Exhibit 10.7


 


NPC INTERNATIONAL, INC.


 


DEFERRED COMPENSATION


AND


RETIREMENT PLAN


 


As Amended and Restated,
Effective January 1, 2005


 

















 


Table of
Contents


 


	
  Section 1.
  Establishment

  	
   

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 2.
  Definitions

  	
   

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 3.
  Eligibility for Participation

  	
   

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 4.
  Deferral of Compensation and Bonus Compensation

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 5.
  Company Matching Contributions and Company Discretionary Contributions

  	
   

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 6.
  Elections of Timing and Form of Payment

  	
   

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 7.
  Investment of Deferral and Vesting Accounts

  	
   

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 8.
  Vesting

  	
   

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 9.
  Designation of Beneficiaries

  	
   

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 10.
  Merger, Consolidation and Sale of Assets

  	
   

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 11.
  Rights of Participants

  	
   

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 12.
  Administration

  	
   

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 13.
  Claims and Appeals

  	
   

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 14.
  Amendments and Termination

  	
   

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 15.
  Applicable Laws

  	
   

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 16.
  409A Compliance

  	
   

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 17.
  Incompetency

  	
   

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 18.
  Expenses

  	
   

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 19.
  Notices

  	
   

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 20.
  Withholding and Deductions

  	
   

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 21.
  Invalidity of Provisions

  	
   

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 22.
  Tax Advantages Not Guaranteed

  	
   

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 23.
  Return of Company Contributions

  	
   

  	
  25

  



 


i

















 


NPC INTERNATIONAL, INC.


DEFERRED
COMPENSATION AND RETIREMENT PLAN


 


Section 1.
Establishment and Amendment


 


NPC INTERNATIONAL, INC. hereby amends and restates in its
entirety, effective January 1, 2005, its deferred compensation and
retirement plan for executives as described herein, which is known as the “NPC
INTERNATIONAL, INC. DEFERRED COMPENSATION AND RETIREMENT PLAN” (the “Plan”).
The Plan is intended to constitute an unfunded plan maintained primarily to
provide deferred compensation to a select group of management or highly
compensated employees.


 


Section 2.
Definitions


 


2.1                               Definitions. Whenever used herein, the following terms
shall have the meanings set forth below:


 


(a)                                  “Acquiring
Person” means any one
person, or more than one person acting as a group. For purposes of this
definition, persons will not be considered to be “acting as a group” solely
because they purchase or own stock or assets of the same corporation at the
same time, or as a result of the same public offering. However, persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the Company. If a person, including an
entity, owns stock in both corporations that enter into a merger,
consolidation, purchase or acquisition of stock, or similar transaction, such
shareholder is considered to be acting as a group with other shareholders in a
corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation.


 


(b)                                 “Board” means the Board of Directors of the Company.


 


(c)                                  “Beneficiary” means the persons or entities designated
pursuant to Section 9 who are to receive, upon a Participant’s death, payment
of the amounts credited to the Participant’s Deferral Account and the
Nonforfeitable amounts credited to his Vesting Account as of the date of his
death.


 


(d)                                 “Bonus
Compensation” with
respect to an active Participant or eligible Executive means the active
Participant’s or eligible Executive’s bonus compensation, as determined by
Company, for the period to which his relevant Bonus Compensation Deferral
Election relates.


 


(e)                                  “Bonus
Compensation Deferral Election” means
the election made by an active Participant or eligible Executive, pursuant to Section 4.2,
to defer receipt of a portion of his Bonus Compensation earned by him in the
calendar year to which the election relates.


 


2

















 


(f)                                    “Change of
Control” means the
occurrence of a “Change in the Ownership of the Company,” a “Change in
Effective Control of the Company”, or a “Change in the Ownership of a
Substantial Portion of the Company’s Assets” as such terms are further defined below:


 


(1)                                  Change in
the Ownership of the Company. A Change in the Ownership of the Company shall occur if any Acquiring
Person, other than one or more Excluded
Persons (as defined below), acquires ownership of stock of the Company that,
together with stock held by such Acquiring Person, constitutes more than 50% of
the total fair market value or total voting power of the stock of the Company. If an Acquiring Person owns 50% of the total fair
market value or total voting power of the stock of the Company, the acquisition
of additional stock by such Acquiring Person shall not be constitute a Change
in Ownership of the Company. An increase in the percentage of stock owned by
any Acquiring Person, as a result of a transaction in which the corporation
acquires its stock in exchange for property will be treated as an acquisition
of stock for purposes of this paragraph. In addition, this paragraph applies
only when there is a transfer of stock of a corporation (or issuance of stock
of a corporation) and stock in such corporation remains outstanding after the transaction.


