminate and liquidate the Aggregated
Arrangements.



24









 






     5.6.13.2.3 The termination and liquidation of the Plan, provided that:




     (1) The termination and liquidation does not occur proximate to
a downturn in the financial health of the Company;




     (2) The Employer Group terminates and liquidates all Aggregated
Arrangements;




     (3) No Payments in liquidation of the Plan are made within
twelve (12) months of the date the Company takes all necessary action
to irrevocably terminate and liquidate the Plan other than Payments
that would be payable under the terms of the Plan if the action to
terminate and liquidate the Plan had not occurred;




     (4) All Payments are made within twenty-four (24) months of the
date the Company takes all necessary action to irrevocably terminate
and liquidate the Plan; and




     (5) The Company does not adopt a new plan that would be
aggregated with any terminated and liquidated Aggregated Arrangement,
at any time within three (3) years following the date the Company
takes all necessary action to irrevocably terminate and liquidate the
plan.


5.7 Interest on Deferral Account. After the applicable Determination Date, the unpaid balance of a
Participant’s Deferral Account shall be increased by an amount equal to the product of the
principal balance of the Deferral Account multiplied by the Declared Rate then in effect for the
applicable period since the time of the last Payment or such other rate as the Company may specify.
Such accrued interest shall be paid with the next Payment then due.



5.8 Facility of Payment. If a distribution is to be made to a minor, or to a person who is
otherwise incompetent, then the Plan Administrator may, in its discretion, make such distribution
(i) to the legal guardian or, if none, to a parent of a minor payee with whom the payee maintains a
residence, or (ii) to the conservator or committee or, if none, to the person having custody of an
incompetent payee. Any such distribution shall fully discharge the Plan Administrator, the
Company, and the Plan from further liability on account thereof.



5.9 Withholding. Any and all Payments to be made to a Participant or a Participant’s Beneficiary
pursuant to this Plan shall be subject to all federal, state and local income and employment taxes.
The Company may withhold such taxes from the Payments under this Plan or from salary, bonuses or
other amounts due to the Participant as determined by the Plan Administrator as and to the extent
required by Applicable Tax Law.




25









 








ARTICLE 6

PLAN ADMINISTRATION




6.1 Responsibility for Administration of the Plan.




     6.1.1 The Plan Administrator shall be responsible for the management, operation, and
administration of the Plan. The Plan Administrator may employ others to render advice with regard
to its responsibilities under this Plan. It may also allocate its responsibilities to others and
may exercise any other powers necessary for the discharge of its duties. The Plan Administrator
shall be entitled to rely conclusively upon all tables, valuations, certifications, opinions and
reports furnished by any actuary, accountant, controller, counsel or other person employed or
engaged by the Plan Administrator with respect to the Plan.



     6.1.2 The primary responsibility of the Plan Administrator is to administer the Plan for the
benefit of the Participants and their beneficiaries, subject to the specific terms of the Plan.
The Plan Administrator shall administer the Plan in accordance with its terms and shall have the
power to determine all questions arising in connection with the administration, interpretation, and
application of the Plan. Any such determination shall be conclusive and binding upon all persons
and their heirs, executors, beneficiaries, successors and assigns. The Plan Administrator shall
have all powers necessary or appropriate to accomplish its duties under the Plan. The Plan
Administrator shall also have the discretion and authority to make, amend, interpret, and enforce
all appropriate rules and regulations for the administration of this Plan and decide or resolve any
and all questions, including, but not limited to, interpretations of this Plan and entitlement to
or amount of benefits under this Plan, as may arise in connection with the Plan.


6.2 Claims and Appeal Procedure.




     6.2.1 Claims Procedure.




     6.2.1.1 .If a Participant, Beneficiary or other person claiming eligibility or benefits
under this Plan (a “Claimant”) believes that he or she is eligible for benefits under the
Plan, or is entitled to benefits different from those being provided by the Company, the
Claimant may make a claim for eligibility or for benefits (as defined below) by submitting a
written claim (a “Claim”) for benefits on such forms as the Company may reasonably specify
from time to time and shall provide such information as the Plan Administrator may
reasonably require to support such Claim. Such Claim shall be reviewed by a committee of
one or more individuals serving as “Claim Administrator.” Except as provided below, the
Claim Administrator shall notify a Claimant in writing within ninety (90) days of receipt of
the Claimant’s written Claim whether the Claim Administrator has approved or denied such
Claim in whole or in part.




     6.2.1.2 If the Claim Administrator determines that there are special circumstances
requiring additional time to make a decision, the Claim Administrator shall notify the
Claimant of the special circumstances and the date by which a decision is expected to be
made, and may extend the time for up to an additional ninety (90)-day period. If the Claim
Administrator determines that any request for Plan benefits does not comply with the Plan’s
applicable procedure, the Claim Administrator shall notify the Claimant that



26









 







the request does not comply with the applicable procedure and what must be done to
comply. If the Claim Administrator requires more information to review a claim for
benefits, the Claim Administrator shall request the specified information from the Claimant
within a reasonable time after receiving the request. The Claimant shall have up to one
hundred eighty (180) days to provide the missing information. From the beginning of that
period until the missing information is provided (or the end of that period, if earlier),
the time period provided in the preceding paragraph for the Claim Administrator’s decision
shall be extended. After receiving any such information from the Claimant or, if earlier,
at the end of such one hundred eighty (180) days, the Claim Administrator shall review the
information and notify the Claimant of the Claim Administrator’s decision within the
extended time period for that decision.




     6.2.1.3 If the Claim Administrator determines that a Claimant is not eligible for the
benefits claimed, the notice shall set forth, in a manner calculated to be understood by the
Claimant: (a) the specific reasons for such denial, (b) a specific reference to the
provisions of the Plan on which the denial is based, (c) a description of any additional
information or material necessary for the Claimant to perfect his or her claim, and a
description of why it is needed, and (d) an explanation of the Plan’s claims review
procedure and other appropriate information as to the steps to be taken if the Claimant
wishes to have the claim reviewed, including the time limits that apply to such claims
review procedure, description of the Plan’s review procedures, and the time limits
applicable to such procedures, 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, to the extent such Section requires the Claimant to bring a civil suit that is not
subject to arbitration under Section 6.2.2.2.



     6.2.2 Appeal Procedure for Denied Benefits.




     6.2.2.1 If a Claimant disagrees with the Claim Administrator’s determination, the
Claimant shall have the opportunity to have such claim reviewed by filing a petition for
review with the Plan Administrator within sixty (60) days after receipt of the notice issued
by the Claim Administrator. The petition shall state the specific reasons the Claimant
believes he or she is entitled to benefits or greater or different benefits. Such petition
shall be reviewed by a committee of one or more individuals who are not under the
supervision of any person serving as Claim Administrator (the “Reviewer”). The Claimant may
submit written comments, documents, records, and other information relating to the Claim and
will be provided, upon request and free of charge, reasonable access to, and copies of, all
documents, records, and other information relevant to the Claimant’s Claim.




     6.2.2.2 Within sixty (60) days after receipt by the Plan Administrator of said
petition, the Reviewer shall afford the Claimant (and counsel, if any) an opportunity to
present his or her position to the Reviewer orally or in writing, and the Claimant (or
counsel) shall have the right, upon request and free of charge, for reasonable access to,
and copies of, all documents, records, and other information relevant to the Claimant’s
Claim; and the Reviewer shall take into account all comments, documents, records, and other
information submitted by the Claimant relating to the Claim, without regard to



27









 







whether such information was submitted or considered in the initial benefit
determination. The Reviewer shall notify the Claimant of its decision in writing within the
sixty (60)-day period, stating (in a manner calculated to be understood by the Claimant) the
specific basis for its decision and the specific provisions of the Plan on which the
decision is based. If, because of the need for a hearing, the sixty (60)-day period is not
sufficient, the decision may be deferred for up to another sixty (60)-day period at the
election of the Reviewer, but notice of this deferral shall be given to the Claimant. In
the case of any extension under this paragraph, the notice of extension shall specifically
explain the standards on which entitlement to a benefit is based, the unresolved issues that
prevent a decision on the claim, and the additional information needed to resolve those
issues, and the Claimant shall be afforded at least forty-five (45) days within which to
provide the specified information.



