dbinqdcplan2022amendment






    Classification: DBI Confidential                        DESIGNER BRANDS INC. (F/K/A DSW INC.)  NONQUALIFIED DEFERRED COMPENSATION PLAN    Amended and Restated  Effective September 29, 2022 





 






i      Classification: DBI Confidential  TABLE OF CONTENTS      Page     ARTICLE I         Purpose and Effective Date                                                                             1    1.1.      Purpose.....................................................................................................................1  1.2.      Effective Date ..........................................................................................................1    ARTICLE II       Definitions                                                                                                         1     2.1.      Account. ...................................................................................................................1  2.2.      Act ...........................................................................................................................1  2.3.      Affiliates ..................................................................................................................1  2.4.      Beneficiary...............................................................................................................1  2.5.      Board........................................................................................................................1  2.6.      Bonus Deferral Commitment. ..................................................................................2  2.7.      Change in Control ....................................................................................................2  2.8.      Code. ........................................................................................................................3  2.9.      Company. .................................................................................................................3  2.10.    Company Contribution Account ..............................................................................3  2.11.    Compensation. .........................................................................................................3  2.12.    Compensation Deferral. ...........................................................................................4  2.13.    Director’s Fees Deferral Commitment.....................................................................4  2.14.    Disability..................................................................................................................4  2.15.    Discretionary Contribution ......................................................................................4  2.16.    Elective Deferral Account........................................................................................4  2.17.    Employer..................................................................................................................4  2.18.    Matching Contribution.............................................................................................4  2.19.    Measurement Funds. ................................................................................................5  2.20.    Participant. ...............................................................................................................5  2.21.    Participation Agreement. .........................................................................................5  2.22.    Plan. .........................................................................................................................5  2.23.    Plan Administrator. ..................................................................................................5  2.24.    Plan Year..................................................................................................................5  2.25.    Related Group ..........................................................................................................5  2.26.    Retirement................................................................................................................5  2.27.    Salary Deferral Commitment. ..................................................................................5  2.28.    Subsidiary.................................................................................................................6  2.29.    Termination..............................................................................................................6  2.30.    Unforeseeable Emergency. ......................................................................................6  2.31.    Valuation Date .........................................................................................................6  2.32.    Year of Credited Service..........................................................................................6    ARTICLE III      Eligibility and Participation............................................................................6    3.1.      Eligibility. ................................................................................................................6  3.2.      Participation. ............................................................................................................6  3.3.      Partial Year Participation.........................................................................................7 





 






ii      Classification: DBI Confidential  TABLE OF CONTENTS      Page   ARTICLE IV      Elective Deferrals .............................................................................................7    4.1.      Amount of Deferral Election. ..................................................................................7  4.2.      Deferral Limits.........................................................................................................7  4.3.      Period of Commitment.............................................................................................8  4.4.      Change of Status. .....................................................................................................8    ARTICLE V       Participant Accounts .......................................................................................8    5.1.      Establishment of Accounts. .....................................................................................8  5.2.      Crediting Compensation Deferrals to Elective Deferral Account. ..........................8  5.3.      Crediting Matching Contributions to Company Contribution Account ..................9  5.4.      Crediting Discretionary Contributions to Company Contribution Account ............9  5.5.      Investment Designations and Earnings (or Losses) on Account. ............................9  5.6.      Valuation of Account. ..............................................................................................9  5.7.      Vesting of Accounts.................................................................................................9  5.8.      Discharge for Cause...............................................................................................10  5.9.      Statement of Account.............................................................................................10  5.10.    Payments from Account.........................................................................................10    ARTICLE VI      Payments to Participants...............................................................................10    6.1.      Distributions...........................................................................................................10  6.2.      Timing of Benefit Payments ..................................................................................11  6.3.      Form of Payment....................................................................................................11  6.4.      Disability................................................................................................................11  6.5.      Death. .....................................................................................................................11  6.6.      Unforeseeable Emergency .....................................................................................12  6.7.      Change in Election.................................................................................................13  6.8.      Small Accounts ......................................................................................................13  6.9.      Valuation of Payments...........................................................................................13  6.10.    Delay of Payment for Specified Employees ..........................................................13  6.11.    Effect of Code Section 4999 ..................................................................................13  6.12.    Effect of Payment ..................................................................................................13    ARTICLE VII    Beneficiary Designation.................................................................................12    7.1.      Beneficiary Designation.........................................................................................14  7.2.      Changing Beneficiary. ...........................................................................................14  7.3.      Community Property..............................................................................................14  7.4.      No Beneficiary Designation...................................................................................14  7.5.      Effect of Payment ..................................................................................................14    ARTICLE VIII   Administration ...............................................................................................14    8.1.      Plan Administrator. ................................................................................................14  8.2.      Agents ....................................................................................................................15  8.3.      Binding Effect of Decisions...................................................................................15  8.4.      Indemnification of Plan Administrator ..................................................................15 





 






iii      Classification: DBI Confidential  TABLE OF CONTENTS      Page   ARTICLE IX      Claims Procedures .........................................................................................15    9.1.      Claim......................................................................................................................15  9.2.      Claim Decision Not Involving Determination of Disability..................................15  9.3.      Claim Decision Involving Determination of Disability.........................................16  9.4.      Request for Review................................................................................................17  9.5.      Review of Decision Not Involving Determination of Disability. ..........................17  9.6.      Review of Decision Involving Determination of Disability. .................................18    ARTICLE X       Miscellaneous..................................................................................................19    10.1.    Unfunded Plan .......................................................................................................19  10.2.    Unsecured General Creditor ..................................................................................19  10.3.    Trust Fund..............................................................................................................19  10.4.    Protective Provisions. ............................................................................................19  10.5.    Inability to Locate Participant or Beneficiary........................................................20  10.6.    No Contract of Employment. .................................................................................20  10.7.    Withholding Taxes.................................................................................................20  10.8.    No Limitation on Employer Actions......................................................................20  10.9.    Obligations to Employer. .......................................................................................20  10.10.  No Liability for Action or Omission......................................................................20  10.11.  Nonalienation of Benefits. .....................................................................................20  10.12.  Liability for Benefit Payments...............................................................................21  10.13.  Governing Law. .....................................................................................................21  10.14.  Severability of Provisions. .....................................................................................21  10.15.  Headings and Captions. .........................................................................................21  10.16.  Gender, Singular and Plural...................................................................................21  10.17.  Participating Employers.........................................................................................21  10.18.  Notice.....................................................................................................................21  10.19.  Amendment and Termination. ...............................................................................22  10.20.  Code Section 409A.................................................................................................22 





 






1      Classification: DBI Confidential  DESIGNER BRANDS INC. (F/K/A DSW INC.)  NONQUALIFIED DEFERRED COMPENSATION PLAN    Amended and Restated  Effective September 29, 2022        ARTICLE I   Purpose and  Effective Date    1.1.      Purpose.  This Plan is intended to allow a select group of key management or other  highly compensated employees of the Employer and directors of the Company to defer the receipt  of compensation that would otherwise be payable to them and to provide supplemental retirement  benefits for those employees.  This Plan shall be unfunded for tax purposes and for purposes of  Title I of ERISA.  The terms of this Plan are intended to, and shall be shall be operated and  interpreted and applied so as to, comply in all respects with applicable law and the provisions of  Internal Revenue Code Section 409A and regulations and rulings thereunder.    1.2.      Effective Date.  This Plan was originally adopted effective as of August 1, 2007 and  is amended and restated in its entirety as set forth herein effective as of September 29, 2022 (the  “Restatement Date”).    ARTICLE II  Definitions  For ease of reference, the following definitions will be used in the Plan:    2.1.      Account.  “Account” means the account maintained on the books of the Employer  used solely to calculate the amount payable to each Participant who defers Compensation under  this Plan and shall not constitute or be treated as a separate fund of assets.    2.2.      Act.  “Act” means the Securities Exchange Act of 1934, as amended, and any  successor statute, as it may be amended from time to time.    2.3 Affiliates.  “Affiliate” or “Affiliates” shall mean a group of entities including the  Company which constitutes a controlled group of corporations (as defined in Code Section  414(b)), a group of trades or businesses (whether or not incorporated) under common control (as  the defined Code Section 414(c)), and members of an affiliated service group (within the meaning  of Code Section 414(m)).    2.4.      Beneficiary.  “Beneficiary”" means the person, persons or entity designated by the  Participant to receive payments under this Plan in the event of the Participant's death as provided in  Article VII.        Inc.).  2.5.      Board.  “Board” means the Board of Directors of Designer Brands Inc. (f/k/a DSW 