 


(2)                                  Change in
Effective Control of the Company. A Change in Effective Control of the Company shall occur if either:


 


(i)                                     any Acquiring Person, other than one or more
Excluded Persons (as defined below), acquires
(or has acquired during the 12-month period ending on the date of the
most recent acquisition by such person or persons) ownership of stock of the
Company possessing 35 percent or more of the total voting power of the stock of
the Company, or


 


(ii)                                  A majority of members of the Company’s board
of directors is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the members of the
Company’s board of directors prior to the date of the appointment or election.


 


If a person, or more than one person acting as a group (as defined
below) owns 35% of the total fair market value or total voting power of the
stock of the Company, the acquisition of additional stock by such person or
group shall not constitute a change in effective control of the Company.


 


(3)                                  Change in
the Ownership of a Substantial Portion of the Company’s Assets. A Change in the Ownership of a Substantial


 


3

















 


Portion of the Company’s assets shall occur if any Acquiring Person,
other than one or more Excluded Persons (as defined below), acquires (or has
acquired during the 12-month period ending on the date of the most recent
acquisition by such person or persons) assets from the Company that have a total
Gross Fair Market Value equal to or more than 40 percent of the total gross
fair market value of all of the assets of the Company immediately prior to such
acquisition or acquisitions, except for transfers of assets described below. A
transfer of assets by the Company is not treated as a Change in the Ownership
of a Substantial Portion of the Company’s Assets if the assets are transferred
to:


 


(i)                                     a shareholder of the Company (immediately
before the asset transfer) in exchange for or with respect to its stock;


 


(ii)                                  an entity, 50 percent or more of the total
value or voting power of which is owned, directly or indirectly, by the
Company;


 


(iii)                               a person, or more than one person acting as a
group, that owns, directly or indirectly, 50 percent or more of the total value
or voting power of all the outstanding stock of the Company; or


 


(iv)                              an entity, at least 50 percent of the total
value or voting power of which is owned, directly or indirectly, by a person
described in subparagraph (iii).


 


Excluded
Persons. For
purposes of this subsection (e), Excluded Persons means Gene Bicknell, his
spouse, any of his lineal descendants, and any entity at least 50% owned by any
of such persons.


 


(g)                                 “Committee” means the Stock Option and Compensation
Committee of the Board.


 


(h)                                 “Company” means NPC International, Inc., a Kansas
corporation, or any successor thereto.


 


(i)                                     “Company
Discretionary Contribution” means
the amount deposited by the Company and credited by the Trustee pursuant to Section 5.2
to the Deferral Account or Vesting Account maintained by the Trustee on behalf
of an active Participant or eligible Executive. Company Discretionary
Contributions may be Class A Contributions or Class B
Contributions. Unless otherwise so designated in writing, all Company
Discretionary Contributions shall be Class A Contributions.


 


4

















 


(j)                                     “Company
Matching Contribution” means
the amount deposited by the Company and credited by the Trustee pursuant to Section 5.1
to the Deferral Account or Vesting Account maintained by the Trustee on behalf
of an active Participant or eligible Executive.


 


(k)                                  “Compensation” with respect to an Executive means the
Executive’s taxable wages reportable on Form W-2, less (i) Bonus
Compensation, and (ii) gains from the exercise of stock options granted by
the Company, payable to the Executive during the pay period to which the
relevant Compensation Deferral Election relates.


 


(1)                                  “Compensation
Deferral Election” means
the election made by an active Participant or eligible Executive, pursuant to Section 4.1,
to defer receipt of all or a portion of his Compensation earned in the calendar
year to which the election relates.


