Exhibit 10.1


 


CEPHALON, INC.

NON-QUALIFIED DEFERRED COMPENSATION PLAN

(As Amended and Restated Effective January 1, 2009)


 


1.                                      PURPOSE.  The purpose of the Plan is to provide
Eligible Employees with the opportunity to defer a portion of their Bonus on a
tax-favored basis.  The Corporation
intends that the Plan shall at all times be maintained on an unfunded basis for
federal income tax purposes under the Code and administered as a nonqualified “top-hat”
plan exempt from the substantive requirements of ERISA.  The Corporation also intends that the Plan be
maintained and operated in accordance with the requirements of section 409A of
the Code.  Benefit payments commencing
prior to the Effective Date are governed by the terms of the Plan as it existed
prior to the Effective Date and are either grandfathered from the requirements
of section 409A of the Code or payable pursuant to a fixed schedule as required
by, and in compliance with, section 409A of the Code.  Payments made between January 1, 2005
and December 31, 2008 that are subject to the requirements of section 409A
of the Code, the Plan has been operated in accordance with transition relief
established by the Treasury Department and Internal Revenue Service pursuant to
section 409A of the Plan.  The Plan, as
amended and restated, shall be effective as of the Effective Date.  All capitalized terms shall be as defined in
Paragraph 2 below.


 


2.                                      DEFINITIONS.  Certain terms shall be defined hereunder as
follows:


 


(a)                                  “Account”
means the bookkeeping account established by the Corporation to which are
credited Bonus Deferrals, and notational earnings and losses thereon.


 


(b)                                  “Beneficiary”
means the person, persons, trust or trusts that a Participant shall from time
to time designate in writing to receive any benefits payable to him under this
Plan in the event of his death.


 


(c)                                  “Board”
means the Board of Directors of the Corporation.


 


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(d)                                  “Bonus”
means the amount earned by a Participant under the Employer’s annual Management
Incentive Compensation Plan for a particular Plan Year.


 


(e)                                  “Bonus
Deferral” means the portion of the Bonus as to which a Participant has made an
irrevocable election to defer receipt until the date specified in the
Participant’s Enrollment Agreement.


 


(f)                                    “Change
in Control” means the occurrence of a change in the ownership or effective
control of the Corporation (as defined in Treas. Reg. §1.409A-3(i)(5)(v)), a
change in effective control of the Corporation (as defined in Treas. Reg.
§1.409A-3(i)(5)(vi)), or a change in the ownership of a substantial portion of
the assets of the Corporation (as defined in Treas. Reg. §1.409A-3(i)(5)(vii)).


 


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


 


(h)                                 “Committee”
means the Stock Option and Compensation Committee of the Board (or any
successor thereto) or its delegate, or such other committee appointed by the
Board to administer the Plan.  If no
members have been appointed to the Committee, the Board shall act as the Committee.


 


(i)                                    “Corporation”
means Cephalon, Inc. or any successor thereto.


 


(j)                                    “Deferred
Bonus Account” means a Participant’s Account.


 


(k)                                “Effective
Date” means January 1, 2009, the effective date of this amendment and
restatement of the Plan.  The Plan was
initially effective on November 1, 1993.


 


(l)                                    “Eligible
Employee” means each Employee designated by the Committee as eligible to
participate in the Plan.


 


(m)                              “Employee”
means any individual employed by the Employer as an employee; provided,
however, to qualify as an “Employee” for purposes of the Plan, the individual
must be a member of a group of “key management or highly compensated employees”
of the Employer, within the meaning of sections 201, 301 and 401 of ERISA.


 


(n)                                 “Employer”
means the Corporation or any subsidiary of the Corporation.


 


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(o)                                  “Enrollment
Agreement” means the authorization form which an Eligible Employee files with
the Committee to participate in the Plan.


 


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


 


(q)                                  “Plan”
means the Cephalon, Inc. Non-Qualified Deferred Compensation Plan, as it
may be amended from time to time.


 


(r)                                  “Plan
Year” means the period beginning on January 1 and ending on December 31.


 


(s)                                  “Separation
Date” means the last day on which a Participant is employed by an Employer on
account of a Separation from Service.


 


(t)                                    “Separation
from Service” means a Participant’s separation from service with the Employer
within the meaning of section 409A of the Code and the regulations issued
thereunder.


