EXHIBIT
10.1


 


MAGNETEK,
INC.


AMENDED AND
RESTATED DIRECTOR AND OFFICER


COMPENSATION
AND DEFERRAL INVESTMENT PLAN


January 1,
2009


 


Article 1.   Establishment
and Purposes


 


1.1                       Establishment.   Magnetek, Inc., a
Delaware corporation (the “Company”), established, effective as of October 21,
1997, an amended and restated director pay and deferred compensation plan,
which shall be known as the “Magnetek, Inc. Amended and Restated Director
and Officer Compensation and Deferral Investment Plan” (the “Plan”), for members
of the Board of Directors who are not employees or officers of the Company. The
Plan was amended and restated effective as of January 1, 2005 (the “2005
Restatement”), which amendment and restatement was intended as good faith
compliance with Section 409A of the Code (as defined below) and the
regulations and other Treasury Department guidance promulgated thereunder (“Section 409A”).  The 2005 Restatement only
applied to (i) “amounts deferred” (within the meaning of Section 409A)
by Directors (as defined below) in taxable years beginning after December 31,
2004, and any earnings thereon and (ii) all amounts deferred by Key
Executives (as defined below) under the Plan and any earnings thereon
(collectively, “Section 409A Deferrals”). The provisions of the Plan in
existence prior to the 2005 Restatement continued to govern “amounts deferred”
(within the meaning of Section 409A) by Directors in taxable years
beginning before January 1, 2005, and any earnings thereon (collectively, “Grandfathered
Deferrals”). In addition, the 2005 Restatement extended participation in the
Plan, with respect to compensation earned on or after January 1, 2006, to
certain Key Executives of the Company. From and after January 1, 2006, the
Plan was comprised of two separate sub-plans, one for the benefit of
Directors (the “Director Plan”) and one for the benefit of Key Executives (the “Key
Executive Plan”). The Key Executive Plan is a nonqualified deferred
compensation plan which is unfunded and is maintained primarily for the purpose
of providing deferred compensation for a select group of management or highly
compensated employees, within the meaning of Sections 201(2), 301(a)(3) and
401(a)(1) of ERISA, as defined below. The Director Plan is not subject to
ERISA. This document is also intended to constitute the Summary Plan
Description for the Plan.


 


1.2                       Amendment.   Since
January 1, 2005, the Company has been treating Section 409A Deferrals
in good faith compliance with Section 409A.  The Company now
wishes to further amend and restate the Plan, effective January 1, 2009,
in order to comply with Section 409A and the regulations (including the
final regulations) and other Treasury Department guidance promulgated
thereunder.


 


1.3                       Purpose.   The primary purposes of the
Plan are (i) to provide Directors with the opportunity to defer
voluntarily a portion of their Director’s Fees (as defined below), subject to
the terms of the Plan, (ii) to provide certain Key Executives with the
opportunity to defer voluntarily a portion of their Compensation (as defined
below), subject to the terms of the Plan and (iii) to encourage ownership
of common stock by Directors and Key Executives and thereby align their
interests more closely with the interests of the stockholders of the Company.
By adopting the Plan, the Company desires to enhance its ability to attract and
retain Directors and Key Executives of outstanding competence.


 

















 


Article 2.   Definitions


 


Whenever used herein, the
following terms shall have the meanings set forth below, and, when the defined
meaning is intended, the term is capitalized:


 


(a)                          “Board” or “Board
of Directors” means the Board of Directors of the Company.


 


(b)                         “Board Meeting”
means any meeting of the Board of Directors or of any committee thereof on
which the Director serves and for which the Director is entitled to receive
Meeting Fees.


 


(c)                          “Bonus” means
an incentive award payable by the Company to a Key Executive with respect to
the Key Executive’s services under the Magnetek Incentive Compensation Plan, or
such other bonus or incentive compensation plan or program of the Company, and,
in each case, shall be deemed earned only upon award by the Company.


 


(d)                         “Code” means
the Internal Revenue Code of 1986, as amended from time to time.


 


(e)                          “Committee”
means the Compensation Committee of the Board or such other committee of two (2) or
more Directors appointed by the Committee to administer the Plan pursuant to Article 3.


 


(f)                            “Company” means
Magnetek, Inc., a Delaware corporation.


 


(g)                         “Compensation”
means an employee’s gross Salary and Bonus.


 


(h)                         “Director”
means a member of the Board of Directors of the Company who is neither an
employee nor an officer of the Company.


 


(i)                             “Director’s
Fees” means a Director’s Retainer Fees and Meeting Fees, whether payable in
cash or stock or any combination thereof.


 


(j)                             “Disability”
means that a Participant would be considered to be disabled under Section 409A.


 


(k)                          “ERISA” means
the Employee Retirement Income Security Act of 1974, as amended from time to
time.


 


(l)                             “Fair Market
Value” means (i) the mean between the highest and lowest sales prices of a
share of the Company’s stock on the principal exchange on which shares of the
Company’s stock are then trading, if any, on such determination date, or, if
shares were not traded on such date, then on the next preceding trading day
during which a sale occurred, as such prices are quoted in The Wall Street Journal; or (ii) if
such stock is not traded on an exchange but is quoted on NASDAQ or a successor
quotation system, (1) the mean between the highest and lowest sales prices
(if the stock is then listed as a National Market Issue under the NASD National
Market System) or (2) the mean between the closing representative bid and
asked prices (in all other cases) for the stock on such determination date as
reported by NASDAQ or such successor quotation system; or (iii) if such
stock is not publicly traded on an exchange and not quoted on NASDAQ or a
successor quotation system, the mean between the closing bid and asked prices
for the stock, on such determination date, as determined in good faith by the
Board; or (iv)  if the Company’s stock is not publicly traded, the fair
market value established by the Board in good faith.