 


(m)                               “Deferral
Account” means the account
maintained by the Trustee under the Trust, on behalf of a Participant, to which
the Company deposits and the Trustee credits at the direction of the Company (i) the
Compensation and Bonus Compensation the Participant elects to defer pursuant to
his Compensation Deferral Election and/or Bonus Compensation Deferral Election,
and (ii) the Company Matching Contributions and Company Discretionary
Contributions pursuant to Sections 5.1 and 5.2 which are entirely
Nonforfeitable when made. Although this Plan may refer to a Deferral
Account as “the Participant’s Deferral Account” or as “his Deferral Account,”
the amounts credited to such Deferral Account shall at all times be subject to
the terms and conditions of the agreement and declaration establishing the
Trust, and thus subject to the claims of the Company’s general creditors.


 


(n)                                 “Executive” means an employee of the Company who is:


 


(1)                                  in a select group of management or highly
paid employees;


 


(2)                                  exempt from the minimum wage and maximum hour
requirements of the Fair Labor Standards Act, as described in 29 U.S.C. Section 213(a) and
regulations promulgated thereunder; and


 


(3)                                  a “highly compensated employee” within the
meaning of Internal Revenue Code Section 414(q), or a regional manager, or
both. With respect to a newly hired employee, if the employee’s annualized
projected Compensation and Bonus Compensation for his first calendar year of
employment exceed the limit described in Section 414(q)(B)(i), he shall be
considered a “highly compensated employee” for such first calendar year of
employment, for purposes of this Plan.


 


5

















 


(o)                                 “Gross Fair
Market Value” means
the value of the assets of the Company, or the value of the assets being
disposed of, determined without regard to any liabilities associated with such assets.


 


(p)                                 “Nonforfeitable” as applied to Company Matching Contributions
and Company Discretionary Contributions (and earnings thereon) deposited by the
Company and credited by the Trustee at the direction of the Company to a
Participant’s Deferral Account or Vesting Account, means the portion of such
deposits and credits to which the Participant or his Beneficiary are “vested”
in accordance with the vesting rules described in Section 8 and the
other terms and conditions of the Plan, subject only to the claims of the
Company’s general creditors as described in the agreement and declaration
establishing the Trust.


 


(q)                                 “Participant” means a person who has amounts currently
deposited and credited to a Deferral Account or Vesting Account, or both,
maintained by the Trustee on his behalf pursuant to the terms of the Plan. An
active Participant is a Participant who is actively employed by the Company as
an Executive and who is actively participating in the Plan.


 


(r)                                    “Trust” means, with regard to (i) Compensation
and/or Bonus Compensation deposited by the Company and credited by the Trustee
on behalf of a Participant pursuant to his Compensation Deferral Election
and/or Bonus Compensation-Deferral Election, as the case may be, and (ii) the
Company Matching Contributions and Company Discretionary Contributions
deposited by the Company and credited by the Trustee pursuant to Sections 5.1
and 5.2 and which are entirely Nonforfeitable when made, the NPC International, Inc.
Deferred Compensation and Retirement Plan Group Trust.


 


With regard to Company Matching Contributions and Company Discretionary
Contributions deposited with and credited by the Trustee on behalf of a
Participant pursuant to Sections 5.1 and 5.2 and which are not entirely
Nonforfeitable when made, the term “Trust” means the individual trust
established to account for such credits solely on behalf of the individual
Participant and his Beneficiaries (but subject to the rights of the Company’s
general creditors, pursuant to the terms and conditions of the agreement and
declaration establishing the trust).


 


(s)                                  “Trustee” means A.G. Edwards Trust Company or the bank
or trust company designated as its successor trustee under the agreement and
declaration establishing the Trust


 


(t)                                    “Vesting
Account” with respect to a
Participant means the account maintained by the Trustee under the Trust, on
behalf of the Participant, to which the Company deposits and the Trustee
credits at the direction of the Company the Company Matching Contributions
and/or Company


 


6

















 


Discretionary Contributions (if any) pursuant to Sections 5.1 and 5.2
and which are not entirely Nonforfeitable when made. Although this Plan may refer
to a Vesting Account as “the Participant’s Vesting Account” or as “his Vesting
Account,” the amounts credited to such Vesting Account shall at all times be
subject to the terms and conditions of the agreement and declaration
establishing the Trust, and thus subject to the claims of the Company’s general
creditors.


