Exhibit 10.1


 


SPX CORPORATION

SUPPLEMENTAL RETIREMENT SAVINGS PLAN


 


As Amended and Restated May 31, 2008


 





















 


SPX CORPORATION

SUPPLEMENTAL RETIREMENT SAVINGS PLAN


 


As
Amended and Restated May 31, 2008


 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
  2

  
	
  1.1

  	
  “Accounting Date”

  	
  2

  
	
  1.2

  	
  “Administrator”

  	
  2

  
	
  1.3

  	
  “Affiliated Company” or “Affiliate”

  	
  2

  
	
  1.4

  	
  “Beneficiary”

  	
  2

  
	
  1.5

  	
  “Board”

  	
  2

  
	
  1.6

  	
  “Code”

  	
  2

  
	
  1.7

  	
  “Company”

  	
  2

  
	
  1.8

  	
  “Compensation”

  	
  2

  
	
  1.9

  	
  “Compensation Committee” or “Committee”

  	
  2

  
	
  1.10

  	
  “Deferred Account” or “Account”

  	
  2

  
	
  1.11

  	
  “Deferred Mutual Fund”

  	
  2

  
	
  1.12

  	
  “Deferred Mutual Fund Unit”

  	
  2

  
	
  1.13

  	
  “Dividend Date”

  	
  2

  
	
  1.14

  	
  “Employee”

  	
  2

  
	
  1.15

  	
  “ERISA”

  	
  3

  
	
  1.16

  	
  “Executive Annual Incentive Plan”

  	
  3

  
	
  1.17

  	
  “Executive Bonus Plan”

  	
  3

  
	
  1.18

  	
  “Participant”

  	
  3

  
	
  1.19

  	
  “Plan”

  	
  3

  
	
  1.20

  	
  “Plan Year”

  	
  3

  
	
  1.21

  	
  “Qualified Savings Plan”

  	
  3

  
	
  1.22

  	
  “Recordkeeper”

  	
  3

  
	
  1.23

  	
  “Trustee”

  	
  3

  
	
   

  	
   

  	
   

  
	
  ARTICLE II ELIGIBILITY

  	
  4

  
	
  2.1

  	
  Participation

  	
  4

  
	
  2.2

  	
  Reduction in Status; Removal From Participation

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE III CONTRIBUTIONS AND DEFERRAL ACCOUNTS

  	
  5

  
	
  3.1

  	
  Elections To Contribute

  	
  5

  
	
  3.2

  	
  Duration of Election

  	
  5

  
	
  3.3

  	
  Disposition of Excess Contributions in the Qualified
  Savings Plan

  	
  5

  
	
  3.4

  	
  Company Matching Contributions

  	
  5

  
	
  3.5

  	
  Vesting of Participant Deferrals

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV PARTICIPANTS’ ACCOUNT AND INVESTMENT CREDITS

  	
  7

  
	
  4.1

  	
  Participants’ Accounts

  	
  7

  
	
  4.2

  	
  Deferred Mutual Fund Credits

  	
  7

  
	
  4.3

  	
  Selection of Deferred Mutual Funds

  	
  7

  
	
  4.4

  	
  Changing Deferred Mutual Funds

  	
  7

  
	
  4.5

  	
  Dividends

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE V PAYMENT OF ACCOUNT

  	
  8

  
	
  5.1

  	
  Form of Benefit

  	
  8

  
	
  5.2

  	
  Election of Payment Option

  	
  8

  



 


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  5.3

  	
  Commencement of Benefit

  	
  9

  
	
  5.3A

  	
  Change in Payment Selection for 2005-2008 Calendar Year
  Accounts

  	
  10

  
	
  5.3B

  	
  2008 Transition Elections for 2005-2008 Calendar Year
  Accounts

  	
  10

  
	
  5.4

  	
  Source of Benefit Payments

  	
  10

  
	
  5.5

  	
  Payment at Death of Participant

  	
  10

  
	
  5.6

  	
  Beneficiary Designation

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI ADMINISTRATION OF THE PLAN

  	
  11

  
	
  6.1

  	
  Administration by the Company

  	
  11

  
	
  6.2

  	
  General Powers of Administration

  	
  11

  
	
  6.3

  	
  409A Compliance

  	
  11

  
	
   

  	
   

  
	
  ARTICLE VII AMENDMENT OR TERMINATION

  	
  12

  
	
  7.1

  	
  Amendment or Termination

  	
  12

  
	
  7.2

  	
  Effect of Amendment or Termination

  	
  12

  
	
   

  	
   

  
	
  ARTICLE VIII GENERAL PROVISIONS

  	
  13

  
	
  8.1

  	
  Funding

  	
  13

  
	
  8.2

  	
  General Conditions

  	
  13

  
	
  8.3

  	
  No Guaranty of Benefits

  	
  13

  
	
  8.4

  	
  No Enlargement of Employee Rights

  	
  13

  
	
  8.5

  	
  Spendthrift Provision

  	
  13

  
	
  8.6

  	
  Applicable Law

  	
  13

  
	
  8.7

  	
  Small Benefits

  	
  13

  
	
  8.8

  	
  Incapacity of Recipient

  	
  13

  
	
  8.9

  	
  Corporate Successor

  	
  13

  
	
  8.10

  	
  Unclaimed Benefit

  	
  14

  
	
  8.11

  	
  Limitations on Liability

  	
  14

  
	
  8.12

  	
  Duties of Participants and Beneficiaries

  	
  14

  
	
  8.13

  	
  Taxes and Withholding

  	
  14

  
	
  8.14

  	
  Treatment for other compensation purposes

  	
  14

  
	
   

  	
   

  
	
  ARTICLE IX CHANGE-OF-CONTROL

  	
  15

  
	
  9.1

  	
  Benefit Rights Upon Change-of-Control

  	
  15

  
	
  9.2

  	
  Definition of Change-of-Control

  	
  15

  
	
  9.3

  	
  Excess Parachute Payments by the Company

  	
  17

  
	
   

  	
   

  
	
  ARTICLE X SPECIAL PROVISIONS

  	
  19

  
	
  10.1

  	
  Former Participants in the General Signal Corporation
  Deferred Compensation Plan

  	
  19

  



 


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SPX CORPORATION

SUPPLEMENTAL RETIREMENT SAVINGS PLAN


 


The SPX Corporation Supplemental Retirement Savings
Plan (the “Plan”) was adopted effective January 1, 1990.  The Plan as set forth herein has been amended
and restated effective as of May 31, 2008. 
The Plan is established and maintained by SPX Corporation in order to
allow an eligible Employee to (a) make pre-tax salary reduction
contributions, and (b) receive Company matching contributions, in each
case, in excess of those permitted by the Company’s tax-qualified 401(k) plan,
known as the “SPX Corporation Retirement Savings and Stock Ownership Plan.”