ARTICLE 7

AMENDMENT OR TERMINATION




7.1 Amendment.




     7.1.1 Any other provision of this Plan to the contrary notwithstanding, the Plan may be
amended by the Company at any time, to the extent that, in the sole opinion of the Company, such
amendment shall be necessary in order to ensure that (a) the Plan will be characterized as a plan
maintained for a select group of management or highly compensated employees, as described in
sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, (b) the Plan conforms to the requirements of any
applicable law, including, but not limited to, ERISA and the Code, (c) the Accrued Benefit of any
Participant is not taxable to the Participant or his/her Beneficiary earlier than the date it is
actually received by the Participant or the Beneficiary, as the case may be, and (d) no excise tax,
penalty or additional tax is imposed on the Participant or the Company under the Applicable Tax Law
or any other applicable provision of the Code. No such amendment shall be considered prejudicial
to any interest of a Participant or Beneficiary hereunder even if it reduces the Accrued Benefit of
any Participant or the amount, date or form of any Payment to the Participant.



     7.1.2 In addition, this Plan may be amended at any time as and to the extent permitted under
Applicable Tax Law provided that no such amendment shall reduce the Accrued Benefit of any
Participant without the consent of the Participant unless such reduction is required under, or is
necessary in order to comply with, the Applicable Tax Law.



7.2 Termination.




     7.2.1 This Plan may be terminated at any time provided such termination satisfies the
requirements of the Applicable Tax Law.



     7.2.2 Except as otherwise permitted herein and the Applicable Tax Law, upon the termination of
the Plan as provided for herein, the Plan Administrator shall pay to the Participant or a deceased
Participant’s Beneficiary, as the case may be, the Participant’s Accrued Benefit at the times and
in the amounts specified in the Participant’s Deferral Election.



28









 





ARTICLE 8

MISCELLANEOUS



8.1 Purpose. The purpose of this Plan is to allow a Participant to defer the receipt of part of
the Participant’s Compensation until a later date without having to pay taxes on the amount of such
Compensation until the Participant actually receives the amount of such Compensation, at which time
it will be subject to taxation as ordinary gain. The Company makes no guaranties that such
Compensation will not be taxed until it is received and the Company shall not be liable for any
damages because such Compensation is taxed to the Participant before it is received by the
Participant.



8.2 Benefits Not Transferable. No benefit payable at any time under this Plan shall be subject in
any manner to alienation, sale, transfer, pledge, attachment or encumbrance of any kind; provided,
however, that:




     8.2.1 in the event that, at the time of a Participant’s Commencement Date, the Participant is
indebted to the Company or any Affiliate, the Company shall have the right to offset any such
indebtedness (including any interest thereon) against any benefits otherwise due under this Plan
with respect to the Participant, by applying such indebtedness (including any interest thereon)
pro-rata to each successive benefit Payment due thereafter, until the full amount of the debt and
any interest owed has been paid; and



     8.2.2 all or any portion of a Participant’s unpaid benefits under this Plan may be assigned by
court order to the Participant’s former spouse in connection with a dissolution of their marriage,
but only if the Plan Administrator determines, in its sole discretion, that the order satisfies the
requirements of a “domestic relations order” as defined in Code Section 414(p)(1)(B). The federal
income taxation of any Plan benefits assigned as provided in the preceding sentence shall be
governed by Revenue Ruling 2002-22, or any applicable guidance subsequently published by the
Internal Revenue Service or the Department of the Treasury.


8.3 No Trust Created. Nothing contained in this Plan, and no action taken pursuant to its
provisions by any person, shall create, or be construed to create, a trust of any kind, or a
fiduciary relationship between the Company and any other person.



8.4 Benefits Payable Only From General Corporate Assets; Unsecured General Creditor Status of
Participant. Payment to the Participant or any Beneficiary hereunder shall be made from assets
that shall continue, for all purposes, to be part of the general, unrestricted assets of the
Company. No person shall have any interest in any such asset by virtue of any provision of this
Plan. The Company’s obligation hereunder shall be an unfunded and unsecured promise to pay money
in the future. To the extent that any person acquires a right to receive Payments from the Company
under the provisions hereof, such right shall be no greater than the right of any unsecured general
creditor of the Company; no such person shall have or acquire any legal or equitable right,
interest or claim in or to any property or assets of the Company.



8.5 Plan Expenses. The Participants shall bear all of the Plan Expenses except for those Plan
Expenses that the Company elects to pay. Any such expenses that are not paid by the


29









 






Company shall be promptly paid by the Participant or the Participant’s Beneficiary, as applicable,
or the Plan Administrator shall deduct such expenses from the Participant’s Accrued Benefit.



8.6 Entire Agreement. The Plan, Deferral Election, Beneficiary Designation, and other
administrative forms shall constitute the total agreement between the Company and the Participant.
No oral statement regarding the Plan may be relied upon by the Participant. In the event that
there is a discrepancy between the Plan and the administrative forms and summary descriptions, the
Plan will control.



8.7 Invalidity of Provisions. If any provision of this Plan shall be for any reason invalid or
unenforceable, the remaining provisions shall nevertheless be carried into effect.



8.8 Unclaimed Benefits. In the case of a benefit payable on behalf of such Participant, if the
Plan Administrator is unable to locate the Participant or Beneficiary by the earlier of the date
that is (a) ten (10) years following the Termination of Employment of the Participant, or (b) five
(5) years following the date the Participant’s last benefit Payment was scheduled to be made, such
Plan benefit may be forfeited to the Company upon the Plan Administrator’s determination.
Notwithstanding the foregoing, if, subsequent to any such forfeiture, the Participant or
Beneficiary to whom such Plan benefit is payable makes a valid claim for such Plan benefit, such
forfeited Plan benefit shall be paid by the Plan Administrator to the Participant or Beneficiary,
without interest, from the date it would have otherwise been paid.



8.9 No Right to Employment. Nothing contained herein shall be construed to be a contract of
employment for any term of years, or as conferring upon the Plan Participant the right to continue
to be employed by the Company in the Participant’s present capacity, or in any capacity. It is
expressly understood by the parties hereto that this Plan relates to the payment of deferred
compensation for the Participant’s services, generally payable after Termination of Employment with
the Company, and is not intended to be an employment contract.



8.10 Governing Law/Interpretation. The Plan and the rights and obligations of all persons
hereunder shall be governed by and construed in accordance with the laws of the State of Minnesota,
other than its laws regarding choice of law, to the extent that such state law is not preempted by
federal law. The Plan shall be interpreted so as to comply to the fullest extent possible with the
Applicable Tax Law such that the Accrued Benefit of any Participant is not includible in income for
United States income tax purposes prior to the actual receipt of such Accrued Benefit in cash by
the Participant or the Beneficiary, as the case may be.



IN WITNESS WHEREOF, the Company has executed this Plan as of the day and year first written above.




	 	 	 	 	 
	 	 	FAMOUS DAVE’S OF AMERICA, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





30









 






EXHIBIT 1.5




FAMOUS DAVE’S OF AMERICA, INC.

SECOND AMENDED AND RESTATED NON-QUALIFIED DEFERRED 

COMPENSATION PLAN

Participant Deferral Election Form




Declared Rate: ___ Percent (___%) (the “Declared Rate”)

Matching Contribution Rate: ___ Percent (___%) (the “Matching Contribution Rate”)




     This Agreement is entered into this ___day of                     , 20___ between FAMOUS DAVE’S OF
AMERICA, INC., hereinafter referred to as the “Company,” and
                                                            , hereinafter referred to as the “Participant.”


