**Exhibit 10.27**

 

**SUPERIOR ESSEX INC.**

 

**SENIOR EXECUTIVE RETIREMENT PLAN**

 

**Introduction**

 

The purpose of the Plan is to provide supplemental retirement benefitsto certain employees of the Company and its Affiliates, in addition to othersources of retirement income.  It isintended that the Plan will be a non-qualified, unfunded, deferred compensationplan for a “select group of management or highly compensated employees” as thatterm is used in ERISA.  The purpose ofthe Plan is also to attract, retain and motivate key personnel for the progressof the Company and its Affiliates.

 

# **Article I.Definitions**

#  

The following words and phrases as used herein have the followingmeaning unless a different meaning is plainly required by the context:

 

## 1.1.                              **“Actuarial Equivalent”** means an amountequal in value on an actuarial basis, as determined by an actuary selected bythe Committee, based on the Actuarial Equivalent Factor.  The calculation by the actuary shall be finaland binding on all persons.

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## 1.2.                              **“Actuarial Equivalent Factor”** means afactor reflecting an assumption of interest at a rate of 7.0% and utilizing theRP-2000 Mortality Tables.

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## 1.3.                              **“Affiliate”** means each of thefollowing:  (a) any subsidiarycorporation of the Company within the meaning of Section 424(f) of the Code;(b) any parent corporation of the Company within the meaning of Section 424(e)of the Code; (c) any corporation, trade or business (including, withoutlimitation, a partnership or limited liability company) which is directly orindirectly controlled 50% or more (whether by ownership of stock, assets or anequivalent ownership interest or voting interest) by the Company or one of itsAffiliates; and (d) any other entity in which the Company or one of itsAffiliates has a material equity interest and which is designated as an “Affiliate”by resolution of the Committee.

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## 1.4.                              **“Applicable Benefit Percentage”** means oneof the following: (a) in the case of a Participant who is a SeniorVice-President, 1.5%; (b) in the case of a Participant who is a Tier 1Executive, 2.0%; (c) in the case of a Participant who is a Founding Tier 1Executive, 2.0%; and (d) in the case of a Participant who is the ChiefExecutive Officer, 2.5%.  The Committeemay, in its sole discretion, change the appropriate Applicable BenefitPercentage for any Participant regardless of the title or classification ofsuch Participant, provided, however, that any downward adjustment to theApplicable Benefit Percentage shall only be prospective.

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## 1.5.                              **“Beneficiary”** means the individual designatedby the Participant to receive benefits payable under the Plan in the event ofthe Participant’s death.  If noBeneficiary is designated, the Participant’s Beneficiary shall be his or herspouse, or if the Participant is not

 

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## married, the Participant’s estate.  A Participant’s designation of a Beneficiary(or any election to revoke or change a prior Beneficiary designation) must bemade and filed with the Committee, in writing, on such form(s) and in suchmanner prescribed by the Committee.  Uponthe acceptance by the Committee of a new Beneficiary designation, allBeneficiary designations previously filed shall be canceled.  The Committee shall be entitled to rely onthe last Beneficiary designation filed by the Participant and accepted by theCommittee prior to his or her death.

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## 1.6.                              **“Board”** means the board of directors of theCompany.

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## 1.7.                              **“Cause”** means the following: (a) in thecase where there is no employment agreement or similar agreement in effectbetween the Company or an Affiliate and the Participant (or where there is suchan agreement but it does not define “cause” (or words of like import)), (i) aParticipant’s continued willful failure to perform substantially theParticipant’s duties (other than as a result of total or partial incapacity dueto physical or mental illness) following written notice by the Company to theParticipant of such failure, (ii) dishonesty in the performance of theParticipant’s duties which is injurious (other than in some immaterial or deminimis respect) to the financial condition or business reputation of theCompany or any of its Affiliates, (iii) a Participant’s conviction of, or pleaof guilty or nolocontendere to, a crime constituting (y) afelony under the laws of the United States or any state thereof or (z) amisdemeanor involving misconduct by the Participant in his personal orprofessional conduct punishable by imprisonment of more than three days or afine in excess of $5,000 (other than a traffic violation), which is reasonablylikely to damage the business, prospects or reputation of the Company or any ofits Affiliates in any respect, (iv) a Participant’s willful malfeasance orwillful misconduct in connection with the Participant’s duties or any act oromission which is injurious (other than in some immaterial or de minimisrespect) to the financial condition or business reputation of the Company orany of its Affiliates or (v) a Participant’s breach of the provisions ofSections 9 or 10 of this Agreement (other than a breach which is insubstantialand insignificant, taking into account all of the circumstances); provided,however, that any event described in clauses (i), (ii) and (iv) of thisSection 1.7(a) shall constitute Cause only if a Participant fails to cure suchevent, to the reasonable satisfaction of the Board, within 10 days afterreceipt from the Company of written notice of the event which constitutes Causeor (b) in the case where there is an employment agreement or similaragreement in effect between the Company or an Affiliate and the Participantthat defines “cause” (or words of like import), as defined under suchagreement; provided, however, that with regard to any agreement under which thedefinition of “cause” only applies on occurrence of a change in control, suchdefinition of “cause” shall not apply until a change in control actually takesplace and then only with regard to a termination thereafter, provided thatprior to a change in control “cause” shall be defined as provided in subsection(a) above.

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## 1.8.                              **“Change in Control”** means the following:(a) in the case where there is no change in control agreement or similaragreement in effect between the Company or an Affiliate and the Participant, a “changein control” as defined in the Company’s 2003 Stock Incentive Plan, as amendedfrom time to time, or, if after the Effective Date, the Company adopts a newequity-based incentive plan, a “change in control” as defined in such plan or(b) in the case

 

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## where there is a change in control agreementor similar agreement in effect between the Company or an Affiliate and theParticipant that defines “change in control” (or words of like import), asdefined under such agreement without regard to whether a change in control hastaken place.

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## 1.9.                              **“Chief Executive Officer”** means the chiefexecutive officer of the Company on the Effective Date.

