Exhibit
10.17


 


AMENDED AND RESTATED


 


DYNAVOX SYSTEMS LLC


 


SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN


 


 


(amended and restated
effective as of April 7, 2010)


 

















 


AMENDED AND RESTATED


DYNAVOX SYSTEMS LLC


SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN


 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Article  I. – Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Account

  	
  1

  
	
  Section 1.02

  	
  Act

  	
  1

  
	
  Section 1.03

  	
  Administrator

  	
  1

  
	
  Section 1.04

  	
  Affiliate

  	
  2

  
	
  Section 1.05

  	
  Board

  	
  2

  
	
  Section 1.06

  	
  Bonus

  	
  2

  
	
  Section 1.07

  	
  Cause

  	
  2

  
	
  Section 1.08

  	
  Change-in-Control

  	
  2

  
	
  Section 1.09

  	
  Code

  	
  3

  
	
  Section 1.10

  	
  Compensation

  	
  3

  
	
  Section 1.11

  	
  Deferrals

  	
  3

  
	
  Section 1.12

  	
  Deferral Election

  	
  3

  
	
  Section 1.13

  	
  Disability

  	
  3

  
	
  Section 1.14

  	
  DynaVox

  	
  3

  
	
  Section 1.15

  	
  Eligible Employee

  	
  3

  
	
  Section 1.16

  	
  Employee

  	
  4

  
	
  Section 1.17

  	
  Employer

  	
  4

  
	
  Section 1.18

  	
  Employer Discretionary Contribution

  	
  4

  
	
  Section 1.19

  	
  ERISA

  	
  4

  
	
  Section 1.20

  	
  Investment Fund

  	
  4

  
	
  Section 1.21

  	
  Participant

  	
  4

  
	
  Section 1.22

  	
  Plan Year

  	
  4

  
	
  Section 1.23

  	
  Performance-based Compensation

  	
  4

  
	
  Section 1.24

  	
  Retirement

  	
  5

  
	
  Section 1.25

  	
  Salary

  	
  5

  
	
  Section 1.26

  	
  Separation from Service

  	
  5

  
	
  Section 1.27

  	
  Service Recipient

  	
  5

  
	
  Section 1.28

  	
  Specified Employee

  	
  5

  
	
  Section 1.29

  	
  Trust

  	
  6

  
	
  Section 1.30

  	
  Trustee

  	
  6

  
	
  Section 1.31

  	
  Vestar/Company Group

  	
  6

  
	
  Section 1.32

  	
  Years of Service

  	
  6

  
	
   

  	
   

  	
   

  
	
  Article  II. – Participation

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Commencement of Participation

  	
  6

  
	
  Section 2.02

  	
  Loss of Eligible Employee Status

  	
  7

  



 


i

















 


	
  Article  III. – Contributions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Deferral Elections - General

  	
  7

  
	
  Section 3.02

  	
  Time of Election

  	
  7

  
	
  Section 3.03

  	
  Cancellation of Deferral Election due to Disability

  	
  8

  
	
  Section 3.04

  	
  Distribution Elections

  	
  8

  
	
  Section 3.05

  	
  Additional Requirements

  	
  8

  
	
  Section 3.06

  	
  Employer Discretionary Contributions

  	
  9

  
	
  Section 3.07

  	
  Crediting of Contributions

  	
  9

  
	
   

  	
   

  	
   

  
	
  Article  IV. – Vesting

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Vesting of Deferrals

  	
  9

  
	
  Section 4.02

  	
  Vesting of Employer Discretionary Contributions

  	
  9

  
	
  Section 4.03

  	
  Vesting in Event of Retirement, Disability, Death or
  Change-in-Control

  	
  9

  
	
  Section 4.04

  	
  Amounts Not Vested

  	
  10

  
	
  Section 4.05

  	
  Forfeitures

  	
  10

  
	
  Section 4.06

  	
  Cause

  	
  10

  
	
   

  	
   

  	
   

  
	
  Article  V. – Accounts

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Accounts

  	
  11

  
	
  Section 5.02

  	
  Investments, Gains and Losses

  	
  11

  
	
   

  	
   

  	
   

  
	
  Article  VI. – Distributions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Distribution Election

  	
  12

  
	
  Section 6.02

  	
  Distributions from an In-Service Account

  	
  12

  
	
  Section 6.03

  	
  Distributions Upon Retirement

  	
  12

  
	
  Section 6.04

  	
  Substantially Equal Annual Installments

  	
  13

  
	
  Section 6.05

  	
  Distributions due to other Separation from Service

  	
  13

  
	
  Section 6.06

  	
  Distributions upon Separation from Service due to Disability

  	
  13

  
	
  Section 6.07

  	
  Distributions upon Death

  	
  13

  
	
  Section 6.08

  	
  Changes to Distribution Elections

  	
  13

  
	
  Section 6.09

  	
  Cash-Out Provision

  	
  14

  
	
  Section 6.10

  	
  Unforeseeable Emergency

  	
  14

  
	
  Section 6.11

  	
  Distributions to Specified Employees

  	
  14

  
	
  Section 6.12

  	
  Exception to Separation from Service

  	
  14

  
	
  Section 6.13

  	
  Minimum Distribution

  	
  15

  
	
  Section 6.14

  	
  Domestic Relations Orders

  	
  15

  
	
   

  	
   

  	
   

  
	
  Article  VII. – Beneficiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Beneficiaries

  	
  15

  
	
  Section 7.02

  	
  Lost Beneficiary

  	
  15

  



 


ii

















 


	
  Article  VIII. – Funding

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Prohibition Against Funding

  	
  16

  
	
  Section 8.02

  	
  Deposits in Trust

  	
  16

  
	
  Section 8.03

  	
  Withholding of Employee Contributions

  	
  16

  
	
   

  	
   

  	
   

  
	
  Article  IX. – Claims Administration

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  General

  	
  16

  
	
  Section 9.02

  	
  Claims Procedure

  	
  16

  
	
  Section 9.03

  	
  Right of Appeal

  	
  17

  
	
  Section 9.04

  	
  Review of Appeal

  	
  17

  
	
  Section 9.05

  	
  Disability claims procedures

  	
  17

  
	
  Section 9.06

  	
  Designation

  	
  19

  
	
  Section 9.07

  	
  Further Proceedings

  	
  19

  
	
   

  	
   

  	
   

  
	
  Article  X. – General Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Administrator

  	
  19

  
	
  Section 10.02

  	
  No Assignment

  	
  20

  
	
  Section 10.03

  	
  No Employment Rights

  	
  20

  
	
  Section 10.04

  	
  Incompetence

  	
  21

  
	
  Section 10.05

  	
  Identity

  	
  21

  
	
  Section 10.06

  	
  Other Benefits

  	
  21

  
	
  Section 10.07

  	
  Expenses

  	
  21

  
	
  Section 10.08

  	
  Insolvency

  	
  21

  
	
  Section 10.09

  	
  Amendment or Modification; Code Section 409A

  	
  21

  
	
  Section 10.10

  	
  Plan Suspension or Termination

  	
  22

  
	
  Section 10.11

  	
  Construction

  	
  23

  
	
  Section 10.12

  	
  Governing Law

  	
  23

  
	
  Section 10.13

  	
  Severability

  	
  23

  
	
  Section 10.14

  	
  Headings

  	
  23

  
	
  Section 10.15

  	
  Terms

  	
  23

  
	
  Section 10.16

  	
  Payments Upon Income Inclusion Under 409A

  	
  23

  



 


iii

















 


AMENDED AND RESTATED


DYNAVOX SYSTEMS LLC


SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN


 