I acknowledge that as a Designated Employee of the Company I have been offered an opportunity to
participate in the Famous Dave’s of America, Inc. SECOND AMENDED AND RESTATED NON-QUALIFIED
DEFERRED COMPENSATION PLAN (the “Plan”).



PLAN YEARS. This Deferral Election shall be effective for the following Plan Years [Check
one]:



o the Plan Year beginning January 1, 20___



o all Plan Years beginning on or after January 1, 20 ___ unless and until I complete a different
Deferral Election Form for a particular Plan Year not later than the Annual Deferral Election
Deadline for such Plan Year .



DEFERRAL ELECTION [Please complete one or more of the following choices.]



I hereby elect to defer receipt of that portion of my Compensation which is
earned by me with respect to services rendered by me to the Company after the
date this Deferral Election is filed with the Company as set forth below.



o [___%] of my salary earned by me with respect to services rendered
by me to the Company during the Plan Year and after the date this
Deferral Election is filed with the Company even if payable after
the end of the Plan Year.



o [___%] of my bonus(es) earned by me with respect to services
rendered by me to the Company during the Plan Year and after the
date this Deferral Election is filed with the Company even if
payable after the end of the Plan Year.



o [___%] of my commissions earned by me with respect to services
rendered by me to the Company during the Plan Year and after the
date this Deferral Election is filed with the Company even if
payable after the end of the Plan Year.



NOTE: This Deferral Election is irrevocable except to the extent permitted by the Plan
Administrator and the Applicable Tax Law.




31









 







Investment Return; Declared Rate: I understand that each quarter during the Deferral Period I
select below, my Deferral Account for the above Plan Years will be increased by an amount equal to
the product of the Declared Rate for the Plan Year and the balance of my Deferral Account as of the
end of the quarter.



Matching Discretionary Contribution: I understand that my Deferral Account for the above Plan Years
will also be increased one (1) time by an additional matching Discretionary Contribution equal to
the product of the Matching Contribution Rate specified above and the amount of my Compensation
which I elected to defer for the above Plan Years. For example, if the Matching Contribution Rate
was fifty percent (50%) and I elected to defer two percent (2%) of my Compensation I will have an
amount equal to one percent (1%) of my Compensation (50% x 2%) added to my Deferral Account. If I
defer four percent (4%) of my Compensation I will have an amount equal to two percent (2%) of my
Compensation (50% x 4%) added to my Deferral Account.



DISTRIBUTION OF BENEFITS ELECTION



A. Deferral Period. I hereby elect to have my Deferral Account for the Plan Years
specified above distributed to me beginning on the first day of the third month beginning after the
end of the following Deferral Period (the “Commencement Date”), unless the Plan provides for an
earlier Commencement Date [Select one of the following]:




     o                      [insert number] calendar years following the end of the applicable Plan Year
(December 31) (May not be less than three (3) calendar years and must be a whole number of years;
for example: if the Plan Year ends December 31, 2008, and you elect a Deferral Period of four (4)
calendar years, the Deferral Period ends on December 31, 2012, and your Deferral Account will be
paid beginning March 1, 2013), or



     o the period beginning on the first day of the applicable Plan Year set forth above and ending
on the date of my Termination of Employment.


NOTE: Except as provided below, you may extend the Deferral Period by filing a Revised
Deferral Election Form with the Plan Administrator, but only if (a) you file the Revised Deferral
Election Form at least one (1) year before the due date of the first Payment affected by the
Revised Deferral Election Form, (b) the extension is for a period of not less than five (5) years
from the date the Payment would have been made but for the extension, and (c) such extension is in
accordance with the Applicable Tax Law (as defined in the Plan). The Deferral Period may be
shortened only with the consent of the Plan Administrator and then only as and to the extent
permitted by and in accordance with the Applicable Tax Law which, except as provided below,
prohibits a reduction in the Deferral Period. Any such change must be made by written notice to
the Plan Administrator and will not be effective until accepted in writing by the Plan
Administrator.



Notwithstanding the above, this Deferral Election may be changed and the foregoing requirements
will not apply if you file a Revised Deferral Election Form with the Plan Administrator on or
before December 31, 2008, so long as the Revised Deferral Election does not (i) delay a Payment
that would be payable in 2008 if the Revised Deferral Election


32









 






had not been made, and (ii) cause a Payment to be made in 2008 which would not have been made
absent the Revised Deferral Election.




B. Payout Period. I hereby elect the following Payout Period over which my Deferral
Account for the Plan Years specified above will be distributed to me in substantially equal
payments at the frequency specified below (check one):




	 	o	 	 Lump Sum

	 
	 	o	 	Two (2) year period with (check one) o monthly, o quarterly, or o annual Payments plus
interest at the Declared Rate from the Commencement Date.

	 
	 	o	 	Five (5) year period with (check one) o monthly, o quarterly, or o annual Payments plus
interest at the Declared Rate from the Commencement Date.

	 
	 	o	 	Ten (10) year period with (check one) o monthly, o quarterly, or o annual Payments plus
interest at the Declared Rate from the Commencement Date.





NOTE: Unless a Revised Deferral Election Form is submitted to the Company prior to December 31,
2008, you may lengthen, but not shorten the Payout Period for any Plan Year in accordance with the
rules set forth above under “Deferral Period.” If a Revised Deferral Election Form is submitted to
the Company prior to December 31, 2008, you may shorten your Deferral Period, provided that the
Revised Deferral Election does not (i) delay a Payment that would be payable in 2008 if the Revised
Deferral Election had not been made, and (ii) cause a Payment to be made in 2008 which would not
have been made absent the Revised Deferral Election.



NOTE: If your Accrued Benefit is less than the 402(g) Amount ($15,000 in 2007), your
Accrued Benefit, may, at the Company’s discretion, be paid in a lump sum or over a shorter period
as and to the extent permitted under the Applicable Tax Law.



Unavailability of Deferred Compensation. I understand that except as otherwise permitted
under the Plan and the Applicable Tax Law, no part of any Deferral Account is payable prior to the
Commencement Date as defined in the Plan.



Amount Payable. I understand that the amount payable to me will be based upon the value of
my Deferral Account that will depend on the amount of my Deferral Elections, any Discretionary
Contribution, and the Declared Rate in effect at the time of this Deferral Election.




	 	 	 	 	 
	Date:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Participant’s Name:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Participant’s Signature:
	 	 	 	 
	 	 	 





33









 






	 	 	 	 	 
	Date Received:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Date Accepted:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	Famous Dave’s of America, Inc.
	 
	 	 	 	 
	 
	 	By:	 	 
	 
	 	 	 
	 
	 	 	 	 
	 
	 	Its:  	 	 
	 
	 	 	 





34









 






EXHIBIT 1.49





FAMOUS DAVE’S OF AMERICA, INC.

SECOND AMENDED AND RESTATED NON-QUALIFIED DEFERRED

COMPENSATION PLAN 

PARTICIPANT REVISED DEFERRAL ELECTION FORM




     This Agreement is entered into this ___ day of                     , 20___ between FAMOUS DAVE’S OF
AMERICA, INC., hereinafter referred to as the “Company,” and
                                                                                , hereinafter referred to as the “Participant.”



     I acknowledge that as an Eligible Employee of the Company I have been offered an opportunity
to participate in the FAMOUS DAVE’S OF AMERICA, INC. SECOND AMENDED AND RESTATED NON-QUALIFIED
DEFERRED COMPENSATION PLAN (the “Plan”).