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## 1.10.                        **“Code”** means the Internal Revenue Code of1986, as amended.  Any reference to anysection of the Code shall also be a reference to any successor provision andany Treasury Regulation promulgated thereunder.

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## 1.11.                        **“Committee”** means the CompensationCommittee of the Board or such other committee as may be appointed by the Boardfrom time to time to administer the Plan. The Committee may act under the Plan through any officers or employeesduly authorized by it.

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## 1.12.                        **“Company”** means Superior Essex Inc. and anysuccessors to the Company or the business or all or substantially all of theassets of Superior Essex Inc.

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## 1.13.                        **“CompanyClient” **means an actualclient of the Company or any Affiliate as of the date of Participant’sTermination of Employment and during the 12 months prior to that date as wellas any prospective client of the Company or any Affiliate that has beenactively solicited by the Company or any Affiliate during that same 12-monthperiod.

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## 1.14.                        **“Compensation”** means a Participant’s annualbase salary and actual short term bonus earned as an employee from the Companyor an Affiliate, including, without limitation, (a) any amounts reducedpursuant to the Participant’s salary reduction agreement under Section 125, 132or 401(k) of the Code (if any), or (b) any amounts that the Participant electsto defer under any nonqualified deferred compensation plan or arrangementmaintained by the Company or one of its Affiliates.  Compensation shall not include any othercompensation, including, without limitation, commissions, overtime pay,severance pay, incentive compensation, benefits paid under any tax-qualifiedplan, any group medical, dental or other welfare benefit plan, amounts realizedupon the exercise of a stock option or vesting of restricted stock, noncashcompensation, fringe benefits (cash and noncash), reimbursements or otherexpense allowances, moving expenses, retention payments or any other additionalcompensation.  Notwithstanding any otherprovision of the Plan to the contrary, Compensation shall not include anyamounts received from the Company or one of its Affiliates (or any of theirrespective predecessors) prior to November 10, 2003.

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## 1.15.                        **“Competitive Business”** means an entity orenterprise whose business, in whole or in part, involves the manufacture, saleor distribution of telecommunication wire or cable products or magnet wire orrelated products that directly compete with or are directly substitutable forthe products or services of the Company or its Affiliates.  Notwithstanding the foregoing, if aParticipant’s particular employment responsibilities for the Company or itsAffiliates are limited solely to the Company’s telecommunications wire or cableproducts

 

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## business or solely to the Company’s magnetwire business, the definition of Competitive Business shall be deemed to apply onlyto that portion of the business with which the Participant is affiliated.  It shall be presumed, however, that all Tier1 Executives and “corporate office” Participants who are employed by theCompany rather than its Affiliates are involved in all aspects of the Company’sand its Affiliates’ business, and thus the qualification in the precedingsentence shall not apply to those Participants.

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## 1.16.                        **“Confidential Information”** means anynon-public, proprietary or confidential information, including withoutlimitation trade secrets, know-how, research and development, software,databases, inventions, processes, formulae, technology, designs and otherintellectual property, information concerning finances, investments, profits,pricing, costs, products, services, vendors, customers, clients, partners,investors, personnel, compensation, recruiting, training, advertising, sales,marketing, promotions, government and regulatory activities and approvalsconcerning the past, current or future business, activities and operations ofthe Company or Affiliates and/or any third party that has disclosed or providedany of same to the Company or its Affiliates on a confidential basis withoutthe prior written authorization of the Board. “Confidential Information” shall not include any information that is (a)generally known to the industry or the public other than as a result of theParticipant’s breach of this covenant or any breach of other confidentialityobligations by third parties; (b) made legitimately available to theParticipant by a third party without breach of any confidentiality obligation;or (c) required by law to be disclosed; provided, however, that the Participantshall give prompt written notice to the Company of such requirement, discloseno more information than is so required, and cooperate (at the Company’sexpense) with any attempts by the Company to obtain a protective order orsimilar treatment.

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## 1.17.                        **“Credited Service”** means a Participant’speriod (or periods) of employment with the Company or one of its Affiliateswhile designated as a Participant in the Plan. Credited Service shall not include (a) any periods of employment withthe Company or one of its Affiliates (or any of their respective predecessors)prior to November 10, 2003, except that if a Participant was employed by theCompany or an Affiliate during the entire period beginning on November 10, 2003and ending on November 30, 2003, such Participant shall receive one full monthof credited service for such period of service or (b) any periods ofDisability.  No more than 25 years ofCredited Service shall be taken into account for any purpose under the Plan forany Participant who is a Senior Vice-President. The Committee may, in its sole discretion, determine an increased CreditedService for the Participant and, in such case, the amount of the RetirementBenefits payable under Article IV shall be calculated using the Participant’sincreased Credited Service as if it were his or her actual CreditedService.  Any such increased CreditedService for the Participant shall be set forth on Appendix A hereto, whichshall be updated as necessary from time to time by the Committee.  Credited Service shall be computed in yearsand full months.  In the event aParticipant is rehired, the Committee shall determine, in its sole discretion,the method of calculating Credited Service, taking into account any RetirementBenefit previously paid to the Participant.

 

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## 1.18.                        **“Deferred Retirement Date”** means theParticipant’s Termination of Employment after the Participant’s NormalRetirement Date.  Notwithstanding anyother provision to the contrary, a Participant must have a vested interestprior to receiving a Retirement Benefit.

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## 1.19.                        **“Disability”** means any disabilitydetermined under the Company’s or one of its Affiliate’s long term disabilitypolicies, provided that the Participant is entitled to and receiving long termdisability benefits under such policies.