 






2      Classification: DBI Confidential    2.6.      Bonus Deferral Commitment.  “Bonus Deferral Commitment” means that portion  of bonus compensation for which a Participant has made an election to defer receipt pursuant to  Article IV.    2.7.      Change in Control.  “Change in Control” means each the following:     (a) The acquisition by any individual, entity or group (within the meaning of  Section 13(d)(3) or 14(d)(2) of the Act and for purposes of this Section 2.7, a “Person”) of  beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Act) of voting  securities of the Company where such acquisition causes such Person to own 30% or more of the  combined voting power of the then outstanding voting securities of the Company entitled to vote  generally in the election of the Board (the “Outstanding Voting Securities”); provided,  however, that for purposes of this Section 2.7(a), the following acquisitions shall not be deemed to  result in a Change in Control: (i) any acquisition directly from the Company; (ii) any acquisition by  the Company or a Subsidiary; (iii) any acquisition by any employee benefit plan (or related trust)  sponsored or maintained by the Company or any Subsidiary; (iv) any acquisition by any  corporation or other entity pursuant to a transaction that complies with clauses (i), (ii), and (iii) of  Section 2.7(c) below; (v) any acquisition by Jay L. Schottenstein, Schottenstein Stores Corporation  or any of their respective affiliates; or (vi) any acquisition by any trust established for the benefit of  Jay L. Schottenstein or any of his spouse, children or lineal descendants or any other Person  controlled by such trust; provided, further, that if any person’s beneficial ownership of the  Outstanding Voting Securities reaches or exceeds 30% as a result of a transaction described in  clause (i) or (ii) of this Section 2.7(a), and such Person subsequently acquires beneficial ownership  of additional voting securities of the Company, such subsequent acquisition shall be treated as an  acquisition that causes such Person to own 30% or more of the Outstanding Voting Securities;     (b)  Individuals who, as of the Restatement Date, constitute the Board (the  “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided,  however, that any individual becoming a director subsequent to the Restatement Date whose  election, or nomination for election by the Company’s shareholders, was approved by a vote of at  least a majority of the directors then comprising the Incumbent Board, but excluding, for this  purpose, any such individual whose initial assumption of office occurs as a result of an actual or  threatened election contest with respect to the election or removal of directors or other actual or  threatened solicitation of proxies or consents by or on behalf of a Person other than the Board shall  be deemed to be a member of the Incumbent Board;    (c)  Consummation of a reorganization, merger, statutory share exchange or  consolidation or similar transaction involving the Company or a Subsidiary, a sale or other  disposition of all or substantially all of the assets of the Company, or the acquisition of assets or  stock of a corporation or other entity by the Company or a Subsidiary (each, a “Business  Combination”), excluding, however, such a Business Combination pursuant to which (i) all or  substantially all of the individuals and entities who were the beneficial owners of the Outstanding  Voting Securities immediately prior to such Business Combination beneficially own, directly or  indirectly, more than 60% of, respectively, the then outstanding shares of common stock and the  combined voting power of the then outstanding voting securities entitled to vote generally in the  election of directors, as the case may be, of the corporation or other entity resulting from such  Business Combination (the “Resulting Entity”, including, without limitation, a corporation or other  entity which as a result of such transaction owns the Company or all or substantially all of the  





 






3      Classification: DBI Confidential  Company’s assets either directly or through one or more subsidiaries); (ii) no Person (excluding  any employee benefit plan (or related trust) of the Company or the Resulting Entity) beneficially  owns, directly or indirectly, 20% or more of, respectively, the then outstanding shares of common  stock or the combined voting power of the then outstanding voting securities of the Resulting  Entity except to the extent that such ownership existed prior to the Business Combination; and  (iii) at least a majority of the members of the board of directors of the Resulting Entity were  members of the Incumbent Board at the time of the execution of the initial agreement, or of the  action of the Board, providing for such Business Combination; or    (d)  Approval of the shareholders of the Company of a complete liquidation or  dissolution of the Company. Notwithstanding the foregoing, solely to the extent that a Change in  Control is a distribution event for purposes of an Plan, the foregoing definition of Change in  Control shall be interpreted, administered, limited and construed in a manner necessary to ensure  that the occurrence of any such event shall result in a Change in Control only if such event  qualifies as a “change in control event,” within the meaning of Treasury  Regulation Section 1.409A-3(i)(5). Further, to the extent necessary to comply with Section 409A  of the Code, the liquidation or dissolution of the Company described in this Section 2.7(d) shall  comply with the procedures described in Treasury Regulation Section 1.409A-3(j)(4)(ix)(A).    2.8.      Code.  “Code” means the Internal Revenue Code of 1986, as amended (and any  regulations thereunder).    2.9.      Company.  “Company” means Designer Brands Inc. (f/k/a DSW Inc.), an Ohio  corporation, and any successor thereto.    2.10.      Company Contribution Account.  “Company Contribution Account” means the  Account maintained in accordance with Section 5.3 with respect to Matching Contributions and  Section 5.4 and with respect to any Discretionary Contributions made under this Plan.  A  Participant’s Company Contribution Account shall be utilized solely as a device for the  determination and measurement of amounts to be paid to the Participant pursuant to this Plan and  shall not constitute or be treated as a separate fund of assets.    2.11.    Compensation.  “Compensation” means compensation for services performed,  including salary and bonus.  This includes a Participant’s (i) base salary payable during a Plan  Year; (ii) bonuses payable by the Employer for services performed in the period that begins  during a Plan Year; and (iii) long-term incentive plan amounts paid in either cash or shares.  Compensation also includes all fees payable to non-employee members of the Board, including  the retainer for service as a member of the Board or any committees thereof and meeting fees.  In  no event shall any of the following items be treated as Compensation hereunder:  (i) payments  from this Plan or any other Employer nonqualified deferred compensation plan; (ii) with the  exception of long-term incentive plan amounts paid in shares as described above, any form of  non-cash compensation or benefits, including short and long term disability payments, group life  insurance premiums, income from the exercise of non-qualified stock options, from the  disqualifying disposition of incentive stock options, or realized upon vesting of restricted stock 





 