DynaVox
Systems LLC, a Delaware limited liability corporation, hereby adopts this
Amended and Restated DynaVox Systems LLC Supplemental Executive Retirement
Plan, as it may be amended from time to time (the “Plan”) for the benefit of a
select group of management or highly compensated employees. Further, Employer
hereby directs that any amounts credited to any prior nonqualified deferred
compensation for any individuals eligible for this Plan shall be withdrawn from
the prior plan and credited to the Plan to be maintained and administered in
compliance with Internal Revenue Code Section 409A and the regulations and
guidance promulgated thereunder, and shall be considered to be an amendment to
the extent necessary to ensure compliance with Internal Revenue Code Section 409A.
The crediting of the aforementioned prior plan amounts shall be done as soon as
administratively feasible following the effective date of the Plan. This Plan
is an unfunded arrangement and is intended to be exempt from the participation,
vesting, funding, and fiduciary requirements set forth in Title I of the Employee
Retirement Income Security Act of 1974, as amended. It is intended to comply
with Internal Revenue Code Section 409A. Notwithstanding anything to the
contrary contained herein and with respect to benefits that were earned and
vested under the Plan prior to January 1, 2005 (as determined under
Internal Revenue Code Section 409A, “Grandfathered Benefits”), such
Grandfathered Benefits are intended to be exempt from Internal Revenue Code Section 409A
and shall be administered and interpreted in a manner intended to ensure that
any such Grandfathered Benefits remains exempt from Internal Revenue Code Section 409A.
No amendments or other modifications shall be made to such Grandfathered
Benefits except as specifically set forth in a separate writing thereto, and no
amendment or modification to the Plan shall be interpreted or construed in a
manner that would cause a material modification (within the meaning of Internal
Revenue Code Section 409A, including Treas. Reg. § 1.409A-6(a)(4)) to any
such Grandfathered Benefits.


 


ARTICLE  I. – DEFINITIONS


 


Section 1.01         Account.


 


The
bookkeeping account established for each Participant as provided in Section 5.01
hereof.


 


Section 1.02         Act.


 


The
Securities Exchange Act of 1934, as amended.


 


Section 1.03         Administrator.


 


An
administrative committee appointed by the Board. The Administrator shall serve
as the agent for the Employer with respect to the Trust.


 

















 


Section 1.04         Affiliate.


 


With
respect to any entity, any entity directly or indirectly controlling,
controlled by, or under common control with, such entity.


 


Section 1.05         Board.


 


The
Board of Directors of DynaVox.


 


Section 1.06         Bonus.


 


Compensation
which is designated as such by the Employer and which relates to services
performed during an incentive period by an Eligible Employee in addition to his
or her Salary, including any pretax elective deferrals from said Bonus to any
Employer sponsored plan that includes amounts deferred under a Deferral
Election or any elective deferral as defined in Code Section 402(g)(3) or any
amount contributed or deferred at the election of the Eligible Employee in
accordance with Code Section 125 or 132(f)(4).


 


Section 1.07         Cause.


 


(i) a
charge, indictment or conviction of, or a plea of guilty or nolo contendere to, a misdemeanor involving
moral turpitude or a felony, whether or not in connection with the performance
by a Participant of his or her duties or obligations to the Employer; (ii) theft
relating to the business of the Employer or dishonesty with respect to a
material aspect of the business of the Employer; (iii) gross negligence or
willful misconduct in the performance of the Participant’s duties or
obligations to the Employer, or engaging in illegal activity in connection
therewith, including, without limitation, a Participant’s engagement in any act
or course of conduct that would result in the termination or revocation of, or
jeopardize the renewal of, any licenses, permits, consents, authorization,
approvals or material agreements necessary for the Employer to conduct its business
or that would have an adverse effect on the Employer; (iv) violation of
any provision of any nonsolicitation, noncompetition or nondisclosure contained
in any agreement entered into by and between a Participant and the Employer; or
(v) “cause” as defined in the Participant’s employment and/or change of
control agreement, if any, with the Employer. The determination as to whether
or not Cause exists will be made by the Administrator.


 


Section 1.08         Change-in-Control.


 


Provided
that such definition shall be interpreted in a manner that is consistent with
Code Section 409A and regulations thereunder, a “Change-in-Control” shall
mean (i) the sale or disposition, in one or a series of related
transactions, of all or substantially all of the assets of DynaVox to any “person”
or “group” (as such terms are defined in Sections 13(d)(3) and 14(d)(2) of
the Act) other than any member of the Vestar/Company Group; provided
that, for the avoidance of doubt, a sale of the Mayer-Johnson business shall
not constitute a Change-in-Control hereunder, (ii) any “person” or “group”,
other than any member of the Vestar/Company Group, is or becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Act), directly or
indirectly, of more than 50% of the total voting power of the voting stock of
DynaVox, including by way of purchase, merger, consolidation or otherwise, or (iii) during
any period of two (2) consecutive years, individuals who at the beginning
of such period constituted


 


2

















 


the
Board (together with any new directors whose election by such Board or whose
nomination for election by the shareholders of DynaVox was approved by a vote
of a majority of the directors of DynaVox, then still in office, who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) (the “Incumbent Board”)
cease for any reason to constitute a majority of the Board then in office;
provided that, any director appointed or elected to the Board to avoid or
settle a threatened or actual proxy contest shall in no event be deemed to be
an individual on the Incumbent Board.


 


Section 1.09         Code.


 


The
Internal Revenue Code of 1986, as amended.


 


Section 1.10         Compensation.


 


The
Participant’s earned income, including Salary, Bonus, Performance-based
Compensation and other remuneration from the Employer as may be included by the
Administrator.


 


Section 1.11         Deferrals.


 


The
portion of Compensation that a Participant elects to defer in accordance with Section 3.01
hereof


 


Section 1.12         Deferral
Election.


 


The
separate agreement, submitted to the Administrator, by which an Eligible
Employee agrees to participate in the Plan and make Deferrals thereto.


 


Section 1.13         Disability.


 


A
Participant shall be considered disabled if: (i) the Participant is unable
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months; (ii) the Participant is, by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can
be expected to last for a continuous period of not less than 12 months,
receiving income replacement benefits for a period of not less than 3 months
under an accident and health plan covering employees of the Participant’s
Employer; or (iii) determined to be totally disabled by the Social
Security Administration.


 


Section 1.14         DynaVox


 


DynaVox
Inc., a Delaware corporation.


 


Section 1.15         Eligible
Employee.


 


An
Employee shall be considered an Eligible Employee if such Employee is a member
of a select group of management or highly compensated employees and is
designated as an Eligible


 


3

















 


Employee
by the Administrator. The designation of an Employee as an Eligible Employee in
any year shall not confer upon such Employee any right to be designated as an
Eligible Employee in any future Plan Year. Designations need not be uniform
among all Employees, or classes or categories of Employees, and may be applied
to such Employees, or classes or categories of Participants, as the
Administrator, in its sole and absolute discretion, considers necessary,
appropriate or desirable.


 


Section 1.16         Employee.


 


Any
person employed by the Employer.


 


Section 1.17         Employer.


 


DynaVox
Systems LLC and its subsidiaries and affiliates.


 


Section 1.18         Employer
Discretionary Contribution.


 


A
discretionary contribution made by the Employer that is credited to one or more
Participant’s Accounts in accordance with the terms of Section 3.06
hereof.


 


Section 1.19         ERISA.


 


The
Employee Retirement Income Security Act of 1974, as amended.


 


Section 1.20         Investment
Fund.


 


Each
investment(s) which serves as a means to measure value, increases or
decreases with respect to a Participant’s Accounts.


 


Section 1.21         Participant.


 


An
Eligible Employee who is a Participant as provided in Article 2.


 


Section 1.22         Plan
Year.


 


January 1
through December 31.


 


Section 1.23         Performance-based
Compensation.


 


Performance-based
compensation shall mean compensation that (i) meets the definition of Code
Section 409A(a)(4)(B)(iii) and related guidance and regulations, (ii) is
designated as such by the Employer and relates to services performed during a
performance period of at least twelve months by an Eligible Employee, including
any pretax elective deferrals from said Performance-based Compensation to any
Employer sponsored plan that includes amounts deferred under a Deferral
Election or any elective deferral as defined in Code Section 402(g)(3) or
any amount contributed or deferred at the election of the Eligible Employee in
accordance with Code Section 125 or 132(f)(4).


 


4

















 


Section 1.24         Retirement.


 


Retirement
means a Participant has reached age fifty-five (55) and has five (5) Years
of Service and has a Separation from Service.