 


The provisions of this Plan are only applicable to
Participants who were in the employ of SPX Corporation on or after May 31,
2008 (except as otherwise provided in the Plan).  Participants who retired prior to that date
(or the surviving spouses or beneficiaries of such Participants) shall be
eligible for benefits, if any, under the terms of the Plan then in effect, or
as subsequently amended such that the amended terms apply to such persons.


 


1





















 


ARTICLE I


DEFINITIONS


 


Wherever used herein the following terms shall have
the meanings hereinafter set forth:


 


1.1                                 “Accounting Date”
means each business day.


 


1.2                                 “Administrator” means
the Company, as set forth in Section 6.1.


 


1.3                                 “Affiliated Company” or “Affiliate”
means any corporation, trade or business entity which is a member of a
controlled group of corporations, trades or businesses, or an affiliated
service group, of which the Company is also a member, as provided in Code
Sections 414(b), (c), (m) or (o).


 


1.4                                 “Beneficiary” means
the person, trust or estate designated (or deemed designated) to receive the
balance of the Participant’s account under the Qualified Savings Plan.


 


1.5                                 “Board” means the
Board of Directors of the Company.


 


1.6                                 “Code” means the
Internal Revenue Code of 1986, as amended from time to time, and any
regulations relating thereto.


 


1.7                                 “Company” means (a) SPX
Corporation, (b) any Affiliated Company or Affiliate, provided that any
such Affiliated Company or Affiliate shall be included in the definition of “Company”
only to the extent determined by action of the officer of SPX Corporation
empowered to make such employee benefit determinations, and (c) any other
entity resulting from a reorganization, merger or consolidation into or with
the Company, or a transfer or sale of substantially all of the assets of the
Company.


 


1.8                                 “Compensation” means
the total amount paid to a Participant by the Company inclusive of bonuses,
overtime pay, pre-tax contributions to the Qualified Savings Plan, and salary
reduction contributions to this Plan, but excluding therefrom those items
excluded from Compensation under the Qualified Savings Plan.  Notwithstanding the foregoing, Compensation
shall not be reduced pursuant to the application of Code Section 401(a)(17),
which applies to the Qualified Savings Plan but shall not be applied to this
Plan.


 


1.9                                 “Compensation Committee” or “Committee”
means the Compensation Committee of the Board. 
When used herein, “Committee” shall also include any person or persons
to whom the Committee’s authority has been lawfully delegated.


 


1.10                           “Deferred Account” or “Account”
means the Participant’s interest in the Plan and includes separate salary
reduction and Company matching contributions accounts for each of the Deferred
Mutual Funds for which Deferred Mutual Fund Units are credited to Participant
Deferred Accounts, as described in Sections 4.1 and 4.2.  Participant Accounts may be further
sub-divided for different time periods as provided in Section 4.1.


 


1.11                           “Deferred Mutual Fund”
means a mutual fund or other security designated by the Compensation Committee
for purposes of measuring the value of a Deferred Account established pursuant
to Article IV of the Plan.


 


1.12                           “Deferred Mutual Fund Unit”
means the equivalent of one share of a Deferred Mutual Fund.


 


1.13                           “Dividend Date” means
the payment date of any dividend declared on a Deferred Mutual Fund.


 


1.14                           “Employee” means an
employee of the Company who is eligible to participate under the Qualified
Savings Plan (or any successor or replacement to the Qualified Savings
Plan).  The term “Employee” shall also
include each employee of the Company who participated in the Deferred
Compensation Plan of United Dominion Industries, Inc.  (the “UDI Plan”) or the Deferred Compensation
Plan for Employees of Litwin Engineers & Contractors, Inc. (the “Litwin
Plan”) and whose Account Balance (as that term is defined in the UDI Plan), as
of January 1, 2002, or Benefit Account (as that term is defined in the
Litwin Plan), as of 


 


2





















 


January 1, 2002, was transferred to the Plan despite the fact that
such employee does not meet the eligibility requirements to actively
participate in the Plan.


 


1.15                           “ERISA” means the
Employee Retirement Income Security Act of 1974, as amended.


 


1.16                           “Executive Annual Incentive Plan”
means the SPX Corporation Executive Annual Incentive Plan and each applicable
successor or replacement plan to such plan.


 


1.17                           “Executive Bonus Plan”
means the SPX Corporation 2008 Executive Bonus Plan and each applicable
successor or replacement plan to such plan.


 


1.18                           “Participant” means
an Employee who is eligible to participate in this Plan pursuant to Article II
hereof who has filed a deferral election and shall also include (i) a
former Employee or current non-eligible Employee who continues to have an
Account under this Plan and (ii) any person who has an Account under the
Plan in accordance with the last sentence of Section 1.14 (regarding
transfers from the UDI Plan or Litwin Plan) or Section 10.1 (regarding
transfers from the GSX Plan).


 


1.19                           “Plan” means this SPX
Corporation Supplemental Retirement Savings Plan.


 


1.20                           “Plan Year” means the
calendar year.


 


1.21                           “Qualified Savings Plan” means
the SPX Corporation Retirement Savings and Stock Ownership Plan and each
predecessor, successor or replacement to the said Qualified Savings Plan.


 


1.22                           “Recordkeeper” means
the organization selected by the Company to keep information concerning the
Account of each Participant in the Plan.


 


1.23                           “Trustee” means the
person or entity chosen by the Company to hold Company assets which may be used
to provide benefits under this Plan.  The
assets of any such trust remain the Company’s property and will be subject to
the claims of creditors should the Company become insolvent.


 


Words
in the masculine gender shall include the feminine and the singular shall
include the plural, and vice versa, unless qualified by the context.  Any headings used herein are included for
ease of reference only, and are not to be construed so as to alter the terms
hereof.


 


3





















 


ARTICLE II


ELIGIBILITY


 


2.1                                 Participation.


 


(a)                                  For
Plan Years After 2008.  Effective as
of May 31, 2008, and commencing with the 2009 Plan Year, an Employee shall
be eligible to be a Participant hereunder if such Employee (i) is eligible
to participate in the Executive Annual Incentive Plan (as determined under the
terms of such plan), (ii) is eligible to participate in the Executive
Bonus Plan with a target bonus percentage of 30% or more (as determined under
the terms of such plan), or (iii) has a positive Account balance under the
Plan as of May 31, 2008.  For an
Employee that meets such criteria as of May 31, 2008, eligibility to
participate in the Plan shall be immediate. 
For an Employee that meets such criteria after May 31, 2008, such
Employee shall be eligible to participate in the Plan on the 30th day following
the date the Employee meets the criteria.