 


(m)                       “Key Executive”
means any non-union, full-time, salaried employee of the Company who is an
officer or other key executive of the Company and who qualifies as a “highly
compensated employee or management employee” within the meaning of Title I of
ERISA.


 


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(n)                         “Meeting Fees”
means the fees paid to a Director on a per meeting basis for attending a
meeting of the Board of Directors or a committee thereof.


 


(o)                         “Newly Eligible
Participant” means a Director or Key Executive who first becomes eligible to
participate in the Plan following the commencement of a given Year.


 


(p)                         “Participant”
means a Director or Key Executive who is actively participating in the Plan.


 


(q)                         “Plan” means
this Magnetek, Inc. Amended and Restated Director and Officer Compensation
and Deferral Investment Plan, as it may be amended from time to time.


 


(r)                            “Retainer Fees”
means annual retainer fees paid to a Director for serving as a member of the
Board of Directors or as a Chairman of a committee thereof for a full year’s
service on the Board or such lesser amount as may be payable to any Director in
respect of services on the Board of less than a full year.


 


(s)                          “Salary” means
all regular, basic wages, before reduction for amounts deferred pursuant to the
Plan or any other plan of the Company, payable in cash to a Key Executive for
services to be rendered during the Year, exclusive of any Bonus, other special
fees, awards, or incentive compensation, allowances, or amounts designated by
the Company as payment toward or reimbursement of expenses.


 


(t)                            “Specified
Employee” means any Participant who is a “specified employee” (as such term is
defined under Section 409A) of the Company. The “identification date” (as
defined under Section 409A) for purposes of identifying Specified
Employees shall be September 30 of each calendar year. Individuals
identified on any identification date shall be Specified Employees as of January 1
of the calendar year following the year of the identification date. In
determining whether or not an individual is a Specified Employee as of an
identification date, all individuals who are “nonresident aliens” (as defined
under Section 409A) during the entire 12-month period ending on such
identification date shall be excluded for purposes of determining which
individuals will be Specified Employees.


 


(u)                         “Separation
from Service” means a Participant’s “separation from service,” as determined by
the Committee in accordance with the definition of “separation from service”
under Section 409A.  Notwithstanding
anything herein to the contrary, a Participant who is a Director and
subsequently ceases to qualify as a Director as a result of his or her becoming
a Key Executive shall not be deemed to have had a Separation from Service for
purposes of the Plan until such time as the Participant has a Separation from
Service as both a Key Executive and a Director.


 


(v)                         “Stock” means
common stock of the Company, par value $0.01 per share.


 


(w)                       “Value” means
the fair market value of the cash and/or Stock a Director receives (or, absent
deferrals hereunder, is entitled to receive) as Director’s Fees.


 


(x)                           “Year” means a
calendar year.


 


Article 3.   Administration


 


3.1                       Authority of the Committee.   The Plan shall
be administered by the Compensation Committee of the Board of Directors of the
Company. In addition, any power of the Committee hereunder may also be
exercised by the full Board, except to the extent that the grant or exercise of
such 


 


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authority would cause any Stock issued hereunder or
other transaction with respect to the Plan to become subject to (or lose an
exemption under) the short-swing profit recovery provisions of Section 16
of the Securities Exchange Act of 1934, as amended. Subject to the terms of
this Plan, the Board may appoint a successor Committee to administer the Plan,
provided that such Committee consists solely of two (2) or more
non-employee directors within the meaning of Section 16(b) of the
Securities Exchange Act of 1934. In addition, subject to the terms of the Plan,
and to the extent permissible under Section 16 of the Securities Exchange
Act of 1934, as amended, the Board or the Committee may delegate ministerial
duties to any executive or executives of the Company.


 


Subject to the provisions
herein, the Committee shall have full power and discretion to issue Stock to
Participants in accordance with the terms of the Plan; to select Key Executives
for participation in the Plan; to determine the terms and conditions of each
Director’s or Key Executive’s participation in the Plan; to construe and
interpret the Plan and any agreement or instrument entered into under the Plan;
to establish, amend, or waive rules and regulations for the Plan’s
administration; to amend (subject to the provisions of Article 11 herein)
the terms and conditions of the Plan and any agreement entered into under the
Plan; and to make other determinations which may be necessary or advisable for
the administration of the Plan.


 


3.2                       Decisions Binding.   All determinations and
decisions of the Board and/or the Committee as to any disputed question arising
under the Plan, including questions of construction and interpretation, shall
be final, conclusive, and binding on all parties and shall be given the maximum
possible deference allowed by law.


 


3.3                       Claims Procedure.


 


(a)                          Director Claims.   Any Director making a claim
for benefits under this Plan may contest the Committee’s decision to deny such
claim or appeal therefrom only by submitting the matter to binding arbitration
before a single arbitrator. Any arbitration shall be held in Milwaukee,
Wisconsin, unless otherwise agreed to by the Committee. The arbitration shall
be conducted pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. The arbitrator’s authority shall be limited to the
affirmation or reversal of the Committee’s denial of the claim or appeal, and
the arbitrator shall have no power to alter, add to, or subtract from any
provision of this Plan. The arbitrator’s decision shall be final and binding on
all parties, if warranted on the record and reasonably based on applicable law
and the provisions of this Plan. The arbitrator shall have no power to award
any punitive, exemplary, consequential, or special damages, and under no
circumstances shall an award contain any amount that in any way reflects any of
such types of damages. Each party shall bear its own attorney’s fees and costs
of arbitration. Judgment on the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof.