4      Classification: DBI Confidential  or the delivery of shares in respect of restricted stock units (or other similar items of income  related to equity compensation grants or exercises); (iii) expense reimbursements; (iv) severance  payments; or (v) any other payments or benefits other than normal Compensation as determined  by the Plan Administrator in its sole discretion.  Notwithstanding anything to the contrary,  Compensation shall include amounts deferred on a pre-tax basis under this Plan, any tax-  qualified retirement plan, any Code Section 125 plan, and any other nonqualified deferred  compensation plan of the Employer.    2.12.    Compensation Deferral.  “Compensation Deferral” means that portion of  Compensation as to which a Participant has made an annual irrevocable election to defer receipt  pursuant to Article IV.  A Participant's Compensation Deferral may consist of a Salary Deferral  Commitment, a Bonus Deferral Commitment, a Director’s Fees Deferral Commitment, or a  combination, as applicable to the Participant.    2.13.    Director’s  Fees Deferral Commitment.  “Director’s Fees Deferral Commitment”  means that portion of a director’s cash fees for which a Participant has made an election to defer  receipt pursuant to Article IV.    2.14.    Disability.  “Disability” means that a Participant either (i) 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, or (ii) is, by reason of any medically determinable  physical or mental impairment which can be expected to result in death or can be expected to last  for a continuous period of not less than twelve (12) months, receiving income replacement  benefits for a period of not less than three (3) months under an accident or health plan covering  employees of the Participant’s Employer.  A Participant who has been determined to be eligible  for Social Security disability benefits shall be presumed to have a Disability as defined herein.    2.15.    Discretionary Contribution.  “Discretionary Contribution” means any amount  credited to a Participant's Account under Section 5.4.    2.16.    Elective Deferral Account.  “Elective Deferral Account” means the Account  maintained in accordance with Section 5.2 with respect to any elective Compensation Deferrals  made under this Plan.  A Participant’s Elective Deferral Account shall be utilized solely as a  device for the determination and measurement of the amounts to be paid to the Participant  pursuant to this Plan and shall not constitute or be treated as a separate fund of assets.    2.17.    Employer.  “Employer” means the Company and any parent, subsidiary, or other  affiliate designated by the Plan Administrator to participate in this Plan, as provided under  Section 10.17.    2.18.    Matching Contribution.  “Matching Contribution” means the amount that equals  the following:    (a) Any Matching Contribution not paid into the Participant’s 401(k) plan  account by the Employer due to the Participant’s participation in this Plan or any other plan of an  Employer; plus 





 






5      Classification: DBI Confidential  (b)       Any other amount determined by the Employer, and in its sole discretion, to  be appropriate for the Plan Year.  Such an amount may be larger or smaller than the amount  credited to any other Participant and may defer from the amount credited to such participant in the  preceding Plan Year.    Notwithstanding the above, in no event shall a Participant who is a non-employee member  of the Board be eligible for a Matching Contribution.    2.19.    Measurement Funds.  “Measurement Funds” means one or more of the  independently established funds or indices that are identified by the Plan Administrator.  These  Measurement Funds are used solely to calculate the earnings that are credited to each Participant's  Account(s) in accordance with Article V below, and do not represent any beneficial interest on the  part of the Participant in any asset or other property of the Company.  The determination of the  increase or decrease in the performance of each Measurement Fund shall be made by the Plan  Administrator in its reasonable discretion.  Measurement Funds may be replaced, new funds may  be added, or both, from time to time in the discretion of the Plan Administrator.    2.20.    Participant.  “Participant” means any employee who satisfies the eligibility  requirements set forth in Article III.  In the event of the death or incompetency of a Participant,  the term means his or her beneficiary, personal representative or guardian.    2.21.     Participation Agreement.  “Participation Agreement” means the authorization  form that an eligible employee files with the Plan Administrator to elect a Compensation Deferral  under the Plan for a Plan Year.    2.22.    Plan.  “Plan” means this Plan, entitled the Designer Brands Inc. (f/k/a DSW Inc.)  Nonqualified Deferred Compensation Plan, as amended from time to time.    2.23.    Plan Administrator.  “Plan Administrator” means the committee appointed by the  Company to administer this Plan pursuant to Article VIII.    2.24.    Plan Year.  “Plan Year” means (a) for the 2007 Plan Year, August 1, 2007  through December 31, 2007, and (b) for each year thereafter, the twelve (12) month period  beginning on each January 1 and ending on the following December 31.    2.25.    Related Group.  “Related Group” means the Company and all Affiliates of the  Company.    2.26.    Retirement.  “Retirement” means separation of service from the Related Group  after attaining age fifty-five (55) and completing at least five years of service.    2.27.    Salary Deferral Commitment.  “Salary Deferral Commitment” means that portion of  salary compensation for which a Participant has made an election to defer receipt pursuant to  Article IV. 





 






6      Classification: DBI Confidential  2.28.    Subsidiary.  “Subsidiary” means (a) any corporation or other entity in which the  Company, directly or indirectly, controls 50% or more of the total combined voting power of  such corporation or other entity, or (b) any other corporation or other entity in which the  Company has a significant equity interest, in either case as determined by the Compensation  Committee of the Board.    2.29 Termination.  “Termination” means a Participant’s separation from service with  the Related Group, including termination of service as a member of the Board, for any reason  other than Disability or death.    2.30.    Unforeseeable Emergency.  “Unforeseeable Emergency” means a severe financial  hardship to the Participant resulting from an illness or accident of the Participant, the Participant’s  spouse, or a dependent (as defined in Code Section 152(a)) of the Participant, loss of the  Participant’s property due to casualty, or other similar extraordinary and unforeseeable  circumstances arising as a result of events beyond the control of the Participant.    2.31.    Valuation Date.  “Valuation Date” means the last day of the Plan Year and any  other date or dates that the Employer, in its sole discretion, reasonably chooses to calculate the  value of the Participant’s Accounts and treat as a Valuation Date.    2.32.    Year of Credited Service.  “Year of Credited Service” means a twelve (12) month  consecutive period in which the Participant has been employed by Employer.    ARTICLE III  Eligibility and  Participation    3.1.      Eligibility.  An employee of an Employer shall be eligible to participate in this  Plan if the employee is part of a select group of management or highly compensated employee and  is named by the Plan Administrator to be a Participant in this Plan.  In lieu of naming individual  employees as eligible for participation, the Plan Administrator may establish eligibility criteria  (consistent with the requirements of this Section 3.1) providing for participation of all employees of  an Employer who satisfy such criteria.  All non-employee Board members shall also be eligible to  participate in this Plan.  An individual shall remain a Participant until that individual has received  full payment of all amounts credited to the Participant’s Accounts.    3.2.      Participation.  An eligible employee or Board member may elect to enter into a  Salary Deferral Commitment and/or a Director’s Fees Deferral Commitment with respect to any  Plan Year by submitting a Participation Agreement to the Plan Administrator by December 31 (or  such earlier date established by the Plan Administrator) of the calendar year immediately  preceding the Plan Year.  An eligible employee may elect to enter into a Bonus Deferral  Commitment by submitting a Participation Agreement to the Plan Administrator no later than six  (6) months prior to the end of the period in which the performance-based compensation that is the  subject of the Bonus Deferral Commitment is earned (or such earlier date established by the Plan  Administrator), provided such bonus is determined based upon a period of least 12 months. Such  Participation Agreement shall only be effective if entered into in a manner consistent with the  provisions of Code Section 409A.    





 