 


For a Participant who ceases to be eligible to
participate in the Plan in accordance with Section 2.2, and then
subsequently again meets the eligibility criteria described in the first
sentence of Section 2.1(a), such Employee’s eligibility to participate in
the Plan again shall be as follows:


 


(i)                                    if the Employee is
deemed to be “initially eligible” as provided under Code Section 409A,
such Employee shall be eligible to participate in the Plan on the 30th day
following the date the Employee again meets the eligibility criteria described
in the first sentence of Section 2.1(a); and


 


(ii)                                 in all other cases, at
the earliest time as permitted under Code Section 409A.


 


(b)                                 For
Plan Years Before 2009.  For Plan
Years before 2009, eligibility to participate in the Plan shall be determined
according to the provisions and terms then in effect under the Plan (and in
accordance with Code Section 409A to the extent applicable).


 


(c)                                  Eligible
Employees shall be notified of their ability to participate in the Plan and
shall be offered the opportunity to make contributions hereunder, as set forth
at Section 3.1 hereof.


 


2.2                                 Reduction in Status; Removal From
Participation.  If an
Employee ceases to meet the eligibility criteria described in the first
sentence of Section 2.1(a), such Employee shall cease to be eligible to
participate in the Plan at the end of the applicable Plan Year and the
Participant shall make no further contributions to this Plan, nor shall the
Company make any further contributions on his behalf.  However, his Deferred Account shall continue
to be held for his benefit pursuant to the terms of this Plan, and it shall
continue to be credited with earnings, gains and losses as provided under Article IV.


 


4





















 


ARTICLE III


CONTRIBUTIONS AND DEFERRAL ACCOUNTS


 


3.1                                 Elections To Contribute.  A Participant may elect to
have a percentage of Compensation deferred under this Plan.  Such deferrals shall occur on a per payroll
basis.  Such an election with respect to
any Plan Year must be made, with respect to amounts paid during such Plan Year,
prior to the June 30th of the preceding Plan Year, during the time period
prescribed by the Administrator; PROVIDED that a newly-eligible Participant
(which shall include an Employee deemed to be “initially eligible” as provided
under Code Section 409A) may make an election to defer Compensation to
this Plan within not more than 30 days after becoming an eligible
Participant, which election shall apply only to Compensation earned after the
election is made and effective.  Such
elections shall be irrevocable for the applicable Plan Year after the election
deadline provided in the preceding sentence.


 


A Participant may separately elect (i) a basic
deferral percentage (in 1% increments, up to 50% of Compensation, which includes,
without limitation, bonuses except for the bonus (if any) paid under the
Executive Bonus Plan and/or Executive Annual Incentive Plan), and (ii) a
supplemental bonus deferral percentage (in 1% increments, up to 100%),
applicable only to the bonus (if any) paid under the Executive Bonus Plan
and/or Executive Annual Incentive Plan. 
Notwithstanding the foregoing, the applicable deferral percentages
permitted under the preceding sentence shall be reduced to the extent required
by Code Section 409A with respect to a newly-eligible Participant (which
shall include an Employee deemed to be “initially eligible” as provided under
Code Section 409A).  Additionally,
with respect to a newly-eligible Participant (which shall include an Employee
deemed to be “initially eligible” as provided under Code Section 409A) who
becomes newly eligible to participate after June 30th of a Plan Year (or
who does not make an applicable deferral election by June 30th of such
Plan Year), no deferral of the bonus (if any) paid under the Executive Bonus
Plan and/or Executive Annual Incentive Plan in the immediate following Plan
Year shall be permitted.


 


Having made such an election, the percentage of
Compensation a Participant has elected to defer shall be credited by the
Company to this Plan for any Plan Year with respect to all Compensation as
defined by this Plan (or of a bonus payment (if any) under the Executive Bonus
Plan and/or Executive Annual Incentive Plan) and paid during such Plan Year (or
portion of the Plan Year for which such election is effective).  However, no contributions are made to this
Plan with respect to a Participant until one or more of the applicable limits
in the Qualified Savings Plan has been reached. 
Such applicable limits under the Qualified Savings Plan are as follows:


 


(a)                                  The
limit on compensation under Code Section 401(a)(17);


(b)                                 The
limit on deferrals and matching contributions under Code Sections 401(k) and
401(m); and


(c)                                  The
limit on annual additions to accounts under Code Section 415.


 


3.2                                 Duration of Election.  A Participant’s election to
defer Compensation under this Plan as described at Section 3.1 above shall
remain in effect only for the Plan Year (or portion thereof) for which it
applies.  Notwithstanding any other
provision of the Plan to the contrary, a Participant’s deferral election for a
Plan Year shall be cancelled upon the Participant having his deferrals under
the Qualified Saving Plan suspended due to receiving a hardship distribution
under the Qualified Savings Plan.


 


3.3                                 Disposition of Excess Contributions
in the Qualified Savings Plan.  In any case in which a Participant’s salary
reduction contributions to the Qualified Savings Plan would be returned to the
Participant by reason of the operation of Code Sections 401(k), 401(m), or
402(g), such contributions shall not be made available to the Participant, but
shall automatically be transferred from the Qualified Savings Plan to the
Participant’s Deferred Account under this Plan. 
Such contributions shall be allocated to the Participant’s Account in
this Plan for the Plan Year in which such contributions are deposited in this
Plan.


 


3.4                                 Company Matching Contributions.  For each Plan Year, a
Participant’s Account under this Plan shall be credited with a matching
contribution equal to a percentage (the same percentage of Compensation as
matched by the Company under the Qualified Savings Plan) of his deferrals for
such Plan Year, to the extent such deferrals have not received a match on that
percentage of Compensation under the Qualified Savings Plan.  The matching contribution to be made under
this Plan shall follow any increase or decrease in the match made for the 


 


5





















 


Qualified Savings Plan, and shall be made only after the maximum match has
been made under the Qualified Savings Plan.


 


3.5                                 Vesting of Participant
Deferrals.  A Participant
shall be fully vested in all allocations made to his Account pursuant to Section 3.1
and in the Company matching contribution credits made to his Account pursuant
to Section 3.4.


 


6





















 


ARTICLE IV


PARTICIPANTS’ ACCOUNT AND INVESTMENT CREDITS


 


4.1                                 Participants’ Accounts.  A separate Deferred Account
shall be established by the Recordkeeper for each Participant which shall
accurately reflect his interest in this Plan. 
Each Account shall consist of two sub-Accounts, one for the Participant’s
deferrals made to this Plan pursuant to Section 3.1, and one for the
Company matching contribution credits made pursuant to Section 3.4
(including, for each sub-Account, applicable credited earnings, gains and
losses).