 


(b)                         Key Executive Claims.   Any Participant who is a Key
Executive has the right to make a written claim for benefits under the Plan. If
such a written claim is made, and the Committee wholly or partially denies the
claim, the Committee shall provide the claimant with written notice of such
denial, setting forth, in a manner calculated to be understood by the claimant:


 


(i)                                                 the specific
reason or reasons for such denial;


 


(ii)                                              reference to
the specific Plan provisions on which the denial is based;


 


(iii)                                          a description of any additional
material or information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary; and


 


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(iv)                                          an explanation of the Plan’s
claims review procedure and time limits applicable to those procedures,
including a statement of the claimant’s right to bring a civil action under
ERISA Section 502(a) if the claim is denied on appeal.


 


(1)                                                                                                                               The written notice
of any claim denial pursuant to Section 3.3(b) shall be given not
later than thirty (30) days after receipt of the claim by the Committee, unless
the Committee determines that special circumstances require an extension of
time for processing the claim, in which event:


 


(i)                                                 written notice
of the extension shall be given by the Committee to the claimant prior to
thirty (30) days after receipt of the claim;


 


(ii)                                              the extension
shall not exceed a period of thirty (30) days from the end of the initial
thirty (30) day period for giving notice of a claim denial; and


 


(iii)                                           the extension
notice shall indicate (A) the special circumstances requiring an extension
of time and (B) the date by which the Committee expects to render the
benefit determination.


 


(2)                                                                                                                               The period of
time within which a benefit determination is required to be made shall begin at
the time a claim is received by the Committee, without regard to whether all
the information necessary to make a benefit determination accompanies the
filing. If the period of time for determining the claim is extended as
permitted above, due to a claimant’s failure to submit information necessary to
decide the claim, then the period for making the benefit determination shall be
tolled from the date on which the notification of the extension is sent to the
claimant until the date on which the claimant responds to the request for
additional information.


 


(3)                                                                                                                               The decision of
the Committee shall be final unless the claimant, within sixty (60) days after
receipt of notice of the claims denial from the Committee, submits a written
request to the Committee for an appeal of the denial. During that sixty (60)
day period, the claimant shall be provided, upon request and free of charge,
reasonable access to, and copies of, all documents, records and other
information relevant to the claim for benefits. The claimant shall be
provided the opportunity to submit written comments, documents, records, and
other information relating to the claim for benefits as part of the claimant’s
appeal. The claimant may act in these matters individually, or through his or
her authorized representative.


 


(4)                                                                                                                               After receiving
the written appeal, the Committee, or its delegate, shall issue a written
decision notifying the claimant of its decision on review, not later than
thirty (30) days after receipt of the written appeal, unless the Committee
determines that special circumstances require an extension of time for
reviewing the appeal, in which event:


 


(i)                                                 written notice
of the extension shall be given by the Committee prior to thirty (30) days
after receipt of the written appeal;


 


(ii)                                              the extension
shall not exceed a period of thirty (30) days from the end of the initial
thirty (30) day review period;


 


(iii)                                           the extension
notice shall indicate (A) the special circumstances requiring an extension
of time and (B) the date by which the Committee expects to render the
appeal decision.


 


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(5)                                                                                                                               The period of
time within which a benefit determination on review is required to be made
shall begin at the time an appeal is received by the Committee, without regard
to whether all the information necessary to make a benefit determination on
review accompanies the filing of the appeal. If the period of time for
reviewing the appeal is extended as permitted above, due to a claimant’s
failure to submit information necessary to decide the claim on appeal, then the
period for making the benefit determination on review shall be tolled from the
date on which the notification of the extension is sent to the claimant until
the date on which the claimant responds to the request for additional
information.


 


(6)                                                                                                                               In conducting
the review on appeal, the Committee shall 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. If the Committee upholds the
denial, the written notice of decision from the Committee shall set forth, in a
manner calculated to be understood by the claimant:


 


(i)                                                 the specific
reason or reasons for the denial


 


(ii)                                              reference to
the specific Plan provisions on which the denial is based;


 


(iii)                                           a statement
that the claimant is entitled to receive, upon request and free of charge,
reasonable access to, and copies of, all documents, records and other
information relevant to the claim for benefits; and


 


(iv)                                          a statement of the claimant’s
right to bring a civil action under ERISA Section 502(a).


 


(7)                                                                                                                               If the Plan or
any of its representatives fail to follow any of the above claims procedures,
the claimant shall be deemed to have duly exhausted the administrative remedies
available under the Plan and shall be entitled to pursue any available remedies
under ERISA Section 502(a), including but not limited to the filing of an
action for immediate declaratory relief regarding benefits due under the Plan.


 


(c)                          Service
of Process.  The
Secretary of the Company is hereby designated as agent of the Plan for the
service of legal process.


 


3.4                       Indemnification.   Each person who is or shall
have been a member of the Board shall be indemnified and held harmless by the
Company against and from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by him or her in connection with or
resulting from any claim, action, suit, or proceeding to which he or she may be
a defendant, or in which he or she may be a party by reason of any act or
omission by such Board member in his or her capacity as an administrator of the
Plan, and against and from any and all amounts paid by him or her in settlement
thereof, with the Company’s approval, or paid by him or her in satisfaction of
any judgment in any such action, suit, or proceeding against him or her,
provided he or she shall give the Company an opportunity, at its own expense,
to handle and defend the same before he or she undertakes to handle and defend
it on his or her own behalf.


 


The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification
to which such persons may be entitled under the Company’s Certificate of
Incorporation or Bylaws, as a matter of law, or otherwise, or any power that
the Company may have to indemnify them or hold them harmless.


