Exhibit
10.1


 


BED BATH &
BEYOND INC.


 


NONQUALIFIED
DEFERRED


COMPENSATION
PLAN


 





















 


BED
BATH & BEYOND INC.


NONQUALIFIED
DEFERRED COMPENSATION PLAN


 


Table of Contents


 


	
  Article 1 - Definitions

  	
   

  
	
   

  	
   

  
	
  1.1

  	
  Account

  	
  1

  
	
  1.2

  	
  Administrator

  	
  1

  
	
  1.3

  	
  Board

  	
  1

  
	
  1.4

  	
  Change-in-Control

  	
  1

  
	
  1.5

  	
  Code

  	
  2

  
	
  1.6

  	
  Compensation

  	
  2

  
	
  1.7

  	
  Deferrals

  	
  2

  
	
  1.8

  	
  Deferral Election

  	
  2

  
	
  1.9

  	
  Disability

  	
  2

  
	
  1.10

  	
  Effective Date

  	
  2

  
	
  1.11

  	
  Eligible Employee

  	
  2

  
	
  1.12

  	
  Employee

  	
  2

  
	
  1.13

  	
  Employer

  	
  3

  
	
  1.14

  	
  Employer Discretionary Contribution

  	
  3

  
	
  1.15

  	
  In-Service
  Account

  	
  3

  
	
  1.16

  	
  Investment
  Fund or Funds

  	
  3

  
	
  1.17

  	
  Matching Contribution

  	
  3

  
	
  1.18

  	
  Participant

  	
  3

  
	
  1.19

  	
  Plan Year

  	
  3

  
	
  1.20

  	
  Retirement

  	
  3

  
	
  1.21

  	
  Retirement Account

  	
  3

  
	
  1.22

  	
  Separation from Service

  	
  3

  
	
  1.23

  	
  Trust

  	
  3

  
	
  1.24

  	
  Trustee

  	
  3

  
	
  1.25

  	
  Years of Service

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article 2 - Participation

  	
   

  
	
   

  	
   

  
	
  2.1

  	
  Commencement of Participation

  	
  4

  
	
  2.2

  	
  Loss of Eligible Employee Status

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article 3 - Elections and
  Contributions

  	
   

  
	
   

  	
   

  
	
  3.1

  	
  Deferral Elections - General

  	
  4

  
	
  3.2

  	
  Time of Election

  	
  4

  
	
  3.3

  	
  Distribution Elections

  	
  5

  
	
  3.4

  	
  Additional Requirements

  	
  5

  
	
  3.5

  	
  Matching Contributions

  	
  5

  
	
  3.6

  	
  Employer Discretionary Contributions

  	
  5

  
	
  3.7

  	
  Crediting of Contributions

  	
  5

  



 





















 


	
  Article 4 - Vesting

  	
   

  
	
   

  	
   

  
	
  4.1

  	
  Vesting of Deferrals

  	
  6

  
	
  4.2

  	
  Vesting of Matching Contributions

  	
  6

  
	
  4.3

  	
  Vesting of Employer Discretionary Contributions

  	
  6

  
	
  4.4

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

  	
  6

  
	
  4.5

  	
  Amounts Not Vested

  	
  7

  
	
  4.6

  	
  Forfeitures

  	
  7

  
	
   

  	
   

  	
   

  
	
  Article 5 - Accounts

  	
   

  
	
   

  	
   

  
	
  5.1

  	
  Accounts

  	
  7

  
	
  5.2

  	
  Investments, Gains and Losses

  	
  8

  
	
   

  	
   

  	
   

  
	
  Article 6 - Distributions

  	
   

  
	
   

  	
   

  
	
  6.1

  	
  Distributions - General

  	
  8

  
	
  6.2

  	
  Distributions from an In-Service Account

  	
  8

  
	
  6.3

  	
  Distributions Upon Retirement

  	
  9

  
	
  6.4

  	
  Substantially Equal Annual Installments

  	
  9

  
	
  6.5

  	
  Distributions Upon a Change-in-Control

  	
  9

  
	