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## 1.20.                        **“Early Retirement Date”** means one of thefollowing: (a) in the case of a Participant who is a Senior Vice-President, thefirst day of the month coincident with or immediately following the Participant’sattainment of age 55 and completion of 10 years of Credited Service; (b) in thecase of a Tier 1 Executive, the first day of the month coincident with orimmediately following the Participant’s attainment of age 55; and (c) in thecase of the Chief Executive Officer and the Founding Tier 1 Executives, thefirst day of the month coincident with or immediately following the date aParticipant retires prior to his or her Normal Retirement Date pursuant to theprovisions of Section 3.3.  The Committeemay, in its sole discretion, determine an adjusted age for the Participant and,in such case, the amount of Retirement Benefits payable under Article IV shallbe calculated using the Participant’s adjusted age as if it were his or heractual age.  The Committee may also, inits sole discretion, determine the appropriate Early Retirement Date for anyParticipant whose title changes while a Participant in the Plan.  Notwithstanding any other provision to thecontrary, a Participant must have a vested interest prior to receiving aRetirement Benefit.

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## 1.21.                        **“Early Retirement Reduction Factor”** meansone of the following: (a) in the case of a Participant who is a SeniorVice-President, 5% for each year (or portion of a year) by which a Participant’sEarly Retirement Date precedes his or her Normal Retirement Date; and (b) inthe case of any Participant who is not a Senior Vice-President, 3% for eachyear (or portion of a year) by which a Participant’s Early Retirement Dateprecedes his or her Normal Retirement Date. The Committee may, in its sole discretion, determine the appropriateEarly Retirement Reduction Factor for any Participant whose title changes whilea Participant in the Plan.

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## 1.22.                        **“Effective Date”** means November 10, 2003.

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## 1.23.                        **“ERISA”** means the Employee RetirementIncome Security Act of 1974, as amended. Any reference to any section of ERISA shall also be a reference to anysuccessor provision and any Department of Labor Regulation promulgatedthereunder.

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## 1.24.                        **“Final Average Compensation”** means theannual average of a Participant’s Compensation earned while designated as aParticipant in the Plan, for any three calendar years in the final five yearsof employment with the Company or an Affiliate prior to the Participant’sTermination of Employment which yields the highest average.  Average Compensation shall be obtained bydividing the Participant’s Compensation earned during any three calendar yearsby the number of years for which such Compensation is paid.  Notwithstanding any other provision of thePlan to the contrary, Final Average Compensation shall not include any amountsreceived

 

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## from the Company or one of its Affiliates (orany of their respective predecessors) prior to November 10, 2003.

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## 1.25.                        **“Founding Tier 1 Executives”** means eachperson holding the title of Executive Vice President of the Company on theEffective Date (other than the General Counsel of the Company).

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## 1.26.                        **“Normal Retirement Date”** means one of thefollowing: (a) in the case of a Participant who is a Senior Vice-President, thefirst day of the month coincident with or next following the date on which aParticipant attains his or her sixty-fifth (65th) birthday; and (b) in the caseof any Participant that is not a Senior Vice-President, the first day of themonth coincident with or next following the date on which a Participant attainshis or her sixty-second (62nd) birthday. Notwithstanding any other provision to the contrary, a Participant musthave a vested interest prior to receiving a Retirement Benefit.

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## 1.27.                        **“Participant”** means one of thefollowing:  (a) the Chief ExecutiveOfficer; (b) the Founding Tier 1 Executives; (c) each Tier 1 Executive andSenior Vice-President of the Company or one of its Affiliates selected by theCommittee in its sole discretion and designated in writing as a Participant;and (d) any former employees of the Company or one of its Affiliates that isentitled to a Retirement Benefit under the Plan.

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## 1.28.                        **“Plan”** means the Superior Essex Inc. SeniorExecutive Retirement Plan, as set forth herein and as amended from time totime.

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## 1.29.                        **“Restricted Territory”** means, with respectto any Participant, all geographical areas within a 100 mile radius of eachfacility from which or with respect to which, as of the date the Participantbecomes a Participant in the Plan: (a) the Company or its Affiliatesmanufacture or distribute wire and cable products; and (b) the Participant hasresponsibility for representing the Company or its Affiliates.  The Parties acknowledge and agree thatcertain senior executive officers of the Company, including, withoutlimitation, the Tier 1 Executives and “corporate” Participants who are employedby the Company rather than its Affiliates, can reasonably be assumed to be “representing”the Company or its Affiliates anywhere the Company or the Affiliates are doingbusiness.  Thus, the foregoing restrictedterritory is intended to reflect an attempt by the Company to choose arelatively narrow territory that provides the Company with some protection fromcompetition from its former key executives and yet does not unreasonablyrestrain the former employee from engaging in a competing business.

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## 1.30.                        **“Retirement Benefit”** means any benefitpayable under the Plan.  A Participant’sRetirement Benefit under the Plan shall be calculated as a single life annuitycommencing at the Participant’s Normal Retirement Age and then converted intothe form for payment elected by the Participant, which shall have the sameActuarial Equivalent value based on the Actuarial Equivalent Factors.  Notwithstanding any other provision to thecontrary, a Participant must have a vested interest prior to receiving aRetirement Benefit.

 

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## 1.31.                        **“Senior Vice-President”** means each personholding the title of Senior Vice-President of the Company or one of itsAffiliates.

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## 1.32.                        **“Termination of Employment”** means: (a) atermination of employment (for reasons other than a military or personal leaveof absence granted by the Company or one of its Affiliates) of a Participantfrom the Company and its Affiliates; or (b) when an entity which is employing aParticipant ceases to be an Affiliate, unless the Participant otherwise is, orthereupon becomes, employed by the Company or another Affiliate at the time theentity ceases to be an Affiliate.

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## 1.33.                        **“Tier 1 Executive”** means each person who becomesthe chief executive officer of the Company or an Executive Vice President ofthe Company on or after the Effective Date.

 

# **Article II.Participation**

 

## 2.1.                              **Participation.**  Participants will be limited to the ChiefExecutive Officer, the Founding Tier 1 Executives, the Tier 1 Executives andthe Senior Vice-Presidents designated by the Committee in writing toparticipate in the Plan.