 


Each Participant’s Account shall further be
sub-divided into six accounts: one account for deferral and matching
contribution credit amounts (including applicable credited earnings, gains and
losses) attributable to calendar years before 2005 (the “Pre-2005 Account”),
four separate accounts for deferral and matching contribution credit amounts
(including applicable credited earnings, gains and losses) attributable to each
calendar year after 2004 and before 2009 (the “2005-2008 Calendar Year Accounts”),
and one account for deferral and matching contribution credit amounts
(including applicable credited earnings, gains and losses) attributable to
calendar years after 2008 (the “Post-2008 Account”).


 


4.2                                 Deferred Mutual Fund Credits.  The Company shall establish a
Deferred Account for each Participant who makes an election to defer
Compensation, as provided in Section 3.1. 
The balance of a Participant’s Deferred Account is dependent upon the
value of the Deferred Mutual Fund Units in the Deferred Account, and is
therefore subject to market fluctuations in value until distributed to a
Participant.


 


4.3                                 Selection of Deferred Mutual
Funds.  Each Participant
(and Beneficiary, as provided at Section 5.5) shall be permitted to direct
the manner in which credits to his Account shall be treated as invested from
among such Deferred Mutual Funds determined by the Compensation Committee from
time to time and communicated to Participants. 
Each Participant shall choose the percentage of his Account treated as
invested in each Deferred Mutual Fund provided that not less than 5% of the
Participant’s contributions and Company contributions shall be designated for
any one such Deferred Mutual Fund.  To
the extent a Participant (or Beneficiary if applicable) does not provide any
investment direction, the Company may select a Deferred Mutual Fund for which
the Participant (or Beneficiary if applicable) will be deemed to have directed
his Account be invested in.


 


4.4                                 Changing Deferred Mutual Funds.  A Participant may elect to
change the mix of the Deferred Mutual Fund Units credited to the Participant’s
Deferred Account in accordance with the administrative procedures and rules set
by the Administrator from time to time.


 


4.5                                 Dividends.  At any time a balance in
Deferred Mutual Fund Units is maintained in an Account, there shall be credited
to the Account additional Deferred Mutual Fund Units on each Dividend
Date.  Such additional number of Deferred
Mutual Fund Units shall be determined by reference to the number of mutual fund
shares or other securities that would be issued by the mutual fund or the
issuer of the other securities with respect to the reinvestment of such
dividend.  In the absence of such
reinvestment, the number of such additional Deferred Mutual Units shall be
determined by (i) multiplying the total number of Deferred Mutual Fund
Units (including fractional Deferred Mutual Fund Units) credited to the Account
immediately prior to the Dividend Date by the amount of the dividend per share
of the Deferred Mutual Fund and (ii) dividing the product by the fair
market value per share as of such Dividend Date.  Additional Deferred Mutual Fund Units shall
be similarly credited on each Dividend Date on which a balance in Deferred
Mutual Fund Units is maintained in the Account.


 


7




















 


ARTICLE V


PAYMENT OF ACCOUNT


 


5.1                                 Form of Benefit.


 


(a)                                  At
the Participant’s timely election as provided under Section 5.2, a
Participant’s Pre-2005 Account and 2005-2008 Calendar Year Accounts (with
separate elections for the Pre-2005 Account and each 2005-2008 Calendar Year
Account) under this Plan shall be paid in one of the following forms:


 


(i)                                    In a single lump
sum payment.


 


(ii)                                 In periodic annual
installments payable for a period of up to ten (10) years.  So long as the Participant retains funds in his
Account, earnings, gains and losses shall be credited to the Account.


 


(iii)                              In periodic monthly
installments, payable for a period of up to ten (10) years.  So long as the Participant retains funds in
his Account, earnings, gains, and losses shall be credited to the Account.


 


(b)                                 A
Participant who makes no election with respect to the Pre-2005 Account within
the time provided in Sections 5.2 and 5.3 shall receive a lump sum payment
of the Participant’s Pre-2005 Account, valued and paid on the date of his or
her termination, death or retirement.  A
Participant who does not make a timely election with respect to a 2005-2008
Calendar Year Account as provided in Sections 5.2 and 5.3 shall receive a
lump sum payment of such 2005-2008 Calendar Year Account, valued and paid on or
as soon as practicable after the date that is six months after the Participant’s
separation from service but not later than 30 days after such date (subject to
the last sentence of Section 5.2(b) and Section 5.3A).


 


(c)                                  A
Participant’s Post-2008 Account shall be paid in a single lump sum payment.


 


5.2                                 Election of Payment Option.


 


(a)                                  Pre-2005
Account.  With respect to the
Pre-2005 Account, a Participant shall select a form of payment at the time that
he chooses to make an election to contribute to the Plan pursuant to Section 3.1.  Thereafter, a Participant may change his
election with respect to the Pre-2005 Account at any time that is at least one
year prior to his retirement, death, disability or other termination of
employment from the Company. 
Notwithstanding a Participant’s payment election under Section 5.3,
payments with respect to the Pre-2005 Account shall not be made until the year
following the year of termination to the extent a payment would otherwise be
subject to Code Section 162(m).


 


(b)                                 2005-2008
Calendar Year Accounts.  With respect
to a 2005-2008 Calendar Year Account, the Participant shall select a form of
payment at the time that he chooses to make an election to contribute to the
Plan pursuant to Section 3.1.  Thereafter,
a Participant may change his form of payment election with respect to a
2005-2008 Calendar Year Account only as provided in Sections 5.3A and 5.3B
below.  Notwithstanding a Participant’s
payment election under Section 5.3, payments with respect to a 2005-2008
Calendar Year Account shall not be made until the year following the year of
termination to the extent a payment would otherwise be subject to Code Section 162(m).


 


(c)                                  Post-2008
Account.  With respect to the
Post-2008 Account, no election as to form of payment is permitted under the
Plan.  Notwithstanding Section 5.3,
payments with respect to a Post-2008 Account shall not be made until the year
following the year of termination to the extent a payment would otherwise be
subject to Code Section 162(m).


 


8





















 


5.3                                 Commencement of Benefit.


 


(a)                                  Pre-2005
Account.  Except in the case of a
distribution upon death pursuant to Section 5.5 hereof, payment of a
Participant’s Pre-2005 Account under this Plan shall commence at (or as soon as
administratively feasible after) the time selected by the Participant from the
list below, which selection must be made at least one year prior to the
commencement of payment:


 


(i)                                    upon separation
from service,


 


(ii)                                 on the date which is a
specified number of months after separation from service, or


 


(iii)                              on a specified date,


 


PROVIDED
that the selection of a payment commencement date with respect to the Pre-2005
Account may be changed (subject to the following sentence) by a Participant
prior to separation from service, so long as the new payment commencement date
is at least one year after the date of change in election.  If the Administrator receives, within one
year of the selected payment commencement date with respect to the Pre-2005
Account, a new election to change the payment commencement date, such election
will be void, and the prior election will govern.