  6.6

  	
  Distributions due to other Separation from Service

  	
  9

  
	
  6.7

  	
  Distributions upon Disability

  	
  9

  
	
  6.8

  	
  Distributions upon Death

  	
  9

  
	
  6.9

  	
  Changes to Distribution Elections

  	
  10

  
	
  6.10

  	
  Distributions to Specified Employee

  	
  10

  
	
  6.11

  	
  Minimum Distribution

  	
  10

  
	
  6.12

  	
  Unforeseeable Emergency

  	
  10

  
	
   

  	
   

  	
   

  
	
  Article 7 - Beneficiaries

  	
   

  
	
   

  	
   

  
	
  7.1

  	
  Beneficiaries

  	
  11

  
	
  7.2

  	
  Lost Beneficiary

  	
  11

  
	
   

  	
   

  	
   

  
	
  Article 8 - Funding

  	
   

  
	
   

  	
   

  
	
  8.1

  	
  Prohibition Against Funding

  	
  11

  
	
  8.2

  	
  Deposits in Trust

  	
  11

  
	
  8.3

  	
  Withholding of Employee Contributions

  	
  12

  
	
   

  	
   

  	
   

  
	
  Article 9 - Claims
  Administration

  	
   

  
	
   

  	
   

  
	
  9.1

  	
  General

  	
  12

  
	
  9.2

  	
  Claims Procedure.

  	
  12

  
	
  9.3

  	
  Right of Appeal

  	
  12

  
	
  9.4

  	
  Review of Appeal

  	
  13

  
	
  9.5

  	
  Designation

  	
  13

  



 





















 


	
  Article 10 - General
  Provisions

  	
   

  
	
   

  	
   

  
	
  10.1

  	
  Administrator

  	
  13

  
	
  10.2

  	
  No Assignment

  	
  13

  
	
  10.3

  	
  No Employment Rights

  	
  14

  
	
  10.4

  	
  Incompetence

  	
  14

  
	
  10.5

  	
  Identity

  	
  14

  
	
  10.6

  	
  Other Benefits

  	
  14

  
	
  10.7

  	
  Indemnity

  	
  14

  
	
  10.8

  	
  Expenses

  	
  15

  
	
  10.9

  	
  Insolvency

  	
  15

  
	
  10.10

  	
  Amendment, Modification, Suspension or Termination

  	
  15

  
	
  10.11

  	
  Termination
  Due to Change-in-Control

  	
  15

  
	
  10.12

  	
  Construction

  	
  15

  
	
  10.13

  	
  Governing Law

  	
  15

  
	
  10.14

  	
  Severability

  	
  15

  
	
  10.15

  	
  Headings

  	
  16

  
	
  10.16

  	
  Terms

  	
  16

  
	
  10.17

  	
  409A Compliance

  	
  16

  



 





















 


BED
BATH & BEYOND INC.


NONQUALIFIED
DEFERRED COMPENSATION PLAN


 


Bed Bath &
Beyond Inc., a New York corporation, and its affiliates and subsidiaries,
hereby adopts this Bed Bath & Beyond Inc. Nonqualified Deferred
Compensation Plan (the “Plan”) for the benefit of a select group of management
or highly compensated employees.  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 (and all rulings
and regulations thereunder (“ERISA”)). It is intended to comply with Internal
Revenue Code Section 409A.  This
Plan is effective January 1, 2006.


 


Article 1 - Definitions


 


1.1                     Account.


 


The bookkeeping account
established for each Participant as provided in section 5.1 hereof.


 


1.2                     Administrator.


 


An
administrative committee appointed by the Chief Executive Officer of the
Employer, said committee to include at least three individuals.  The Administrator shall serve as the agent
for the Employer with respect to the Trust.


 


1.3                     Board.


 


The Board of Directors of the
Employer.