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## 2.2.                              **Continuation of Participation.**

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### (a)                                  Subjectto the provisions of Article XII, a person who has become a Participant inaccordance with Section 2.1 shall, except as provided in (b) below, continue asa Participant as long as he or she continues in the employment of the Companyor one of its Affiliates and thereafter as long as he is entitled to benefitsunder the Plan.

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### (b)                                 Ifan employee no longer meets the requirements of Section 2.1, he or she shall nolonger be eligible to participate in the Plan but shall continue to be aParticipant until his or her Retirement Benefits (if any) have been fully paid;provided that: (a) the individual shall not accrue additional RetirementBenefits under the Plan and (b) for purposes of calculating a Participant’sRetirement Benefit, the Participant’s Credited Service and Final AverageCompensation shall be determined as if the date that the employee no longer metthe requirements of Section 2.1 was the date of his or her Termination ofEmployment.  Notwithstanding theforegoing, an Employee who no longer meets the requirements of Section 2.1 shallcontinue to be credited with service for purposes of Article V.

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### (c)                                  Aftera Participant commences to receive Retirement Benefits in accordance withArticle IV, the Committee, in its sole reasonable discretion, may cease paymentof benefits under the Plan if the Committee determines that the Participant isin violation of the restrictions set forth in Section 2.3.

 

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## 2.3.                              **Restrictive Covenants.**  In consideration of and as a condition of thereceipt of any Retirement Benefits by any Participant, the Participant agreesto the following provisions:

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### (a)                                  Solong as a Participant is employed by the Company or any of its Affiliates andfor a period of 18 months following the Participant’s Termination of Employmentfor any reason (the “Restricted Period”), the Participant will not, whether onthe Participant’s own behalf or on behalf of or in conjunction with any person,firm, partnership, joint venture, association, corporation or other businessorganization, entity or enterprise whatsoever (“Person”), including, withoutlimitation a Competitive Business, directly or indirectly solicit or assist insoliciting a Company Client for the purpose of providing or having that CompanyClient provided with products or services directly competitive with or directlysubstitutable for products or services of the Company or any Affiliate;provided that after the effective date of Participant’s Termination ofEmployment the foregoing covenant shall be limited to Company Clients:

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#### (i)                                     withwhom the Participant had personal contact or dealings on behalf of the Companyor any of its Affiliates during the one year period preceding the Participant’sTermination of Employment;

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#### (ii)                                  withwhom employees reporting to the Participant have had personal contact ordealings on behalf of the Company or its Affiliates during the one year periodimmediately preceding the Participant’s Termination of Employment; or

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#### (iii)                               forwhom the Participant had direct responsibility or direct access to andknowledge of sensitive client information during the one-year periodimmediately preceding the Participant’s Termination of Employment.

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### (b)                                 Duringthe Restricted Period, the Participant will not own an equity interest in orprovide services or funding to or affiliate with any Competitive Businesswithin the Restricted Territory; provided, however, that during the 18 monthsfollowing the Participant’s Termination of Employment for any reason, thisrestriction shall apply only where Participant’s services for or affiliationwith the competing entity are substantially similar to the services thatParticipant provided to the Company or its Affiliates or the capacity in whichParticipant served with the Company or its Affiliates as of the date theParticipant became a Participant in the Plan.

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Notwithstanding the foregoing, nothing hereinshall prevent the Participant from owning up to but not more than a 2% interestin the shares or other equity interest of any Competitive Business in theUnited States whose shares are publicly traded or listed on a nationalexchange.

 

### (c)                                  Duringthe Restricted Period, the Participant will not, whether on the Participant’sown behalf or on behalf of or in conjunction with any Person, directly orindirectly solicit or encourage any employee, consultant or other personnel orcontractor of the Company or any of its Affiliates with whom the Participanthad material contact

 

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### during the 18 month period immediately prior to the Participant’sTermination of Employment to terminate or sever that party’s relationship oraffiliation with the Company or any of its Affiliates.

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### (d)                                 TheParticipant will not at any time (whether during or after the Participant’semployment with the Company or any of its Affiliates) (i) retain or use for thebenefit, purposes or account of the Participant or any other Person, or (ii)disclose, divulge, reveal, communicate, share, transfer or provide access toany Person outside the Company or its Affiliates (other than its professionaladvisers who are bound by confidentiality obligations), any ConfidentialInformation.  Upon termination of theParticipant’s employment with the Company for any reason, the Participantshall: (x) cease and not thereafter commence use of any ConfidentialInformation or intellectual property (including without limitation, any patent,invention, copyright, trade secret, trademark, trade name, logo, domain name orother source indicator) owned or used by the Company or its Affiliates; (y)immediately destroy, delete, or return to the Company, at the Company’s option,all originals and copies in any form or medium (including memoranda, books,papers, plans, computer files, letters and other data) in the Participant’spossession or control (including any of the foregoing stored or located in theParticipant’s office, home, laptop or other computer, whether or not Companyproperty) that contain Confidential Information or otherwise relate to thebusiness of the Company, its Affiliates, except that the Participant may retainonly those portions of any personal notes, notebooks and diaries that do notcontain any Confidential Information; and (z) notify and fully cooperate withthe Company (at the Company’s expense) regarding the delivery or destruction ofany other Confidential Information of which the Participant is or becomesaware.  Notwithstanding the foregoing,the non-disclosure and non-use covenants in this paragraph shall cease to applythree years after the Participant’s Termination of Employment with respect toany Confidential Information that does not meet the definition of “trade secret”under Georgia law.

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### (e)                                  Althoughthe Participant and the Company consider the restrictions contained in thisSection 2.3 to be reasonable, if a final judicial determination is made by acourt of competent jurisdiction that the time or territory or any otherrestriction contained in this Section 2.3 is an unenforceable restrictionagainst the Participant, the provisions of this Section 2.3 shall not berendered void but shall be deemed amended to apply as to such maximum time andterritory and to such maximum extent as such court may judicially determine orindicate to be enforceable, and the parties authorize any court reaching adetermination that the covenants are unenforceable to partially enforce or “bluepencil” those covenants so that they are enforced to an extent that complieswith applicable law.  Alternatively, ifany court of competent jurisdiction finds that any restriction contained inthis Section 2.3 is unenforceable, and such restriction cannot be amended so asto make it enforceable, such finding shall not affect the enforceability of anyof the other restrictions contained herein. If a material change in the nature of the Participant’s employmentresponsibilities or the Company’s business renders any parameter of thenon-competition or non-solicitation covenants unreasonable or inexact,

 

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### then the parties agree to amend the covenants to make them conform tothe changed nature of the employment duties or the Company’s business.