 


(u)                                 “Vesting Service” with respect to a Participant means the
aggregate total of the Participant’s whole years (and fractional portions of
years) of employment by the Company, its predecessors and successors. The
Committee may designate, from time to time and in its sole discretion,
such other service (either for the Company or otherwise) that shall be
considered Vesting Service with respect to any particular Participant or
eligible Executive.


 


2.2                               Gender and
Number. Except when
otherwise indicated by the context, any masculine terminology used herein shall
also include the feminine gender, and the definition of any term herein in the
singular shall also include the plural.


 


Section 3. Eligibility for
Participation


 


3.1                               Eligibility. An employee of the Company shall be eligible
to participate in the Plan with respect to a calendar year if:


 


(a)                                  He qualifies as an Executive with respect to
such year; and


 


(b)                                 He is not eligible to participate, in such
calendar year, in the Company’s qualified cash or deferred arrangement under Section 40l(k)
of the Internal Revenue Code; and


 


(c)                                  The Committee has selected such Executive to
participate with respect to such year; where the Committee has once selected
the Executive to participate, and such Executive ceases to be eligible with
respect to a year due solely to his eligibility to participate in the Company’s
qualified cash or deferred arrangement for such year, and the Executive
thereafter (for a subsequent year) ceases to be eligible to participate in the
cash or deferred arrangement he shall automatically be eligible to recommence
participation in this Plan without further approval by the Committee, provided
the Executive continues to meet the definition of “Executive” and the Committee
has not affirmatively declared the Executive to be ineligible.


 


Notwithstanding the foregoing, an active Participant or eligible
Executive shall not be eligible to have Company Matching Contributions
deposited and credited to his Vesting Account until the later of (i) the
first pay period beginning after the date on which he is first credited with a
year of service and (ii) the first pay period beginning after the date on
which he commences participation in this Plan. A “year of service” for this
purpose means a 12-consecutive month


 


7

















 


period,
beginning on the active Participant’s or eligible Executive’s employment
commencement date or any anniversary of that date, during which he has at least
1,000 hours of service. An “hour of service” for this purpose means an hour
with respect to which an active Participant or eligible Executive is entitled
to payment for the performance of services for the Company, or entitled to
payment even though no services are performed for the Company (e.g., for periods
of paid leave of absence, illness, holiday, layoff, jury duty, etc.). A
Participant who satisfies this requirement, terminates employment, and then
again becomes an eligible Executive on account of reemployment shall be
eligible for Company Matching Contributions upon again becoming an active
Participant.


 


3.2                               Inactive
Participants. If at a
future date an active Participant no longer meets the requirements for
participation in this Plan for reasons other than termination of employment,
the Participant shall become an inactive Participant, retaining all of the
rights accorded Participants by this Plan, except the right to make additional
deferrals of Compensation and/or Bonus Compensation pursuant to Section 4,
and to have additional Company Matching Contributions and/or Company
Discretionary Contributions deposited and credited to his Deferral Account or
Vesting Account. Such an individual shall remain an inactive Participant unless
and until he again becomes an active Participant by again qualifying as an
Executive entitled to participate in this Plan.


 


Amounts deposited and credited to an active Participant’s Vesting
Account which are not considered Nonforfeitable shall be forfeited pursuant to Section 5
at the time the Participant no longer meets the requirements for participation
on account of termination of employment.


 


Section 4. Deferral of
Compensation and Bonus Compensation


 


4.1                               Deferral of
Compensation. At the
times and in the manner specified below, an active Participant or an eligible
Executive may make an irrevocable election in writing to defer all or a
portion of his Compensation until a specified date in the future.


 


(a)                                  Timing and
Nature of Compensation Deferral Election. An active Participant or eligible Executive
described in the preceding paragraph may make a Compensation Deferral
Election, prior to December 31 of any calendar year, to defer receipt of
any percentage of his Compensation, in whole numbers (e.g., 1%, 7%, etc.),
earned during pay periods occurring between January 1 and December 31
of the following calendar year.