 


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Article 4.   Participation


 


4.1                       Participation.   Those members of the Board
of Directors who are not employees or officers of the Company, and those Key
Executives who have been designated as eligible to participate in the Plan with
respect to any Year beginning after December 31, 2005 by the Committee
shall be eligible to participate in the Plan. Notwithstanding anything herein
to the contrary, unless the Committee determines otherwise, the Company’s Chief
Executive Officer shall be eligible to participate in the Plan with respect to
any Year beginning after December 31, 2005.  Each Year, the Committee shall notify
Directors and Key Executives of their eligibility to participate in the Plan
during the following Year.  A Director or
Key Executive who is eligible to participate in the Plan shall commence
participation in the Plan by completing the “Election to Defer Forms” and
delivering such forms to the Company as provided in Article 6 herein, and
in the case of Directors electing to receive Stock in lieu of cash Meeting
Fees, by completing the “Election to Receive Stock Forms” and delivering such
forms to the Company as provided in Sections 5.2 and 5.3 herein.


 


In the event a Participant
no longer meets the requirements for participation in the Plan, such Participant
shall become an inactive Participant, retaining all the rights described under
the Plan, except the right to make any further deferrals or, if applicable,
receive payment of Directors’ Fees in Stock, until such time that the
Participant again becomes an active Participant.


 


4.2                       Participation.   The eligibility of Key
Executives to participate in the Plan shall be determined by resolution of the
Committee annually or at such other time selected by the Committee.


 


4.3                       Partial Year Participation.   In the event
that a Director or Key Executive first becomes eligible to participate in the
Plan following the commencement of a given Year, such person shall be notified
by the Company of his or her eligibility to participate, and the Company shall
provide each such Newly Eligible Participant with “Election to Defer Forms,”
which must be completed by such Newly Eligible Participant and delivered to the
Company as provided in Article 6 herein and “Election to Receive Stock
Forms,” which must be completed by such Newly Eligible Participant and
delivered to the Company as provided in Sections 5.2 and 5.3 herein;
provided, however, that such Newly Eligible Participant may only make an
election to defer with respect to that portion of his or her Director’s Fees or
Compensation, as applicable, for such Year which are to be earned after the filing of the election and such
Newly Eligible Participant may only make an election to receive payment of
Meeting Fees in Stock with respect to that portion of his or her Meeting Fees
for such year which are to be earned after the filing of the election.


 


Article 5.   Stock
in Lieu of Cash Director’s Fees


 


5.1                       Payment in Stock.   Subject to Section 5.5
herein, a Director shall receive Stock in lieu of the annual cash Retainer Fees
otherwise payable to each Director each Year for so long as this Plan is in
effect, to the extent and subject to the terms and conditions set forth in this
Article 5. In addition, a Director may elect to receive Stock in lieu of
cash Meeting Fees payable to such Director each Year for so long as this Plan
is in effect, to the extent and subject to the terms and conditions set forth
in this Article 5.


 


5.2                       Stock Payment Procedures.   The number of
shares of Stock to be paid in lieu of cash Retainer Fees or cash Meeting Fees
(in the event of an election by a Director to so receive Stock in lieu of cash
Meeting Fees) on each payment date shall be equal to (i) the amount of the
cash Retainer Fees or cash Meeting Fees, as applicable, payable to each
Director at the rates then in effect divided by (ii) the Fair Market Value
of Stock as determined on the most recent practicable date preceding the
payment date. No fractional shares of Stock shall be granted; instead, the cash
remainder shall be paid to the Participant. The Company shall deliver to each
Participant each month as payment of Retainer Fees one 


 


7

















 


or more certificates representing the Stock,
registered in the name of the Participant (or if directed by the Participant,
in the joint names of the Participant and his or her spouse). The Company shall
deliver to each Participant who has properly filed an “Election to Receive
Stock Form” as payment of Meeting Fees one or more certificates representing
the Stock, registered in the name of the Participant (or, if directed by the
Participant, in joint names of the Participant and his or her spouse) at the
times such Meeting Fees are customarily paid by the Company.


 


5.3                       Method of Electing to Receive Stock in Lieu of Cash Meeting Fees.   In order to
receive Stock in lieu of cash Meeting Fees under the Plan, the Director must
complete and deliver to the Company a written “Election To Receive Stock Form”
on which he or she designates the election to receive Stock. Participants shall
make their elections to receive payment in Stock for their Meeting Fees under
the Plan no later than the date immediately prior to the date of the Board
Meeting to which such Meeting Fees relate. All elections to receive payment in
Stock for Meeting Fees shall be made on an “Election to Receive Stock Form,” as
described herein and shall be delivered by the Participant to the Committee (or
its delegate) as described in Section 12.1 herein. The election to receive
payment in Stock for Meeting Fees shall automatically remain in effect for all
periods the Participant participates in the Plan until revoked or changed by
the Participant.


 


The election may be revoked
or changed with respect to future Board Meetings by filing with the Committee
(or its delegate) a new election on an “Election to Receive Stock Form” no
later than the day immediately prior to the date of the next Board Meeting for
which the Participant shall receive Meeting Fees.


 


5.4                       Rights of the Participant.   Except for the
terms and conditions set forth in this Plan, a Participant paid Stock in lieu
of the cash Retainer Fees or cash Meeting Fees shall have all of the rights of
a holder of the Stock, including the right to receive dividends paid on such
Stock and the right to vote the Stock at meetings of stockholders of the
Company. Upon delivery, such Stock will be nonforfeitable.


 


5.5                       Special Circumstances.   The Committee shall have the
authority, in its sole discretion, to permit all of a Director’s Retainer Fees
to be paid in cash, rather than in Stock, in the event that a Director
establishes, to the satisfaction of the Committee, that special circumstances
warrant such cash payment. The merit of the Director’s special circumstances
plea shall be judged by the Committee. The Committee’s decision as to whether
the Director’s special circumstances plea justifies the cash payment of the
Director’s Retainer Fees shall be final, conclusive, and not subject to appeal.