 


(u)                                 “Specified
Employee” means any Participant who, at any time during the twelve month period
ending on the identification date as determined by the Committee (or its
delegate), is a specified employee under section 409A of the Code, as
determined by the Committee (or its delegate). 
The determination of “specified employees,” including the number and
identity of persons considered “specified employees” and identification date,
shall be made by the Committee (or its delegate) in accordance with the
provisions of sections 416(i) and 409A of the Code and the regulations
issued thereunder.


 


(v)                                   “Specified
Time” means a specified time within the meaning of section 409A(a)(2)(A)(iv) of
the Code and the corresponding regulations.


 


(w)                                “Trust”
means a grantor “rabbi” trust.


 


(x)                                  “Unforeseeable
Emergency” means the Participant has experienced an “unforeseeable emergency”
within the meaning of Treas. Reg. §1.409A-3(i)(3)(i).


 


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3.                                      PARTICIPATION.  Any person who was a Participant in the Plan
immediately prior to the Effective Date shall continue to be a Participant in
the Plan as of the Effective Date.  Any
person who becomes an Eligible Employee as of the Effective Date, or becomes an
Eligible Employee after the Effective Date, shall be eligible to become a
Participant in the Plan in accordance with the requirements of Paragraph 4
below.  A Participant who ceases as an
Eligible Employee during the Plan Year shall cease to be eligible to elect to
make future Bonus Deferrals to the Plan with respect to any subsequent Plan
Year; however, such Participant’s Bonus Deferral election with respect to the
Plan Year shall continue in effect with respect to the Bonus that is paid for
such Plan Year.  If such Participant
again qualifies as an Eligible Employee for a future Plan Year, such individual
shall be eligible to elect to make Bonus Deferrals to the Plan in accordance
with the requirements of Paragraph 4 below with respect to future Plan Years in
which such individual qualifies as an Eligible Employee.


 


4.                                      DEFERRAL
OF BONUS; GENERAL RULE AND SPECIAL RULES.


 


(a)                                  Prior
to the beginning of each Plan Year each Eligible Employee will be offered the
opportunity to make a Bonus Deferral with respect to the Bonus that is to be
earned for the performance period that begins in such Plan Year.  Any Eligible Employee may enroll in the Plan
effective as of the first day of such Plan Year by filing a completed and fully
executed Enrollment Agreement with the Committee by the date set by the
Committee, which in no event shall be later than then the December 31 of
the preceding Plan Year.  Pursuant to
said Enrollment Agreement, the Eligible Employee shall irrevocably elect,
except as provided in subparagraph (c) below, to defer the portion of the
Participant’s Bonus for such Plan Year, up to 100% of the Participant’s Bonus
for such Plan Year.  Prior to the
beginning of each Plan Year, an Eligible Employee must execute a new Enrollment
Agreement to elect to make a Bonus Deferral for such Plan Year.


 


(b)                                  If
an individual becomes an Eligible Employee after the Plan Year has commenced,
such individual shall not be eligible to elect to make a Bonus Deferral for
such Plan Year.  Instead, such individual
must wait until the next Plan Year to elect to make a Bonus Deferral, in
accordance with the requirements of subparagraph (a) above.


 


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(c)                                  A
Participant’s election to defer his Bonus for any Plan Year shall be
irrevocable as of the last day of the preceding Plan Year, except that if
during the Plan Year an Eligible Employee experiences an Unforeseeable
Emergency such Eligible Employee may submit a request to the Committee on the
form provided by the Committee to cancel the Eligible Employee’s Bonus Deferral
election for such Plan Year.  If the
Committee determines that the Eligible Employee has experienced an
Unforeseeable Emergency the cessation of the Eligible Employee’s Bonus Deferrals
will be effective after the Committee’s determination.  Any Eligible Employee who ceases Bonus
Deferrals on account of an Unforeseeable Emergency shall not be eligible to
elect to make any future Bonus Deferrals for the remainder of the Plan Year in
which the Unforeseeable Emergency occurs. 
For any future Plan Year, the Eligible Employee will need to execute a
new Enrollment Agreement within the time period described in subparagraph (a) above.


 


5.                                      ELECTION
TO TIME AND FORM OF DISTRIBUTION.


 


(a)                                  At
the time he makes a deferral election, the Participant must designate in his
Enrollment Agreement whether the Bonus Deferral will commence to be paid at a
Specified Time or on account of a Separation from Service; provided, however,
that if the Participant does not specify the timing of the distribution in his
Enrollment Agreement, the distribution will be paid on the Participant’s
Separation from Service, and provided further that, irrespective of the
election made by the Participant, Paragraph 12 shall apply if the Participant
has a Separation from Service prior to the date of the Specified Time, if
elected, and Paragraph 13 shall apply in the event of the Participant’s death.