A. Revised Deferral Period. I hereby elect the following Deferral Periods for my Accounts
for the Plan Years indicated below:




     o 20___, 20___, 20___, 20___, 20___ [insert year(s)]: o                      [insert number] Plan Years
following the end of the applicable Plan Year (December 31) or o the period beginning on the first
day of the applicable Plan Year set forth above and ending on the date of my Termination of
Employment. [See the NOTE below for rules regarding the minimum number of Plan Years.]



     o 20___, 20___, 20___, 20___, 20___ [insert year(s)]: o                      [insert number] Plan Years
following the end of the applicable Plan Year (December 31) or o the period beginning on the first
day of the applicable Plan Year set forth above and ending on the date of my Termination of
Employment. [See the NOTE below for rules regarding the minimum number of Plan Years.]



     o all Plan Years:                      [insert number] Plan Years following the end of the applicable
Plan Year (December 31) or o the period beginning on the first day of the applicable Plan Year set
forth above and ending on the date of my Termination of Employment. [See the NOTE below for rules
regarding the minimum number of Plan Years.]


NOTE: Unless this Revised Deferral Election is made on or before December 31, 2008, (a)
this Revised Deferral Election Form will apply only to those Payments under the Plan which are
scheduled to be made more than twelve (12) months after the date this Revised Deferral Election is
submitted to the Company, (b) the new Deferral Period ends at least five (5) years after the end of
current Deferral Period, and (c) this Revised Election Form complies with the Applicable Tax Law
(as defined in the Plan). Unless this Revised Deferral Election is made on or before December 31,
2008, a Deferral Period may be shortened only with the consent of the Plan Administrator and then
only as and to the extent permitted by and in accordance with the Applicable Tax Law.



If this Revised Deferral Election is provided to the Plan Administrator on or before December 31,
2008, the foregoing requirements do not apply so long as this Revised Deferral Election does not
(i) delay a Payment that would be payable in 2008 if this Revised


 









 






Deferral Election had not been made, and (ii) cause a Payment to be made in 2008 which would not
have been made absent this Revised Deferral Election.



B. Revised Payout Period. I hereby elect the following Payout Period over which my
Accounts for the Plan Years specified below will be distributed to me in substantially equal
payments annually plus interest at the Declared Rate from the Commencement Date as specified below:





	 	o	 	Lump Sum: - Plan Years beginning in 20___, 20___, 20___, 20___, 20___ [insert
year(s)]

	 
	 	o	 	Two (2) year period: Plan Years beginning in 20___, 20___, 20___, 20___, 20___
[insert year(s)].

	 
	 	o	 	Five (5) year period: Plan Years beginning in 20___, 20___, 20___, 20___, 20___
[insert year(s)].

	 
	 	o	 	Ten (10) year period: Plan Years beginning in 20___, 20___, 20___, 20___, 20___
[insert year(s)].





NOTE: Unless this Revised Deferral Election Form is submitted to the Company prior to
December 31, 2008, you may lengthen, but not shorten the Payout Period for any Plan Year in
accordance with the rules set forth above under “Revised Deferral Period.” If this Revised
Deferral Election Form is submitted to the Company prior to December 31, 2008, you may shorten your
Payout Period, provided that this Revised Deferral Election does not cause a Payment to be made in
2008 which would not have been made absent this Revised Deferral Election.



Early Payment of De Minimus Amounts. If your Accrued Benefit is less than the 402(g)
Amount ($15,000 in 2007), your Vested Accrued Benefit, may, at the Company’s discretion, be paid in
a lump sum or over a shorter period as and to the extent permitted under the Applicable Tax Law.



Unavailability of Deferred Compensation. I understand that, except as otherwise permitted
under the Plan and the Applicable Tax Law, no part of any Deferral Account is payable prior to the
Commencement Date as defined in the Plan.



Amount Payable. I understand that the amount payable to me will be based upon the value of
my Account(s) which will depend on the amount of my Deferral Elections, any Discretionary
Contribution, the Investment Options I choose, and the Declared Rate in effect in accordance with
the provisions of the Plan.




	 	 	 	 	 
	Date:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Participant’s Name:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Participant’s Signature:
	 	 	 	 
	 	 	 
	 
	 	 	 	 





36









 






	 	 	 	 	 
	Date Received:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Date Accepted:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	FAMOUS DAVE’S OF AMERICA, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Its:	 	 
	 

	 	 	 	 





37









 






EXHIBIT 1.9




FAMOUS DAVE’S OF AMERICA, INC.

SECOND AMENDED AND RESTATED NON-QUALIFIED DEFERRED COMPENSATION PLAN

Beneficiary Designation Form



TO: Famous Dave’s of America, Inc. (hereinafter referred to as the “Company”)



In accordance with the rights granted to me in the Famous Dave’s of America, Inc. SECOND AMENDED
AND RESTATED NON-QUALIFIED DEFERRED COMPENSATION PLAN (the “Plan”) and subject to the terms and
conditions specified below in this Beneficiary Designation Form, I hereby designate the following
persons and/or entities as my Primary and Contingent Beneficiaries under the Plan to receive, in
the event of my death, in accordance with the terms of the Plan, the Payments that would otherwise
be paid to me absent my death:




Primary Beneficiaries




	 	 	 	 	 
	Name	 	Relationship	 	Percentage
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 





Contingent Beneficiaries:



	 	 	 	 	 
	Name	 	Relationship	 	Percentage
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 




I understand that this Designation of Beneficiary shall not be effective unless received by the
Plan Administrator prior to my death. This designation cancels and supersedes any Designation of
Beneficiary heretofore made by me with respect to the Plan and the right to receive Payments
hereunder.




	 	 	 	 	 
	Date:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Participant’s Name:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Participant’s Signature:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Date Received:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Received and accepted
this                     
day of                     ,
20                    .
	 	Famous Dave’s of America, Inc.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Its:	 	 
	 

	 	 	 	 






 









 






SUMMARY PLAN DESCRIPTION OF

FAMOUS DAVE’S OF AMERICA, INC.

SECOND AMENDED AND RESTATED NON-QUALIFIED DEFERRED 

COMPENSATION PLAN




INTRODUCTION




     Famous Dave’s of America, Inc. (the “Company”) established the Famous Dave’s of America, Inc.
NON-QUALIFIED DEFERRED COMPENSATION PLAN effective as of February 25, 2005 (the “Plan”) and amended
and restated the Plan as the SECOND AMENDED AND RESTATED NON-QUALIFIED DEFERRED COMPENSATION PLAN
effective as of January 1, 2008.


THIS SUMMARY IS INTENDED TO SUMMARIZE THE PRINCIPAL TERMS OF THE PLAN. IN THE EVENT OF A CONFLICT
BETWEEN THIS SUMMARY AND THE TERMS OF THE PLAN, THE TERMS OF THE PLAN SHALL CONTROL. A COPY OF THE
PLAN IS AVAILABLE UPON REQUEST. DEFINED TERMS NOT OTHERWISE DEFINED HEREIN HAVE THE MEANING GIVEN
THEM UNDER THE TERMS OF THE PLAN.




WHAT DOES THE PLAN MEAN TO ME?



The Plan was established to provide retirement and other benefits to Eligible Employees of the
Company to assist them in saving for retirement and encourage their continued interest in the
success of the Company. The Plan is intended to allow you to defer the receipt of some of your
salary, bonuses, and commissions (“Compensation”) until a later date. The Company will pay for all
of the Plan’s benefits and administration costs. The Plan records are kept on a calendar year
basis.




WHO IS ELIGIBLE TO PARTICIPATE IN THE PLAN?