 


Article 6.   Deferral Opportunity


 


6.1                       Amount Which May Be Deferred.   A Participant
who is a Director may elect to defer up to one hundred percent (100%)  of his or her Retainer Fees for any Year
and up to one hundred percent (100%) of his or her Meeting Fees for each Board
Meeting during any Year. The amount of Retainer Fees and Meeting Fees to be
deferred shall be expressed as a percentage of the Value of the fees otherwise
payable (in cash or Stock) for the Participant’s service as a Director of the
Company. A Participant who is a Key Executive may elect to defer up to one hundred
percent (100%) of Salary and/or Bonus in any Year. The minimum amount of any
single eligible component of Compensation (i.e., Salary and Bonus) which may be
deferred in any Year is the greater of five percent (5%) of such component or
one thousand dollars ($1,000). In addition, an election to defer Compensation
in any Year shall be expressed by each Participant in minimum increments of
either five percent (5%) of the applicable component of Compensation or one
thousand dollars ($1,000) or such other form acceptable to the Committee.


 


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6.2                       Deferral Election for Retainer Fees.   Participants
who are Directors shall make their elections to defer their Retainer Fees under
the Plan no later than December 20 prior to the beginning of each Year, or
in the case of a Newly Eligible Participant, no later than thirty (30) calendar
days following the date such Newly Eligible Participant first became eligible
to participate in the Plan, and such elections to defer shall apply only with
respect to Retainer Fees not yet earned or paid as of the effective date of
such elections. All elections to defer Retainer Fees shall be made on an “Election
to Defer Form,” as described herein and shall be delivered by the Participant to
the Committee (or its delegate) as described in Section 12.1 herein. The
deferral election with respect to Retainer Fees shall automatically remain in
effect for the Year in question (for which it shall be irrevocable) and for all
subsequent periods the Participant participates in the Plan; provided, however,
that the deferral may be revoked or changed with respect to a future Year, but
only by delivering to the Committee (or its delegate) a new election on an “Election
to Defer Form” no later than December 20 prior to the beginning of such
future Year.


 


Participants who are
Directors shall make the following elections on an “Election to Defer Form”:


 


(a)                                          The amount to be deferred
with respect to his or her Retainer Fees for the Year, pursuant to the terms of
Section 6.1 herein; and


 


(b)                                         The form of payment to be
made to the Participant at the end of the deferral period, pursuant to the
terms of Section 6.6 herein.


 


6.3                       Deferral Election for Meeting Fees.   Participants
who are Directors shall make their elections to defer their Meeting Fees under
the Plan no later than December 20 prior to the beginning of each Year, or
in the case of a Newly Eligible Participant, no later than thirty (30) calendar
days following the date such Newly Eligible Participant first became eligible
to participate in the Plan, and such elections to defer shall apply only with
respect to Meeting Fees not yet earned or paid as of the effective date of such
elections. All elections to defer Meeting Fees shall be made on an “Election to
Defer Form,” as described in Section 6.2 herein and shall be delivered by
the Participant to the Committee (or its delegate) as described in Section 12.1
herein. The deferral election with respect to Meeting Fees shall automatically
remain in effect for the Year in question (for which it shall be irrevocable)
and for all subsequent periods the Participant participates in the Plan;
provided, however, that the deferral may be revoked or changed with respect to
a future Year, but only by delivering to the Committee (or its delegate) a new
election on an “Election to Defer Form” no later than December 20 prior to
the beginning of such future Year.


 


Participants who are
Directors shall make the following elections on an “Election to Defer Form”:


 


(a)                                          The amount to be deferred
with respect to his or her Meeting Fees for the Year, pursuant to the terms of Section 6.1
herein; and


 


(b)                                         The form of payment to be
made to the Participant at the end of the deferral period, pursuant to the
terms of Section 6.6 herein.


 


6.4                       Deferral Election for Compensation.   Participants
who are Key Executives shall make their elections under the Plan to defer their
Compensation no later than December 20 prior to the beginning of each
Year, or in the case of a Newly Eligible Participant, no later than thirty (30)
calendar days following the date such Newly Eligible Participant first became
eligible to participate herein and such elections to defer shall apply only
with respect to Compensation not yet earned or paid as of the effective date of
such elections. All elections to defer Compensation shall be made on an “Election
to Defer Form,” as described herein and shall be delivered by the Participant
to the Committee (or its delegate) as described in Section 12.1 herein.
The deferral election with respect to Compensation shall automatically remain
in effect for the Year in question (for which it shall be irrevocable) and for
all subsequent periods the Participant participates in the Plan; provided,
however, that the deferral may be revoked or changed with respect to a future
Year, but only by delivering to the Committee (or its delegate) a new election
on an “Election to Defer Form” no later than December 20 prior to the
beginning of such future Year.


 


 


9

















 


Participants who are Key
Executives shall make the following elections on an “Election to
Defer Form”:


 


(a)                                          The amount to be deferred
with respect to his or her Salary and/or Bonus for the Year, pursuant to the
terms of Section 6.1 herein; and


 


(b)                                         The form of payment to be
made to the Participant at the end of the deferral period, pursuant to the
terms of Section 6.6 herein.


 


6.5                       Length of Deferral.   Except as otherwise provided
in Section 6.8, the amounts deferred by each Participant and the
accumulated earnings thereon shall be paid (or commence to be paid) to the
Participant as provided in Sections 6.6 and 6.7 herein in the month of January of
the Year following the Year in which the Participant’s Separation from Service
occurs for any reason other than death. In the event of the Participant’s
death, the payment of the amounts deferred and the accumulated earnings thereon
(or, in the event of death following commencement of installment payments, the
remaining unpaid balance thereof) shall be made in a single lump sum payment in
the form provided in Section 6.7 herein as soon as administratively
practical after the Participant’s death.