 


In no event shall the date for commencement of payments with respect to
the Pre-2005 Account occur prior to separation from service, and
notwithstanding any election to the contrary, benefits shall commence to be
paid after a Participant has both attained age 701⁄2 and separated from service.


 


(b)                                 2005-2008
Calendar Year Accounts.  Except in
the case of a distribution upon death pursuant to Section 5.5 hereof and
subject to paragraph (d) below, payment with respect to a 2005-2008
Calendar Year Account under this Plan shall commence at the time selected by
the Participant from the list below, which selection shall be made at the time
that he chooses to make an election to contribute with respect to such
2005-2008 Calendar Year Account, pursuant to Section 3.1:


 


(i)                                    upon separation
from service,


 


(ii)                                 on the date which is a
specified number of months after separation from service, or


 


(iii)                              on a specified date,


 


PROVIDED
that the selection of a payment commencement date with respect to a 2005-2008
Calendar Year Account may be changed in accordance with Sections 5.3A and 5.3B
below.


 


In no event shall the date for commencement of payments with respect to
a 2005-2008 Calendar Year Account occur prior to separation from service, and
notwithstanding any election to the contrary, benefits shall commence to be
paid after a Participant has both attained age 701⁄2 and separated from service.


 


Notwithstanding anything in the foregoing and subject to paragraph (d) below,
payment with respect to a 2005-2008 Calendar Year Account shall be paid (or
shall commence to be paid) on or as soon as practicable after the date
determined pursuant to the above but not later than 30 days after such date.


 


(c)                                  Post-2008
Account.  Except in the case of a
distribution upon death pursuant to Section 5.5 hereof, the single lump
sum payment with respect to a Post-2008 Account under this Plan shall be made on
or as soon as practicable after the date that is six months after the
Participant’s separation from service but not later than 30 days after such
date.


 


(d)                                 Six
Month Delay for Specified Employees. 
If, at the time the Participant becomes entitled to 2005-2008 Calendar
Year Account payments under the Plan, the Participant is a Specified Employee
(as defined and determined under Code Section 409A), then, notwithstanding
any other provision in the Plan to the contrary, the following provision shall
apply.  2005-2008 Calendar Year Account
payments considered deferred 


 


9





















 


compensation under Code Section 409A
which are determined to be payable upon a Participant’s separation from service
as determined under Code Section 409A and not subject to an exception or
exemption thereunder, shall be paid to the Participant on or as soon as
practicable after the date that is six months after the Participant’s
separation from service but not later than 30 days after such date.  Any such 2005-2008 Calendar Year Account
payments that would otherwise have been paid to the Participant during this
six-month period shall instead be aggregated (subject to the earnings, gains
and losses credited to the 2005-2008 Calendar Year Account during such time)
and paid to the Participant pursuant to the preceding sentence.  Any 2005-2008 Calendar Year Account payments
to which the Participant is entitled to be paid after the date that is six (6) months
after the Participant’s separation from service shall be paid to the
Participant in accordance with the applicable terms of this Plan.


 


5.3A                      Change in Payment Selection for 2005-2008
Calendar Year Accounts. 
After the time that a Participant chooses to make an election to
contribute to the Plan with respect to such 2005-2008 Calendar Year Account
pursuant to Section 3.1, a Participant may change his payment form and
payment commencement date election with respect to a 2005-2008 Calendar Year
Account only upon written notice in a form acceptable to the Administrator, so
long as: (i) the new election is made at least twelve (12) months before
the original payment commencement date, (ii) the new election does not
take effect until at least twelve (12) months after the date on which such
election is made, and (iii) the original payment commencement date is
deferred for a period of not less than five (5) years.


 


5.3B                         2008 Transition Elections for 2005-2008
Calendar Year Accounts. 
For the transition period beginning January 1, 2008, and ending December 31,
2008, the Administrator may provide (in the form and manner of its discretion)
Participants the opportunity to change their form of payment and payment
commencement date elections with respect to amounts payable from each 2005-2008
Calendar Year Account.  Such election
shall be made in accordance with Code Section 409A (and applicable IRS
transition relief) and subject to the following provisions.  As of December 31, 2008, any then
effective transition payment election shall be irrevocable for the duration of
a Participant’s participation in the Plan except as set forth in Section 5.3A
above.  No payment election made in 2008
under this transition relief will apply to amounts payable from a 2005-2008
Calendar Year Account that would otherwise be payable in 2008, nor may such
election cause such amounts to be paid in 2008 that would not otherwise be
payable in 2008.  No election under this
transition relief may be made retroactively, or when payment of such amounts are
imminent.


 


5.4                                 Source of Benefit Payments.  Any
Deferred Account payable to a Participant or a Participant’s Beneficiary shall
be paid from the general assets of the Company.


 


5.5                                 Payment at Death of
Participant.  In the event
a Participant dies before payment of his Account under this Plan commences, or
in the event a Participant dies after such payment commences but before he has
received the entire balance in his Account, payment of such Participant’s
Account under this Plan shall commence to the Beneficiary (in the payment form
selected by the Participant with respect to a Participant’s Pre-2005 Account
and 2005-2008 Calendar Year Accounts, or in a single lump sum payment with
respect to a Participant’s Post-2008 Account), but with benefit payments to
commence on or as soon as practicable after the Participant’s death but not
later than 60 days after such date, if payments had not previously
commenced.  So long as an Account remains
in this Plan with respect to a Beneficiary, that Account shall continue to be
credited with earnings, gains and losses, and a Beneficiary may continue to
change Deferred Mutual Funds as provided in Section 4.4.


 


5.6                                 Beneficiary Designation.  Effective for Participants who die on or after
December 31, 1999, the Beneficiary or Beneficiaries who shall receive the
Participant’s interest in this Plan in the event of the Participant’s death
shall be identical to the Beneficiary or Beneficiaries identified under the
Qualified Savings Plan.  There shall be
no separate beneficiary election with respect to this Plan.


 


10





















 


ARTICLE VI


ADMINISTRATION OF THE PLAN


 


6.1                                 Administration by the Company.  The Company, acting under the supervision of
the Compensation Committee, shall be responsible for the general operation and
administration of the Plan and for carrying out the provisions thereof.


 


6.2                                 General Powers of Administration.  All provisions set forth in the Qualified
Savings Plan with respect to the administrative powers and duties of the
Company, expenses of administration, and procedures for filing claims shall
also be applicable with respect to the Plan. 
The Company shall be entitled to rely conclusively upon all tables,
valuations, certificates, opinions and reports furnished by any actuary,
accountant, controller, counsel or other person employed or engaged by the
Company with respect to the Plan.