Any employee of the Company or an Affiliate who is: a “director level” and above employee (as
defined by the Company from time to time); one of a select group of management or highly
compensated employees, as defined by ERISA; and who is designated by the Company to participate in
the Plan (“Designated Employee”) is eligible to participate in the Plan. You will cease to be a
Designated Employee if you cease to be a “director level” and above employee (as defined by the
Company from time to time); cease to be one of a select group of management or highly compensated
employees, as defined by ERISA; or the Company specifies that you are no longer a Designated
Employee.




HOW CAN I PARTICIPATE IN THE PLAN?



If you are a Designated Employee, you can participate in the Plan by making a Deferral Election in
accordance with the terms of the Plan to defer the receipt of all or some part of your Compensation
to a later date. As discussed below you will receive interest on the amount you defer at the
Deferral Rate until it is paid to you or your beneficiary.




 









 








HOW DO I MAKE A DEFERRAL ELECTION AND WHEN DO I MAKE AN

ELECTION?



Making a Deferral Election. If you are a Designated Employee, you can make a Deferral Election by
completing and delivering to the Plan Administrator, a Deferral Election Form that you can obtain
from the Plan Administrator. On the Deferral Election form you will specify (a) the amount of your
Compensation you wish to defer, (b) the Deferral Period during which you will not be able to
receive any of the Compensation you deferred except as specifically proved in the Plan, and (c) the
manner in which your Deferral Account Balance will be paid (e.g., in a lump sum or over one of the
permitted Payout Periods).



Initial Deferral Election. If you become an Initial Designated Employee during a Plan Year you may
make an Initial Deferral Election with respect to your Compensation earned during the Plan Year in
which you become an Initial Designated Employee provided that such Initial Deferral Election is
filed with the Plan Administrator within thirty (30) days after you first become eligible to be an
Initial Designated Employee in the Plan. An Initial Designated Employee is an Eligible Employee
who is not or has not previously participated in a similar deferred compensation plan of the
Company or certain related entities as determined under the Applicable Tax Law. The Initial
Deferral Election will be effective beginning on the payroll date that is at least two (2) weeks
after the delivery of the Initial Deferral Election to the Plan Administrator, or such other date
as specified by the Plan Administrator. The Initial Deferral Election will apply only to
Compensation earned with respect to services you perform after the date of the Initial Deferral
Election and prior to the end of the Plan Year in which you become an Initial Designated Employee
in the Plan. If you fail to file an Initial Deferral Election within thirty (30) days after you
first become an Initial Designated Employee in the Plan, no part of your Compensation earned with
respect to services performed during the Plan Year in which you first become an Initial Designated
Employee in the Plan may be deferred. However, if you do not qualify as an Initial Designated
Employee or if you do qualify but do not make an Initial Deferral Election by the Initial Deferral
Election Deadline, you may make an Annual Deferral Election not later than the Annual Deferral
Election Deadline for the Plan Year following the Plan Year in which you became an Initial
Designated Employee and for each Plan Year thereafter while you are an Designated Employee unless
the Company specified that you are not eligible to make an Annual Deferral Election. No Deferral
Election will be effective until accepted by the Plan Administrator.



Annual Deferral Election. Except for an Initial Deferral Election for the Plan Year in which you
became an Initial Designated Employee, each year you are a Designated Employee you may make an
Annual Deferral Election to defer the receipt of all or some of your Compensation earned with
respect to services performed in a Plan Year(s) beginning after the date you file the Annual
Deferral Election. An Annual Deferral Election is made by filing a Deferral Election Form
acceptable to the Plan Administrator with the Plan Administrator not later than the Annual Deferral
Election Deadline (the earlier of (a) the day before the first day of the Plan Year, or (b) the
date specified by the Plan Administrator or Company). No Annual Deferral Election will be
effective until accepted in writing by the Plan Administrator. For example, to defer Compensation
earned in 2009, your Annual Deferral Election must be filed with the Plan Administrators not later
than December 31, 2008, or such earlier date as is specified by the Plan Administrator.




2









 







Revocation or Change of Deferral Elections – Revised Deferral Elections. Except as otherwise
permitted under the Applicable Tax Law and by the Plan Administrator, each Deferral Election is
irrevocable. Certain permitted changes to a Deferral Election are discussed below. No change of
any Deferral Election will be effective until accepted by the Plan Administrator in writing. A
permissible change to a Deferral Election is made by filing a Revised Deferral Election with the
Plan Administrator on forms acceptable to the Plan Administrator.




DOES THE COMPANY MAKE CONTRIBUTIONS TO THE PLAN FOR ME?



The Company may, but is not required to, make Discretionary Contributions to the Plan on your
Deferral Account. The Company anticipates making “matching” Discretionary Contributions each year
for those Participants who make Deferral Elections in much the same way that the Company makes or
can make matching contributions to the Company’s 401(k) Plan.




HOW ARE MY BENEFITS UNDER THE PLAN DETERMINED?



Accounts. The Plan Administrator will establish accounts on its books (“Deferral Accounts”) for
you for each Plan Year for which you make a Deferral Election. The Deferral Accounts are for
accounting purposes only and used solely to determine the amount you are entitled to be paid under
the Plan and are not actual deposit or investment accounts.



Allocations. Your Deferral Accounts will be increased by the amount of Compensation that you elect
to defer under your Deferral Election. The amount deferred will be added to the Deferral Account
on the date and in the amount that the Compensation would otherwise have been paid to you but for
the Deferral Election.



In addition, Company Discretionary Contributions (if any) such as the “matching contributions” will
be added to your Deferral Account at such time as directed by the Plan Administrator or the
Company.



Each Deferral Account will be reduced by the amount of all Payments made to you or your Beneficiary
from your Deferral Account.



Your Deferral Account will be increased by Investment Adjustments at such times as may be specified
by the Company, but not less often than quarterly. The Investment Adjustments are like interest
and are based upon the Declared Rate established by the Company and communicated to you from time
to time. The Declared Rate will be set by the Company for each year’s Deferral Election and will
be set forth in the Deferral Election Form for each Plan Year.




WHEN AND HOW WILL MY ACCRUED BENEFITS BE PAID?



Commencement of Benefits. The balance of each of your Deferral Accounts will be paid to you
beginning on the “Commencement Date” and will be paid to you over the “Payout Period” you selected
on your Deferral Election Form.




3









 







If you are not a Key Employee (see the definition below), the Commencement Date is the first day of
the third month beginning after the earliest the following “Permissible Payment Events” to occur:





	 	 ̈	 	your death,

	 
	 	 ̈	 	your Termination of Employment,

	 
	 	 ̈ 	 	your Disability,

	 
	 	 ̈	 	the occurrence of a Change in Control Event,

	 
	 	 ̈	 	January 1st of the first year beginning after the end of the Deferral Period
selected by you with respect to each of your Deferral Accounts, or

	 
	 	 ̈	 	such other event as permitted under the Applicable Tax Law.





If you are a Key Employee your Commencement Date will be the same as if you were not a Key
Employee, except that if you have a Termination of Employment prior to any other Permissible
Payment Event, your Commencement Date will be the date which is six (6) months and one (1) day
after your Termination of Employment. However, if you die after your Termination of Employment and
before the end of such six (6) month period, the Commencement Date will be the first day of the
third month beginning after your death, if earlier.





“Termination of Employment” means (a) your ceasing to provide services to the Company or any
member of the Employer Group (whether as an employee or independent contractor) for any
reason whatsoever, voluntary or involuntary, other than by reason of an approved leave of
absence or (b) an eighty percent (80%) reduction in your average hours of service to the
Company or any member of the Employer Group (whether as an employee or independent
contractor).




You are a “Key Employee” if (a) the Company’s stock is publicly tradable on an established
stock exchange or otherwise, and (b) you either (i) hold a position with the Employer Group
at the vice president level or above in accordance with the Company’s employment policies
established from time to time, or (ii) are a “key employee” as defined in Section 416(i) of
the Code (without regard to paragraph (5) thereof). Generally, the term “key employee” for
purposes of Section 416(i) of the Code means an employee who, at any time during the plan
year, is (i) an officer of the Company having an annual compensation greater than $130,000
(as adjusted under the Code), (ii) a five percent (5%) owner of the Company, or (iii) a one
percent (1%) owner of the Company having an annual compensation from the employer of more
than $150,000 (as adjusted under the Code).