7      Classification: DBI Confidential  3.3.      Partial Year Participation.  If an employee or director first becomes eligible to  participate during a calendar year, then the Plan Administrator, in its sole discretion, may allow  such employee or director to submit a Participation Agreement to the Plan Administrator no later  than thirty (30) days following the date the employee or director becomes eligible to participate.   Any such Participation Agreement permitted by the Plan Administrator shall be effective only  with respect to Compensation for services to be performed subsequent to the election and deferred  in a manner consistent with the provisions of Code Section 409A.  For bonus or incentive  compensation earned in the initial Plan Year that is based upon a specified performance period, a  Participant’s deferral election pursuant to this Section 3.3 may apply only to the portion of such  Compensation that is equal to i) the total amount of compensation for the performance period,  multiplied by ii) a fraction, the numerator of which is the number of days remaining in the service  period after the Participant’s deferral election is made, and the denominator of which is the total  number of days in the performance period.    ARTICLE IV  Elective Deferrals  4.1.      Amount of Deferral Election.  A Participant may elect a Compensation Deferral  in the Participation Agreement as follows:    (a)       Salary Deferral Commitment.  A Salary Deferral Commitment shall be  related to the salary payable by the Employer to the Participant for services performed during the  Plan Year. The amount to be deferred shall be stated as a percentage of the salary to be earned  during the Plan Year, or in such other form as allowed by the Plan Administrator. Any deferral  elections under the 401(k) Plan or changes thereto shall have no impact on the Salary Deferral  Commitment under the Plan.    (b)       Bonus Deferral Commitment.  The amount to be deferred shall be stated as  a percentage of any bonus payable by the Employer for services performed in the period that  begins during the Plan Year, or in such other form as allowed by the Plan Administrator.    (c)       Director’s Fees Deferral Commitment.  The amount to be deferred shall be  stated as a percentage of any fees earned during the Plan Year, or in such other form as allowed by  the Plan Administrator.    4.2.      Deferral Limits.  The following limitations shall apply to Compensation Deferrals:    (a)       Minimum. The minimum deferral amount for a Salary, Bonus or Director’s  Fees Deferral Commitment shall be two thousand dollars ($2,000) per Plan Year.    (b)       Maximum. The maximum deferral amount for a Salary Deferral Commitment  shall be seventy percent (70%). The maximum deferral amount for a Bonus Deferral Commitment  shall be eighty percent (80%) of any such bonus payable by the Employer for services performed  in the period that begins during the Plan Year.  The maximum deferral amount for a Director’s  Fees Deferral Commitment shall be one hundred percent (100%) of any such cash fees to be earned  during the Plan Year. Such deferrals shall be limited to the extent necessary to accommodate all  income tax withholding obligations, deferral elections under the 401(k) Plan and contribution  obligations for group health and other benefit plans.    





 






8      Classification: DBI Confidential  (c)       Changes in Minimum or Maximum.  The Plan Administrator may amend  the Plan to change the minimum or maximum deferral amounts from time to time by giving  written notice to all Participants.  No such change may affect a Compensation Deferral made  prior to the Plan Administrator’s action unless otherwise required by law.    4.3.      Period of Commitment.  A Participant's Participation Agreement as to a  Compensation Deferral shall remain in effect only for the immediately succeeding Plan Year (or  the remainder of the current year, as applicable).  After a Plan Year has begun, the Participation  Agreement shall be irrevocable for the remainder of that Plan Year.  Notwithstanding the above,  the Participation Agreement shall be terminated if a distribution is made to a Participant as a  result of an Unforeseeable Emergency pursuant to Section 6.7 or if such termination is required  for the Participant to be able to obtain a hardship distribution under a qualified plan with a  qualified cash or deferred arrangement under Code Section 401(k).  Further, the Plan  Administrator may, in its sole discretion, cancel a Participation Agreement as permitted by Code  Section 409A in connection with (a) the Participant’s “disability” or (b) such other event or  condition as may be permitted under Code Section 409A pursuant to generally applicable  guidance published in the Internal Revenue Bulletin.  For purposes of the cancellation of a  Participation Agreement pursuant to this Section 4.3, a “disability” refers to any medically  determinable physical or mental impairment resulting in the Participant’s inability to perform  the duties of his or her position or any substantially similar position, where such impairment can  be expected to result in death or can be expected to last for a continuous period of not less than  six months.  Any resumption of the Participant’s deferrals under this Plan shall be made only at  the election of the Participant in accordance with Article III herein.    4.4.      Change of Status.  Participation in a Plan Year does not guarantee active  participation in any future Plan Year.  If a Participant no longer meets the eligibility criteria set  forth in Section 3.1 during a Plan Year, the Participant’s most recent Compensation Deferral  should remain in effect for the remainder of the Plan Year and shall not terminate unless such  termination of the Compensation Deferral is required for the Plan to continue to be maintained  primarily for the purpose of providing deferred compensation for a select group of management or  highly compensated employees within the meaning of ERISA Sections 201(2), 301(a), and  401(a)(1).    ARTICLE V  Participant Accounts  5.1.      Establishment of Accounts.  For record keeping purposes only, separate accounts  shall be maintained for each Participant to reflect his or her Elective Deferral Account and  Company Contribution Account (collectively referred to as “Accounts.”)  Separate sub-accounts  shall be maintained to the extent necessary to properly reflect the Participant’s election of  Measurement Funds, distribution elections and vesting.    5.2.      Crediting Compensation Deferrals to Elective Deferral Account.  The Plan  Administrator shall credit Compensation Deferrals to the Participant's Elective Deferral Account as  soon as practicable after the date on which such Compensation would otherwise have been paid, in  accordance with the Participant’s election.    





 






9      Classification: DBI Confidential  5.3.      Crediting Matching Contributions to Company Contribution Account.  The  Employer shall credit Matching Contributions to the Participant’s Company Contribution  Account as determined as by the Employer in its discretion.    5.4.      Crediting Discretionary Contributions to Company Contribution Account.  The  Employer may make Discretionary Contributions to the Participant’s Company Contribution  Account, in accordance with Section 2.10 at such times as the Plan Administrator in its sole  discretion shall determine.    5.5.      Investment Designations and Earnings (or Losses) on Account.  Participants must  designate, on a Participation Agreement or by such other means as may be established by the Plan  Administrator, the portion of the contributions to their Accounts that shall be allocated among the  various Measurement Funds.  In default of such designation, contributions to a Participant's  Accounts shall be allocated to one or more default Measurement Funds as determined by the Plan  Administrator in its sole discretion.  A Participant's Account shall be credited with all deemed  earnings (or losses) generated by the Measurement Funds, as elected by the Participant, on each  business day for the sole purpose of determining the amount of earnings to be credited or debited  to such Account as if the designated balance of the Account had been invested in the applicable  Measurement Fund.  Notwithstanding that the rates of return credited to Participant's Accounts are  based upon the actual performance of the corresponding Measurement Funds, the Employer shall  not be obligated to invest any amount credited to a Participant's Account under this Plan in such  Measurement Funds or in any other investment funds.  Upon notice to the Plan Administrator in  the manner it prescribes, a Participant may reallocate the Funds to which his or her Account is  deemed to be allocated.    5.6.      Valuation of Account.  The value of a Participant's Account as of any date shall  equal the amounts theretofore credited to such Account, including any earnings (positive or  negative) deemed to be earned on such Account in accordance with Section 5.5, less any  payments made to the Participant or the Participant's Beneficiary pursuant to this Plan, and any  forfeitures.    5.7.      Vesting of Accounts.  Participants shall be vested in their Accounts as follows:    (a)       Compensation Deferrals, and earnings credited thereon, shall be one  hundred percent (100%) vested at all times.    (b)       Matching Contributions, and earnings credited thereon, and Discretionary  Contributions shall vest in accordance with a schedule to be determined in the sole discretion of  the Plan Administrator, with such schedule to be provided to the Participant at the time such  contributions are credited to the Participant’s Company Contribution Account.  Notwithstanding  the above, the Company Contribution Account shall become one hundred percent (100%) vested  upon the occurrence of any of the following events to the extent permitted under Code Section  409A:    (i)        The Participant’s Retirement,  (ii)       The Participant’s Disability,  (iii)      The Participant’s death,  





 