 


(b)                                 Elections by
Newly Eligible Executives. Notwithstanding
anything in this Section 4.1 to the contrary, an Executive who first
becomes an eligible Executive during a calendar year may make the election
described in subsection (a) above, as applicable, within 30 days
after the date he first becomes an eligible Executive. Such an election shall
be effective only with respect to Compensation earned after the date of the
election.


 


(c)                                  Uniform Payroll
Deductions. Amounts deferred
pursuant to this Section shall be deducted from the Participant’s
Compensation on a uniform basis


 


8

















 


for each pay period during the portion of the calendar year to which
the Compensation Deferral Election relates.


 


(d)                                 Crediting of
Deferred Amounts. As soon
as practicable after Compensation subject to a Compensation Deferral Election
would, but for the provisions of this Plan, be payable to an active Participant
or eligible Executive, the Company shall deposit with the Trustee, and direct
the Trustee to credit to his Deferral Account, the amount of the Compensation
that the active Participant or eligible Executive elected to defer.


 


4.2                               Deferral of
Bonus Compensation. At the
times and in the manner specified below, an active Participant or an eligible
Executive may make an irrevocable election in writing to defer all or a
portion of his Bonus Compensation until a specified date in the future.


 


(a)                                  Timing and
Nature of Bonus Compensation Deferral Election. An Active Participant or eligible Executive
described in the preceding paragraph may make a Bonus Compensation
Deferral Election, prior to December 31 of any calendar year, to defer
receipt of any percentage (up to 90%) of his Bonus Compensation, in whole
numbers (e.g., 1%, 7%, etc.), earned in and payable with respect to the
following calendar year. An active Participant or eligible Executive who elects
to defer more than 90% of his Bonus Compensation shall be deemed to have
elected to defer 90% of his Bonus Compensation.


 


(b)                                 Elections by
Newly Eligible Executives. Notwithstanding
anything in this Section 4.2 to the contrary, when an Executive first
becomes an eligible Executive, he may make the election described in subsection (a) above,
as applicable (to be applied to the Bonus Compensation earned by and payable to
him with respect to the calendar year in which he is first an eligible
Executive), within 30 days after the date he first becomes an eligible
Executive. Such an election shall be effective only with respect to the portion
of the Bonus Compensation earned after the date of the election. The portion of
the Bonus Contribution earned after the date of the election shall be
determined by multiplying x times y, where x is such Participant’s Bonus
Compensation for the calendar year and y is a percentage determined by dividing
the remaining days of the calendar year by the total number of days in the
calendar year.


 


(c)                                  Crediting of
Deferred Amounts. As soon
as practicable after Bonus Compensation that is subject to a Bonus Compensation
Deferral Election would, but for the provisions of this Plan, be payable to an
active Participant or eligible Executive, the Company shall deposit with the
Trustee, and direct the Trustee to credit to his Deferral Account, the amount
of the Bonus Compensation the active Participant or eligible Executive elected
to defer.


 


9

















 


Section 5.
Company Matching Contributions and Company Discretionary Contributions


 


5.1                               Company
Matching Contributions. At the
time, or as soon as practicable after, the Company deposits with the Trustee,
and directs the Trustee to credit on behalf of an active Participant or
eligible Executive, the amounts described in Sections 4.1(d) and 4.2(c), the
Company shall deposit with the Trustee a Company Matching Contribution in the
amount determined below, and direct the Trustee to credit such Company Matching
Contribution to such active Participant’s or eligible Executive’s (i) Deferral
Account, if the Company Matching Contribution is entirely Nonforfeitable when
made, or (ii) Vesting Account, if the Company Matching Contribution is not
entirely Nonforfeitable when made. See Section 8 for rules concerning
whether an amount is considered Nonforfeitable.


 


The Company Matching Contribution shall be in an amount equal to the
lesser of:


 


(a)                                  The sum of the deferred Compensation and
deferred Bonus Compensation deposited with and credited by the Trustee on
behalf of the active Participant or eligible Executive for the applicable pay
period; or


 


(b)                                 An amount equal to four percent (4%) of the
sum of the Compensation and Bonus Compensation payable to the active
Participant or eligible Executive for the pay period to which the Compensation
Deferral Election (and/or Bonus Compensation Deferral Election) giving rise to
the deposits and credits described in (a) above relates.