 


Notwithstanding anything
herein to the contrary, to the extent required under Section 409A, no
distributions to a Specified Employee that are to be made as a result of the
Specified Employee’s Separation from Service for any reason other than death or
Disability shall be made or commence prior to the date that is six months after
the date of such Separation from Service; provided that any distributions that
otherwise would have been payable during such six-month period shall continue
to accrue earnings under Section 7.2 and shall be distributed (together
with any earnings thereon) in lump sum on the first day of the seventh month
following the date of the Specified Employee’s Separation from Service.


 


6.6                       Form of Payment of Deferred Amounts.   Subject to Section 6.8,
Participants shall be entitled to elect to receive payment of amounts deferred
in any Year, together with earnings accrued thereon, at the end of the deferral
period in a single lump sum payment or by means of installments, pursuant to
the form elected by the Participant on the applicable “Election to Defer Form”
at the time the Participant elected to defer such amounts. If no election is
made with respect to amounts deferred in one or more Years (and earnings
accrued thereon), the Participant will be paid such amounts in a single lump
sum. Notwithstanding anything herein to the contrary, all of a Participant’s
Grandfathered Deferrals shall be paid in the same form.


 


(a)                          Lump Sum Payment.   Participants
may elect to receive the payout of deferred amounts and earnings accrued
thereon in a single lump sum.  Such lump sum
payment shall be made to the Participant in the month of January of the
Year following the Year in which the Participant’s Separation from Service
occurs for any reason other than death, as set forth in Section 6.5
herein.


 


(b)                         Installment Payments.   Participants may elect to
receive the payout of deferred amounts and earnings accrued thereon in annual
installments, with a minimum number of installments of two (2), and a maximum
number of installments of ten (10). The initial payment shall be made in the
month of January of the Year following the Year in which the Participant’s
Separation from Service occurs for any reason other than death, as set forth in
Section 6.5 herein. The remaining installment payments shall be made in
the month of January of each Year thereafter, until the Participant’s
entire deferred account has been paid in full. Earnings shall continue to
accrue on the deferred amounts in the Participant’s deferred account, as
provided in Section 7.2 of this Plan. The amount of each installment
payment shall be equal to the balance remaining in the Participant’s deferred
account immediately prior to each such payment, multiplied by a fraction, the
numerator of which is one (1), and the denominator of which is the number of
installment payments remaining.


 


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Subject to the following
rules, with respect to Grandfathered Deferrals a Participant may elect to
change a form of benefit elected pursuant to this Section 6.6 by filing a
revised election form on an “Election to Defer Form,” as described in
Sections 6.2 or 6.3 herein, as the case may be, specifying the new form of
distribution:


 


(1)                                                                                             An election to
change the form of distribution must be made no later than December 31 at
least one (1) full Year prior to the payout commencement date as described
in Section 6.5 herein. If a new election is submitted after this date, the
election shall be null and void, and the form of distribution shall be
determined under the Participant’s original election.


 


(2)                                                                                             Any election to
change the form of distribution from installments to a lump sum is subject in
all cases to the approval of the Board.


 


(3)                                                                                             No further
election to change a form of distribution shall be permitted with respect to
amounts already subject to a revised election submitted pursuant to this Section 6.6.


 


Participants shall not be
permitted to change the form of their distributions with respect to Section 409A
Deferrals.


 


Notwithstanding anything to
the contrary herein, if the deferred amounts and accumulated earnings thereon
to be paid to a Participant in the form of installments is less than $50,000,
such amounts shall be paid to the Participant in a single lump sum as set forth
in Section 6.6(a), notwithstanding the Participant’s election to receive
such amounts in the form of installments.


 


6.7                       Type of Payment of Deferred Amounts.   All payment of
deferred amounts hereunder shall be made in shares of Stock, provided that cash
in lieu of fractional shares of Stock may be distributed.


 


6.8                       Severe Financial Hardship.   If the Participant establishes, to the satisfaction of the Committee, that
a “severe financial hardship” exists, then the Committee may, subject to the
limitations imposed in this Section 6.8, in its sole discretion:


 


(a)                                          Suspend deferrals by such
Participant under the Plan; or


 


(b)                                         Provide that all, or a
portion, of the amount previously deferred by the Participant shall immediately
be paid in a lump sum payment; or


 


(c)                                          Provide that all, or a
portion, of the installments payable over a period of time  shall immediately be paid in a lump sum
payment.


 


For purposes of this Section 6.8,
with respect to Grandfathered Deferrals, “severe financial hardship” shall mean
any financial hardship resulting from extraordinary and unforeseeable
circumstances arising as a result of one or more recent events beyond the
control of the Participant. For purposes of this Section 6.8, with respect
to Section 409A Deferrals, “severe financial hardship” shall mean a severe
financial hardship of 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 Section 152 of the Code,
without regard to Sections 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); or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of



 


11

















 


the Participant. Distribution on account of a severe
financial hardship may not be made to the extent such severe financial hardship
is or may be relieved: (i) through reimbursement or compensation by
insurance or otherwise; (ii) by liquidation of the Participant’s assets,
to the extent the liquidation of such assets would not itself cause severe
financial hardship; or (iii) by cessation of deferrals under the Plan. The
amount of a distribution made on account of a severe financial hardship shall
be limited to the amount reasonably necessary to satisfy the emergency need,
plus to pay any Federal, state, local or foreign income taxes or penalties
reasonably anticipated to result from the distribution. Examples of what are
not considered to be severe financial hardships include the need to send a
Participant’s child to college or the desire to purchase a home. The
Participant’s account will be credited with earnings in accordance with the
Plan up to the date of distribution.


 


The existence of a severe
financial hardship and the amount reasonably necessary to satisfy the emergency
need created by such severe financial hardship shall be judged by the
Committee, in its sole discretion. The Committee’s decision as to the existence
of a severe financial hardship, the amount reasonably necessary to satisfy the
emergency need created by such severe financial hardship, and the manner in
which, if at all, the Participant’s future deferral opportunities shall be
ceased, and/or the manner in which, if at all, the immediate payment of
deferred amounts to the Participant shall be made, shall be final and
conclusive.