 


6.3                                 409A Compliance.  To the extent any provision of the Plan or
action by the Committee or Company would subject any Participant to liability
for interest or additional taxes under Code Section 409A(a)(1)(B), or make
Pre-2005 Account amounts subject to Code Section 409A, it will be deemed
null and void, to the extent permitted by law and deemed advisable by the
Committee.  It is intended that the Plan
will comply with Code Section 409A, and that the Pre-2005 Account amounts
be exempt from Code Section 409A coverage, and the Plan shall be
interpreted and construed on a basis consistent with such intent.  The Plan may be amended in any respect deemed
necessary (including retroactively) by the Committee in order to preserve
compliance with Code Section 409A and to maintain Code Section 409A
exemption for the Pre-2005 Account amounts. 
For purposes of this Plan with respect to 2005-2008 Calendar Year
Accounts and Post-2008 Accounts, a “termination of employment”, “termination”, “retirement”
or “separation from service” (or other similar term having a similar import)
under this Plan shall have the same meaning as a “separation from service” as
defined in Code Section 409A. 
Nothing in this Plan (including, without limitation, the preceding)
shall be construed as a guarantee of any particular tax effect for Plan
benefits.


 


11





















 


ARTICLE VII


AMENDMENT OR TERMINATION


 


7.1                                 Amendment or Termination.  The Company intends the Plan to
be permanent but reserves the right, subject to Article IX, to amend or
terminate the Plan when, in the sole opinion of the Company, such amendment or
termination is advisable.  Any such
amendment or termination shall be made pursuant to a resolution of the
Compensation Committee and shall be effective as of the date of such resolution
or as specified therein.


 


7.2                                 Effect of Amendment or Termination.  No amendment or termination of the Plan shall
directly or indirectly deprive any current or former Participant or Beneficiary
of an Account balance which has accrued under this Plan prior to the effective
date of such amendment or termination.


 


12





















 


ARTICLE VIII


GENERAL PROVISIONS


 


8.1                                 Funding.  The Plan is intended to
constitute and at all times shall be interpreted and administered so as to
qualify as an unfunded deferred compensation plan for a select group of
management and highly compensated employees under ERISA.  The Plan at all times shall be entirely
unfunded and the Company shall not be required at any time to segregate any
assets of the Company for payment of any benefits hereunder.  No Participant, Beneficiary or any other
person shall have any interest in any particular assets of the Company by
reason of the right to receive a benefit under the Plan and any such
Participant, Beneficiary or other person shall have only the rights of a
general unsecured creditor of the Company with respect to any rights under the
Plan.


 


8.2                                 General Conditions.  Any accounts payable under the
Qualified Savings Plan shall be paid solely in accordance with the terms and
conditions of the Qualified Savings Plan and nothing in this Plan shall operate
or be construed in any way to modify, amend or affect the terms and provisions
of the Qualified Savings Plan.


 


8.3                                 No Guaranty of Benefits.  Nothing contained in the Plan
shall constitute a guaranty by the Company or any other entity or person that
the assets of the Company will be sufficient to pay any benefit hereunder.


 


8.4                                 No Enlargement of Employee
Rights.  No Participant or
Beneficiary shall have any right to a benefit under the Plan except in
accordance with the terms of the Plan. 
Establishment of the Plan shall not be construed to give any Participant
the right to be retained in the service of the Company, nor to create or confer
on any Participant the right to defer compensation or receive a matching
contribution credit with respect to any future period of service with the
Company.  Nothing in the Plan shall
interfere in any way with the right of the Company to terminate a Participant’s
service at any time with or without cause or notice and whether or not such
termination results in any adverse effect on the individual’s interests under
the Plan.


 


8.5                                 Spendthrift Provision.  No interest of any person or
entity in, or right to receive a benefit under, the Plan shall be subject in
any manner to sale, transfer, assignment, pledge, attachment, garnishment, or
other alienation or encumbrance of any kind; nor may such interest or right to
receive a benefit be taken, either voluntarily or involuntarily, for the
satisfaction of the debts of, or other obligations or claims against, such
person or entity, including claims for alimony, support, separate maintenance
and claims in bankruptcy proceedings.  No
Deferred Mutual Fund Units shall be pledged, hypothecated, or transferred by a
Participant other than by will or the laws of descent and distribution.


 


8.6                                 Applicable Law.  The Plan (including, without
limitation, any rules, regulations, determinations or decisions made by the
Committee or Company relating to the Plan) shall be construed and administered
exclusively in accordance with applicable federal laws and the laws of the
State of Delaware, without regard to its conflict of laws principles.


 


8.7                                 Small Benefits.  If at any time an Account
payable under this Plan has a value of less than $25,000, the Company shall pay
such Account to the Participant or Beneficiary in a single lump sum in lieu of
any further benefit payments hereunder.


 


8.8                                 Incapacity of Recipient.  If any person entitled to a
benefit payment under the Plan is deemed by the Company to be incapable of
personally receiving and giving a valid receipt for such payment, then, unless
and until claim therefor shall have been made by a duly appointed guardian or
other legal representative of such person, the Company may provide for such
payment or any part thereof to be made to any other person or institution then
contributing toward or providing for the care and maintenance of such
person.  Any such payment shall be a
payment for the account of such person and a complete discharge of any
liability of the Company and the Plan therefor.


 


8.9                                 Corporate Successor.  The Plan shall not be
automatically terminated by a transfer or sale of assets of the Company or by
the reorganization, merger or consolidation of the Company into or with any
other corporation or entity, but shall be continued after such transfer, sale,
reorganization, merger or consolidation.


 


13





















 


8.10                           Unclaimed Benefit.  Each Participant shall keep
the Company informed of his current address. 
The Company shall not be obligated to search for the whereabouts of any
person.  If the location of a Participant
is not made known to the Company within three (3) years after the date on
which payment of the Participant’s Account may first be made, payment may be
made as though the Participant had died at the end of the three-year
period.  If, within one additional year
after such three-year period has elapsed, or, within three years after the
actual death of a Participant, the Company is unable to locate any Beneficiary
for the Participant, then the Company shall have no further obligation to pay
any benefit hereunder to such Participant or Beneficiary or any other person
and such benefit shall be irrevocably forfeited.


 


8.11                           Limitations on Liability.  Notwithstanding any of the
preceding provisions of the Plan, neither the Company nor any individual acting
as an employee or agent of the Company shall be liable to any Participant,
former Participant, Beneficiary or any other person for any claim, loss,
liability or expense incurred in connection with the Plan.


 


8.12                           Duties of Participants and
Beneficiaries.  The
Participant and any Beneficiaries of a Participant shall, as a condition of
receiving benefits under this Plan, be obligated to provide the Compensation
Committee with such information as the Compensation Committee shall require in
order to determine Account balances, calculate benefits under this Plan, or
otherwise administer the Plan.