 


Section 1.25         Salary.


 


An
Eligible Employee’s base salary earned during a Plan Year, including any pretax
elective deferrals from said Salary to any Employer sponsored plan that
includes amounts deferred under a Deferral Election or any elective deferral as
defined in Code Section 402(g)(3) or any amount contributed or deferred at the
election of the Eligible Employee in accordance with Code Section 125 or
132(f)(4).


 


Section 1.26         Separation
from Service.


 


As
provided by regulations promulgated under Code Section 409A, a Participant
shall incur a Separation from Service with the Service Recipient due to death,
retirement or other termination of employment with the Service Recipient unless
the employment relationship is treated as continuing intact while the
individual is on military leave, sick leave, or other bona fide leave of
absence if the period of such leave does not to exceed six months, or if
longer, so long as the individual retains a right to reemployment with the
Service Recipient under an applicable statute or by contract. A Separation from
Service shall mean a Participant’s death, retirement or other termination of
employment with the Employer and all of its controlled group members within the
meaning of Section 409A of the Code. For purposes hereof, the
determination of controlled group members shall be made pursuant to the
provisions of Section 414(b) and 414(c) of the Code; provided
that the language “at least 50 percent” shall be used instead of “at least 80
percent” in each place it appears in Section 1563(a)(1), (2) and (3) of
the Code and Treas. Reg. § 1.414(c)-2; provided, further, where legitimate
business reasons exist (within the meaning of Treas. Reg. § 1.409A-1(h)(3)),
the language “at least 20 percent” shall be used instead of “at least 80
percent” in each place it appears. Whether a Participant has a Separation from
Service will be determined based on all of the facts and circumstances and in
accordance with the guidance issued under Code Section 409A.


 


Section 1.27         Service
Recipient.


 


As
provided by regulations promulgated under Code Section 409A, Service
Recipient shall mean the Employer or person for whom the services are performed
and with respect to whom the legally binding right to compensation arises, and
all persons with whom such person would be considered a single employer under
Code Section 414(b) (employees of controlled group of corporations),
and all persons with whom such person would be considered a single employer
under Code Section 414(c) (employees of partnerships,
proprietorships, etc., under common control).


 


Section 1.28         Specified
Employee.


 


Specified
Employee shall mean a Participant who is considered a key employee on the
Identification Date, as defined in Code Section 416(i) without regard to Code Section 416(i)(5) and
such other requirements imposed under Code Section 409A(a)(2)(B)(i) and the
regulations


 


5

















 


promulgated
thereunder for the period beginning April 1 of the year subsequent to the
Identification Date and ending March 31 of the following year. The
Identification Date for this Plan is December 31 of each year.
Notwithstanding anything to the contrary, a Participant is not a Specified
Employee unless any stock of the Employer is publicly traded on an established
securities market or otherwise.


 


Section 1.29         Trust.


 


The
agreement between the Employer and the Trustee, commonly referred to as a Rabbi
trust under which the Employer’s assets are held, administered and managed, and
which shall conform to the terms of Rev. Proc. 92-64.


 


Section 1.30         Trustee.


 


Investors
Bank and Trust Company, or such other successor that shall become trustee
pursuant to the terms of the Plan or Trust.


 


Section 1.31         Vestar/Company
Group


 


(i) Vestar
Capital Partners IV, L.P. or any of its Affiliates, (ii) any party from
time to time to the Securityholders Agreement, dated as of or about the date of
the initial public offering of the Class A comon stock of DynaVox, by and
among DynaVox, DynaVox Systems Holdings LLC and the Securityholders from time
to time parties thereto, as such agreement may be amended from time to time
(the “Securityholders Agreement”) unless such party together with its
Affiliates is the holder of securities representing at least 50.01% of the
outstanding voting securities of DynaVox or is deemed to beneficially own at
least 50.01% of the outstanding voting securities of DynaVox for purposes of Rule 16a-1(a)(2) under
the Act or any group (as such term is used in Section 13(d)(3) of the
Act) to the extent that such group may be deemed to exist solely as a result of
the Securityholders Agreement, (iii) any employee benefit plan (or trust
forming a part thereof) maintained by DynaVox or any of its Affiliates, or (iv) any
corporation or other “person” of which a majority of the voting power of its
voting equity securities and equity interest is owned, directly or indirectly,
by DynaVox.


 


Section 1.32         Years
of Service.


 


A
Participant’s “Years of Service” shall be measured by employment during a
twelve (12) month period commencing with the Participant’s date of hire and
anniversaries thereof.


 


ARTICLE  II. – PARTICIPATION


 


Section 2.01         Commencement of Participation.


 


Each
Eligible Employee shall become a Participant at the earlier of the date on
which his or her Deferral Election first becomes effective or the date on which
an Employer Discretionary Contribution is first credited to his or her Account.


 


6

















 


Section 2.02         Loss
of Eligible Employee Status.


 


A
Participant who is no longer an Eligible Employee shall not be permitted to
submit a Deferral Election and all Deferrals for such Participant shall cease
as of the end of the Plan Year in which such Participant is determined to no
longer be an Eligible Employee. Amounts credited to the Account of a
Participant who is no longer an Eligible Employee shall continue to be held
pursuant to the terms of the Plan and shall be distributed as provided in Article 6.


 


ARTICLE  III. – CONTRIBUTIONS


 


Section 3.01         Deferral
Elections - General.


 


A
Participant’s Deferral Election for a Plan Year is irrevocable for that
applicable Plan Year; provided, however that a cessation of Deferrals shall be
allowed if required by the terms of the Employer’s 401(k) plan in order
for the Participant to obtain a hardship withdrawal from the 401(k) plan,
or if required under Section 6.10 (Unforeseeable Emergency) of this Plan
or if required under section 3.03 of this Plan (Disability). Such amounts
deferred under the Plan shall not be made available to such Participant, except
as provided in Article VI, and shall reduce such Participant’s
Compensation from the Employer in accordance with the provisions of the
applicable Deferral Election; provided, however, that all such amounts shall be
subject to the rights of the general creditors of the Employer as provided in Article VIII.
The Deferral Election, in addition to the requirements set forth below, must
designate: (i) the amount of Compensation to be deferred, (ii) the
time of the distribution, and (iii) the form of the distribution.


 


Section 3.02         Time
of Election.


 


A
Deferral Election shall be void if it is not made in a timely manner as
follows:


 


(a)           A Deferral Election with respect to
any Compensation must be submitted to the Administrator before the beginning of
the calendar year during which the amount to be deferred will be earned. As of December 31
of each calendar year, said Deferral Election is irrevocable for the calendar
year.


 


(b)           Notwithstanding the foregoing and in
the discretion of the Employer, in a year in which an Employee is first
eligible to participate, and provided that such Employee is not eligible to
participate in any other similar account balance arrangement subject to Code Section 409A,
such Deferral Election shall be submitted within thirty (30) days after the
date on which an Employee is first eligible to participate, such Deferral
Election shall apply to Compensation to be earned during the remainder of the
calendar year after such election is made.


 


(c)           Notwithstanding the foregoing and in
the discretion of the Employer, a Deferral Election with respect to any
Performance-based Compensation may be submitted by the Eligible Employee or
Participant provided that such Deferral Election is submitted at least six (6) months
prior to the end of the performance period on which the Performance-based
Compensation is based. Such an election will not be permitted or accepted
unless the Eligible Employee has been continuously employed from the later of
the beginning of the performance period or the date performance criteria have
been established to the date the election is made. In 


 


7

















 


addition, an election will
not be permitted or accepted if the performance based compensation is readily
ascertainable at that time.


 


(d)           Notwithstanding the foregoing and in
the discretion of the Employer, a Deferral Election with respect to any
fiscal-based Bonus may be submitted by the Eligible Employee or Participant,
provided that such Deferral Election is submitted prior to the beginning of the
Employer’s fiscal year for which the fiscal-based Bonus is earned and the
fiscal based Bonus is not paid or payable during the fiscal year.


 


Section 3.03         Cancellation
of Deferral Election due to Disability.