 


EXAMPLE: Participant B is not 100% vested pursuant to
the rules in Section 8. He has on file a Compensation Deferral
Election calling for the deferral of 10 percent of his Compensation, per pay
period, earned between January 1 and December 31, 1999. For the first
pay period in February, 1999, the Company owes Participant B $4,000 in
Compensation. Pursuant to his Deferral Election, the Company deposits $400 with
the Trustee, directs the Trustee to credit the $400 to Participant B’s Deferral
Account, and pays the balance to Participant B (less applicable withholdings).
The Company also deposits with the Trustee, and the Trustee credits to
Participant B’s Vesting Account, a Company Matching Contribution equal to $160,
or four percent of the Compensation payable to Participant B for the applicable
pay period. Note that if Participant B had been 100% vested pursuant to the rules in
Section 8; the Matching Contribution would have been deposited and
credited to his Deferral Account.


 


EXAMPLE; Assume the same facts as above, except that
Participant B also has on file a Bonus Compensation Deferral Election calling
for the deferral of 50 percent of his Bonus Compensation earned in 1999. For
the first pay period in April, the Company owes Participant B $4,000 in
Compensation, and $8,000 in Bonus Compensation as the Participant’s bonus for
the first calendar quarter of 1999. Pursuant to Participant B’s Deferral Elections,
the Company deposits $4,400 ($400 in Compensation plus $4,000 in Bonus
Compensation) with the Trustee, and directs the Trustee to credit this amount
to Participant B’s Deferral Account, and pays the balance to Participant B
(less applicable withholdings).


 


10

















 


The Company also deposits $480 (four percent of the
sum of the Compensation and Bonus Compensation payable to Participant B for the
applicable pay period) with the Trustee, and directs the Trustee to credit that
amount to Participant B’s Vesting Account.


 


5.2                               Company
Discretionary Contribution. At
such times and in such amounts as the Company in its sole discretion may decide,
the Company may deposit with the Trustee, and in writing direct the Trustee
to credit, a Company Discretionary Contribution to the Deferral Account or
Vesting Account maintained by the Trustee on behalf of one or more
Participants. The Company Discretionary Contribution shall be deposited and
credited to a Participant’s Deferral Account if the Company Discretionary
Contribution is entirety Nonforfeitable when made, and shall be deposited and
credited to his Vesting Account in other cases.


 


Section 6. Elections of
Timing and Form of Payment


 


6.1                               Electing the
Time of Payment.


 


(a)                                  Compensation
and Bonus Compensation. An
active Participant or eligible Executive shall, in his Compensation Deferral
Election and/or Bonus Compensation Deferral Election (as the case may be),
elect to receive payment of the deferred amount (and earnings thereon):


 


(1)                                  not later than the 15th day of the
third month following the calendar year in which the date of termination of
employment occurs;


 


(2)                                  on a specified deferral ending date at least
two years after the calendar year to which the deferral election applies;


 


(3)                                  the earlier of the dates specified in (1) and
(2) above;


 


(4)                                  the earlier of the date specified in (1) above,
or not later than the 15th day of the third month following the
calendar year in which the date of a Change of Control occurs; or


 


(5)                                  the earlier of (i) the date specified in
(3) above, or (ii) not later than the 15th day of the third month after a Change of
Control.


 


EXAMPLE:
Participant A completes a Compensation Deferral Election on December 1,
1998, for deferral of a portion of his Compensation payable for 1999.
Participant A elects to receive his deferred Compensation on July 1, 2002.
The election is permissible because his deferral ending date is a date certain,
after the second calendar year that follows the 1999 calendar year, which is
the year to which the deferral election relates.


 


Participant B similarly completes a Compensation Deferral Election
form, but elects to receive her deferred Compensation not later than the 15th
day of the third month following the calendar year in which the date of
termination of her employment occurs. The election is permissible.