10      Classification: DBI Confidential  (iv)      A Change in Control of the Company.    5.8.      Discharge for Cause. Notwithstanding any other provision of this Plan to the  contrary, a Participant’s Company Contribution Account shall be forfeited and no benefit shall be  paid from that Account if a Participant’s employment with Employer is terminated for “Cause.”  For these purposes, “Cause” means the Participant’s (a) breach of Section 1.00 of the Standard  Executive Severance Agreement (if any) between the Participant and the Company, including  Scope of Duties, Confidential Information, Solicitation of Employees, Solicitation of Third  Parties, Non-Competition, Post-Termination Cooperation, Non-Disparagement, Nondisclosure,  and Return of Company Property; (b) willful, illegal or grossly negligent conduct that is materially  injurious to the Company or any Affiliate monetarily or otherwise; (c) violation of laws or  regulations governing the Company or to any Affiliate; (d) breach of any fiduciary duty owed to  the Company or any Affiliate, expressly including the duties of good faith, ordinary care, and to  act in a manner that is not opposed to the best interests of the Company; (e) violation of a material  provision of the Company’s or any Affiliate’s policies and procedures; (f) involvement in any act  of moral turpitude that has or could reasonably have an injurious effect on the Company (or any  Affiliate) or its reputation; (g) breach of the terms of any non-solicitation or confidentiality clauses  contained in any agreement(s) with a former employer; (h) dishonesty or fraudulent conduct in  violation of the Company’s or any Affiliate’s policies or procedures; or (i) conviction of any crime  that constitutes a felony (or state law equivalent) or a crime that constitutes a misdemeanor  involving moral turpitude after all applicable rights of appeal have been exhausted or waived. By  way of non-limiting example, conduct constituting Cause under clause (f) of the preceding  sentence of this Section 5.8 includes the Participant’s engagement in or facilitation of, as  determined by the Company, any form of harassment, sexual or otherwise, or any other sexual  misconduct. The Company’s dissatisfaction with the Participant’s performance, or the business  results achieved, shall not, in and of itself, constitute Cause under this Section.    5.9.      Statement of Account.  The Plan Administrator shall provide or make available to  each Participant (including electronically), not less frequently than annually, a statement in such  form as the Plan Administrator deems desirable setting forth the balance of his or her Account.    5.10.    Payments from Account.  Any payment made to or on behalf of a Participant from  his or her Account in an amount which is less than the entire balance of his or her Account shall be  made pro rata from each of the Measurement Funds to which such Account is then allocated.    ARTICLE VI    Payments to Participants    6.1.      Distributions.  Distributions under this Plan may only be made in accordance with  the requirements of Code Section 409A.    6.2.      Timing of Benefit Payments. A Participant may elect the timing of his or her  benefit payments in the Participation Agreement in a manner established by the Plan Administrator.  Such election shall be made in a manner that satisfies Section 409A of the Code with regard to the  timing of Participant elections. All payments of benefits shall be made, or shall commence as soon  as administratively practicable after the Valuation Date immediately following the earliest of any  date designated by the Participant in the applicable Participation Agreement, death, Disability, or  Termination. Notwithstanding the above, if the Participant is re-employed by the Employer before  





 






11      Classification: DBI Confidential  the date any installment payment under the Plan is payable due to a Retirement, any future  payments shall be suspended until another payment event occurs.    6.3.      Form of Payment.  Subject to the requirements of Code Section 409A, benefits  payable under the Plan shall be payable in the following form:    (a)       Termination of Employee Prior to Retirement.  Benefits payable as a result  of a Termination of a Participant who is an employee prior to Retirement, Disability, or death shall  be paid in the form of a single lump sum payment.    (b)       Termination of Employee Due to Retirement or any Termination of a Non- Employee Director.  Benefits payable as a result of (x) a Termination of a Participant who is an  employee due to Retirement, or (y) any Termination (whether due to Retirement or prior to  Retirement) of a Participant who is a non-employee director, shall be paid in the form elected by the  Participant in his or her Participation Agreement.  If a Participant fails to make a timely election,  benefits shall be paid in the form of a lump sum.  Options for form of payment shall include:    (i)        A lump sum payment, or    (ii)       Annual installments over a period of three (3), five (5) or ten (10)  years.  The Participant’s Account shall continue to accrue earnings (or losses) as measured by the  Measurement Funds during the payment period on the unpaid balance in the Participant’s  Accounts.    (c) In-Service Distributions.  Benefits payable on a date designated by a  Participant that is earlier than the Participant’s Termination, Disability, or death shall be paid in the  form of a single lump sum payment.    6.4.      Disability.  Upon the Disability of a Participant, the Participant shall be paid the  balance in his or her Account in the form of a lump sum payment, with such payment to be made  as soon as practicable after the Participant's Disability has been determined by the Plan  Administrator.  Such payment may be made to any legally appointed guardian of the Participant.  Upon the Disability of the Participant after installment benefit payments have commenced, the  Participant shall receive the remaining unpaid balance in the Participant’s Account in the form of a  lump sum payable as soon as administratively practicable after the Participant’s Disability.    6.5.      Death.  Upon the death of a Participant, the Employer shall pay to the Participant’s  Beneficiary the balance in his or her Account in the form of a lump sum payment, with such  payment to be made as soon as practicable after the Participant’s death as determined by the Plan  Administrator.  Upon the death of a Participant after installment benefit payments have  commenced, the Participant’s Beneficiary shall receive the remaining unpaid balance in the  Participant’s Account in the form of a lump sum payable as soon as administratively practicable  after the Participant’s death. To the extent permitted by Code Section 409A, payment pursuant to  this Section 6.5 shall be considered timely if it is made by December 31 of the first calendar year  following the calendar year during which the Participant’s death occurs.    6.6.      Unforeseeable Emergency.  Upon a finding that a Participant has suffered an  Unforeseeable Emergency, the Plan Administrator may, in its sole discretion, make distributions  from the Participant's Elective Deferral Account and/or from the vested balance of the  Participant’s Company Contribution Account.  A Participant requesting a distribution as a result  





 






12      Classification: DBI Confidential  of an Unforeseeable Emergency shall apply in writing to the Plan Administrator and shall provide  such additional information as the Plan Administrator may require.  The amount of the withdrawal  shall be limited to the amount 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).  If a distribution is made due to an  Unforeseeable Emergency in accordance with this Section 6.6, the Participant's deferrals under  this Plan shall cease for the remainder of the Deferral Period in which the distribution occurs.   Any resumption of the Participant's deferrals under this Plan shall be made only at the election of  the Participant in accordance with Article III herein.    6.7.      Change in Election for In-Service Distributions.  A Participant may change the  payment date of an existing payment election made under Section 6.2 for a Plan Year for an in- service distribution that would otherwise be payable in a single lump sum payment on a date  designated by the Participant that is earlier than the Participant’s Termination, Disability, or death  pursuant to Section 4.3(c) by filing a new payment election, in the form specified by the Plan  Administrator, at least twelve (12) months prior to the original in-service payment date, provided  that such new election delays the payment date for the Participant’s lump sum payment pursuant  to Section 4.3(c) by at least five (5) years from the original payment date.  In no event shall the  new payment election take effect until at least twelve (12) months after the date on which the  election is made.  A Participant may not change the payment date or form of payment with respect  to any Accounts payable at Retirement, once elected.    6.8.      Small Accounts.  Notwithstanding any election made under this Plan, if the total  value of the Participant's Account on the Participant’s Retirement date or any subsequent payment  date does not exceed the limit imposed by Code Section 402(g) in effect on such date, then the  Plan Administrator, in its sole discretion may cause the Participant's Account to be paid to the  Participant in one lump sum as soon as practicable after the date on which such Account would  otherwise have been paid in accordance with the Participant’s election.    6.9.      Valuation of Payments.  Any lump sum benefit owed under this Article VI shall be  payable in an amount equal to the value of the Participant's Accounts (or relevant portion thereof)  as of the most recent Valuation Date in the year in which payment is to be made.  The first annual  installment payment in a series of installment payments shall be equal to (i) the value of the  Participant's Accounts (or relevant portion thereof) as of the most recent Valuation Date, divided  by (ii) the number of installment payments elected by the Participant.  The remaining installments  shall be paid in an amount equal to the value of such Accounts (or relevant portion thereof) as of  the most recent Valuation Date, divided by the number of remaining unpaid installment payments.    6.10.    Delay of Payment for Specified Employees.  Notwithstanding any provision of this  Plan to the contrary, in the case of any Participant who is a "specified employee" within the  meaning of Code Section 409A(a)(2)(B)(i), no distribution under this Plan due to the Participant’s  Retirement or Termination (for any reason other than the Participant’s death) may be made, or may  commence, before the Valuation Date immediately following the date that is 6 months after the  date of such Participant's “separation from service” within the meaning of Code Section  409A(a)(2)(A)(i).    