 


Notwithstanding
anything to the contrary, if a Participant incurs a disability as defined in
this Section 3.03, said Participant may file an election to stop Deferrals
as of the date the election is received by the Administrator, provided that
such cancellation occurs by the later of the end of the calendar year or the
15th day of the third month following the date the Participant incurs a
disability. Disability for purposes of this Section 3.03 only means that a
Participant incurs a medically determinable physical or mental impairment
resulting in the Participant’s inability to perform the duties of his or her
position or any substantially similar position, where such impairment can be
expected to result in death or can be expected to last for a continuous period
of not less than six months, as determined by the Administrator in its sole discretion.


 


Section 3.04         Distribution
Elections.


 


At
the time a Participant makes a Deferral Election, he or she must also elect the
time and form of the distribution by establishing one or more In-Service
Account(s) or Retirement Account(s) as provided in Sections 5.01 and
6.01. If the Participant fails to properly designate the time and form of a
distribution, the Participant’s Account shall be designated as a Retirement
Account and the designated form of payment shall be a lump sum.


 


Section 3.05         Additional
Requirements.


 


The
Deferral Election, subject to the limitations set forth in Sections 3.01 and
3.02 hereof, shall comply with the following additional requirements, or as
otherwise required by the Administrator in its sole discretion:


 


(a)           Deferrals may be made in whole
percentages with such limitations as determined by the Administrator.


 


(b)           The maximum amount that may be
deferred each Plan Year is a combination of the following: (i) twenty-five
percent (25%) of the Participant’s Salary and (ii) twenty-five percent
(25%) of the Participant’s Bonus and (iii) twenty-five percent (25%) of
the Participant’s Performance-based Compensation, all net of applicable taxes.


 


(c)           The minimum initial deferral period
for an In-Service Account (or subaccount) shall be five (5) years.


 


8






 










 


Section 3.06         Employer
Discretionary Contributions.


 


The
Employer reserves the right to make discretionary contributions to some or all
Participants’ Accounts in such amount and in such manner as may be determined
by the Employer. Such Employer Discretionary Contributions do not need to be
given to all Participants, nor do any such contributions need to be uniform
among Participants that receive such a contribution. Such Employer
Discretionary Contribution shall be credited to such sub-account(s) as may
be elected by the Participant in accordance with Sections 3.01 and 5.01 and
procedures established by the Administrator, or if no such election is made by
the Participant, then to such sub-account(s) as may be elected by the
Participant for his or her Base Salary Deferrals, or if no Base Salary
Deferrals, then for Bonus or Performance-based Compensation Deferrals or if no
Base Salary or Bonus Deferrals, then to the Participant’s Retirement
sub-account with the shortest payment period maintained within the Participant’s
Account in accordance with Section 5.01.


 


Section 3.07         Crediting
of Contributions.


 


(a)           Deferrals shall be credited to a Participant’s Account,
and if applicable transferred to the Trust, at such time as the Employer shall
determine but no less frequently than at the close of each month.


 


(b)           Employer
Discretionary Contributions shall be credited to a Participant’s Account, and
if applicable transferred to the Trust, at such time as the Employer shall
determine.


 


ARTICLE  IV. — VESTING


 


Section 4.01         Vesting
of Deferrals.


 


A
Participant shall be one hundred percent (100%) vested in his or her Account
attributable to Deferrals and any earnings or losses on the investment of such
Deferrals.


 


Section 4.02         Vesting
of Employer Discretionary Contributions.


 


A
Participant shall have a vested right to the portion of his or her Account
attributable to Employer Discretionary Contributions in accordance with the
following schedule:


 


	
  Completed Years of Service

  	
   

  	
  Vested Percentage

  	
   

  
	
  Less than 2

  	
   

  	
  0

  	
  %

  
	
  2 but less than 3

  	
   

  	
  25

  	
  %

  
	
  3 but less than 4

  	
   

  	
  50

  	
  %

  
	
  4 but less than 5

  	
   

  	
  75

  	
  %

  
	
  5 or more years

  	
   

  	
  100

  	
  %

  



 


Section 4.03         Vesting
in Event of Retirement, Disability, Death or Change-in-Control.


 


(a)           A Participant who incurs a Separation from Service due to
Retirement shall be fully vested in the amounts credited to his or her Account
as of the date of Retirement.


 


9

















 


(b)           A
Participant who incurs a Separation from Service due to Disability shall be
fully vested in the amounts credited to his or her Account as of the date of
Disability.


 


(c)           Upon
a Participant’s death, the Participant shall be fully vested in the amounts
credited to his or her Account.


 


(d)           Upon
a Change-in-Control, all Participants shall be fully vested in the amounts
credited to their Accounts as of the date of the Change-in-Control.


 


Section 4.04         Amounts
Not Vested.


 


Any
amounts credited to a Participant’s Account that are not vested at the time of
his or her Separation from Service shall be forfeited.


 


Section 4.05         Forfeitures.


 


At
the discretion of the Employer, any forfeitures from a Participant’s Account (i) shall
continue to be held in the Trust, shall be separately invested, and shall be
used to reduce succeeding Deferrals and any Employer Contributions, or (ii) shall
be returned to the Employer as soon as administratively feasible.


 


Section 4.06         Cause.


 


(a)           Notwithstanding anything in this Plan to the contrary, if
a Participant’s employment with the Employer or any Subsidiary terminates on
account of Cause (which includes voluntary resignation in lieu of involuntary
termination on account of Cause or if Cause otherwise exists by reason of a
violation of Subsection (iv) of the definition of Cause), no benefits will
be payable hereunder. All benefits of any nature, whether vested or unvested,
shall be forfeited without payment by the Plan, the Employer or any Subsidiary
and the Participant shall have no further rights under the Plan.


 


(b)           In
addition to the rights set forth in Section 4.06(a), and in addition to
any other rights at law or in equity, if a Participant’s employment with the
Employer or any Subsidiary terminates on account of Cause (which includes
voluntary resignation in lieu of involuntary termination on account of Cause or
if Cause otherwise exists by reason of a violation of Subsection (ii) or (iv) of
the definition of Cause), each Participant agrees to the following by agreeing
to participate in this Program. Each Participant agrees that within ten (10) days
after the date the Employer provides such Participant of a notice that there
has occurred a termination on account of Cause (which includes voluntary
resignation in lieu of involuntary termination on account of Cause or if Cause
otherwise exists by reason of a violation of Subsection (ii) or (iv) of
the definition of Cause), a Participant shall pay to the Employer in cash an
amount equal to any and all distributions paid to or on behalf of such
Participant under this Plan within the six (6) months prior to the date of
earliest breach. Each Participant agrees that failure to make such timely
payment to the Employer constitutes an independent and material breach of the
terms and conditions of this Plan, for which the Employer may seek recovery of
the unpaid amount as liquidated damages, in addition to all other rights and
remedies the Employer may have resulting from a determination that Cause
exists. The Participants agree that timely payment to the Employer, as set
forth in this provision of the Plan, is reasonable and necessary because the


 


10

















 


compensatory damages that will result from a Cause determination cannot
readily be ascertained. Further, the Participants agree that timely payment to
the Employer as set forth in this provision of the Plan is not a penalty, and
it does not preclude the Employer from seeking all other remedies that may be
available to the Employer, including without limitation those set forth in this
Section 4.06 and in any employment or other agreement between the
Participant and the Employer.


 


(c)           For
purposes of this section 4.06, a forfeiture of benefits under subsection (a) will
occur and the rights under subsection (b) will also arise if Cause (but
only as defined in subsections (ii) or (iv) of the Cause definition)
arises or is discovered following a termination of employment, regardless of
the reason for such termination.


 


ARTICLE  V. — ACCOUNTS


 


Section 5.01         Accounts.


 


The
Administrator shall establish and maintain a bookkeeping account in the name of
each Participant. The Administrator shall also establish sub-accounts as
provided in subsection (a) and (b), below, as elected by the Participant
pursuant to Article III. A Participant may have a maximum of ten (10) sub-accounts
at any time.