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### (f)                                    Sincethe Company’s remedies at law for a breach or threatened breach of any of theprovisions of Section 2.3 would be inadequate and the Company would sufferirreparable damages as a result of such breach or threatened breach, in theevent of such a breach or threatened breach, in addition to any remedies atlaw, the Company, without posting any bond, shall be entitled to cease makingany payments or providing any benefit otherwise required by the Plan and obtainequitable relief in the form of specific performance, temporary restrainingorder, temporary or permanent injunction or any other equitable remedy whichmay then be available.

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### (g)                                 Theobligations contained in this Section 2.3 will survive the Participant’sTermination of Employment and will be fully enforceable thereafter.

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# **Article III.Retirement Date**

#  

Subject to the provisions of Articles V and X and the Company’s rightto terminate benefits or to forfeit benefits in accordance with the provisionsof Section 2.2(c) or 5.2:

 

## 3.1.                              **Normal Retirement Date.**  A Participant who retires on his or herNormal Retirement Date shall be entitled to a Retirement Benefit as determinedin accordance with Section 4.1.

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## 3.2.                              **Deferred Retirement Date.**  A Participant whose employment with theCompany or one of its Affiliates continues beyond his or her Normal RetirementDate shall retire on a Deferred Retirement Date and shall be entitled to aRetirement Benefit in accordance with Section 4.2.

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## 3.3.                              **Early Retirement Date.**  A Participant who retires on his or her EarlyRetirement Date shall be entitled to a Retirement Benefit as determined underSection 4.3.  In addition, if (a) aParticipant who is a Tier 1 Executive or (b) a Participant who is a SeniorVice-President who has completed 10 years of Credited Service experiences aTermination of Employment prior to his or her Early Retirement Date, subject tothe provisions of Article V, such Participant shall be entitled to a RetirementBenefit as determined under Section 4.3 once the Participant attains age 55.

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# **Article IV.Retirement Benefits**

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## 4.1.                              **Normal Retirement Benefit.**  The annual amount of the Retirement Benefitfor a Participant retiring on his or her Normal Retirement Date shall be equalto the Applicable Benefit Percentage multiplied by the Participant’s FinalAverage Compensation multiplied by the Participant’s years of Credited Service.

 

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## 4.2.                              **Deferred Retirement Benefit.**  If a Participant remains in employment afterhis or her Normal Retirement Date and is entitled to a Retirement Benefit inaccordance with Section 3.2, benefit payments shall be postponed until theParticipant’s actual retirement on the Deferred Retirement Date.  At such Deferred Retirement Date, theParticipant shall be entitled to the benefit computed under Section 4.1 basedon Credited Service to the Deferred Retirement Date with no actuarialadjustment for such deferred payment.

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## 4.3.                              **Early Retirement Benefit.**  A Participant retiring prior to his or herNormal Retirement Date, as provided in Section 3.3, shall be entitled toreceive a Retirement Benefit, commencing on such Normal Retirement Date, equalto the amount computed under Section 4.1 based on his or her Final AverageCompensation and Credited Service, each determined on the date of theParticipant’s Termination of Employment. Notwithstanding the foregoing, a Participant may elect to have paymentof his or her Retirement Benefit under the Plan commence on or after the dateof the Participant’s Early Retirement Date. In such case, the Participant’s benefit under the Plan shall be reducedby the Early Retirement Reduction Factor for each year (or portion of a year)by which such Early Retirement Date precedes his or her Normal Retirement Date.

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## 4.4.                              **Death.** Subject to the provisions of Article V, upon a Participant’s death priorto the commencement of Retirement Benefits, whether or not then employed by theCompany and its Affiliates, the Participant’s Beneficiary shall be entitled toreceive, as soon as administratively practicable following the Participant’sdeath, a single lump sum that is equal to the amount computed under Section 4.1based on his or her Final Average Compensation and Credited Service, eachdetermined on the date of death; provided, however, that for purposes ofcalculating the Retirement Benefit under this Section 4.4, the amount payablepursuant to this Section 4.4 to a Beneficiary shall be (a) reduced by the EarlyRetirement Reduction Factor for each year (or portion of a year) between theParticipant’s Early Retirement Date and the Participant’s Normal RetirementDate by which such payment precedes the Participant’s Normal Retirement Dateand (b) actuarially reduced using the Actuarial Equivalent Factors for eachyear (or portion of a year) by which such payment precedes the Participant’sEarly Retirement Age.

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## 4.5.                              **Disability.**  Subject to the provisions of Article V, inthe event of a Participant’s Termination of Employment on account of theParticipant’s Disability, the Participant shall be entitled to receive aRetirement Benefit, commencing as soon as administratively practicablefollowing the Participant’s Termination of Employment, equal to the amountcomputed under Section 4.1 based on his or her Final Average Compensation andCredited Service, each determined on the date of the Participant’s Terminationof Employment.  Payments pursuant to thisSection 4.5 shall cease upon the Participant ceasing to have a Disability.  The amount of the Retirement Benefit determinedunder this Section 4.5 shall not be reduced by the Early Retirement ReductionFactors or on an Actuarially Equivalent basis.

 

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# **Article V.Vesting**

#  

## 5.1.                              **Vesting of Interest of Participant in Trust Fund.**  AParticipant’s rights under the Plan to any Retirement Benefit shall be fullyvested and nonforfeitable, except as provided in Section 5.2, solely upon theearliest of the following to occur:

##  

### (a)                                  completionof four full and consecutive years of Credited Service;

###  

### (b)                                 theoccurrence of a Change in Control;

###  

### (c)                                  thetermination of the Plan as provided in Article X; and

###  

### (d)                                 ifthe Participant is the Chief Executive Officer or a Founding Tier 1 Executive,the Participant’s death or Disability while an employee of the Company or oneof its Affiliates.