 






13      Classification: DBI Confidential  6.11.    Effect of Code Section 4999.  Notwithstanding any other provision of this Plan to  the contrary, and unless otherwise specified in another written plan or agreement between the  Participant and the Company or an Employer executed simultaneously with or before a Change in  Control, if any payments or any acceleration of the payments made to a Participant from his  Company Contribution Account, alone or together with any other compensation or benefit a  Participant has received or may receive, would result in the Participant’s being subject to an excise  tax under Section 4999 of the Code, the amount payable hereunder may be reduced or deferred to  the extent necessary to ensure that no payment or distribution by the Employer or any other person  to or for the benefit of the Participant will be subject to the excise tax imposed by Section 4999.   Such reduction or deferral shall only be made in compliance with Code Section 409A.    6.12.    Effect of Payment.  The full payment of the applicable benefit under this Article  VI shall completely discharge all obligations on the part of the Employer to the Participant (and  each Beneficiary) with respect to the operation of this Plan, and the Participant's (and  Beneficiary's) rights under this Plan shall terminate.    ARTICLE VII  Beneficiary Designation  7.1.      Beneficiary Designation.  Subject to Section 7.3, each Participant shall have the  right, at any time, to designate one (1) or more persons or an entity as Beneficiary (both primary as  well as contingent) to whom benefits under this Plan shall be paid in the event of such  Participant's death prior to complete distribution of the Participant's Accounts. Each Beneficiary  designation shall be in a written form prescribed by the Plan Administrator and shall be effective only  when filed with the Plan Administrator during the Participant's lifetime.    7.2.      Changing Beneficiary.  Subject to Section 7.3, any Beneficiary designation may be  changed by a Participant without the consent of the previously named Beneficiary by the filing of a  new Beneficiary designation with the Plan Administrator. The filing of a new properly completed  Beneficiary designation shall cancel all Beneficiary designations previously filed.    7.3.      Community Property.  If the Participant resides in a community property state,  any Beneficiary designation shall be valid or effective only as permitted under applicable law.    7.4.      No Beneficiary Designation.  If any Participant fails to designate a Beneficiary in  the manner provided in Section 7.1, if the Beneficiary designation is void under Section 7.3, or if  the Beneficiary designated by a deceased Participant dies before the Participant or before complete  distribution of the Participant's Accounts, the Participant's Beneficiary shall be the Participant's estate.    7.5.      Effect of Payment.  Payment to the deemed Beneficiary shall completely  discharge the Employer’s obligations under this Plan.    ARTICLE VIII  Administration  8.1.      Plan Administrator.  The Plan Administrator shall be a committee or officer  appointed by the Company to administer the Plan.  The Plan Administrator shall have full  discretionary power and authority to interpret the Plan, to prescribe, amend and rescind any  





 






14      Classification: DBI Confidential  rules, forms and procedures as it deems necessary or appropriate for the proper administration of  the Plan and to make any other determinations, including factual determinations, and take such  other actions as it deems necessary or advisable in carrying out its duties under the Plan.  If the  Company fails to appoint a Plan Administrator, the Company shall serve as the Plan  Administrator.    8.2.      Agents.  The Plan Administrator may, from time to time, employ agents and  delegate to them such administrative duties as it sees fit, and may, from time to time, consult  with counsel who may be counsel to the Employer.    8.3.      Binding Effect of Decisions.  All decisions and determinations by the Plan  Administrator shall be final, conclusive and binding on the Employer, Participants, Beneficiaries  and any other persons having or claiming an interest hereunder.    8.4.      Indemnification of Plan Administrator.  The Company shall indemnify and hold  the Plan Administrator harmless against any and all claims, loss, damage, expense or liability  arising from any action or failure to act with respect to this Plan due to the Plan Administrator’s  service as such, except in the case of gross negligence or willful misconduct by the Plan  Administrator or as expressly provided by statute.    ARTICLE IX  Claims Procedures  9.1.      Claim.  A Participant who believes that he or she is being denied a benefit to  which he or she is entitled under the Plan may file a written request for such benefit with the  Plan Administrator, setting forth his or her claim for benefits.    9.2.      Claim Decision Not Involving Determination of Disability.  The Plan  Administrator shall reply to any claim filed under Section 9.1 that does not involve a  determination of disability within a reasonable period of time, but not later than 90 days of receipt  of such claim, unless it determines that special circumstances require an extension of time, not to  exceed an additional 90 days, for processing the claim.  Written notice of such extension,  indicating the special circumstances requiring an extension of time and the date by which the Plan  Administrator expects to render a decision on such claim, shall be provided to the Participant  before the expiration of the original 90-day period.  If the claim is denied in whole or in part,  such reply shall include a written explanation, using language calculated to be understood by the  Participant, setting forth:    (a)       the specific reason or reasons for such denial;    (b) the specific reference to relevant provisions of this Plan on which such denial  is based;    (c) a description of any additional material or information necessary for the  Participant to perfect his or her claim and an explanation why such material or such information is  necessary;    (d) appropriate information as to the steps to be taken if the Participant wishes to  submit the claim for review;  





 






15      Classification: DBI Confidential  (e) the time limits for requesting a review under Section 9.4 and for review under  Section 9.5 hereof; and    (f) the Participant's right to bring an action for benefits under Section 502 of  ERISA following an adverse decision on review.    9.3.      Claim Decision Involving Determination of Disability.  The Plan Administrator  shall reply to any claim filed under Section 9.1 that involves a determination of Disability within  a reasonable period of time, but not later than 45 days of receipt of such claim, unless it  determines that an extension of time, not to exceed an additional 30 days, is necessary due to  matters beyond the control of the Plan.  Written notice of such extension, indicating the  circumstances requiring the extension of time and the date by which the Plan Administrator  expects to render a decision on such claim, shall be provided to the Participant before the  expiration of the original 45-day period.  If, prior to the end of the first 30-day extension period,  the Plan Administrator determines that, due to matters beyond the control of the Plan, a decision  cannot be rendered within that extension period, the period for making a decision shall be  extended for up to an additional 30 days.  Written notice of such extension, indicating the  circumstances requiring the extension of time and the date by which the Plan Administrator  expects to render a decision on such claim, shall be provided to the Participant before the  expiration of the first 30-day extension period.  In the case of a first or second 30-day extension  period, the notice informing the Participant of such extension period shall also specifically  explain the standards on which entitlement to a benefit is based, the unresolved issues that prevent  a decision on the claim, and the additional information needed to resolve those issues. The  Participant shall be afforded at least 45 days within which to provide the specified information.  If  the Participant provides insufficient information or files an incomplete claim, the time for making  a decision is tolled (suspended) from the date the Plan Administrator provides the Participant  notice of an extension until the date it receives the Participant’s response to the request for  additional information.  If the claim is denied in whole or in part, such reply shall include a  written explanation, using language calculated to be understood by the Participant, setting forth:    (a)       the specific reason or reasons for such denial;    (b)        the specific reference to relevant provisions of this Plan on which such  denial is based;    (c) a description of any additional material or information necessary for the  Participant to perfect his or her claim and an explanation why such material or such information  is necessary;    (d) appropriate information as to the steps to be taken if the Participant wishes  to submit the claim for review;    (e) the time limits for requesting a review under Section 9.4 and for review under  Section 9.6 hereof;    (f)       the Participant's right to bring an action for benefits under Section 502 of  ERISA following an adverse decision on review; 





 