 


8.13                           Taxes and Withholding.  As a condition to any payment
or distribution pursuant to the Plan, the Company may require a Participant to
pay such sum to the Company as may be necessary to discharge its obligations
with respect to any taxes, assessments or other governmental charges imposed on
property or income received by the Participant thereunder.  The Company may deduct or withhold such sum
from any payment or distribution to the Participant.  For each calendar year in which a Participant
defers compensation or receives a matching contribution credit, the Company
shall withhold from that portion of the Participant’s compensation that is not
being deferred, in a manner determined by the Company, the participant’s share
of FICA and other employment taxes due; provided, however, that the Company may
reduce the applicable amount deferred if necessary to comply with applicable
withholding requirements.


 


8.14                           Treatment for other compensation
purposes.  Payments
received by a Participant under the Plan shall not be deemed part of a
Participant’s regular, recurring compensation for purposes of any termination,
indemnity or severance pay laws and shall not be included in, nor have any
effect on, the determination of benefits under any other employee benefit plan,
contract or similar arrangement provided by the Company, unless expressly so
provided by such other plan, contract or arrangement.


 


14





















 


ARTICLE IX


CHANGE-OF-CONTROL


 


9.1                                 Benefit Rights Upon
Change-of-Control.  Notwithstanding
any other provision of the Plan to the contrary, in the event of a
Change-of-Control, the Company or any successor shall be prohibited from
amending or terminating the Plan in any manner so as to deprive, directly or
indirectly, any current or former Participant or Beneficiary of all or any
portion of any Account which has accrued under this Plan prior to the effective
date of such amendment or termination. 
Following a Change-of-Control, no action shall be taken under the Plan
that will cause any Pre-2005 Account amounts to be subject to Code Section 409A
coverage, or cause any 2005-2008 Calendar Year Accounts and Post-2008 Accounts
to fail to comply in any respect with Code Section 409A, in either
case without the written consent of the Participant or Beneficiary (as
applicable).


 


9.2                                 Definition of Change-of-Control.  For purposes of this Plan, a “Change of
Control” shall be deemed to have occurred if:


 


(a)                                 Any
“Person” (as defined below), excluding for this purpose the Company or any
subsidiary of the Company, any employee benefit plan of the Company or any
subsidiary of the Company, or any entity organized, appointed or established
for or pursuant to the terms of any such plan which acquires beneficial
ownership of common shares of the Company, is or becomes the “Beneficial Owner”
(as defined below) of twenty percent (20%) or more of the common shares of the
Company then outstanding; PROVIDED, however, that no Change of Control shall be
deemed to have occurred as the result of an acquisition of common shares of the
Company by the Company which, by reducing the number of shares outstanding,
increases the proportionate beneficial ownership interest of any Person to
twenty percent (20%) or more of the common shares of the Company then
outstanding, but any subsequent increase in the beneficial ownership interest
of such a Person in common shares of the Company shall be deemed a Change of
Control; and provided further that if the Board determines in good faith that a
Person who has become the Beneficial Owner of common shares of the Company
representing twenty percent (20%) or more of the common shares of the Company
then outstanding has inadvertently reached that level of ownership interest,
and if such Person divests as promptly as practicable a sufficient number of
shares of the Company so that the Person no longer has a beneficial ownership
interest in twenty percent (20%) or more of the common shares of the Company
then outstanding, then no Change of Control shall be deemed to have
occurred.  For purposes of this
paragraph (a), the following terms shall have the meanings set forth
below:


 


(i)                                    “Person” shall mean
any individual, firm, limited liability company, corporation or other entity,
and shall include any successor (by merger or otherwise) of any such entity.


 


(ii)                                 “Affiliate” and “Associate”
shall have the respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act of
1934, as amended (the “Exchange Act”).


 


(iii)                              A Person shall be deemed
the “Beneficial Owner” of and shall be deemed to “beneficially own” any
securities:


 


(A)                             which
such Person or any of such Person’s Affiliates or Associates beneficially owns,
directly or indirectly (determined as provided in Rule 13d-3 under the
Exchange Act);


 


(B)                               which
such Person or any of such Person’s Affiliates or Associates has (1) the
right to acquire (whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement or understanding
(other than customary agreements with 


 


15

















 


and between
underwriters and selling group members with respect to a bona fide public offering of securities),
or upon the exercise of conversion rights, exchange rights, rights (other than
rights under the Company’s Rights Agreement dated June 25, 1996, with The
Bank of New York, as amended), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender or exchange offer
made by or on behalf of such Person or any of such Person’s Affiliates or
Associates until such tendered securities are accepted for purchase or
exchange; or (2) the right to vote pursuant to any agreement, arrangement
or understanding; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security if the agreement,
arrangement or understanding to vote such security (a) arises solely from
a revocable proxy or consent given to such Person in response to a public proxy
or consent solicitation made pursuant to, and in accordance with, the applicable
rules and regulations promulgated under the Exchange Act and (b) is
not also then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or


 


(C)                               which
are beneficially owned, directly or indirectly, by any other Person with which
such Person or any of such Person’s Affiliates or Associates has any agreement,
arrangement or understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide public offering of securities)
for the purpose of acquiring, holding, voting (except to the extent
contemplated by the proviso to subparagraph (a)(iii)(B)(2) above) or
disposing of any securities of the Company.


 


Notwithstanding anything
in this definition of Beneficial Ownership to the contrary, the phrase “then
outstanding,” when used with reference to a Person’s beneficial ownership of
securities of the Company, shall mean the number of such securities then issued
and outstanding together with the number of such securities not then actually
issued and outstanding which such Person would be deemed to own beneficially
hereunder.


 


(b)                                During
any period of two (2) consecutive years, individuals who at the beginning
of such two-year period constitute the Board and any new director or directors
(except for any director designated by a person who has entered into an
agreement with the Company to effect a transaction described in
paragraph (a), above, or paragraph (c), below) whose election by the
Board or nomination for election by the Company’s shareholders was approved by
a vote of at least two-thirds of the directors then still in office who either
were directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to constitute at
least a majority of the Board; or


 


(c)                                 Approval
by the shareholders of (or if such approval is not required, the consummation
of) (i) a plan of complete liquidation of the Company, (ii) an
agreement for the sale or disposition of the Company or all or substantially
all of the Company’s assets, (iii) a plan of merger or consolidation of
the Company with any other corporation, or (iv) a similar transaction or
series of transactions involving the Company (any transaction described in parts
(i) through (iv) of this paragraph (c) being referred to as
a “Business Combination”), in each case unless after such a Business
Combination the shareholders of the Company immediately prior to the Business
Combination continue to own at least eighty percent (80%) of the voting
securities of the new (or continued) entity immediately after such Business
Combination, in substantially the same proportion as their ownership of the
Company immediately prior to such Business Combination.