“Disability” means that you are:




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

	 
	 	 ̈	 	by reason of any medically determinable physical or mental impairment that 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 (3) months under an accident and health plan covering employees of the
Company.





4









 












	 	 ̈	 	determined to be totally disabled by the Social Security Administration.







A “Change in Control Event” is generally either the sale of the Company’s assets or the
acquisition of the majority of the voting rights in the Company’s stock by a person or group
of people acting in concert.




The “Deferral Period” is the time period you specify in each Deferral Election (measured in
full Plan Years) during which you will not be entitled to receive the Compensation you elect
to defer unless you die, suffer from a Disability, incur a Termination of Employment, suffer
from a Unforeseeable Emergency (discussed below) or the Company has a Change in Control
Event (discussed above).


Form of Payment. The balance of a Deferral Account will generally be paid to you in either a lump
sum or in substantially equal Payments over the Payout Period you chose on your Deferral Election.





Death. However, in the event of your death, any of your Accrued Benefit remaining unpaid
will be paid in a lump sum to your Beneficiary. (See WHAT HAPPENS TO MY ACCRUED BENEFIT IF
I DIE? below).




Change In Control Event. In addition, upon a Change In Control Event, the balance of your
Deferral Account will be paid to you in a lump sum.




Cash Out for Small Accounts. Further, if your entire Accrued Benefit (the balance of all of
your Deferral Accounts) under the Plan and any Aggregated Arrangement is less than the
amount under Section 402(g) of the Code ($15,500 for 2007), or such lesser amount specified
by the Company in accordance with the Applicable Tax Law, the Company, may, in it’s sole
discretion, pay you your entire Accrued Benefit in a lump sum rather than the Payout Periods
you elected, provided that you are paid your entire Accrued Benefit under all Aggregated
Arrangements.




Payout Period. In your Deferral Election you will specify the Payout Period over which your
Accrued Benefit attributable to that Deferral Election will be paid to you.


Changes to the Deferral Period or Payout Period or the Time or Form of Payment of Your Accrued
Benefit.





Reductions in Deferral Period/Acceleration of Payments. Except as provided below, or as
otherwise permitted in the Applicable Tax Law and by the Plan Administrator, neither the
Deferral Period nor the Payout Period may be reduced, nor may the date of any Payment be
accelerated.




Extensions/Delays. Except as described below under “Special Rule for 2008", with the
consent of the Plan Administrator and to the extent permitted under the Applicable Tax Law,
the Deferral Period may be extended, the Payout Period increased and the time for any
Payment delayed at your written election, by filing a Revised Election From with the Plan
Administrator, provided that:



5









 






	 	•	 	such election does not apply to any Payment which would be paid on a date
which is less than twelve (12) months after the date the Revised Deferral
Election is filed with the Plan Administrator without regard to the Revised
Deferral Election (or, in the case of a life annuity or installment payments
treated as a single Payment, less than twelve (12) months after the date the
Revised Deferral Election is filed with the Plan Administrator without regard
to the Revised Deferral Election); and

	 
	 	•	 	the Payment with respect to which such election is made is deferred for a
period of not less than five (5) years from the date such Payment would
otherwise have been paid (or in the case of a life annuity or installment
payments treated as a single Payment, five (5) years from the date the first
amount was scheduled to be paid).







For example, if the Deferral Period ends on December 31, 2010, you could extend the
Deferral Period so it will end on December 31, 2015, provided that you make the
request before December 31, 2009.




Special Rule for 2008. If a Revised Deferral Election is provided to the Plan Administrator
on or before December 31, 2008, the foregoing restrictions will not apply provided that the
Revised Deferral Election does not (i) cause the delay of a Payment that would be payable in
2008 if the Revised Deferral Election had not been made, nor (ii) cause a Payment to be made
in 2008 if such Payment would not have been made absent the Revised Deferral Election.




Separate Payments. To the extent provided under the Applicable Tax Law, you may treat each
payment to be made to you as a “Separate Payment.” Consistent with the Applicable Tax Law
and with the consent of the Plan Administrator, you may extend the Deferral Period or the
date of payment separately with respect to each Separate Payment.



WHAT HAPPENS TO MY ACCRUED BENEFIT IF I DIE?



Payment of Accrued Benefit. In the event you die prior to receipt of your entire Accrued Benefit,
the Company will pay your unpaid Accrued Benefit in a lump sum to your Beneficiary designated by
you on a Beneficiary Designation Form provided to the Company and accepted by the Company.



Unless otherwise specified by you on a Beneficiary Designation Form, if more than one (1)
Beneficiary is named, then the payments of your Accrued Benefit will be made equally to such
Beneficiaries. Unless otherwise specified by you on a Beneficiary Designation Form, if any such
Beneficiary dies while receiving payments under the Plan, any and all remaining payments will
continue to be made to the descendants of a deceased Beneficiary if the Beneficiary is your
descendant, otherwise the payments will be made to the remaining Beneficiaries



Unless otherwise provided by you on a Beneficiary Designation Form, if none of the Beneficiaries
named are living on any payment date and there are no descendants of a deceased Beneficiary who is
your descendant, or if you fail to complete a Beneficiary Designation Form,


6









 






the remaining payments will be made to your spouse unless either of you have filed for divorce or
legal separation and, if so, then to your descendants and, if none, to the executors or
administrators of your estate.




Beneficiary Designation.




General. You may, at any time, submit a Beneficiary Designation Form specifying one (1) or
more individuals or entities as your “Beneficiary”. Each Beneficiary Designation Form will
become effective only when accepted in writing by the Company. The Company has the right,
in its sole discretion, to reject any Beneficiary Designation Form which is not in
substantially the form provided by the Plan Administrator. For purposes of any Beneficiary
Designation Form, no person will be deemed to have survived you if that person dies within
thirty (30) days of your death. You may change the Beneficiary named in any Beneficiary
Designation Form at any time by filing a new duly executed Beneficiary Designation Form with
the Company or the Plan Administrator without the consent of any person or entity then
designated as a Beneficiary.




Spouse’s Interest. Your designation of your spouse as a beneficiary will be automatically
revoked if you or your spouse subsequently file for divorce or legal separation or if your
spouse dies prior to you.



WHAT IF I SUFFER AN UNFORESEEABLE EMERGENCY?



Withdrawals for Unforeseeable Emergencies. If you suffer an “Unforeseeable Emergency”, the Plan
Administrator will, upon receipt of your written request, pay to you from your Deferral Accounts an
amount equal to the lesser of (a) the amount you requested, (b) the balance of your Deferral
Accounts as of the date of such payment, or (c) the amount, as determined under the Applicable Tax
Law, necessary to satisfy such Unforeseeable Emergency plus amounts necessary to pay taxes
reasonably anticipated as a result of the distribution, determined after taking into account the
extent to which such Unforeseeable Emergency is or may be relieved through reimbursement or
compensation by insurance or otherwise or by liquidation of your assets (to the extent the
liquidation of such assets would not itself cause severe financial hardship).



Unforeseeable Emergency. An Unforeseeable Emergency is a severe financial hardship to you
resulting from a sudden and unexpected illness or accident of you, your spouse, or one of your
dependents (as defined in section 152(a) of the Code), your loss of property due to casualty, or
other similar extraordinary and unforeseeable circumstances arising as a result of events beyond
your control and meeting such other requirements as may be set forth in any Applicable Tax Law.