 


(a)           A Participant may establish one or more Retirement Account(s) (“Retirement
sub-accounts”) by designating as such on the Participant’s Deferral Election.
Each Participant’s Retirement sub-account shall be credited with Deferrals (as
specified in the Participant’s Deferral Election), any Employer Discretionary
Contributions, and the Participant’s allocable share of any earnings or losses
on the foregoing. Each Participant’s Retirement sub-account shall be reduced by
any distributions made plus any federal and state tax withholding, and any
social security withholding and other tax as may be required by law.


 


(b)           A
Participant may elect to establish one or more In-Service Accounts (“In-Service
sub-accounts”) by designating as such in the Participant’s Deferral Election
the year in which payment shall be made. Each Participant’s In-Service
sub-account shall be credited with Deferrals (as specified in the Participant’s
Deferral Election), any Employer Discretionary Contributions, and the
Participant’s allocable share of any earnings or losses on the foregoing. Each
Participant’s In-Service sub-account shall be reduced by any distributions made
plus any federal and state tax withholding and any social security withholding
and other tax as may be required by law.


 


Section 5.02         Investments,
Gains and Losses.


 


(a)           A Participant may direct that his or her Retirement
sub-accounts and or In-Service sub-accounts established pursuant to Section 5.01
may be valued as if they were invested in one or more Investment Funds as
selected by the Employer in multiples of one percent (1%). The Employer may
from time to time, at the discretion of the Administrator, change the
Investment Funds for purposes of this Plan.


 


(b)           The
Administrator shall adjust the amounts credited to each Participant’s Account
to reflect Deferrals, any Employer Discretionary Contributions, investment
experience,


 


11

















 


distributions and any other appropriate adjustments. Such adjustments
shall be made as frequently as is administratively feasible.


 


(c)           A
Participant may change his or her selection of Investment Funds no more than
six (6) times each Plan Year with respect to his or her Account or
sub-accounts by filing a new election in accordance with procedures established
by the Administrator. An election shall be effective as soon as
administratively feasible following the date the change is submitted on a
properly completed form prescribed by the Administrator.


 


(d)           Notwithstanding
the Participant’s ability to designate the Investment Fund in which his or her
deferred Compensation shall be deemed invested, the Employer shall have no
obligation to invest any funds in accordance with the Participant’s election.
Participants’ Accounts shall merely be bookkeeping entries on the Employer’s
books, and no Participant shall obtain any property right or interest in any
Investment Fund.


 


ARTICLE  VI. — DISTRIBUTIONS


 


Section 6.01         Distribution
Election.


 


Each
Participant shall designate in his or her Deferral Election the form and timing
of his or her distribution by indicating the type of sub-account as described
under Section 5.01, and by designating the form in which payments shall be
made from the choices available under Sections 6.02 and 6.03 hereof.
Notwithstanding anything to the contrary contained herein provided, no
acceleration of the time or schedule of payments under the Plan shall occur
except as permitted under both this Plan and Code Section 409A.


 


Section 6.02         Distributions
from an In-Service Account.


 


In-Service
sub-account distributions shall begin as soon as administratively feasible but
no later than ninety (90) days following January 1 of the calendar year
designated by the Participant on a properly submitted Deferral Election, and
are payable in either a lump-sum payment or substantially equal annual
installments, as described in Section 6.04 below, over a period of up to
five (5) years as elected by the Participant in his or her Deferral
Election. If the Participant fails to properly designate the form of the
distribution, the sub-account shall be paid in a lump-sum payment. If a
Participant has any In-Service sub-accounts at the time of his or her
Retirement, said sub-accounts shall be distributed in a lump sum as soon as
administratively feasible but no later than ninety (90) days following
Participant’s Retirement, subject to Section 6.11 (Distributions to
Specified Employees).


 


Section 6.03         Distributions
Upon Retirement.


 


If
the Participant has a Separation from Service due to Retirement, the
Participant’s Retirement sub-account(s) shall be distributed as soon as
administratively feasible but no later than ninety (90) days following the
Participant’s Retirement, subject to Section 6.11 (Distributions to
Specified Employees). Distribution shall be made either in a lump-sum payment
or in substantially equal annual installments, as defined in Section 6.04
below, over a period of up to ten (10) years as elected by the
Participant. If the Participant fails to properly designate the form of the
distribution, the sub-account shall be paid in a lump-sum payment.


 


12

















 


Section 6.04         Substantially
Equal Annual Installments.


 


(a)           The amount of the substantially equal payments shall be
determined by multiplying the Participant’s Account or sub-account by a
fraction, the denominator of which in the first year of payment equals the
number of years over which benefits are to be paid, and the numerator of which
is one (1). The amounts of the payments for each succeeding year shall be
determined by multiplying the Participant’s Account or sub-account as of the
applicable anniversary of the payout by a fraction, the denominator of which
equals the number of remaining years over which benefits are to be paid, and
the numerator of which is one (1). Installment payments made pursuant to this Section 6.04
shall be made as soon as administratively feasible, but no later than ninety
(90) days, following the anniversary of the distribution event.


 


(b)           For
purposes of the Plan pursuant to Treas. Regs. 1.409A-2(b)(2)(iii), a series of
annual installments shall be considered a single payment.


 


Section 6.05         Distributions
due to other Separation from Service.


 


If
the Participant has a Separation from Service for any reason other than
Retirement, death or Disability, all vested amounts credited to his or her
Account shall be paid to the Participant in a lump-sum, as soon as
administratively feasible, but no later than ninety (90) days, following the
date of Separation from Service, subject to Section 6.11 (Distributions to
Specified Employees).


 


Section 6.06         Distributions
upon Separation from Service due to Disability.


 


Upon
a Participant’s Separation from Service due to Disability, all amounts credited
to his or her Account shall be paid to the Participant in a lump sum, as soon
as administratively feasible but no later than ninety (90) days following the
date of Separation from Service due to Disability, subject to Section 6.11
(Distributions to Specified Employees).


 


Section 6.07         Distributions
upon Death.


 


Upon
the death of a Participant, all amounts credited to his or her Account shall be
paid, as soon as administratively feasible but no later than ninety (90) days
following Participant’s date of death, to his or her beneficiary or
beneficiaries, as determined under Article VII hereof, in a lump sum.


 


Section 6.08         Changes
to Distribution Elections.


 


A
Participant will be permitted to elect to change the form or timing of the
distribution of the balance of his or her one or more sub-accounts within his
or her Account to the extent permitted and in accordance with the requirements
of Code Section 409A(a)(4)(C), including the requirement that (i) a
redeferral election may not take effect until at least twelve (12) months after
such election is filed with the Employer, (ii) an election to further
defer a distribution (other than a distribution upon death, Disability or an
unforeseeable emergency) must result in the first distribution subject to the
election being made at least five (5) years after the previously elected
date of distribution, and (iii) any redeferral election affecting a
distribution at a fixed date must


 


13

















 


be
filed with the Employer at least twelve (12) months before the first scheduled
payment under the previous fixed date distribution election. Once a sub-account
begins distribution, no such changes to distributions shall be permitted.


 


Section 6.09         Cash-Out
Provision.


 


Notwithstanding
any provision to the contrary, and at the sole discretion of the Employer, if a
Participant’s entire Account balance is less than the applicable Code Section 402(g) annual
limit, the Employer may distribute the Participant’s Account in a lump sum
provided that the distribution results in the termination of the participant’s
entire interest in the Plan, subject to the plan aggregation rules of
Treas. Regs. 1.409A-1(c)(2).


 


Section 6.10         Unforeseeable
Emergency.


 


The
Administrator may permit an early distribution of part or all of any deferred
amounts; provided, however, that such distribution shall be made only if the
Administrator, in its sole discretion, determines that the Participant, or the
Participant’s beneficiary, has experienced an Unforeseeable Emergency. An
Unforeseeable Emergency is defined as a severe financial hardship resulting
from an illness or accident of the Participant, the Participant’s spouse, or a
dependent (as defined in Code Section 152(a)) of the Participant, loss of
the Participant’s property due to casualty or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant. If an Unforeseeable Emergency is determined to exist, a
distribution may not exceed the amounts necessary to satisfy such 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 or compensation by insurance or otherwise
or by liquidation of the Participant’s assets (to the extent the liquidation of
such assets would not itself cause severe financial hardship). Upon a
distribution to a Participant under this Section 6.10, the Participant’s
Deferrals shall cease and no further Deferrals shall be made for such
Participant for the remainder of the Plan Year.