 


11

















 


Participant C similarly completes a Compensation Deferral Election form and;
like Participant A, selects a deferral ending date of July 1, 2002. But
Participant C further elects to receive his deferred Compensation on the
earlier of (i) not later than the 15th day of the third month
following the calendar year in which the date of his termination of employment
occurs, and (ii) the July 1, 2002, deferral ending date. The election
is permissible.


 


Participant D similarly completes a Compensation Deferral Election form and, like Participant A,
selects a deferral ending date of July 1, 2002. But Participant D further
elects to receive his deferred Compensation on the earlier of (i) not
later than the 15th day of the third month following the calendar
year in which the date of his termination of employment occurs, (ii) the July 1,
2002, deferral ending date, or (iii) not later than the 15th
day of the third month after a Change of Control. The election is permissible.


 


(b)                                 Company
Matching Contributions and Discretionary Contributions.


 


(1)                                  Company
Matching Contributions. Any
Company Matching Contribution (and earnings thereon) deposited with the Trustee
and credited on behalf of a Participant on account of his deferral of
Compensation and/or Bonus Compensation shall be paid at the time at which is
paid the deferred Compensation and/or deferred Bonus Compensation to which such
Company Matching Contribution relates.


 


(2)                                  Company
Discretionary Contributions. Prior to a calendar year with respect to which the Company may deposit
with the Trustee, and direct the Trustee to credit, a Company Discretionary Contribution
on behalf of a Participant, an active Participant
or Executive may elect, with respect to any such credit of a Company
Discretionary Contribution, to receive payment thereof (and earnings thereon),
on a date described in subsections (1), (2), (3), (4) or (5) of subsection (a) above.
Such an election will be effective only with respect to a Company Discretionary
Contribution that becomes fixed and determined after the date of such election.
In the event no such election is made, the active Participant or eligible Executive
shall be deemed to have elected to receive payment of such Company
Discretionary Contribution upon termination of employment.


 


Notwithstanding the preceding paragraph, an Executive who first becomes
an eligible Executive during a calendar year may make the election
described in the preceding paragraph within 30 days after the date he first
becomes an eligible Executive.


 


12

















 


(3)                                  No Payment of
Forfeitable Amounts. Notwithstanding
anything in this Section 6.1 to the contrary, payment of Company Matching
Contributions or Company Discretionary Contributions deposited with the Trustee
and credited to a Participant’s Vesting Account shall be made to the
Participant or his Beneficiary only to the extent such Contributions (and
earnings thereon) are considered Nonforfeitable at the time such payment is
otherwise due.


 


(c)                                  Exceptions. Notwithstanding anything in subsections (a) or
(b) above, or in any other provision of the Plan, the following additional
rules apply to the time at which amounts are payable by this Plan:


 


(1)                                  Death of
Participant. The
balance of a Participant’s Deferral Account, and the Nonforfeitable balance of
his Vesting Account, shall be paid to the Participant’s Beneficiary payable not
later than the 15th day of the third calendar month after the close
of the calendar year in which the Participant’s death occurred.


 


(2)                                  Disability of
Participant. The
balance of a Participant’s Deferral Account, and the Nonforfeitable balance of
his Vesting Account, shall be paid to the Participant upon the Participant’s
disability (not later than the 15th day of the third calendar month
after the close of the calendar year in which Disability occurred). For this
purpose, “disability” of a Participant shall be deemed to have occurred if the
Participant (a) is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months, or (b) is, by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months, receiving income replacement benefits for a period of not less than 3
months under an accident and health plan covering employees of Company. For
purposes of this Plan, it is not necessary that a determination of disability
be made by the Social Security Administration, but a Participant who is
determined to be totally disabled by the Social Security Administration shall
be deemed to have suffered a disability for purposes of this Plan.


 


(3)                                  Unforeseeable
Emergency. Upon application by
the Participant, distributions from a Participant’s Deferral Account, and the
Nonforfeitable balance of his Vesting Account, may be paid to the
Participant in the event of an Unforeseeable Emergency.