###  

## 5.2.                              **Forfeiture.**  If a Termination of Employment occurs withrespect to a Participant prior to becoming vested in the Retirement Benefit,the Participant’s right under the Plan to a Retirement Benefit is terminated.  Notwithstanding the provisions of Section5.1, a Participant shall not have any right to a Retirement Benefit in theevent the Participant’s Termination of Employment is for Cause or if theExecutive violates the provisions of Section 2.3.

##  

# **Article VI.Termination of Employment**

#  

## 6.1.                              **Termination Prior to Vesting.**  If a Participant’s Termination of Employmentoccurs for any reason before the Participant has a vested interest in aRetirement Benefit, no Retirement Benefit shall become payable to suchParticipant under the Plan.

##  

## 6.2.                              **Termination Prior to Early Retirement Eligibility.**  If a Participant’s Termination of Employmentoccurs for any reason after vesting but before the Participant is eligible fora Retirement Benefit pursuant to the provisions of Section 4.3, no RetirementBenefit shall commence prior to Normal Retirement Age, subject to any possibletermination or forfeiture of benefits pursuant to Section 2.2(c) or 5.2.

##  

## 6.3.                              **Termination After Eligibility for Retirement.**  A Participant whose Termination of Employmentoccurs for any reason and the Participant is eligible to retire under theprovisions of Article IV, shall be deemed to have retired or to have beenretired by the Company and its Affiliates and shall be entitled to the appropriateRetirement Benefits, subject to any possible termination or forfeiture ofbenefits pursuant to Section 2.2(c) or 5.2.

 

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# **Article VII.Time and Form of Benefit Payment**

#  

## 7.1.                              **Forms of Benefit.**  A Participant may elect, in accordance withthe provisions of Section 7.3, to receive the Retirement Benefit in one of thefollowing forms of payment (each of which shall have the same ActuarialEquivalent value based on the Actuarial Equivalent Factors):

##  

### (a)                                  ajoint and 50% survivor annuity (equal monthly payments for the Participant’slifetime and, in the event of the Participant’s death, 50% of the amountpayable to the Participant will be payable to the Participant’s Beneficiary forhis or her lifetime if the Participant’s Beneficiary survives the Participant);

###  

### (b)                                 asingle life annuity (equal monthly payments for the Participant’s lifetime);

###  

### (c)                                  alife annuity with a 10-year period certain (equal monthly payments for theParticipant’s lifetime with payments to the Participant’s beneficiary for theremainder of the 10-year period certain in the event of the Participant’s deathprior to the end of the period certain);

###  

### (d)                                 alump sum payment equal to up to 50% of the Retirement Benefit reduced by theEarly Retirement Reduction Factor for each year (or portion of a year) by whichsuch payment date precedes the Participant’s Normal Retirement Date and payableas soon as soon as administratively practicable following the Participant’sTermination of Employment with the balance payable in the form of a joint and50% survivor annuity, a single life annuity or a life annuity with a 10-yearperiod certain commencing upon the later of the Participant’s Termination ofEmployment or attainment of Early Retirement Date; or

###  

### (e)                                  onor after a Change in Control, a lump sum payment equal to 100% of theRetirement Benefit reduced by the Early Retirement Reduction Factor for eachyear (or portion of a year) by which such payment date precedes the Participant’sNormal Retirement Date and payable as soon as soon as administrativelypracticable following the Participant’s Termination of Employment**.**

###  

## 7.2.                              **Time of Distribution.**  Unless a Participant elects to receive his orher benefits in the distribution forms described in Section 7.1(d) and (e), aParticipant may elect, in accordance with the provisions of Section 7.3, tocommence receiving Retirement Benefits at one of the following times:

##  

### (a)                                  Assoon as administratively practicable following the later of the Participant’sTermination of Employment or Normal Retirement Date;

 

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### (b)                                 Assoon as administratively practicable following the later of the Participant’sTermination of Employment or the Participant’s Early Retirement Date; or

###  

### (c)                                  Assoon as administratively practicable following the Participant’s Termination ofEmployment on or after a Change in Control.

###  

## 7.3.                              **Timing of Elections to Change Form and Time ofDistribution.** Participants shall have the right to elect, on a form prescribed by theCommittee, the form of payment that his or her Retirement Benefit will be paid(or, in the event of the Participant’s death, to his or her Beneficiary) andthe time payment of Retirement Benefits will commence provided that suchelection must be made and filed with the Committee at least one year prior tothe Participant’s Termination of Employment or, in the event of a Terminationof Employment following a Change in Control, such election must be made andfiled with the Committee prior to the execution of a definitive agreementproviding for a Change in Control if the date of such execution is within oneyear prior to the Participant’s Termination of Employment.  The Participant may revoke such an electionat any time or from time to time by written notice filed with the Committee atleast one year prior to the Participant’s Termination of Employment; providedthat if it is later determined that such revocation occurred within such oneyear period, then such revocation shall not be effective and the Participant’sprior election shall govern.  AParticipant who does not make an election, or whose election is not effective,shall receive his or her benefits in the distribution form described in Section7.1(a), if the Participant is married, or Section 7.1(b), if the Participant isnot married, and at the time described in Section 7.2(a).

##  

# **Article VIII.Funding**

#  

The Plan shall be funded out of the general assets of the Company asand when benefits are payable under the Plan. All Participants shall be solely unsecured creditors of the Company and,if a bankruptcy proceeding of the Company is pending, the Participants shall besolely unsecured creditors of the Company with administrative priority.  If the Company decides in its sole discretionto establish any advance accrued reserve on its books against the futureexpense of benefits payable hereunder, or if the Company decides in its solediscretion to fund a trust under the Plan, such reserve or trust shall notunder any circumstances be deemed to be an asset of the Plan.