 


(b)                                  At
the time he makes a deferral election, the Participant must also designate in
his Enrollment Agreement the form of distribution; provided, however, that if
the Participant does not specify the form of the distribution in his Enrollment
Agreement, the distribution will be paid in a lump sum.  A Participant may elect to receive his
benefit under the Plan in a single lump sum or in substantially equal annual
installments over a period not to exceed ten (10) years if the payment is
on account of a Specified Time.  The only
form of payment that is payable to the Participant on account of Separation
from Service is a single lump sum.


 


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6.                                      RECORDS.  The Corporation shall maintain appropriate
records of each Participant’s Bonus Deferrals with respect to each Plan
Year.  The Corporation shall credit to a
Deferred Bonus Account all Bonus Deferrals elected by the Participant.


 


7.                                      AUTHORIZED
INVESTMENTS.  Subject to
Paragraph 15, all Bonus Deferrals credited to the Deferred Bonus Account for a
Participant may be kept in cash or invested by the Corporation in such manner,
in such portions and in such amounts as the Committee, in its sole discretion,
may elect.  In the exercise of the
foregoing discretionary investment powers, the Committee may engage investment
advisers and, if it so desires, may delegate to such advisers full or limited
authority to select the assets in which the Bonus Deferrals are to be invested.


 


8.                                      INVESTMENT
INCOME.  Subject to Paragraph 15,
amounts credited to each Participant’s Deferred Bonus Account will be increased
annually at the interest rate determined by the Committee, in its sole
discretion.  Such rate shall be
determined by the Committee prior to the beginning of the applicable Plan Year
pursuant to a Committee resolution, and shall be communicated to Participant’s prior
to the beginning of the applicable Plan Year. 
The designated rate for a particular Plan Year shall apply to all Bonus
Deferrals credited to the Participant’s Deferred Bonus Account.  For 2009, the Committee has confirmed a
growth rate of five percent (5%) per annum.


 


9.                                      STATUS
OF INVESTMENTS.  All investments
made by the Corporation under this Plan will be deemed made solely for the
purpose of aiding the Corporation in measuring and meeting its obligations
under this Plan.  The Corporation shall
be the sole owner of all such investments and of all rights and privileges
conferred by the terms of the instruments evidencing such investments.  Nothing stated herein will cause such
investments or any Deferred Bonus Account to be treated as anything but the
general assets of the Corporation, nor will anything stated herein cause such
investments to represent the vested, secured or preferred interest of any
Participant or his Beneficiaries.


 


10.                               GENERAL
CREDITOR STATUS.  A Participant
shall have no claim with respect to any particular asset of the Corporation or
any other Employer, but shall be and shall remain at all times a general
unsecured creditor of the Corporation and, therefore, a Participant’s 


 


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rights under the Plan shall have no priority over the rights of any
general unsecured creditor of the Corporation. 
The Plan constitutes a mere promise by the Corporation to make benefits
payments in the future.


 


11.                               FORM OF
DISTRIBUTION FOR PAYMENTS MADE PRIOR TO SEPARATION FROM SERVICE.  If a Participant has designated a Specified
Time in accordance with the requirements of Paragraph 5 above for Bonus
Deferrals for a Plan Year, the Participant’s Deferred Bonus Account for such
Plan Year shall be paid (or commence to be paid if the form designated is
annual installments) in cash in the form designated by the Participant within
sixty (60) days following the date of the Specified Time; provided, however,
notwithstanding the Specified Time designated by the Participant, that if the
Participant has a Separation from Service prior to the Specified Time, the
value of the Participant’s Deferred Bonus Account for such Plan Year shall be
paid to the Participant as provided in Paragraph 12 or 13 below, as
applicable.  The value of the amount that
shall be paid to the Participant if paid in a lump sum shall be equal to the
fair market value of the assets in such Participant’s Deferred Bonus Account as
of the date of the payment to the Participant. 
In the event the Participant elects to receive a distribution in the
form of substantially equal annual installments, the amount of each annual
installment shall be equal to the fair market value of the assets in such
Participant’s Deferred Bonus Account (or the applicable portion thereof) valued
as of the date of the payment to the Participant divided by the number of years
over which payments are to be received as elected by such Participant.  Notwithstanding the foregoing, the total
amount payable to such Participant, and correspondingly each future annual
installment, shall be appropriately increased or decreased as the case may be,
in the same manner as set forth in Paragraph 8 of this Plan, to reflect the
appreciation in value and the net income on the funds which remain invested in
the Deferred Bonus Account.