 


16

















 


A “Change of Control” shall not include any transaction described in
paragraph (a) or (c), above, where, in connection with such
transaction, a participant and/or any party acting in concert with that
participant shall substantially increase their, his or its, as the case may be,
ownership interest in the Company or a successor to the Company (other than
through conversion of prior ownership interests in the Company and/or through
equity awards received entirely as compensation for past or future personal
services).


 


9.3                                 Excess Parachute Payments by the
Company.


 


(a)                                 Anything
in this Plan to the contrary notwithstanding, in the event it shall be
determined that any payment or distribution by the Company to or for the
benefit of a Participant, whether paid or payable or distributed or
distributable pursuant to the terms of this Plan or otherwise, but determined
without regard to any additional payments required under this Section 9.3
(a “Payment”), would be subject to the excise tax imposed by Code Section 4999
or if any interest or penalties are incurred by the Participant with respect to
such excise tax (such excise tax, together with any such interest and
penalties, being hereinafter collectively referred to as the “Excise Tax”),
then the Participant shall be entitled to receive an additional payment (a “Gross-Up
Payment”) in an amount such that, after payment by the Participant of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Participant retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payment.


 


(b)                                Subject
to the provisions of paragraph (c) below, all determinations required
to be made under this Section 9.3, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by the
accounting firm which is then serving as the auditors for the Company (the “Accounting
Firm”), which shall provide detailed supporting calculations to both the
Company and the Participant within fifteen (15) business days of the
receipt of notice from the Participant that there has been a Payment, or such
earlier time as is required by the Company. 
In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the Change of Control,
the Participant shall appoint another nationally recognized accounting firm to
make the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). 
All fees and expenses of the Accounting Firm shall be borne solely by
the Company.  Any Gross-Up Payments, as
determined pursuant to this Section 9.3 shall be paid by the Company to
the Participant within five (5) days of the receipt of the Accounting Firm’s
determination but shall be paid no later than the end of the Participant’s
taxable year next following the Participant’s taxable year in which the
Participant remits the related taxes.  If
the Accounting Firm determines that no Excise Tax is payable by the Participant,
it shall furnish the Participant with a written opinion that failure to report
the Excise Tax on the Participant’s applicable federal income tax return would
not result in the imposition of a negligence or similar penalty.  Any good faith determination by the
Accounting Firm shall be binding upon the Company and the Participant.  As a result of the uncertainty in the
application of Code Section 4999 at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made (“Underpayment”),
consistent with the calculations required to be made hereunder.  In the event that the Company exhausts its
remedies pursuant to paragraph (c) below, and the Participant
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Participant but shall be paid no later than the end of the Participant’s
taxable year next following the Participant’s taxable year in which the
Participant remits the related taxes.


 


(c)                                 The
Participant shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Company
of a Gross-Up Payment.  Such notification
shall be given as soon as practicable but no later than fifteen
(15) business days after the Participant is informed in writing of such
claim and shall apprise the Company of the nature of such claim and the date on
which such claim is requested to be paid. 
The Participant shall not pay such claim prior to the expiration of the
thirty (30) day period following the date on which the Participant gives such
notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due).  If the Company notifies the Participant in
writing prior to the expiration of such period that it desires to contest such
claim, the Participant shall:


 


17

















 


(i)                                    Give the Company
any information reasonably requested by the Company relating to such claim;


 


(ii)                                Take such action in
connection with contesting such claim as the Company shall reasonably request
in writing, from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by
the Company;


 


(iii)                             Cooperate with the Company
in good faith in order to effectively contest such claim; and


 


(iv)                             Permit the Company to
participate in any proceedings relating to such claim;


 


provided,
however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Participant harmless, on an after-tax
basis, for any Excise Tax or income tax (including interest and penalties with
respect thereto) imposed as a result of such representation and payment of
costs and expenses.  Without limiting the
foregoing provisions of this paragraph (c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Participant to pay the tax claimed and sue for a
refund, or contest the claim in any permissible manner; and the Participant
agrees to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that if the Company
directs the Participant to pay such claim and sue for a refund, the Company
shall advance the amount of such payment to the Participant on an interest-free
basis and shall indemnify and hold the Participant harmless, on an after-tax
basis, from any Excise Tax or income tax (including interest or penalties with
respect thereto) imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of taxes for the
taxable year of the Participant with respect to which such contested amount is
claimed to be due is limited solely to such contested amount.  Furthermore, the Company’s control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Participant shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.


 


(d)                                 If,
after the receipt by the Participant of an amount advanced by the Company
pursuant to paragraph (c) above, the Participant becomes entitled to
receive any refund with respect to such claim, the Participant shall (subject
to the Company’s complying with the requirements of said paragraph (c))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon, after taxes applicable thereto).  If, after the receipt by the Participant of
an amount advanced by the Company pursuant to said paragraph (c), a
determination is made that the Participant shall not be entitled to any refund
with respect to such claim and the Company does not notify the Participant in
writing of its intent to contest such denial of refund prior to the expiration
of thirty (30) days after such determination, then such advance shall be
forgiven and shall not be required to be repaid (provided that such forgiveness
shall be made no later than the end of the Participant’s taxable year next
following the Participant’s taxable year in which the Participant remits the
related taxes); and the amount of such advance shall offset, to the extent
thereof, the amount of the Gross-Up Payment required to be paid.


 


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ARTICLE X


SPECIAL PROVISIONS


 


10.1                           Former Participants in the General
Signal Corporation Deferred Compensation Plan. 
The deferrals made under the General Signal Corporation
Deferred Compensation Plan (the “GSX Plan”) payable after July 1, 1999,
shall be held under this Plan, as provided in this section.


 


(a)                                 The
GSX Plan accounts of GSX Plan participants not becoming Company employees shall
be held as part of this Plan.  All
amounts deferred under the GSX Plan shall be held under this Plan and may be
directed to Deferred Mutual Fund Units pursuant to the terms of this Plan.  Participants may make no further deferrals
and may make no change in the payment elections made under the GSX Plan.


 


(b)                                The
accounts of GSX Plan participants who became employees of the Company on January 1,
1999, and were eligible for this Plan shall also be held pursuant to the terms
of this Plan.  All such deferrals shall
receive earnings credits on the basis of the Deferral Mutual Fund Units to
which Participants have directed them. 
Participants may also make transfers between Deferred Mutual Fund Units
as provided under the Plan.


 


(c)                                 Former
GSX Plan participants described in 10.l(b) who are also eligible to be
participants in this Plan under Article II shall have a one time election
to be made prior to January 1, 1999, to have their GSX Plan deferrals paid
at the same time and in the same method as they have selected for deferrals
with respect to the Pre-2005 Account under this Plan made after January 1,
1999, as Company employees actively participating in the Plan.


 


Benefits
shall be paid only if the Administrator decides in its discretion that the
applicant is entitled to them.


 


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