 

# **Article IX.Administration of the Plan**

#  

## 9.1.                              **Plan Administrator.**  The general administration of the Plan onbehalf of the Company (as plan administrator under Section 3(16)(A) of ERISA)shall be placed with the Committee.

##  

## 9.2.                              **Reimbursement of Expenses of Plan Committee.**  The Company shall pay or reimburse themembers of the Committee for all reasonable expenses incurred in connectionwith their duties hereunder.

 

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## 9.3.                              **Action by the Plan Committee.**  Subject to the terms of the Plan and providedthat the Committee acts in good faith, the Committee shall have the authorityto determine a Participant’s participation and benefits under the Plan and tointerpret and construe the provisions of the Plan.

##  

## 9.4.                              **Retention of Professional Assistance.**  The Committee may employ such legal counsel,accountants and other persons as may be required in carrying out its work inconnection with the Plan.

##  

## 9.5.                              **Accounts and Records.**  The Committee shall maintain such accountsand records regarding the fiscal and other transactions of the Plan and suchother data as may be required to carry out its functions under the Plan and tocomply with all applicable laws.

##  

## 9.6.                              **Claims/Disputes Procedure.**

##  

### (a)                                  Anyclaim by a Participant or beneficiary (“Claimant”) with respect to eligibility,participation, contributions, benefits or other aspects of the operation of thePlan shall be made in writing to the Committee. The Committee shall provide theClaimant with the necessary forms and make all determinations as to the rightof any person to a disputed benefit.  Ifa Claimant is denied benefits under the Plan, the Committee or its designeeshall notify the Claimant in writing of the denial of the claim within 90 days(such period may be extended to 180 days) after the Plan receives the claim,provided that in the event of special circumstances such period may beextended.

###  

### (b)                                 Ifthe initial 90 day period is extended, the Committee or its designee shall,within 90 days of receipt of the claim, notify the Claimant in writing of suchextension.  The written notice ofextension will indicate the special circumstances requiring the extension oftime and provide the date by which the Committee expects to make a determinationwith respect to the claim.  If theextension is required due to the Claimant’s failure to submit informationnecessary to decide the claim, the period for making the determination will betolled from the date on which the extension notice is sent to the Claimantuntil the earlier of (i) the date on which the Claimant responds to the Plan’srequest for information or (ii) expiration of the 45 day period commencing onthe date that the Claimant is notified that the requested additionalinformation must be provided.  If noticeof the denial of a claim is not furnished within the required time perioddescribed herein, the claim shall be deemed denied as of the last day of suchperiod.

###  

### (c)                                  Ifthe claim is wholly or partially denied, the notice to the Claimant shall setforth:

###  

#### (i)                                     thespecific reason or reasons for the denial;

####  

#### (ii)                                  specificreference to pertinent Plan provisions upon which the denial is based;

 

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#### (iii)                               adescription of any additional material or information necessary for theClaimant to perfect the claim and an explanation of why such material orinformation is necessary;

####  

#### (iv)                              appropriateinformation as to the steps to be taken and the applicable time limits if theClaimant wishes to submit the adverse determination for review; and

####  

#### (v)                                 astatement of the Claimant’s right to bring a civil action under Section 502(a)of ERISA following an adverse determination on review (collectively, the “NoticeRequirements”).

####  

### (d)                                 Ifthe claim has been denied, the Claimant may submit the claim for review.  Any request for review of a claim must bemade in writing to the Committee no later than 60 days after the Claimantreceives notification of denial or, if no notification was provided, the datethe claim is deemed denied.  The claimwill then be reviewed by the Committee. The Claimant or his duly authorized representative may:

###  

#### (i)                                     uponrequest and free of charge, be provided with access to, and copies of, relevantdocuments, records, and other information relevant to the Claimant’s claim; and

####  

#### (ii)                                  submitwritten comments, documents, records, and other information relating to theclaim.  The review of the claimdetermination shall take into account all comments, documents, records, andother information submitted by the Claimant relating to the claim, withoutregard to whether such information was submitted or considered in the initialclaim determination.

####  

### (e)                                  Thedecision of the Committee shall be made within 60 days (such period may beextended to 120 days)  after receipt ofthe Claimant’s request for review, unless special circumstances require anextension.

###  

### (f)                                    Ifthe initial 60 day period is extended, the Committee or its designee shall,within 60 days of receipt of the claim, notify the Claimant in writing of suchextension.  The written notice ofextension will indicate the special circumstances requiring the extension oftime and provide the date by which the Committee expects to make adetermination with respect to the claim. If the extension is required due to the Claimant’s failure to submitinformation necessary to decide the claim, the period for making thedetermination will be tolled from the date on which the extension notice issent to the Claimant until the earlier of (i) the date on which the Claimantresponds to the Plan’s request for information or (ii) expiration of the 45 dayperiod commencing on the date that the Claimant is notified that the requestedadditional information must be provided. If notice of the denial of a claim isnot furnished within the required time period described herein, the claim shallbe deemed denied as of the last day of such period.

 

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### (g)                                 Ifan extension of time is required, the Claimant shall be notified in writing ofsuch extension.  The written notice ofextension will indicate the special circumstances requiring the extension oftime and the date by which the Committee expects to make a determination withrespect to the claim.  If the extensionis required due to the Claimant’s failure to submit information necessary todecide the claim on review, the period for making the determination will betolled from the date on which the extension notice is sent to the Claimantuntil the earlier of (i) the date on which the Claimant responds to the Plan’srequest for information or (ii) expiration of the 45-day period commencing onthe date that the Claimant is notified that the requested additionalinformation must be provided.  In anyevent, a decision shall be rendered not later than 120 days after receipt ofthe request for review.  If notice of thedecision upon review is not furnished within the required time period describedherein, the claim on review shall be deemed denied as of the last day of suchperiod.