Rules Adopted by Plan Administrator. The Plan Administrator may adopt additional rules relating to
withdrawals for Unforeseeable Emergencies provided such rules are consistent with the Applicable
Tax Law. In administering these rules, the Plan Administrator will act in accordance with any
Applicable Tax Law, the principle being that the primary purpose of this Plan is to provide
additional retirement income, not additional funds for current consumption.




7









 








ARE THERE OTHER SITUATIONS WHERE THE COMPANY CAN DISTRIBUTE MY

ACCRUED BENEFIT?



Yes. In the event there is a determination by the Internal Revenue Service, or in the event of a
final determination by a court of competent jurisdiction, that all or any part of your Accrued
Benefit hereunder is includable in your gross income, the Plan Administrator will distribute so
much of your Accrued Benefit to you as is includible in your gross income or your Beneficiary’s and
the Plan Administrator will in its sole discretion cause the termination of future Deferral
Contributions by you, provided this provision does not in and of itself cause your Accrued Benefit
to be includible in income for United States income tax purposes prior to your actual receipt of
such Accrued Benefit in cash.



In the event that there is a determination by the Department of Labor, or a final determination of
a court of competent jurisdiction, that the Plan is subject to Part 2, 3 or 4 of Title I of ERISA,
the Plan Administrator may, in its sole discretion, distribute each Participant’s Accrued Benefit
to the Participant, or, in the case of a deceased Participant, to the Participant’s Beneficiary,
and cause the termination of future Deferral Contributions by Participants.



In the event of a termination of the Plan, the Plan Administrator may, in its sole discretion,
distribute each Participant’s Accrued Benefit to the Participant in accordance with the Applicable
Tax Law.




CAN MY BENEFITS BE PAID TO SOMEONE OTHER THAN ME?



Payment of Employment Taxes. Yes. To the extent permitted under the Applicable Tax Law, the Plan
Administrator or the Company may permit the acceleration of the time or schedule of a payment under
the Plan to pay the Federal Insurance Contributions Act (FICA) tax imposed under Code Sections 3101
and 3121(v)(2) on Compensation deferred under the Plan (the “FICA Amount”). Additionally, the Plan
Administrator or the Company may permit the acceleration of the time or schedule of a payment to
pay the income tax at source on wages imposed under Code Section 3401 on the FICA Amount, and to
pay the additional income tax at the source on wages attributable to the pyramiding Code Section
3401 wages and taxes. However, the total payment under this Section will not exceed the aggregate
of the FICA Amount, and the income tax withholding related to such FICA Amount.



Withholding. In addition, any and all Payments to be made to you or your Beneficiary pursuant to
this Plan will be subject to all federal, state and local income and employment taxes and such
taxes will be withheld accordingly by the Company from your Accrued Benefits under this Plan or
from salary, bonuses or other amounts due to you as determined by the Plan Administrator as and to
the extent required by Applicable Tax Law.



Domestic Relations Order. In addition, all or part of your Accrued Benefit may be paid to a former
spouse in connection with a dissolution of your marriage, pursuant to an order satisfies the
requirements of a “domestic relations order” as defined in Code Section 414(p)(1)(B).




8









 








WILL I EARN INTEREST ON MY DEFERRAL ACCOUNT WHILE IT IS BEING PAID

TO ME?



Yes. Once you are entitled to receive payment of a Deferral Account, the unpaid balance of your
Deferral Account will earn interest at the Declared Rate then in effect on the unpaid balance of
the Deferral Account. The accrued interest will be paid with the next payment then due. The
Declared Rate on other deferrals may be changed at the discretion of the Company.




CAN BENEFITS BE FORFEITED?



Your benefits under the Plan are fully vested and cannot be forfeited except to the extent you have
an unpaid obligation to the Company, in which case the Company may apply your Accrued Benefit to
the unpaid obligation.




CAN THE PLAN BE AMENDED OR TERMINATED?



The Plan may be amended at any time provided that no such amendment may reduce the Deferral Account
then credited to you without your consent unless such reduction is required by the Applicable Tax
Law. The Plan and/or your Deferral Elections may be terminated at any time; provided, that no such
termination will reduce your Deferral Account without your consent unless such reduction is
required by the Applicable Tax Law.




ARE MY ACCRUED BENEFITS ASSIGNABLE?



Benefits Not Transferable. Except as provided below, none of the benefits payable at any time
under this Plan can be assigned or transferred or subjected in any manner to alienation, pledge,
attachment or encumbrance of any kind; except that:





Indebtedness to Company. If a you are indebted to the Company or any Affiliate, the Company
and the Affiliate will have the right to offset such indebtedness (including any interest
thereon) against any benefits otherwise due to you or your Beneficiary under the Plan, by
applying such indebtedness (including any interest thereon) pro-rata to each successive
benefit payment due thereafter, until the full amount of the debt and any interest owed has
been paid; and




Domestic Relations Order. All or any portion of your unpaid benefits under this Plan may be
assigned by court order to your former spouse in connection with a dissolution of your
marriage, but only if the Plan Administrator determines, in its sole discretion, that the
order satisfies the requirements of a “domestic relations order” as defined in Code Section
414(p)(1)(B).



ARE MY ACCRUED BENEFITS AT RISK?



Only if the Company is unable to pay its obligation when due. Your Accrued Benefits are payable
only out of the assets of the Company and are, for all purposes, an unfunded and unsecured promise
to pay money in the future. Your Accrued Benefit is not held in any trust and none of the
provisions of the Plan create, or will be construed to create, a trust of any kind, or a fiduciary
relationship between the Company and any other person. To the extent that you have a


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right to receive payments from the Company under the Plan, such right will be no greater than the
right of any unsecured general creditor of the Company; and you will not have or acquire any legal
or equitable right, interest or claim in or to any property or assets of the Company.




WHAT CAN I DO IF I AM DENIED PLAN BENEFITS?



If you or another person claiming eligibility or benefits under this Plan (a “Claimant”) believes
that he or she is eligible for benefits under the Plan, or is entitled to benefits different from
those being provided by the Company, the Claimant may make a claim for eligibility or for benefits
(as defined below) by submitting a written claim (a “Claim”) for benefits on such forms as the
Company may reasonably specify from time to time and will provide such information as the Plan
Administrator may reasonably require to support such Claim. Such Claim will be reviewed by a
committee of one or more individuals serving as Claim Administrator. Except as provided below, the
Claim Administrator will notify a Claimant in writing within ninety (90) days of receipt of the
Claimant’s written Claim whether the Claim Administrator has approved or denied such Claim in whole
or in part.



If the Claim Administrator determines that there are special circumstances requiring additional
time to make a decision, the Claim Administrator will notify the Claimant of the special
circumstances and the date by which a decision is expected to be made, and may extend the time for
up to an additional ninety (90)-day period. If the Claim Administrator determines that any request
for Plan benefits does not comply with the Plan’s applicable procedure, the Claim Administrator
must notify the Claimant that the request does not comply with the applicable procedure and what
must be done to comply. If the Claim Administrator requires more information to review a claim for
benefits, the Claim Administrator will request the specified information from the Claimant within a
reasonable time after receiving the request. The Claimant will have up to one hundred eighty (180)
days to provide the missing information. From the beginning of that period until the missing
information is provided (or the end of that period, if earlier), the time period provided in the
preceding paragraph for the Claim Administrator’s decision will be extended. After receiving any
such information from the Claimant or, if earlier, at the end of such one hundred eighty (180)
days, the Claim Administrator will review the information and notify the Claimant of the Claim
Administrator’s decision within the extended time period for that decision.