 


1.4                     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” of the Employer (which, for
purpose of this Section 1.4 shall mean Bed Bath & Beyond Inc. but
not any of its affiliates or subsidiaries) shall mean the first to occur of any
of the following:


 


(a)           the date that any one person or persons acting as a group
acquires ownership of Employer stock constituting more than fifty percent (50%)
of the total fair market value or total voting power of the Employer;


 


(b)           the date that any one person or persons acting as a group
acquires (or has acquired during the 12-month period ending on the date of the
most recent acquisition by such person or persons) ownership of the stock of
the Employer possessing thirty-five percent (35%) or more of the total voting
power of the stock of the Employer;


 


(c)           the date that any one person or persons acting as a group
acquires assets from the Employer that have a total gross fair market value
equal to or more than forty percent (40%) of the total gross fair market value
of all of the assets of the Employer immediately prior to such acquisition; or


 


1





















 


(d)           the date that a majority of members of the Employer’s
Board is replaced during any 12-month period by directors whose appointment or
election is not endorsed by a majority of the members of the Board prior to the
date of the appointment or elections.


 


1.5                     Code.


 


The Internal Revenue Code of
1986, as amended and all rulings and regulations thereunder.


 


1.6                     Compensation.


 


The Participant’s regular
earnings including any pretax elective deferrals from said Compensation to any
Employer sponsored plan that includes amounts deferred under a Deferral
Election or a qualified cash or deferred arrangement under Code Section 401(k)
or cafeteria plan under Code Section 125, and excluding (i) bonus or
incentive compensation, (ii) welfare benefits, fringe benefits and any
other noncash remuneration, (iii) amounts realized from the sale, exchange
or other disposition of stock acquired under a stock option, a stock grant or
any other similar arrangement, and (iv) moving expenses.


 


1.7                     Deferrals.


 


The portion of Compensation
that a Participant elects to defer in accordance with Article 3 hereof.


 


1.8                     Deferral
Election.


 


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


 


1.9                     Disability.


 


For purposes of Section 4.4
and Section 6.7, a Participant shall be considered disabled if the
Participant would be considered disabled under the Employer’s long term
disability plan, determined without regard to any waiting periods imposed by
such plan.  In the event the Employer no
longer maintains a long term disability plan, Disability shall mean that 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 twelve (12) months.


 


1.10              Effective
Date.


 


January 1, 2006.


 


1.11              Eligible
Employee.


 


An Employee shall be considered
an Eligible Employee if such Employee is designated as an Eligible 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 year.


 


1.12              Employee.


 


Any person employed by the
Employer.


 


2





















 


1.13              Employer.


 


Bed Bath & Beyond Inc.
and its affiliates and subsidiaries.


 


1.14              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 3.6 hereof.


 


1.15     In-Service Account. 


 


One or more
bookkeeping accounts established pursuant to Section 5.1(b).


 


1.16              Investment
Fund or Index.


 


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


 


1.17              Matching
Contribution.


 


A contribution made by the
Employer that is credited to one or more Participant’s Accounts in accordance
with the terms of Section 3.5 hereof.


 


1.18              Participant.


 


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


 


1.19              Plan
Year.


 


The calendar year of January 1
through December 31.


 


1.20              Retirement.


 


Retirement means a Participant
has reached age sixty-five (65) and has a voluntary or involuntary Separation
from Service with the Employer.


 


1.21     Retirement Account.


 


One or more
bookkeeping accounts established pursuant to Section 5.1(a).


 


1.22              Separation
from Service.


 


A Separation from Service shall
mean a separation from service with the Employer within the meaning of Code Section 409A(a)(2)(A)(i) and
regulations thereunder.


 


1.23              Trust.


 


The agreement between the
Employer and the Trustee under which the assets of the Plan are held,
administered and managed, which shall conform to the terms of IRS Rev. Proc. 92-64.


 


1.24              Trustee.


 


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


 


3





















 


1.25              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 2 - Participation


 


2.1                     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 Contribution
is first credited to his or her Account.


 


2.2                     Loss
of Eligible Employee Status.


 


A Participant who is no longer
an Eligible Employee shall not be permitted to submit a Deferral Election for a
Plan Year following the loss of Eligible Employee status, and all Deferrals for
such Participant shall cease as of the completion of the Deferral Election for
the Plan Year.  Amounts credited to the
Account of a Participant described in this Section 2.2 shall continue to
be held, pursuant to the terms of the Plan and shall be distributed as provided
in Article 6.