 


Section 6.11         Distributions
to Specified Employees.


 


Notwithstanding
anything herein to the contrary, if any Participant is a Specified Employee
upon a Separation from Service for any reason other than death, distributions
to such Participant shall not commence until the first day of the seventh month
following the date of Separation from Service (or, if earlier, the date of
death of the Participant). If distributions are to be made in annual
installments, the second installment and all those thereafter will be made on
the applicable anniversaries of the Participant’s Separation from Service.


 


Section 6.12         Exception
to Separation from Service.


 


At
the discretion of Employer, a third-party unrelated to Employer that acquires
substantially all the assets of a subsidiary or business unit, may apply the “same
desk” rule so that Participants shall not incur a Separation from Service
upon the sale or transfer of the subsidiary or business unit provided the
following conditions are met, (i) the asset purchase or transfer results
from bona fide arm’s length negotiations, (ii) all Participants providing
services to the Employer prior to and after the transfer are treated
consistently, and (iii) such treatment is


 


14

















 


specified
in writing no later than the close date of the asset purchase transaction, all
pursuant to Treas. Regs. 1.409A-1(h)(4).


 


Section 6.13         Minimum
Distribution.


 


Notwithstanding
any provision to the contrary, and subject to Section 6.11 (Distributions
to Specified Employees), if the entire remaining balance of a Participant’s
Account or sub-account at the time of a scheduled installment payment is
$25,000 or less, then the Participant shall be paid his or her Account or
sub-account as a single lump sum.


 


Section 6.14         Domestic
Relations Orders.


 


The
Administrator may permit such acceleration of the time or schedule of a payment
under the arrangement to an individual other than a Participant as may be
necessary to fulfill a domestic relations order (as defined in Code section
414(p)(1)(B)).


 


ARTICLE 
VII. — BENEFICIARIES


 


Section 7.01         Beneficiaries.


 


Each
Participant may from time to time designate one or more persons (who may be any
one or more members of such person’s family or other persons, administrators,
trusts, foundations or other entities) as his or her beneficiary under the
Plan. Such designation shall be made in a form prescribed by the Administrator.
Each Participant may at any time and from time to time, change any previous beneficiary
designation, without notice to or consent of any previously designated
beneficiary, by amending his or her previous designation in a form prescribed
by the Administrator. If the beneficiary does not survive the Participant (or
is otherwise unavailable to receive payment) or if no beneficiary is validly
designated, then the amounts payable under this Plan shall be paid to the
Participant’s estate. If more than one person is the beneficiary of a deceased
Participant, each such person shall receive a pro rata share of any death
benefit payable unless otherwise designated in the applicable form. If a
beneficiary who is receiving benefits dies, all benefits that were payable to
such beneficiary shall then be payable to the estate of that beneficiary.


 


Section 7.02         Lost
Beneficiary.


 


All
Participants and beneficiaries shall have the obligation to keep the
Administrator informed of their current address until such time as all benefits
due have been paid. If a Participant or beneficiary cannot be located by the
Administrator exercising due diligence, then, in its sole discretion, the
Administrator may presume that the Participant or beneficiary is deceased for
purposes of the Plan and all unpaid amounts (net of due diligence expenses)
owed to the Participant or beneficiary shall be paid accordingly or, if a
beneficiary cannot be so located, then such amounts may be forfeited. Any such
presumption of death shall be final, conclusive and binding on all parties.


 


15

















 


ARTICLE  VIII. — FUNDING


 


Section 8.01         Prohibition
Against Funding.


 


Should
any investment be acquired in connection with the liabilities assumed under
this Plan, it is expressly understood and agreed that the Participants and
beneficiaries shall not have any right with respect to, or claim against, such
assets nor shall any such purchase be construed to create a trust of any kind
or a fiduciary relationship between the Employer, the Trust, the Trustee and
the Participants, their beneficiaries or any other person. Any such assets
shall be and remain a part of the general, unpledged, unrestricted assets of
the Employer, subject to the claims of its general creditors. It is the express
intention of the parties hereto that this arrangement shall be unfunded for tax
purposes and for purposes of Title I of the ERISA. Each Participant and
beneficiary shall be required to look to the provisions of this Plan and to the
Employer itself for enforcement of any and all benefits due under this Plan,
and to the extent any such person acquires a right to receive payment under
this Plan, such right shall be no greater than the right of any unsecured
general creditor of the Employer. The Employer or the Trust shall be designated
the owner and beneficiary of any investment acquired in connection with its
obligation under this Plan.


 


Section 8.02         Deposits
in Trust.


 


In
accordance with Section 8.01, the Employer may deposit into the Trust any
amounts it deems appropriate to pay the benefits under this Plan. The amounts
so deposited may include all contributions made pursuant to a Deferral Election
by a Participant, and any Employer Discretionary Contributions.


 


Section 8.03         Withholding
of Employee Contributions.


 


The
Administrator is authorized to make any and all necessary arrangements with the
Employer in order to withhold the Participant’s Deferrals under Section 3.01
hereof from his or her Compensation. The Administrator shall determine the
amount and timing of such withholding.


 


ARTICLE  IX. — CLAIMS
ADMINISTRATION


 


Section 9.01         General.


 


If
a Participant, beneficiary or his or her representative (“claimant”) is denied
all or a portion of an expected Plan benefit for any reason and the
Participant, beneficiary or his or her representative desires to dispute the
decision of the Administrator, the claimant must file a written notification of
his or her claim with the Administrator. Such a claim must be filed within 6
months of the date the claim accrued or it will be forever barred.


 


Section 9.02         Claims
Procedure.


 


Upon
receipt of any written claim for benefits, the Administrator shall be notified
and shall give due consideration to the claim presented. If any Participant or
beneficiary claims to be entitled to benefits under the Plan and the
Administrator determines that the claim should be


 


16














 


denied
in whole or in part, the Administrator shall, in writing, notify such claimant
within ninety (90) days of receipt of the claim that the claim has been denied.
The Administrator may extend the period of time for making a determination with
respect to any claim for a period of up to ninety (90) days, provided that the
Administrator determines that such an extension is necessary because of special
circumstances and notifies the claimant, prior to the expiration of the initial
ninety (90) day period, of the circumstances requiring the extension of time
and the date by which the Plan expects to render a decision. If the claim is
denied to any extent by the Administrator, the Administrator shall furnish the
claimant with a written or electronic notice setting forth:


 


(a)           the specific reason or reasons for denial of the claim;


 


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


 


(c)           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


 


(d)           an
explanation of the provisions of this Article.


 


Section 9.03         Right
of Appeal.


 


A
claimant who has a claim denied wholly or partially under Section 9.02 may
appeal to the Administrator for reconsideration of that claim. A request for
reconsideration under this Section must be filed by written notice within
sixty (60) days after receipt by the claimant of the notice of denial under Section 9.02.
In preparing for this appeal the claimant shall be given the right to review
pertinent documents, and will have the right to submit in writing a statement
of issues and comments with the appeal.


 


Section 9.04         Review
of Appeal.


 


Upon
receipt of an appeal the Administrator shall promptly take action to give due
consideration to the appeal. Such consideration may include a hearing of the
parties involved, if the Administrator feels such a hearing is necessary. After
consideration of the merits of the appeal the Administrator shall issue a written
decision which shall be binding on all parties. The decision shall specifically
state its reasons and pertinent Plan provisions on which it relies. The
Administrator’s decision shall be issued within sixty (60) days after the
appeal is filed, except that the Administrator may extend the period of time
for making a determination with respect to any claim for a period of up to
sixty (60) days, provided that the Administrator determines that such an
extension is necessary because of special circumstances and notifies the
claimant, prior to the expiration of the initial sixty (60) day period, of the
circumstances requiring the extension of time and the date by which the Plan
expects to render a decision.