If the Claim Administrator determines that a Claimant is not eligible for the benefits claimed, the
notice will set forth, in a manner calculated to be understood by the Claimant: (a) the specific
reasons for such denial, (b) a specific reference to the provisions of the Plan on which the denial
is based, (c) a description of any additional information or material necessary for the Claimant to
perfect his or her claim, and a description of why it is needed, and (d) an explanation of the
Plan’s claims review procedure and other appropriate information as to the steps to be taken if the
Claimant wishes to have the claim reviewed, including the time limits that apply to such claims
review procedure, description of the Plan’s review procedures, and the time limits applicable to
such procedures, 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, to the extent such
Section requires the Claimant to bring a civil suit that is not subject to arbitration under
Section 6.2.2.2.




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Appeal Procedure for Denied Benefits. If a Claimant disagrees with the Claim Administrator’s
determination, the Claimant will have the opportunity to have such claim reviewed by filing a
petition for review with the Plan Administrator within sixty (60) days after receipt of the notice
issued by the Claim Administrator. The petition must state the specific reasons the Claimant
believes he or she is entitled to benefits or greater or different benefits. Such petition will be
reviewed by a committee of one or more individuals who are not under the supervision of any person
serving as Claim Administrator (the “Reviewer”). The Claimant may submit written comments,
documents, records, and other information relating to the Claim and will be provided, upon request
and free of charge, reasonable access to, and copies of, all documents, records, and other
information relevant to the Claimant’s Claim.



Within sixty (60) days after receipt by the Plan Administrator of said petition, the Reviewer must
afford the Claimant (and counsel, if any) an opportunity to present his or her position to the
Reviewer orally or in writing, and the Claimant (or counsel) will have the right, upon request and
free of charge, for reasonable access to, and copies of, all documents, records, and other
information relevant to the Claimant’s Claim; and the Reviewer must take into account all comments,
documents, records, and other information submitted by the Claimant relating to the Claim, without
regard to whether such information was submitted or considered in the initial benefit
determination. The Reviewer must notify the Claimant of its decision in writing within the sixty
(60)-day period, stating (in a manner calculated to be understood by the Claimant) the specific
basis for its decision and the specific provisions of the Plan on which the decision is based. If,
because of the need for a hearing, the sixty (60)-day period is not sufficient, the decision may be
deferred for up to another sixty (60)-day period at the election of the Reviewer, but notice of
this deferral must be given to the Claimant. In the case of any extension under this paragraph,
the notice of extension must specifically explain the standards on which entitlement to a benefit
is based, the unresolved issues that prevent a decision on the claim, and the additional
information needed to resolve those issues, and the Claimant must be afforded at least forty-five
(45) days within which to provide the specified information.




WHAT RIGHTS DO I HAVE UNDER ERISA?



As a participant in Famous Dave’s of America, Inc. SECOND AMENDED AND RESTATED NON-QUALIFIED
DEFERRED COMPENSATION PLAN you are entitled to certain rights and protections under the Employee
Retirement Income Security Act of 1974 (ERISA). ERISA provides that all plan participants will be
entitled to:





	 	•	 	Receive information about your Plan and benefits.

	 
	 	•	 	Examine, without charge, at the plan administrator’s office and at other specified
locations, such as worksites and union halls, all documents governing the plan,
including insurance contracts and collective bargaining agreements, and a copy of the
latest annual report (Form 5500 Series) filed by the plan with the U.S. Department of
Labor and available at the Public Disclosure Room of the Pension and Welfare Benefit
Administration.

	 
	 	•	 	Obtain, upon written request to the plan administrator, copies of documents
governing the operation of the plan, including insurance contracts and collective





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	 	 	 	bargaining agreements, and copies of the latest annual report (Form 5500 Series) and
updated summary plan description. The administrator may make a reasonable charge for
the copies.







	 	•	 	Receive a summary of the plan’s annual financial report. The plan administrator is
required by law to furnish each participant with a copy of this summary annual report.

	 
	 	•	 	Obtain a statement telling you whether you have a right to receive a pension at
normal retirement age and if so, what your benefits would be at normal retirement age
if you stop working under the plan now. If you do not have a right to a pension, the
statement will tell you how many more years you have to work to get a right to a
pension. This statement must be requested in writing and is not required to be given
more than once every twelve (12) months. The plan must provide the statement free of
charge.






Prudent Actions by Plan Fiduciaries.



In addition to creating rights for plan participants, ERISA imposes duties upon the people who are
responsible for the operation of the employee benefit plan. The people who operate your plan,
called “fiduciaries’’ of the plan, have a duty to do so prudently and in the interest of you and
other plan participants and beneficiaries. No one, including your employer, your union, or any
other person, may fire you or otherwise discriminate against you in any way to prevent you from
obtaining a (pension, welfare) benefit or exercising your rights under ERISA.




Enforce Your Rights.



If your claim for a (pension, welfare) benefit is denied or ignored, in whole or in part, you have
a right to know why this was done, to obtain copies of documents relating to the decision without
charge, and to appeal any denial, all within certain time schedules. Under ERISA, there are steps
you can take to enforce the above rights. For instance, if you request a copy of plan documents or
the latest annual report from the plan and do not receive them within thirty (30) days, you may
file suit in a Federal court. In such a case, the court may require the plan administrator to
provide the materials and pay you up to One Hundred Ten Dollars ($110) a day until you receive the
materials, unless the materials were not sent because of reasons beyond the control of the
administrator. If you have a claim for benefits which is denied or ignored, in whole or in part,
you may file suit in a state or Federal court. In addition, if you disagree with the plan’s
decision or lack thereof concerning the qualified status of a domestic relations order or a medical
child support order, you may file suit in Federal court. If it should happen that plan fiduciaries
misuse the plan’s money, or if you are discriminated against for asserting your rights, you may
seek assistance from the U.S. Department of Labor, or you may file suit in a Federal court. The
court will decide who should pay court costs and legal fees. If you are successful, the court may
order the person you have sued to pay these costs and fees. If you lose, the court may order you
to pay these costs and fees; for example, if it finds your claim is frivolous.




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Assistance with Your Questions.



If you have any questions about your plan, you should contact the plan administrator. If you have
any questions about this statement or about your rights under ERISA, or if you need assistance in
obtaining documents from the plan administrator, you should contact the nearest office of the
Employee Benefits Security Administration, U.S. Department of Labor, listed in your telephone
directory or the Division of Technical Assistance and Inquiries, Employee Benefits Security
Administration, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210.
You may also obtain certain publications about your rights and responsibilities under ERISA by
calling the publications hotline of the Employee Benefits Security Administration.




WHO ADMINISTERS THE PLAN?



The Plan Administrator for the Plan is the Company, Famous Dave’s of America, Inc. Service of
legal process, or any request for information concerning eligibility, participation, contributions,
or other aspects of the operation of the Plan should be in writing and directed to the Plan
Administrator, Famous Dave’s of America, Inc. SECOND AMENDED AND RESTATED NON-QUALIFIED DEFERRED
COMPENSATION PLAN, c/o Famous Dave’s of America, Inc., 12701 Whitewater Drive, Suite 200,
Minnetonka, MN 55343.




ARE THE BENEFITS INSURED BY THE PENSION BENEFIT GUARANTY

CORPORATION?



Benefits provided by the Plan are not insured by the Pension Benefit Guaranty Corporation (PBGC)
under Title IV of the Employee Retirement Income Security Act of 1974 (“ERISA”), because the
pension insurance provisions of ERISA do not apply to the Plan.



This Summary Plan Description has outlined only some of the terms of the Famous Dave’s of America,
Inc. SECOND AMENDED AND RESTATED NON-QUALIFIED DEFERRED COMPENSATION PLAN. In the event of a
conflict between this Summary and the Plan, the terms of the Plan will control. We will be happy
to answer any questions you might have. We are proud to be able to contribute toward your security
and well being through the adoption of this Plan.




Yours truly,

FAMOUS DAVE’S OF AMERICA, INC.




Company Identification Number:                                                             

Plan No. ___





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