 


Article 3 - Elections and Contributions


 


3.1                     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 qualified 401(k) plan in order for the Participant
to obtain a hardship withdrawal from the 401(k) plan.  Such amounts deferred under the Plan shall
not be made available to such Participant, except as provided in Article 6,
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 8.  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.


 


3.2                     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.


 


(b)           Notwithstanding the foregoing and in the discretion of the
Employer, in a year in which an Employee is first eligible to participate, such
Deferral Election shall be filed within thirty (30) days after the date on
which an Employee is first eligible to participate, with


 


4





















 


respect to Compensation
to be earned during the remainder of the calendar year after such election is
made.


 


3.3                     Distribution
Elections.


 


At the time a Participant makes a Deferral Election, he or she must
also elect the time of the distribution by establishing one or more In-Service
Account(s) or Retirement Account(s) as provided in Section 5.1.


 


3.4                     Additional
Requirements.


 


The Deferral Election, subject
to the limitations set forth in Sections 3.1 and 3.2 hereof, shall comply with
the following additional requirements:


 


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


 


(b)           The maximum amount that may be deferred each Plan Year is
twenty-five percent (25%) of the Participant’s Compensation.


 


3.5                     Matching
Contributions.


 


(a)           Subject to subsection (b) below, the Employer
shall credit to the Account of each Participant who makes Deferrals a Matching
Contribution in an amount equal to fifty percent (50%) of the Deferrals
contributed by the Participant, up to a maximum Deferral of six percent (6%) of
each Participant’s eligible Compensation, offset dollar for dollar by any
matching contribution that the Employer makes to the Employer’s qualified
401(k) plan on behalf of the Participant. The Employer shall credit the
Matching Contribution to the same Account or Accounts to which the Participant
directs his or her Deferrals according to Section 3.3 above.


 


(b)           Notwithstanding anything to the contrary, the combined
maximum annual matching contribution that may be made on behalf of a
Participant to this Plan and to the 401(k) qualified plan is fifty percent
(50%) of the Deferrals contributed by the Participant up to a maximum Deferral of
six percent (6%) of each Participant’s eligible Compensation where Compensation
is limited to the Code Section 401(a)(17) amount for the applicable Plan
Year.  Thus, the maximum Matching
Contribution between both plans cannot exceed three percent (3%) (50% of a
maximum matched Deferral of 6%) of the Participant’s eligible Compensation.


 


3.6                     Employer
Discretionary Contributions.


 


The Employer reserves the right
to make Employer Discretionary Contributions to some or all Participants’
Accounts in such amount and in such manner as may be determined by the
Employer.


 


3.7                     Crediting
of Contributions.


 


 


5





















 


(a)           Deferrals shall be credited to a Participant’s Account,
and if applicable transferred to the Trust, as soon as administratively
feasible following each payroll period.


 


(b)           Matching Contributions shall be credited to a Participant’s
Account, and if applicable transferred to the Trust, on or before March 30
of the Plan Year following the Plan Year for which such Matching Contribution
is being credited.


 


(c)           Employer Discretionary Contributions shall be transferred
to the Trust at such time as the Employer shall determine.


 


Article 4 - Vesting


 


4.1                     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.


 


4.2                     Vesting
of Matching Contributions.


 


Except as otherwise provided
herein, a Participant shall have a vested right to the portion of his or her
Account attributable to Matching Contributions and any earnings or losses on
the investment of such Matching Contributions in accordance with the following
schedule:


 


	
  Completed

  Years of Service

  	
   

  	
  Vested

  Percentage

  	
   

  
	
  1 but fewer than 2

  	
   

  	
  20

  	
  %

  
	
  2 but fewer than 3

  	
   

  	
  40

  	
  %

  
	
  3 but fewer than 4

  	
   

  	
  60

  	
  %

  
	
  4 but fewer than 5

  	
   

  	
  80

  	
  %

  
	
  5 years or more

  	
   

  	
  100

  	
  %

  



 


4.3                     Vesting
of Employer Discretionary Contributions.


 


A Participant shall have a
vested right to the portion of his or her Account attributable to Employer
Discretionary Contribution(s) and any earnings or losses on the investment of
such Employer Discretionary Contribution(s) according to such vesting schedule as
the Employer shall determine at the time an Employer Discretionary
Contribution(s) is made.