16      Classification: DBI Confidential  (g) if an internal rule, guideline, protocol, or other similar criterion was relied  upon in making the adverse decision, either the specific rule, guideline, protocol, or other similar  criterion; or a statement that such a rule, guideline, protocol, or other similar criterion was relied  upon in making the adverse decision and that a copy of such rule, guideline, protocol, or other  criterion will be provided free of charge to the Participant upon request; and    (h) if the adverse decision is based on a medical necessity or experimental  treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment  for the determination, applying the terms of the plan to the claimant's medical circumstances, or  a statement that such explanation will be provided free of charge upon request.    9.4.      Request for Review.  Within 60 days after the receipt by the Participant of the  written explanation described in Section 9.2 above (in the case of a claim decision not involving  a determination of Disability), or within 180 days after the receipt by the Participant of the  written explanation described in Section 9.3 above (in the case of a claim decision involving a  determination of Disability), the Participant may request in writing that the Plan Administrator  review its determination.  The Participant or his or her duly authorized representative shall be  provided, upon request and free of charge, reasonable access to, and copies of, all documents,  records and other information relevant to the Participant’s claim for benefits and may submit  written comments, documents, records and other information relating to the claim for benefits for  consideration by the Plan Administrator.  If the Participant does not request a review of the initial  determination within such 60-day or 180-day period, as the case may be, the Participant shall be  barred and estopped from challenging the determination.    9.5.      Review of Decision Not Involving Determination of Disability.  After considering  all materials presented by the Participant with respect to a request for review of a claim decision  not involving a determination of Disability, the Plan Administrator will render a written decision,  setting forth    (a)       the specific reasons for the decision;    (b) specific references to the relevant provisions of this Plan on which the  decision is based;    (c) a statement that the Participant is entitled to receive, upon request and free of  charge, reasonable access to, and copies of, all documents, records, and other information relevant  to the Participant’s claim for benefits; and    (d)       the Participant’s right to bring an action for benefits under Section 502 of  ERISA.    The decision on review shall be communicated to the Participant within a reasonable period of  time, but not later than 60 days after the Plan Administrator's receipt of the Participant's request for  review.  If the Plan Administrator determines that special circumstances require an extension of  time for processing the claim, written notice shall be furnished to the Participant prior to the  expiration of the initial 60-day period, which notice shall indicate the special circumstances  requiring an extension of time and the date, not later than 60 days after the expiration of the 





 






17      Classification: DBI Confidential  initial 60-day period, by which the Plan Administrator expects to render the decision on review.  All decisions on review shall be final and shall bind all parties concerned.    9.6.      Review of Decision Involving Determination of Disability.  The review of a claim  decision involving a determination of Disability shall not afford deference to the initial adverse  decision and shall be conducted by an appropriate named fiduciary of the Plan who is neither the  individual who made the initial adverse decision that is the subject of the request for review, nor  the subordinate of such individual.  If the initial adverse decision was based in whole or in part on  a medical judgment, the appropriate named fiduciary shall consult with a health care professional  who has appropriate training and experience in the field of medicine involved in the medical  judgment.  Any health care professional engaged for purposes of such consultation shall be an  individual who is neither an individual who was consulted in connection with the adverse decision  that is the subject of the request for review, nor the subordinate of any such individual. The Plan  Administrator shall identify medical or vocational experts whose advice was obtained on behalf of  the Plan in connection with the Participant’s adverse decision, without regard to whether the  advice was relied upon in making the claim decision.  After considering all materials presented by  the Participant with respect to a request for review of a claim involving a determination of  Disability, the Plan Administrator will render a written decision, setting forth    (a) the specific reasons for the decision;    (b) the specific reference to relevant provisions of this Plan on which the  decision is based;    (c) a statement that the Participant is entitled to receive, upon request and free of  charge, reasonable access to, and copies of, all documents, records, and other information relevant  to the Participant’s claims for benefits;    (d) a statement of the Participant’s right to bring an action for benefits under  Section 502 of ERISA;    (e) if an internal rule, guideline, protocol, or other similar criterion was relied  upon in making the adverse decision, either the specific rule, guideline, protocol, or other similar  criterion; or a statement that such rule, guideline, protocol, or other similar criterion was relied upon  in making the adverse decision and that a copy of the rule, guideline, protocol, or other similar criterion  will be provided free of charge to the Participant upon request;    (f) if the adverse decision is based on a medical necessity or experimental  treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment  for the decision, applying the terms of the Plan to the Participant’s medical circumstances, or a  statement that such explanation will be provided free of charge upon request; and    (g) the following statement: "You and your Plan may have other voluntary  alternative dispute resolution options, such as mediation.   One way to find out what may be  available is to contact your local U.S. Department of Labor Office and your State insurance  regulatory agency." 





 






18      Classification: DBI Confidential  The decision on review shall be communicated to the Participant within a reasonable period of  time, but not later than 45 days after the Plan Administrator's receipt of the Participant's request  for review.  If the Plan Administrator determines that special circumstances require an extension  of time for processing the claim, written notice shall be furnished to the Participant prior to the  expiration of the initial 45-day period, which notice shall indicate the special circumstances  requiring an extension of time and the date, not later than 45 days after the expiration of the  initial 45-day period, by which the Plan Administrator expects to render the decision on review.  All decisions on review shall be final and shall bind all parties concerned.    ARTICLE X  Miscellaneous  10.1.    Unfunded Plan.  This Plan is intended to be an unfunded plan maintained  primarily to provide deferred compensation benefits for a select group of “management or highly  compensation employees” within the meaning of Sections 201, 301, and 401 of the Employee  Retirement Income Security act of 1974, as amended (“ERISA”), and therefore to be exempt  from the provisions of Parts 2, 3, and 4 of Title I of ERISA. Accordingly, the Plan shall  terminate and no further benefits shall be paid hereunder if it is determined by a court of  competent jurisdiction or by an opinion of counsel that the Plan constitutes an employee pension  benefit plan within the meaning of Section 3(2) of ERISA which is not so exempt.    10.2.    Unsecured General Creditor.  Participants and their Beneficiaries, heirs,  successors, and assigns shall have no legal or equitable rights, interest or claims in any property  or assets of the Employer, nor shall they be Beneficiaries of, or have any rights, claims or  interests in any life insurance policies, annuity contracts, or the proceeds therefrom owned or  which may be acquired by the Employer. Except as may be provided in Section 10.3, such  policies, annuity contracts or other assets of the Employer shall not be held under any trust for the  benefit of Participants, their Beneficiaries, heirs, successors or assigns, or held in any way as  collateral security for the fulfilling of the obligations of the Employer under this Plan. Any and all  of the Employer’s assets and policies shall be, and remain, the general, unpledged, unrestricted  assets of the Employer. The Employer’s obligation under the Plan shall be that of an unfunded  and unsecured promise to pay money in the future.    10.3.    Trust Fund.  The Employer shall be responsible for the payment of all benefits  provided under the Plan. At its discretion, the Employer may establish one or more trusts, with  such trustees as the Board may approve, for the purpose of providing for the payment of such  benefits. Such trust or trusts may be irrevocable, but the assets thereof shall be subject to the  claims of the Employer’s creditors. To the extent any benefits provided under the Plan are  actually paid from any such trust, the Employer shall have no further obligation with respect  thereto, but to the extent not so paid, such benefits shall remain the obligation of, and shall be  paid by, the Employer.  Further, in no event shall any assets be transferred to any such trust at a  time or in a manner that would cause any amount to be included in the income of a Participant  pursuant to Code Section 409A(b).    10.4.    Protective Provisions.  Each Participant and Beneficiary shall cooperate with the  Plan Administrator by furnishing any and all information requested by the Plan Administrator in  order to facilitate the payment of benefits hereunder.  Such cooperation includes providing  consent to being insured under a Company owned life insurance policy in which the Company is 





 