 


12.                               PAYMENTS
UPON SEPARATION FROM SERVICE. 
Notwithstanding any election made by a Participant hereunder, in the
event of a Participant’s Separation from Service for any reason (except death)
prior to the Specified Time, if any, elected by Participant for the
distribution of his Deferred Bonus Account, the balance credited to the
Participant’s Deferred Bonus Account shall be paid to the Participant in cash
in the form of a lump 


 


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sum within forty-five (45) days following the first day of the seventh
month following the Participant’s Separation Date.  If a Participant’s Separation from Service
occurs after the Specified Time for Bonus Deferrals for a particular Plan Year,
the payment of such amounts for such Plan Year’s Bonus Deferrals shall continue
in accordance with the installment schedule designated by the Participant on
account of the Specified Time.  The value
of the amount that shall be paid to the Participant shall be equal to the fair
market value of the assets in such Participant’s Deferred Bonus Account as of
the date of the payment to the Participant.


 


13.                               DEATH
OF PARTICIPANT.


 


(a)                                  If
a Participant dies prior to commencement of receipt of his benefit, the Corporation
shall pay to his Beneficiary the amount credited to the Participant’s Deferred
Bonus Account in cash in the form of a lump sum.  Payment of a Participant’s Deferred Bonus
Account shall be paid to the Beneficiary within sixty (60) days following the
date of the Participant’s death.  The
value of the amount that shall be paid to the Participant’s Beneficiary shall
be equal to the fair market value of the assets in such Participant’s Deferred
Bonus Account as of the date of the payment to the Participant.


 


(b)                                  If
a Participant dies after the commencement of the payments to him under the
Plan, but before all payments have been made, the Corporation shall continue
such payments to his Beneficiary at the same times and in the same amounts as
would have been paid had the Participant lived for the entire payout period
elected by him.


 


(c)                                  A
Participant shall at all times retain the right to change the Beneficiary
designated in his Enrollment Agreement by notifying the Committee in writing on
a form to be provided by the Corporation. 
If there is no Beneficiary designated at the time of the death of the
Participant or if the designated Beneficiary does not survive the Participant,
the Beneficiary shall be the Participant’s spouse, and if no such spouse is
then living, Participant’s estate.  If
Participant’s spouse shall receive payments hereunder but die prior to payment
in full of the remainder of the deferred compensation, the balance owed by the
Corporation shall be paid to the estate of such spouse under the same payment
schedule.


 


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14.                               UNFORESEEABLE
EMERGENCY.  If the Participant
experiences an Unforeseeable Emergency, the Participant may make a request to
the Committee to receive an immediate distribution from his Deferred Bonus
Account.  If the Committee determines
that the Participant has experienced an Unforeseeable Emergency, the
Corporation may make a distribution to the Participant.  The amounts distributed to a Participant
pursuant to an Unforeseeable Emergency shall not exceed the amounts necessary
to satisfy such Unforeseeable Emergency, plus amounts necessary to pay taxes
reasonably anticipated as a result of the distribution, after taking into
account the extent to which such hardship is or may be relieved through
reimbursement of compensation by insurance or otherwise or by liquidation of
the Participant’s assets (to the extent the liquidation of such assets would
not itself cause severe financial hardship). 
With respect to that portion of the Participant’s Deferred Bonus Account
which is distributed to a Participant, in accordance with this Paragraph, the
value of such amount shall be reduced from the Participant’s Deferred Bonus
Account.  Notwithstanding anything in
this Plan to the contrary, a Participant who receives a distribution pursuant
to this Paragraph 14 in any Plan Year such Participant’s deferral election for
the remainder of the Plan Year shall be cancelled and the Participant and with
respect to any future Plan Year the Participant must make a new deferral
election in accordance with Paragraph 4.