 


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


 


(a)           A Participant who has 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.


 


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


 


6





















 


(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.


 


4.5                     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.


 


4.6                     Forfeitures.


 


Any forfeitures from a
Participant’s Account shall continue to be held in the Trust, shall be
separately invested and shall be used to reduce succeeding Matching
Contributions and/or Employer Discretionary Contributions until such
forfeitures have been entirely so applied. 
If the Employer advises the Trustee that no further employer Matching
Contributions and/or Employer Discretionary Contributions will be made, then
such forfeitures shall be returned to the Employer.


 


Article 5 - Accounts


 


5.1                     Accounts.


 


The Administrator shall
establish and maintain bookkeeping Accounts in the name of each Participant as
provided in subsection (a) and (b), below, as elected by the
Participant pursuant to Article 3. 
A Participant may have a maximum of ten (10) Accounts at any time.


 


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


 


(b)           A Participant may elect to establish one or more
In-Service Accounts by designating in such Participant’s Deferral Election the
year in which payment shall be made at the time the account is initially
established.  The minimum initial
deferral period for an In-Service Account shall be three (3) years
provided, however, that if a Participant has elected to receive a distribution
of Matching Contributions prior to the year in which such Matching
Contributions have become vested then, notwithstanding the Participant’s election,
he or she shall be deemed to have elected to defer such Matching Contributions
until the first year in which such Matching Contributions have become vested.
Each of the Participant’s In-Service Accounts shall be credited with Deferrals,
any Matching Contributions allocable thereto, any Employer Discretionary
Contributions as specified in the Participant’s Deferral Election, and the
Participant’s allocable share of any earnings or losses on the foregoing.  Each of the Participant’s In-Service Accounts
shall be reduced by any distributions made plus any federal and state tax
withholding and any social security withholding tax as may be required by law.


 


7





















 


5.2                     Investments,
Gains and Losses.


 


(a)           General Rule.  The Participant shall elect one or more
Investment Indexes for the deemed investment, subject to Section 5.2(d) below,
of his or her deferred Compensation. 
Such Investment Indexes shall be designated by the Administrator and
such elections shall be made on a form provided by, and in manner specified by,
the Administrator and shall apply solely for purposes of determining the amount
of earnings or losses to be credited or debited to the Account established on
behalf of such Participant by the Administrator pursuant to this Article 5.  In making the Investment Index Election, the
Participant must specify, in whole percentages, the percentage of his or her
Account that he or she wishes to be deemed to be invested in one or more
Investment Indexes.


 


(b)           Changing an Investment
Index Election.  A Participant
may make a new Investment Index Election with respect to his or her Account(s)
by filing a new election no more than six (6) times each Plan Year in
accordance with procedures established by the Administrator.


 


(c)           Changing Available
Investment Indexes.  The
Employer may from time to time, at the discretion of the Administrator, change
the Investment Indexes and increase or decrease the number of Investment
Indexes for purposes of this Plan.


 


(d)           No Participant Interest
in Index.  Notwithstanding the
Participant’s ability to designate the Investment Index 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 Index.


 


Article 6 - Distributions


 


6.1                     Distributions
- General.


 


Each Participant shall
designate on his or her Deferral Election the form and timing of his or her
distribution by indicating the type of account as described under Section 5.1,
and by designating the manner in which payments shall be made from the choices
available under Sections 6.2 and 6.3 hereof. 
Notwithstanding anything to the contrary 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(a)(3).


 


6.2                     Distributions
from an In-Service Account.


 


In-Service Account payouts
shall begin as soon as administratively feasible but no later than sixty (60)
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 6.4 below, over a period of up to five (5) years
as elected by the Participant in his or her Deferral Election.  If a Participant has an In-Service Account(s)
at the time of his or her Retirement, said Account(s) shall be distributed in


 


8





















 


a lump sum as soon as administratively
feasible but no later than sixty (60) days following the Participant’s
Retirement, subject to Section 6.10 below.