 


Article 7.   Deferred Compensation Accounts


 


7.1                       Participants’ Accounts.   The Company shall establish
and maintain an individual bookkeeping account for deferrals made by each
Participant under Article 6 herein. Each account shall be credited as of
the date the amount deferred otherwise would have become due and payable to the
Participant and as provided in Section 7.2. Each Participant’s account
shall be one hundred percent (100%) vested at all times.


 


7.2                       Gains and Losses on Deferred Amounts.   Each
Participant’s account for deferrals will be deemed to be invested in Stock,
including any dividends paid thereon (which will be deemed to be reinvested in
such Stock). Each Participant’s account will thus be adjusted and increased or
decreased by the results of such deemed investment from the time Plan deferrals
are credited under Section 7.1 until distributed pursuant to Article 6
hereof.


 


7.3                       Charges Against Accounts.   There shall be
charged against each Participant’s deferred account any payments made to the
Participant or  to his or her
beneficiary.


 


7.4                       Designation of Beneficiary.   Each
Participant shall designate a beneficiary or beneficiaries who, upon the
Participant’s death, will receive the deferred amounts that otherwise would
have been paid to the Participant under the Plan. All designations shall be
signed by the Participant, and shall be in such form as prescribed by the
Committee. Each designation shall be effective as of the date delivered to the
Chief Human Resources Officer of the Company by the Participant.


 


Participants may change
their designations of beneficiary on such form as prescribed by the Committee.
The payment of amounts deferred under the Plan shall be in accordance with the
last unrevoked written designation of beneficiary that has been signed by the
Participant and delivered by the Participant to the Chief Human Resources
Officer of the Company prior to the Participant’s death.


 


In the event that all the
beneficiaries named by a Participant pursuant to this Section 7.4
predecease the Participant, the deferred amounts that would have been paid to
the Participant or the Participant’s beneficiaries shall be paid to the
Participant’s estate.


 


12

















 


In the event a Participant
does not designate a beneficiary, or for any reason such designation is
ineffective, in whole or in part, the amounts that otherwise would have been
paid to the Participant or  the
Participant’s beneficiaries under the Plan shall be paid to the Participant’s
estate.


 


Article 8.   Rights
of Participants


 


8.1                       Contractual Obligation.   The Plan shall create a
contractual obligation on the part of the Company to make payments from the
Participants’ accounts when due. Payment of account balances shall be made out
of the general funds of the Company.


 


8.2                       Unsecured Interest.   No Participant or party
claiming an interest in deferred amounts of a Participant shall have any
interest whatsoever in any specific asset of the Company. To the extent that
any party acquires a right to receive payments under the Plan, such right shall
be equivalent to that of an unsecured general creditor of the Company. The
Company shall have no duty to set aside or invest any amounts credited to
Participants’ accounts under this Plan.


 


Nothing contained in this
Plan shall create a trust of any kind or a fiduciary relationship between the
Company and any Participant. Nevertheless, the Company may establish one or
more trusts, with such trustee as the Committee may approve, for the purpose of
providing for the payment of deferred amounts and earnings thereon. Such trust
or trusts may be irrevocable, but the assets thereof shall be subject to the
claims of the Company’s general creditors in the event of the Company’s
bankruptcy or insolvency. To the extent any deferred amounts and earnings
thereon under the Plan are actually paid from any such trust, the Company shall
have no further obligation with respect thereto, but to the extent not so paid,
such deferred amounts and earnings thereon shall remain the obligation of, and
shall be paid by, the Company.


 


8.3                       No Guarantee of Principal or Earnings.   Nothing
contained in the Plan shall constitute a guarantee by the Company or any other
person or entity that the amounts deferred hereunder will increase or shall not
decrease in value due to the deemed investment of such amounts in Stock. The
Stock may be a volatile investment and decreases in the value thereof may
result in a loss of some or all of the principal amounts deferred hereunder.
Thus, it is possible for the value of a Participant’s account to decrease as a
result of its deemed investment in Stock, if the value of the Stock decreases.


 


Article 9.   Number
and Source of Shares Available Under the Plan


 


Subject to adjustments as
provided in this Article 9, the shares of Stock that may be issued under
the Plan shall not exceed an aggregate of 1,100,000 shares of Stock. The
Company shall reserve a sufficient number of shares of Stock for purposes of
the Plan, as determined by the Committee. Such shares may be previously issued
and outstanding shares of Stock reacquired by the Company and held in its
treasury, or may be authorized but unissued shares of Stock, or may consist
partly of each. If the Company shall at any time increase or decrease the
number of outstanding shares of Stock or change in any way the rights and
privileges of such shares by means of the payment of a stock dividend or any
other distribution upon such shares payable in Stock, or through a stock split,
subdivision, consolidation, combination, reclassification, or recapitalization
involving the Stock, and in each case not involving the receipt of
consideration by the Company, then the Committee shall, in such manner as shall
be reasonably determined by the Committee, increase, decrease, or change in
like manner the number, rights and privileges of the shares issuable under the
Plan as if such shares had been issued and outstanding, fully paid, and
nonassessable at the time of such occurrence in order to prevent dilution or
enlargement of Participants’ rights under the Plan.


 


13

















 


Article 10.   Withholding
of Taxes


 


The Company shall have the
right to require Participants to remit to the Company an amount sufficient to
satisfy any Federal, state, and local withholding tax requirements, or  to deduct from all payments made pursuant
to the Plan amounts sufficient to satisfy any withholding tax requirements.