 


15.                               CHANGE
IN CONTROL.


 


(a)                                  The
Corporation shall establish a Trust with a bank or other financial institution
that is independent of the Corporation and is authorized to exercise corporate
trustee powers under applicable federal or state law, to serve as a funding vehicle
for benefits payable under the terms of this Plan.  Prior to a Change in Control or in the event
that the action contemplated hereby cannot be effected prior to a Change in
Control, then immediately upon such a Change in Control, the Corporation shall
make a contribution to the Trust in an amount, which together with any amounts
then held in the Trust, is sufficient to fully pay the Participants and their
Beneficiaries all of the benefits to which such Participants and beneficiaries
are entitled under the Plan as of the date of the Change in Control if such
benefits were then immediately due and payable. 
After 


 


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a Change in Control has occurred, the Corporation shall be obligated to
continue to cause additional contributions to be made as may be necessary from
time to time to ensure that at all times the Trust contains sufficient funds,
on a current basis, to provide the entire benefits due to the Participants and
their Beneficiaries under the Plan. 
Except as may otherwise be provided in the Trust, prior to the time a
Change in Control is imminent, the Corporation may, but shall not be required
to, fund the Trust.  If the Corporation
makes a contribution to the Trust in anticipation of a Change in Control and a
Change in Control does not occur, the Corporation may, if and to the extent
permitted by the Trust, obtain the return of such contribution, together with
the earnings thereon.


 


(b)                                 In
the event of a Change in Control, the rate at which each Participant’s separate
Deferred Bonus Account shall be increased from and after the date of such
Change in Control shall not be less than the lesser of (i) ten percent
(10%) per annum, or (ii) one percentage point above the prime interest
rate then being charged by the trustee (or any other lending institution
designated by the Corporation, prior to a Change in Control) to its qualified
customers.


 


(c)                                  At
the time of the Participant’s commencement of participation in the Plan, the
Participant shall make an irrevocable one-time election with respect to his
Deferred Bonus Account whether, in the event of a Change in Control, (i) to
receive an immediate lump sum distribution of his Deferred Bonus Account as of
the date of a Change in Control, such distribution to within ninety (90) days
following the occurrence of such Change in Control, or (ii) to have his
benefits under the Plan distributed to him (or his Beneficiary) at such time or
times and in such manner as is otherwise provided in this Plan.


 


(d)                                 The
Trust shall constitute an unfunded arrangement for tax purposes and for
purposes of Title I of ERISA and the assets of the Trust shall be subject to
the claims of the creditors of the Corporation in the event of the Corporation’s
insolvency, all as set forth in the Trust. 
With respect to any payments not yet made to a Participant or
Beneficiary, nothing contained herein shall give any such 


 


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Participant or Beneficiary any rights to assets that are greater than
those of a general creditor of the Corporation.


 


16.                               NO
ASSIGNMENT.  A Participant’s
rights to benefit payments under this Plan are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors of the Participant or the Participant’s
Beneficiary.


 


17.                               REVOCATION
AND AMENDMENT.  This Plan may be
amended or terminated at any time at the sole discretion of the Committee;
provided, however, that any such amendment or termination shall not affect the
rights of any Participant which may have accrued under the Plan at the time of
amendment or termination. 
Notwithstanding the foregoing, if the Committee determines that, in
order to avoid current taxation of amounts deferred under the Plan or to comply
with applicable law, additional restrictions must be placed on Participants’
rights under the Plan or to comply with applicable law, including, but not
limited to section 409A of the Code and its corresponding regulations, the
Committee or its delegate may, in its sole discretion, amend the Plan to impose
such restrictions, and/or cease deferrals under the Plan with respect to all
Deferred Bonus Accounts, affected Deferred Bonus Accounts or the affected
portions of the Deferred Bonus Accounts and no Participant consent shall be
required to make any such amendments.  If
the Committee terminates the Plan, Participants shall be entitled to a
distribution of their benefit under the Plan; provided that the Corporation
distributes to each Participant, in a lump sum payment, the balance of the
Participant’s Deferred Bonus Account as of the date the termination occurs;
provided, however, that no such termination may occur unless the Corporation
complies with the requirements of Treas. Reg. §1.409A-3(j)(4)(ix).


 


18.                               NO
EMPLOYMENT GUARANTEE.  Nothing
contained in this Plan shall be construed as conferring upon any Participant
the right to continue in the employment of the Employer.