 


6.3                     Distributions
Upon Retirement.


 


If the Participant has a
Separation from Service due to Retirement, the Participant’s Retirement Account
shall be distributed as soon as administratively feasible but no later than sixty
(60) days following the Participant’s Retirement, subject to Section 6.10
below.  Distribution shall be made either
in a lump-sum payment or in substantially equal annual installments, as defined
in Section 6.4 below, over a period of up to ten (10) years as
elected by the Participant.


 


6.4                     Substantially
Equal Annual Installments.


 


The amount of the substantially
equal payments shall be determined by multiplying the Participant’s 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 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 6.4 shall be made on the applicable
anniversaries of the date as of which the Participant elected to commence
distributions in installments in his or her Deferral Election.


 


6.5                     Distributions
Upon a Change-in-Control.


 


Upon a Change-in-Control, all amounts
credited to the Participant’s Accounts as of the date of the Change-in-Control
shall be paid in a lump sum as soon as administratively possible but no later
than sixty (60) days following such Change-in-Control.


 


6.6                     Distributions
due to other Separation from Service.


 


Upon a Participant’s Separation
from Service for any reason other than Retirement, death or Disability, all
vested amounts credited to his or her Account(s) shall be paid to the
Participant in a lump-sum, as soon as administratively feasible but no later
than sixty (60) days following the date of Separation from Service, subject to Section 6.10
below.


 


6.7                     Distributions
upon Disability.


 


Upon a Participant’s Separation
from Service due to Disability, all amounts credited to his or her Account(s)
shall be paid to the Participant in a lump-sum, as soon as administratively
feasible but no later than sixty (60) days following the date of Separation
from Service due to Disability.


 


6.8                     Distributions
upon Death.


 


Upon the death of a
Participant, all amounts credited to his or her Account(s) shall be paid, as
soon as administratively feasible but no later than sixty (60) days following
his or her date of death, to his or her beneficiary or beneficiaries, as
determined under Article 7 hereof, in a lump-sum.


 


9





















 


6.9                     Changes
to Distribution Elections.


 


A Participant will be permitted
to elect to change the form or timing of the distribution of his or her
Account(s) 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 be filed with the Employer at least twelve (12) months
before the first scheduled payment under the previous fixed date distribution
election. For purpose of this Section 6.9, a series of installment
payments paid from a single In-Service Account shall be treated as a single
payment.


 


6.10              Distributions
to Specified Employee.


 


Notwithstanding anything herein
to the contrary, if any Participant is a “Specified Employee,” as defined
herein, upon a Separation from Service for any reason other than Disability or
death, a distribution to such Participant may not be made before the date which
is six (6) months after the date of Separation from Service (or, if
earlier, the date of death of the Participant). 
The term “Specified Employee” shall have the meaning that such term is
given in Code Section 409A.


 


6.11              Minimum
Distribution.


 


Notwithstanding any provision
to the contrary, and subject to Section 6.10 above, if the balance of a
Participant’s Account at the time of a Separation from Service for any reason
is $10,000 or less, then the Participant shall be paid his or her benefits as a
single lump sum as soon as administratively feasible following said Separation
from Service, subject to Section 6.10 above.


 


6.12              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 has experienced an “unforeseeable emergency.”  The term “unforeseeable emergency” shall have
the meaning that such term is given in Code Section 409A. 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).


 


10





















 


Article 7 - Beneficiaries


 


7.1                     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 on 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 on 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 on 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.


 


7.2                     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.


 


Article 8 - Funding


 


8.1                     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 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 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.


 


8.2                     Deposits
in Trust.


 


Notwithstanding Section 8.1,
or any other provision of this Plan to the contrary, the Employer may deposit
into the Trust any amounts it deems appropriate to pay the benefits under


 


11





















 


this Plan. 
The amounts so deposited may include all contributions made pursuant to
a Deferral Election by a Participant, all Matching Contributions, and any
Employer Discretionary Contributions.