 


Section 9.05         Disability
claims procedures.


 


The
above described claims procedures will apply to any benefit based on
disability, subject to the modifications set forth in this section.


 


17

















 


(a)           In the case of a claim for disability benefits, the
Administrator will provide the claimant with written or electronic notification
of the Plan’s adverse benefit determination within a reasonable period of time,
but not later than 45 days after receipt of the claim by the Plan. This period
may be extended by the Plan for up to 30 days, provided that the Administrator
both determines that such an extension is necessary due to matters beyond the
control of the Plan and notifies the claimant, prior to the expiration of the
initial 45 day period, of the circumstances requiring the extension of time and
the date by which the Plan expects to render a decision. If, prior to the end
of the first 30-day extension period, the Administrator determines that, due to
matters beyond the control of the Plan, a decision cannot be rendered within
that extension period, the period for making the determination may be extended
for up to an additional 30 days, provided that the Administrator notifies the
claimant, prior to the expiration of the first 30-day extension period, of the
circumstances requiring the extension and the date as of which the Plan expects
to render a decision. In the case of any such extension, the notice of
extension will specifically explain the standards on which entitlement to a
benefit is based, the unresolved issues that prevent a decision on the claim,
and the additional information needed to resolve those issues, and the claimant
will be afforded at least 45 days within which to provide the specified
information.


 


(b)           In
the case of disability benefits;


 


(1)           If an internal rule,
guideline, protocol, or other similar criterion was relied upon in making an
adverse determination, either the specific rule, guideline, protocol, or other
similar criterion; or a statement that such rule, guideline, protocol, or other
similar criterion was relied upon in making the adverse determination and that
a copy of the rule, guideline, protocol, or other similar criterion will be
provided to the claimant free of charge upon request.


 


(2)           If the adverse benefit determination
is based on a medical necessity or experimental treatment or similar exclusion
or limit, either an explanation of the specific or clinical judgment for the
determination, applying the terms of the Plan to the claimant’s medical
circumstances, or a statement that such explanation will be provided to the
claimant free of charge upon request.


 


(c)           If the claim is for disability benefits, the claimant must
file a claim for review (i.e. the appeal referenced in Section 9.03) no
later than 180 days following receipt of notification of an adverse benefit
determination.


 


(d)           In
addition to the appeal procedures above, if the claim is for disability
benefits, then the appeals procedure will include the following:


 


(i)            The claim will be
reviewed without deference to the initial adverse benefit determination and the
review will be conducted by an appropriate person who is neither the individual
who made the adverse benefit determination that is the subject of the appeal,
nor the subordinate of such individual.


 


(ii)           In deciding an appeal of any adverse
benefit determination that is based in whole or part on medical judgment, the
reviewer will consult with a health care


 


18

















 


professional who has
appropriate training and experience in the field of medicine involved in the
medical judgment.


 


(iii)          Any medical or vocational experts
whose advice was obtained on behalf of the Plan in connection with the claimant’s
adverse benefit determination will be identified, without regard to whether the
advice was relied upon in making the benefit determination.


 


(iv)          The health care professional engaged
for purposes of a consultation under (ii) above will be an individual who
is neither an individual who was consulted in connection with the adverse
benefit determination that is the subject of the appeal, nor the subordinate of
any such individual.


 


(v)           If the claim relates to disability
benefits, then 45 days will apply instead of 60 days in Section 9.04. In
the case of an adverse benefit determination, the notification will set forth
the information set forth in (b) above.


 


Section 9.06         Designation.


 


The
Administrator may designate any other person of its choosing to make any
determination otherwise required under this Article. Any person so designated
shall have the same authority and discretion granted to the Administrator
hereunder.


 


Section 9.07         Further
Proceedings.


 


If
a Participant’s claim for benefits is denied in whole or in part, such
Participant may file suit only in a state or federal court located in Allegheny
County, Pennsylvania. Notwithstanding, before such Participant may file suit in
a state or federal court, Participant must exhaust the Plan’s administrative
claims procedures. If any such judicial or administrative proceeding is undertaken,
the evidence presented will be strictly limited to the evidence timely
presented to the Administrator. In addition, any such judicial or
administrative proceeding must be filed within 6 months after the final
decision under Section 9.04 or 9.05 or it will be forever barred.


 


ARTICLE  X. — GENERAL
PROVISIONS


 


Section 10.01       Administrator.


 


(a)           The Administrator is expressly empowered to limit the
amount of Compensation that may be deferred; to deposit amounts into the Trust
in accordance with Section 8.02 hereof; to interpret the Plan, and to
determine all questions arising in the administration, interpretation and
application of the Plan; to employ actuaries, accountants, counsel, and other
persons it deems necessary in connection with the administration of the Plan;
to request any information from the Employer it deems necessary to determine
whether the Employer would be considered insolvent or subject to a proceeding
in bankruptcy; and to take all other necessary and proper actions to fulfill
its duties as Administrator. Without limiting the generality of the foregoing,
the Administrator shall have sole and absolute authority and discretion to
decide all matters relating to the administration of the Plan, including,
without limitation: determining the rights and status of Participants or their
beneficiaries under the Plan;


 


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interpreting the Plan; adopting
administrative rules, regulations, and guidelines for the Plan; making factual
determinations (including determinations as to the designation of
beneficiaries); and correcting any defect, supplying any omission or
reconciling any inconsistency or conflict in the Plan. The Administrator’s
determinations under the Plan need not be uniform among all Participants, or
classes or categories of Participants, and may be applied to such Participants,
or classes or categories of Participants, as the Administrator in its sole and
absolute discretion, considers necessary, appropriate or desirable. All
determinations by the Administrator shall be final, conclusive and binding on
the Employer, the Participant and any and all interested parties and shall be
entitled to deference in the event of any legal proceedings.


 


(b)           The
Administrator shall not be liable for any actions by it hereunder, unless due
to its own negligence, willful misconduct or lack of good faith.


 


(c)           The
Administrator shall be indemnified and saved harmless by the Employer from and
against all personal liability to which it may be subject by reason of any act
done or omitted to be done in its official capacity as Administrator in good
faith in the administration of the Plan and Trust, including all expenses
reasonably incurred in its defense in the event the Employer fails to provide
such defense upon the request of the Administrator. The Administrator is
relieved of all responsibility in connection with its duties hereunder to the
fullest extent permitted by law, short of breach of duty to the beneficiaries.


 


Section 10.02       No
Assignment.


 


Benefits
or payments under this Plan shall not be 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,
whether voluntary or involuntary, and any attempt to so anticipate, alienate,
sell, transfer, assign, pledge, encumber, attach or garnish the same shall not
be valid, nor shall any such benefit or payment be in any way liable for or
subject to the debts, contracts, liabilities, engagement or torts of any
Participant or beneficiary, or any other person entitled to such benefit or
payment pursuant to the terms of this Plan, except to such extent as may be
required by law. If any Participant or beneficiary or any other person entitled
to a benefit or payment pursuant to the terms of this Plan becomes bankrupt or
attempts to anticipate, alienate, sell, transfer, assign, pledge, encumber,
attach or garnish any benefit or payment under this Plan, in whole or in part,
or if any attempt is made to subject any such benefit or payment, in whole or
in part, to the debts, contracts, liabilities, engagements or torts of the
Participant or beneficiary or any other person entitled to any such benefit or
payment pursuant to the terms of this Plan, then such benefit or payment, in
the discretion of the Administrator, shall cease and terminate with respect to
such Participant or beneficiary, or any other such person.


 


Section 10.03       No
Employment Rights.


 


Participation
in this Plan shall not be construed to confer upon any Participant the legal
right to be retained in the employ of the Employer, or give a Participant or
beneficiary, or any other person, any right to any payment whatsoever, except
to the extent of the benefits provided for hereunder. Each Participant shall
remain subject to discharge to the same extent as if this Plan had never been
adopted.


 


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Section 10.04       Incompetence.