 


19.                               AUTHORITY
OF COMMITTEE.  The Committee
shall have the full power and authority to interpret, construe and administer
this Plan.  The Committee’s
interpretations and construction hereof and actions hereunder, including any
valuation of a Deferred Bonus Account, or the amount(s) to be paid there
from, shall be binding and conclusive on all 


 


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persons for all purposes.  No
member of the Committee shall be liable to any person for any action taken or
omitted in connection with the interpretation or administration of this Plan
unless attributable to his own willful misconduct or lack of good faith.  As a condition of participating in the Plan,
a Participant expressly agrees that all decisions and determinations of the
Committee shall be binding and conclusive on the Participant, the Participant’s
Beneficiaries and any other person having or claiming an interest on behalf of,
or for the benefit of, the Participant or the Beneficiary.


 


20.                               BENEFIT.  This Plan shall inure to the benefit of and
be binding upon the Corporation and the Participant, together with their
respective successors, heirs and personal representatives.


 


21.                               CLAIMS
PROCEDURES.  At any time the
Committee makes a determination adverse to a Participant or Beneficiary with
respect to a claim for payment or participation under the Plan, the Committee
shall notify the claimant in writing of such determination, such notification
shall be in a manner calculated to be understood by the claimant, and shall set
forth: (a) the specific reason or reasons for such determination; (b) a
reference to the specific provision or provisions of the Plan on which such
determination is based; (c) a description of any additional material or
information necessary to perfect the claim, and an explanation of the reason
that such material is required; and (d) a description of the Plan’s review
procedures and the time limits applicable to such procedures, including a
statement of the claimant’s right to bring a civil action under section 502(a) of
ERISA following an adverse benefit determination on review.


 


A person who receives notice of an adverse
determination by the Committee with respect to a claim may request, within
sixty (60) days of receipt of such notice, that the Committee review the
Committee’s determination.  This request
may be made on behalf of a claimant by a duly authorized representative.  The claimant or representative may review
pertinent documents and submit issues and comments with respect to the
controversy to the Committee.  The
Committee shall render a decision within sixty (60) days of a request for
review (or within one hundred and twenty (120) days under special
circumstances), which decision shall be in writing, set forth in a manner
calculated to be understood by the claimant, and shall set forth (i) the
specific reason or reasons for the 


 


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decision reached; (ii) the specific provisions of the Plan on
which the decision 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 or other information relevant to the claimant’s
claim for benefits; and (iv) a statement describing any voluntary appeal
procedures offered by the Plan and the claimant’s right to obtain information
about such procedures, and a statement of the claimant’s right to bring an
action under section 502(a) of ERISA. 
A copy of the ruling shall be forwarded to the claimant.


 


22.                               WITHHOLDING
OF TAXES.  The Corporation
may make such provisions and take such actions as it may deem necessary or
appropriate for the withholding of any taxes which the Employer is required by
law or regulation of any governmental authority, whether Federal, state or
local, to withhold in connection with any benefits under the Plan, including,
but not limited to, the withholding of appropriate sums from any amount
otherwise payable to the Participant (or his Beneficiary).  Each Participant, however, shall be
responsible for the payment of all individual tax liabilities relating to any
such benefits.


 


23.                               GOVERNING
LAW.  The Plan shall be governed
by the laws of the Commonwealth of Pennsylvania.


 


24.                               LANGUAGE.  Whenever used in this Plan, the singular
number shall include the plural, the plural the singular, and the use of any
gender shall include all genders.


 


25.                               EFFECTIVE
DATE.  This Plan, as amended and
restated herein, shall be effective as of the Effective Date.


 


26.                               SECTION 409A
OF THE CODE.  The Plan is
intended to comply with the applicable requirements of section 409A of the Code
and its corresponding regulations and related guidance, and shall be
administered in accordance with section 409A of the Code to the extent section
409A of the Code applies to the Plan. 
Notwithstanding anything in the Plan to the contrary, elections to defer
Bonus to the Plan, and distributions from the Plan, may only be made in a
manner and upon an event permitted by section 409A of the Code.  To the extent that any provision of the Plan
would cause a conflict with the requirements of section 409A of the Code, or
would cause the administration of the Plan to fail to 


 


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satisfy the requirements of section 409A of the Code, such provision
shall be deemed null and void to the extent permitted by applicable law.  Other than on a valid Enrollment Agreement,
in no event shall a Participant, directly or indirectly, designate the calendar
year of payment.  Notwithstanding
anything in the Plan to the contrary, in no event may a Specified Employee
commence receipt of his benefit under the Plan on account of a Separation from
Service prior to the date that is six months from his Separation Date.  For avoidance of doubt, deferrals under the
Plan are maintained on a Plan Year basis.


 


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