19      Classification: DBI Confidential  the policy beneficiary.  If a Participant or Beneficiary refuses to cooperate with the Plan  Administrator, the Employer shall have no further obligation to the Participant or Beneficiary  under the Plan, other than payment of the then-current balance of the Participant's Accounts in  accordance with prior elections.    10.5.    Inability to Locate Participant or Beneficiary.  If the Plan Administrator is unable  to locate a Participant or Beneficiary within two years following the date the Participant was to  commence receiving payment, the entire amount allocated to the Participant's Account shall be  forfeited.  If, after such forfeiture, the Participant or Beneficiary later claims such benefit, such  benefit shall be reinstated without interest or earnings from the date payment was to commence  pursuant to Article VI.    10.6.    No Contract of Employment.  Neither the establishment of the Plan, nor any  modification thereof, nor the creation of any fund, trust or account, nor the payment of any  benefits shall be construed as giving any Participant or any person whosoever, the right to be  retained in the service of the Employer, and all Participants and other employees shall remain  subject to discharge to the same extent as if the Plan had never been adopted.    10.7.    Withholding Taxes.  The Plan Administrator and the Employer may make such  provisions and take such action as it may deem necessary or appropriate for the withholding of  any taxes which the Employer is required by any law or regulation of any governmental  authority, whether federal, state or local, to withhold in connection with any contributions or  benefits under the Plan, including, but not limited to, the withholding of appropriate sums from  any amount otherwise payable to the Participant (or his or her Beneficiary).  Each Participant,  however, shall be responsible for the payment of all individual tax liabilities relating to any such  benefits.    10.8.    No Limitation on Employer Actions.  Nothing contained in the Plan shall be  construed to prevent the Employer from taking any action which is deemed by it to be  appropriate or in its best interest.  No Participant, Beneficiary, or other person shall have any  claim against the Employer as a result of such action.    10.9.    Obligations to Employer.  If a Participant becomes entitled to a payment of  benefits under the Plan, and if at such time the Participant has out-standing any debt, obligation,  or other liability representing an amount owing to the Employer, then the Employer may offset  such amount owed to it against the amount of benefits otherwise distributable.  Such  determination shall be made by the Plan Administrator in its sole discretion.    10.10.  No Liability for Action or Omission.  Neither the Company nor any director,  officer or employee of the Company shall be responsible or liable in any manner to any  Participant, Beneficiary or any person claiming through them for any benefit or action taken or  omitted in connection with the granting of benefits, the continuation of benefits, or the  interpretation and administration of this Plan.    10.11.  Nonalienation of Benefits.  Except as otherwise specifically provided herein, all  amounts payable hereunder shall be paid only to the person or persons designated by the Plan  and not to any other person or corporation.  No part of a Participant's Account shall be liable for 





 






20      Classification: DBI Confidential  the debts, contracts, or engagements of any Participant, his or her Beneficiary, or successors in  interest, nor shall such accounts of a Participant be subject to execution by levy, attachment, or  garnishment or by any other legal or equitable proceeding, nor shall any such person have any  right to alienate, anticipate, commute, pledge, encumber, or assign any benefits or payments  hereunder in any manner whatsoever. By way of illustration, and without limiting the foregoing, a  Participant’s benefits under this Plan shall not be transferable by domestic relations order. If any  Participant, Beneficiary or successor in interest is adjudicated bankrupt or purports to anticipate,  alienate, sell, transfer, assign, pledge, encumber or charge any payment from the Plan, voluntarily  or involuntarily, the Plan Administrator, in its discretion, may cancel such payment (or any part  thereof) to or for the benefit of such Participant, Beneficiary or successor in interest in such  manner as the Plan Administrator shall direct.     10.12.  Liability for Benefit Payments.  The obligation to pay or provide for payment of a  benefit hereunder to any Participant or his or her Beneficiary shall, at all times, be the sole and  exclusive liability and responsibility of the Company.    10.13.  Governing Law.  This Plan shall be construed in accordance with and governed by  the laws of the State of Ohio to the extent not superseded by federal law, without reference to the  principles of conflict of laws.    10.14.  Severability of Provisions.  If any provision of this Plan shall be held invalid or  unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof,  and this Plan shall be construed and enforced as if such provisions had not been included.    10.15.  Headings and Captions.  The headings and captions herein are provided for  reference and convenience only, shall not be considered part of the Plan, and shall not be  employed in the construction of the Plan.    10.16.  Gender, Singular and Plural.  All pronouns and any variations thereof shall be  deemed to refer to the masculine, feminine, or neuter, as the identity of the person or persons  may require.  As the context may require, the singular may read as the plural and the plural as  the singular.    10.17.  Participating Employers.  If any affiliated or subsidiary entity wishes to adopt the  Plan as an Employer for the benefit of its employees, it shall execute a Participation Agreement  or perform any other act as required by the Plan Administrator.    10.18.  Notice.  Any notice or filing required or permitted to be given to the Plan  Administrator under the Plan shall be sufficient if in writing and hand delivered, or sent by  registered or certified mail, to the Plan Administrator, Designer Brands Inc. (f/k/a DSW Inc.)  Nonqualified Deferred Compensation Plan, c/o Designer Brands Inc. HR Benefits, Designer  Brands Inc., 810 DSW Drive, Columbus, Ohio 43219, or to such other person or entity as the  Plan Administrator may designate from time to time. Such notice shall be deemed given as to  the date of delivery, or, if delivery is made by mail, as of the date shown on the postmark on  the receipt for registration or certification. 





 






21      Classification: DBI Confidential    10.19.  Amendment and Termination.  The Plan may be amended, suspended, or  terminated at any time by Company or by the Plan Administrator in its sole discretion; provided,  however, that no such amendment, suspension or termination shall result in any reduction in the  value of a Participant's Accounts determined as of the effective date of such amendment.  In  addition, the Plan, and/or the terms of any election made hereunder, may be amended at any time  and in any respect by Company or by the Plan Administrator if and to the extent recommended by  counsel in order to conform to the requirements of Code Section 409A and regulations  thereunder.  In the event of any suspension or termination of the Plan, payment of Participants'  Accounts shall be made under and in accordance with the terms of the Plan and the applicable  elections (except that the Plan Administrator may determine, in its sole discretion, to accelerate  payments to all Participants if and to the extent that such acceleration is permitted under Code  Section 409A and regulations thereunder).    10.20.  Code Section 409A.  It is intended that the Plan comply with the provisions of  Code Section 409A, so as to prevent the inclusion in gross income of any amounts deferred  hereunder in a taxable year that is prior to the taxable year or years in which such amounts would  otherwise actually be paid or made available to Participants (or their Beneficiaries or estates).  This Plan shall be construed, administered, and governed in a manner that effects such intent, and  the Plan Administrator shall not take any action that would be inconsistent with such intent.  In  furtherance of such intent, and notwithstanding any other provision of the Plan to the contrary, the  Plan Administrator, in its sole discretion, may: (a) accelerate the time or schedule of a payment  under the Plan to a time or form otherwise permitted under Code Section 409A and Treasury  Regulation Section 1.409A-3(j); or (b) delay the time or form of a payment under the Plan to a  time or form otherwise permitted under Code Section 409A and Treasury Regulation Section  1.409A-2(b)(7).  Although the Plan Administrator shall use its best efforts to avoid the imposition  of taxation, interest and penalties under Code Section 409A, the tax treatment of deferrals under  this Plan is not warranted or guaranteed. Neither the Company and its Affiliates, nor the Plan  Administrator (or its delegate(s)) shall be held liable for any taxes, interest, penalties or other  monetary amounts owed by any Participant, Beneficiary or other taxpayer as a result of the Plan,  whether under Code Section 409A or otherwise.  Any reference in this Plan to Code Section 409A  will also include any proposed, temporary or final regulations, or any other guidance,  promulgated with respect to Code Section 409A by the U.S. Department of Treasury or the  Internal Revenue Service. For purposes of the Plan, the phrase “permitted by Section 409A of the  Code,” or words or phrases of similar import, shall mean that the event or circumstance shall only  be permitted to the extent it would not cause an amount deferred or payable under the Plan to be  includible in the gross income of a Participant or Beneficiary under Code Section 409A.