 


8.3                     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 3.1 hereof from his or
her Compensation.  The Administrator
shall determine the amount and timing of such withholding.


 


Article 9 - Claims Administration


 


9.1                     General.


 


If a Participant, beneficiary
or his or her representative 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, he or she
must file a written notification of his or her claim with the Administrator.


 


9.2                     Claims
Procedure.


 


Upon receipt of any written
claim for benefits, the Company’s Vice President of Human Resources (the “Claim
Officer”) 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 Claim
Officer determines that the claim should be denied in whole or in part, the
Claim Officer shall, in writing, notify such claimant within ninety (90) days
of receipt of the claim that the claim has been denied.  The Claim Officer 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 Claim Officer 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 Claim Officer, the Claim Officer shall furnish
the claimant with a written 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.


 


9.3                     Right
of Appeal.


 


A claimant who has a claim
denied wholly or partially under Section 9.2 may appeal to the
Administrator for reconsideration of that claim.  A request for reconsideration under this


 


12





















 


section must be filed by written notice
within sixty (60) days after receipt by the claimant of the notice of denial
under Section 9.2.


 


9.4                     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.  In preparing for this appeal
the claimant shall be given the right to review pertinent documents and the
right to submit in writing a statement of issues and comments.  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.


 


9.5                     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.


 


Article 10 - General Provisions


 


10.1              Administrator.


 


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 8.2 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.


 


10.2              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


 


13





















 


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.


 


10.3              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.


 


10.4              Incompetence.


 


If the Administrator determines
that any person to whom a benefit is payable under this Plan is 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.


 


10.5              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.


 


10.6              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.


 


10.7              Indemnity.


 


To the maximum extent permitted
by applicable state law and to the extent not covered by insurance, the
Employer shall indemnify and hold harmless the Claim Officer, the Administrator
and each member thereof, the Board of Directors and each member thereof, and
delegates of the Administrator who are employees of the Employer, against any
and all expenses, liabilities and claims, including legal fees to defend
against such liabilities and claims arising out of their discharge, in good
faith, of responsibilities under or incident to the Plan, other than expenses
and liabilities arising out of willful misconduct.  This indemnity shall not preclude such


 


14





















 


further indemnities as may be available under
insurance purchased by the Employer or provided by the Employer under any
bylaw, agreement or otherwise, as such indemnities are permitted under state law.


 


10.8              Expenses.


 


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


 


10.9              Insolvency.


 


Should the Employer be
considered insolvent (as defined by the Trust), the Employer, through its Board
and Chief Executive Officer, shall give immediate written notice of such fact to
the Administrator 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 the Trustee shall hold any and all assets attributable to the
Employer for the benefit of the general creditors of the Employer.


 


10.10       Amendment,
Modification, Suspension or Termination.


 


The Employer may, at any time,
in its sole discretion, amend, modify, suspend or terminate the Plan in whole
or in part, except that no such amendment, modification, suspension or
termination shall have any retroactive effect to reduce any amounts allocated
to a Participant’s Accounts.  In the
event that this Plan is terminated, the distribution of the amounts credited to
a 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.


 


10.11       Termination
Due to Change-in-Control.


 


                Upon
a Change-in-Control and payout of all amounts as provided in Section 6.5
above, the Plan shall terminate.


 


10.12       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.


 


10.13       Governing
Law.


 


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


 


10.14       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


 


15





















 


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.


 


10.15       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.


 


10.16       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.


 


10.17       409A
Compliance.


 


This Plan will, at all times,
be operated in good faith compliance with Section 409A of the Code in
accordance with Internal Revenue Service Notice 2005-1 and proposed regulations
thereunder (and any subsequent IRS notices or guidance). In the event that any
provision of this Plan is inconsistent with Code Section 409A or such
guidance, then the applicable provisions of Code Section 409A shall
supersede such provision.  Nothing herein
shall be construed as an entitlement to our guarantee of any particular tax
treatment to a Participant.


 


[The
remainder of this page intentionally left blank]


 


 


16