###  

### (h)                                 TheCommittee’s decision on the Claimant’s claim for review will be communicated tothe Claimant in writing.  If the claim onreview is denied, the notice to the Claimant shall provide a statement that theClaimant is entitled to receive, upon request and free of charge, reasonableaccess to, and copies of, all documents, records and other information relevantto the claim, and also set forth the Notice Requirements (other than subsection(c)(iv)).

###  

### (i)                                     Theclaims procedures set forth in this section are intended to comply with U.S.Department of Labor Regulation § 2560.503-1 and should be construed inaccordance with such regulation.  In noevent shall it be interpreted as expanding the rights of Claimants beyond whatis required by U.S. Dept. of Labor § 2560.503-1.

###  

### (j)                                     AClaimant shall not be required to exhaust all administrative remedies underthis Section 9.6 prior to commencing any action in Federal court.

###  

## 9.7.                              **Indemnification.**  The Committee and its members shall not beliable for any action or determination made in good faith with respect to thePlan.  The Company shall, to the extentpermitted by law, by the purchase of insurance or otherwise, indemnify and holdharmless each member of the Committee and each director, officer and employeeof the Company for liabilities or expenses they and each of them incur incarrying out their respective duties under the Plan, other than for anyliabilities or expenses arising out of such individual’s willful misconduct orfraud.

 

# **Article X.Amendment and Termination**

 

The Company reserves the right to amend, freeze or terminate, in wholeor in part, any or all of the provisions of the Plan at any time, retroactivelyor otherwise; provided, however, that no amendment or termination shall reducethe amount of the Retirement Benefit being paid to any Participant orBeneficiary as of the date of amendment or termination or, for any activeParticipant with a vested interest on such date, the amount of the RetirementBenefit otherwise

 

17

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payable based on theParticipant’s Credited Service and compensation to the date of the amendment,freezing or termination, unless such Participant consents to such amendment ortermination.  Without limiting thegenerality of the foregoing, the Company may amend the Plan at any time,retroactively or otherwise, without the Participant’s consent to suchamendments, as may be necessary to preserve the intended tax-deferredcharacteristics of the Plan.  The Company’sright to amend or terminate the Plan pursuant to this Article X shall notaffect any Participant’s right to a supplemental retirement benefit under anyemployment or similar agreement between the Company and a Participant or toenforce such Participant’s rights under such employment or similar agreement.

 

In the event of a termination of the Plan, (i) a Participant’s rightsunder the Plan to any Retirement Benefit shall be fully vested andnonforfeitable and (ii) a lump sum payment equal to 100% of the RetirementBenefit calculated as if the Participant had a Termination of Employment as ofthe date of termination (a) reduced by the Early Retirement Reduction Factorfor each year (or portion of a year) between the Participant’s Early RetirementDate and the Participant’s Normal Retirement Date by which such paymentprecedes the Participant’s Normal Retirement Date and (b) actuarially reducedusing the Actuarial Equivalent Factors for each year (or portion of a year) bywhich such payment precedes the Participant’s Early Retirement Age shall bedistributed as soon as administratively practicable following such terminationor in accordance with the Participant’s elections pursuant to Section 7.1 and7.2, as determined by the Committee, in its sole discretion.

 

# **Article XI.Successors**

#  

For purposes of the Plan, the Company shall include any and allsuccessors and assignees, whether direct or indirect, by purchase, merger,consolidation or otherwise, to all or substantially all the business or assetsof the Company and such successors and assignees shall perform the Company’sobligations under the Plan, in the same manner and to the same extent that theCompany would be required to perform if no such succession or assignment hadtaken place.  In such event, the term “Company”,as used in the Plan, shall mean the Company, as hereinbefore defined and anysuccessor or assignee to the business or assets which by reason hereof becomesbound by the terms and provisions of the Plan.

 

# **Article XII.Miscellaneous**

#  

## 12.1.                        **Rights of Participants.**  Nothing herein contained shall be held orconstrued to create any liability or obligation upon the Company or any of itsAffiliates to retain any Participant in its service.  All Participants shall remain subject to dischargeor discipline to the same extent as if the Plan had not been put into effect.

##  

## 12.2.                        **Governing Law.**  The Plan is intended to be a “top hat”pension benefit plan within the meaning of U.S. Department of Labor RegulationSection 2520.104-24.  To the extentlegally required, the Code and ERISA shall govern the Plan and, if anyprovision hereof is in

 

18

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## violation of any applicable requirementthereof, the Company reserves the right to retroactively amend the Plan tocomply therewith.  To the extent notgoverned by the Code and ERISA, the Plan shall be governed by the laws of theState of Georgia (without reference to rules relating to conflicts of law).

##  

## 12.3.                        **Withholding.**  The Company and its Affiliates shall have theright to make such provisions as it deems necessary or appropriate to satisfyany obligations it may have to withhold federal, state or local income or othertaxes incurred by reason of payments pursuant to the Plan.

##  

## 12.4.                        **Severability.**  In case any provision of the Plan be deemedor held to be unlawful or invalid for any reason, such fact shall not adverselyaffect the other provisions of the Plan unless such determination shall renderimpossible or impracticable the functioning of the Plan, and in such case, anappropriate provision or provisions shall be adopted so that the Plan maycontinue to function properly.

##  

## 12.5.                        **Assignment and Alienation.**  The benefits payable to the Participant underthe Plan shall not be subject to alienation, transfer, assignment, garnishment,execution or levy of any kind and any attempt to cause any benefits to be sosubjected shall not be recognized.

##  

## 12.6.                        **Communications.**  All announcements, notices and othercommunications regarding the Plan will be made by the Company in writing.

 

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**Appendix A**

 

**Increased Credited Service**

 

For purposes of calculating the Retirement Benefit for the CEO and theFounding Tier 1 Executives under Section 4.1 of the Plan, the CEO and theFounding Tier 1 Executives shall be treated as having accrued an additionalfive years of Credited Service after completing five years of continuousservice with the Company and its Affiliates beginning on November 10, 2003 (i.e.,a 10% accrual for year five in addition to the 2% per year accrual).

 

 

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