 


If
the Administrator determines that any person to whom a benefit is payable under
this Plan is a minor or incompetent by reason of physical or mental disability,
the Administrator shall have the power to cause the payments becoming due to
such person to be made to another for his or her benefit without responsibility
of the Administrator or the Employer to see to the application of such
payments. Any payment made pursuant to such power shall, as to such payment,
operate as a complete discharge of the Employer, the Administrator and the
Trustee.


 


Section 10.05       Identity.


 


If,
at any time, any doubt exists as to the identity of any person entitled to any
payment hereunder or the amount or time of such payment, the Administrator
shall be entitled to hold such sum until such identity or amount or time is
determined or until an order of a court of competent jurisdiction is obtained.
The Administrator shall also be entitled to pay such sum into court in
accordance with the appropriate rules of law. Any expenses incurred by the
Employer, Administrator, and Trust incident to such proceeding or litigation
shall be charged against the Account of the affected Participant.


 


Section 10.06       Other
Benefits.


 


The
benefits of each Participant or beneficiary hereunder shall be in addition to
any benefits paid or payable to or on account of the Participant or beneficiary
under any other pension, disability, annuity or retirement plan or policy
whatsoever.


 


Section 10.07       Expenses.


 


All
expenses incurred in the administration of the Plan, whether incurred by the
Employer or the Plan, shall be paid by the Employer.


 


Section 10.08       Insolvency.


 


Should
the Employer be considered insolvent (as defined by the Trust), the Employer,
through the Board and a duly appointed officer of the Employer, shall give
immediate written notice of such to the Administrator of the Plan and the
Trustee. Upon receipt of such notice, the Administrator or Trustee shall cease
to make any payments to Participants who were Employees of the Employer or
their beneficiaries and shall hold any and all assets attributable to the Employer
for the benefit of the general creditors of the Employer.


 


Section 10.09       Amendment
or Modification; Code Section 409A.


 


The
Employer may, at any time, in its sole discretion, amend or modify the Plan in
whole or in part, except that no such amendment or modification shall have any
retroactive effect to reduce any amounts allocated to a Participant’s Accounts,
and provided that such amendment or modification complies with Section 409A
of the Code and related regulations thereunder. The provisions of this Plan
will be administered, interpreted and construed in a manner intended to comply
with Section 409A of the Code, the regulations issued thereunder or any
exception thereto (or disregarded to the extent such provision cannot be so
administered, interpreted, or


 


21

















 


construed).
If the Employer or Administrator determines in good faith that any amounts to
be paid to Employee under this Plan are subject to Section 409A of the
Code, then the Employer or Administrator shall, to the extent necessary, adjust
the form and/or the timing of such payments as determined to be necessary or
advisable to be in compliance with Section 409A of the Code. If any
payment must be delayed to comply with Section 409A of the Code, then,
except as otherwise specifically provided in this Plan, the deferred payment
will be paid at the earliest practicable date permitted by Section 409A of
the Code. With respect to payments subject to Section 409A of the Code,
Employer and Administrator reserve the right to accelerate and/or defer any
payment to the extent permitted and consistent with Section 409A of the
Code, the regulations and other binding guidance promulgated thereunder. Notwithstanding any provision of this Plan to the
contrary, Participants, beneficiaries and any other parties acknowledge and
agree that the Employer and the Administrator shall not be liable for, and
nothing provided or contained in this Plan will be construed to obligate or
cause the Employer or the Administrator to be liable for, any tax, interest or
penalties imposed on the Participant, beneficiary or other party related to or
arising with respect to any violation of Section 409A  of the Code.


 


Section 10.10       Plan
Suspension or Termination.


 


The
Employer further reserves the right to suspend or terminate the Plan in whole
or in part, in the following manner, except that no such suspension or
termination shall have any retroactive effect to reduce any amounts allocated
to a Participant’s Accounts, and provided that such suspension or termination
complies with Section 409A of the Code and related regulations thereunder:


 


(a)           The Employer, in its sole discretion, may terminate the
Plan provided that the distribution of the amounts credited to all vested
Participant’s Accounts shall not be accelerated but shall be paid at such time
and in such manner as determined under the terms of the Plan immediately prior
to termination as if the Plan had not been terminated;


 


(b)           The
Employer, in its sole discretion, may terminate the Plan and distribute all
vested Participants’ Accounts no earlier than twelve (12) calendar months from
the date of the Plan termination and no later than twenty-four (24) calendar
months from the date of the Plan termination, provided however that all other
similar arrangements are also terminated by the Employer and no other similar
arrangements are adopted by the Employer within a three year period from the
date of termination; or


 


(c)           The
Employer may decide, in its discretion, to terminate the Plan in the event of a
Change-in-Control and distribute all vested Participants Account balances no
earlier than thirty (30) days prior to the Change-in-Control and no later than
twelve (12) months after the effective date of the Change-in-Control, provided
however that the Employer terminates all other similar arrangements. Any
corporation or other business organization that is a successor to the Employer
by reason of a Change-in-Control shall have the right to become a party to the
Plan by appropriate entity action. If within thirty (30) days from the
effective date of the Change-in-Control such new entity does not become a party
hereto, as above provided, the full amount of the Participant’s Account shall
become immediately distributable to the Participant pursuant to this
subsection.


 


22

















 


(d)           The
Employer may decide, in its sole discretion, to terminate the Plan in the event
of a corporate dissolution taxed under Code Section 331, or with the
approval of a bankruptcy court, provided that the Participants vested Account
balances are distributed to Participants and are included in the Participants’
gross income in the latest of: (i) the calendar year in which the
termination occurs; (ii) the calendar year in which the amounts deferred
are no longer subject to a substantial risk of forfeiture; or (iii) the
first calendar year in which payment is administratively practicable.


 


Section 10.11       Construction.


 


All
questions of interpretation, construction or application arising under or
concerning the terms of this Plan shall be decided by the Administrator, in its
sole and final discretion, whose decision shall be final, binding and
conclusive upon all persons.


 


Section 10.12       Governing
Law.


 


This
Plan shall be governed by, construed and administered in accordance with the
applicable provisions of ERISA, Code Section 409A, and any other
applicable federal law, provided, however, that to the extent not preempted by
federal law this Plan shall be governed by, construed and administered under
the laws of the Commonwealth of Pennsylvania, other than its laws respecting
choice of law.


 


Section 10.13       Severability.


 


If
any provision of this Plan is held invalid or unenforceable, its invalidity or
unenforceability shall not affect any other provision of this Plan and this
Plan shall be construed and enforced as if such provision had not been included
therein. If the inclusion of any Employee (or Employees) as a Participant under
this Plan would cause the Plan to fail to comply with the requirements of
Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, or Code Section 409A,
then the Plan shall be severed with respect to such Employee or Employees, who
shall be considered to be participating in a separate arrangement.


 


Section 10.14       Headings.


 


The
Article headings contained herein are inserted only as a matter of
convenience and for reference and in no way define, limit, enlarge or describe
the scope or intent of this Plan nor in any way shall they affect this Plan or
the construction of any provision thereof.


 


Section 10.15       Terms.


 


Capitalized
terms shall have meanings as defined herein. Singular nouns shall be read as
plural, masculine pronouns shall be read as feminine, and vice versa, as
appropriate.


 


Section 10.16       Payments
Upon Income Inclusion Under 409A.


 


The
Plan may permit acceleration of the time or schedule of a payment to a
Participant to pay an amount the Participant includes in income as a result of
the Plan failing to meet the requirements of Code Section 409A.


 


23

















 


IN
WITNESS WHEREOF, DynaVox Systems LLC has caused this instrument to be executed
by its duly authorized officer, effective as of this 7th day of April, 2010.


 


	
   

  	
  DynaVox
  Systems LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kenneth D. Misch

  
	
   

  	
  Name:

  	
  Kenneth
  D. Misch

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer

  



 


 


	
  ATTEST:

  	
   

  
	
  By:

  	
  /s/
  Marcy Smorey-Giger

  	
   

  
	
  Name:

  	
  Marcy
  Smorey-Giger

  	
   

  
	
  Title:

  	
  Chief
  Legal Officer

  	
   

  



 


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