 


Article 11.   Amendment
and Termination


 


The Company hereby reserves
the right to amend, modify, or  terminate
the Plan at any time by action of the Board, with or without prior notice. No
such amendment or termination shall in any material manner adversely affect any
Participant’s rights to amounts already deferred or earned or earnings thereon
up to the point of amendment or termination or any rights of such Participant
under any Stock theretofore paid to him or her hereunder, without the consent
of the Participant. Notwithstanding anything herein to the contrary, to the
extent permissible under Section 409A without the imposition of the
additional tax under Section 409A(a)(1)(B) of the Code or any other
taxes or penalties imposed under Section 409A (the “Section 409A
Taxes”), in the event of any irrevocable termination of the Plan, the Board, in
its sole and absolute discretion may elect to liquidate the Plan and distribute
to each Participant all amounts deferred under the Plan (and earnings thereon)
in a lump sum; provided that all such distributions (i) commence  no earlier than the date
that is twelve (12) months following the date of such termination (or such
earlier date permitted under Section 409A without the imposition of the Section 409A
Taxes) and (ii) are completed by the date that is twenty-four (24) months
following the date of such termination (or such later date permitted under Section 409A
without the imposition of the Section 409A Taxes).  In addition, payments may be accelerated upon
a Plan termination as provided above only if, to the extent required under Section 409A,
(i) all other nonqualified deferred compensation “account balance plans”
(as such term is defined under Section 409A), in which any Participant
hereunder participates are terminated along with the Plan, and (ii) the
Company does not adopt any new nonqualified deferred compensation “account
balance plan” (as such term is defined under Section 409A), for five years
following the date of such Plan termination.


 


Article 12.        Miscellaneous


 


12.1     Notice.   Unless
otherwise prescribed by the Committee, any notice or filing required or
permitted to be given to the Company under the Plan shall be sufficient if in writing
and hand delivered, or sent by registered or certified mail to the Chief Human
Resources Officer of the Company. Notice to the Chief Human Resources Officer
of the Company, if mailed, shall be addressed to the principal executive
offices of the Company. Notice mailed to a Participant shall be at such address
as is given in the records of the Company. Notices shall be deemed given as of
the date of delivery or, if delivery is made by mail, as of the date shown on
the postmark on the receipt for registration or certification.


 


12.2     Consideration for Stock Issued.   Stock will be
paid under the Plan in consideration of the services of Participants as
directors, employees and/or officers of the Company.


 


12.3     Compliance with Securities Laws, Listing
Requirements, and Other Laws and Obligations.   The Company
shall not be obligated to deliver any shares of Stock under this Plan, (a) until,
in the opinion of the Company’s counsel, all applicable federal and state laws
and regulations have been complied with, (b) if the outstanding Stock
is at the time listed on any stock exchange, or quoted on any automated
quotation system, until the shares to be delivered have been listed or
authorized to be listed or quoted on such exchange or system upon official
notice of issuance, and (c) until all other legal matters in connection
with the issuance and delivery of such shares have been approved by the Company’s
counsel. If the sale of Stock has not been registered under the Securities Act
of 1933, as amended, the Company may require, as a condition to the payment of
Stock, such representations or agreements as counsel for the Company may
consider appropriate to avoid violation of such Act and may require that the
certificates evidencing such Stock bear an appropriate legend restricting
transfer.


 


14

















 


12.4     No Shareholder Rights Conferred.   Nothing
contained in the Plan or any agreement hereunder will confer upon any
Participant any rights of a shareholder of the Company unless and until shares
of Stock are issued to such Participant upon the payment of Stock.


 


12.5     No Right to Stock.   Nothing in the
Plan shall be construed to give any Director or Key Executive any right to a
grant of Stock under the Plan unless all conditions described within the Plan
are met as determined in the sole discretion of the Committee.


 


12.6     Granted Shares Have Same Status as Issued
Shares.   Any shares of Stock of the Company issued as
a stock dividend, or as a result of stock splits, combinations, exchanges of
shares, reorganizations, mergers, consolidations or otherwise with respect to
shares of Stock granted pursuant to the Plan shall have the same status and be
subject to the same restrictions as the shares granted.


 


12.7     Nontransferability.   Except as
provided below, Participants’ rights to deferred amounts, contributions, and
earnings accrued thereon under the Plan may not be sold, transferred, assigned,
or otherwise alienated or hypothecated, other than by will or by the laws of
descent and distribution, nor shall the Company make any payment under the Plan
to any assignee or creditor of a Participant.


 


Notwithstanding the
foregoing, the Committee shall provide for distributions from a Participant’s
deferred account to an individual other than Participant and to the extent
necessary to fulfill a court order that the Committee determines to satisfy the
requirements of a domestic relations order within the meaning of Section 206(d)(3) of
ERISA. The amounts assigned to an alternate payee under such an order shall be
paid in a lump sum distribution as soon as administratively practical after the
Committee determines that the order meets the requirements of a domestic
relations order. All payments made pursuant to any such order shall be charged
against the Participant’s deferred account.


 


12.8     Severability.   In the event
any provision of the Plan shall be  held
illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.


 


12.9     Gender and Number.   Except where
otherwise indicated by the context, any masculine term used herein also shall
include the feminine; the plural shall include the singular, and the singular
shall include the plural.


 


12.10   Costs of the Plan.   All costs of
implementing and administering the Plan shall be borne by the Company.


 


12.11   Successors.   All obligations
of the Company under the Plan shall be binding on any successor to the Company,
whether the existence of such successor is the result of a direct or indirect
purchase, merger, consolidation, or otherwise, of all or substantially all of
the business and/or assets of the Company.


 


12.12    
Applicable Law.   Except to the extent
preempted by applicable federal law, the Plan shall be governed by and
construed in accordance with the laws of the state of Wisconsin.


 


12.13    
Effective Date.   This amendment and
restatement of the Plan shall become effective at the time that it is approved
by the Board.


 


15