 


An Unforeseeable Emergency will be deemed to have occurred if the
payment of benefits is for or on account of a severe financial hardship of the
service provider or beneficiary resulting from:


 


13

















 


(i)                                     an illness or accident of the service
provider or beneficiary, the service provider’s or beneficiary’s spouse, or the
service provider’s or beneficiary’s dependent (as defined in section 152(a));


 


(ii)                                  loss of the service provider’s or beneficiary’s
property due to casualty (including the need to rebuild a home following damage
to a home not otherwise covered by insurance, for example, not as a result of a
natural disaster);


 


(iii)                               the imminent foreclosure of or eviction from
the service provider’s or beneficiary’s primary residence;


 


(iv)                              the need to pay for the funeral expenses of a
spouse or a dependent; or


 


(v)                                 other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the service
provider or beneficiary.


 


Whether a service provider or beneficiary is faced with an
unforeseeable emergency permitting a distribution under this paragraph is to be
determined based on the relevant facts and circumstances of each case, but, in
any case, a distribution on account of unforeseeable emergency may not be
made to the extent that such emergency is or may be relieved through
reimbursement or compensation from insurance or otherwise, by liquidation of
the service provider’s assets, to the extent the liquidation of such assets
would not cause severe financial hardship, or by cessation of deferrals under
the arrangement. The payment made pursuant to this subsection shall not
exceed the amount the Committee, in its complete discretion, determines is
necessary to satisfy the great financial hardship or unforeseeable emergency.
In addition, the purchase of a home and the payment of college tuition are not
unforeseeable emergencies.


 


(d)                                 Final Payment
from Trust. The final payment
from the Trust to a Participant or Beneficiary may be adjusted to account
for prior overpayments or underpayments attributable to estimates of earnings
allocable to prior distributions of deferred Compensation, deferred Bonus
Compensation, Company Matching Contributions, and/or Company Discretionary
Contributions.


 


6.2                               Electing the Form of
Payment.


 


(a)                                  Compensation
and Bonus Compensation. Each
active Participant or eligible Executive shall, in his Compensation and Bonus
Compensation Deferral Elections, elect the form in which the Plan shall
pay his deferred


 


14

















 


Compensation and Bonus Compensation (and earnings thereon). Such
election of the form of payment shall apply to that Compensation Deferral
Election and/or Bonus Compensation Deferral Election (as the case may be)
and earnings thereon. Such an active Participant or eligible Executive may elect
that such amounts be paid:


 


(1)                                  in a single lump sum;


 


(2)                                  in five substantially equal annual
installments, adjusted annually for earnings on the unpaid balance (payable not
later than the 15th day of the third calendar month after the close
of each calendar year); or


 


(3)                                  in ten substantially equal annual
installments, adjusted annually for earnings on the unpaid balance (payable not
later than the 15th day of the third calendar month after the close
of each calendar year).


 


In the event no such
election is made, such amounts shall be paid in a lump sum.


 


(b)                                 Company
Matching Contributions and Discretionary Contributions.


 


(1)                                  Company
Matching Contributions. Any
Company Matching Contribution (and earnings thereon) deposited with the Trustee
and credited on behalf of a Participant on account of his deferral of Compensation
and/or Bonus Compensation shall be paid in the form in which is paid the deferred Compensation
and/or deferred Bonus Compensation to which such Company Matching Contribution
relates.


 


(2)                                  Company Discretionary
Contributions. Each
active Participant or eligible Executive shall, in the annual deferral election concerning Company
Discretionary Contributions that the Company may make on his behalf, elect
the form in which the Plan shall pay any Company Discretionary
Contribution (and earnings thereon) made with respect to the year to which the
election relates. The active Participant or eligible Executive may elect
that such amounts be paid in any of the forms described in subsections (1), (2) or
(3) in subsection (a) above. In the event no such election is made, such amounts shall
be paid in a lump sum.


 


(c)                                  Subsequent
Changes in Form of Payment. Subject to limitations stated in the next sentence, a Participant may during
2006 change his election as to the form and timing of payment of deferred
Compensation, Bonus Compensation and/or a Company Discretionary Contribution
(and earnings thereon). Notwithstanding the foregoing an election that is not
an initial election but is made between January 1, 2006 and December 31,
2006 shall not be effective for benefits payable in 2006. Installment


 


15

















 


payments shall be treated as a series of payments for purposes of
the subsequent payment election rules of Code Section 409A. After December 31,
2006, upon application to the Committee, and with the approval in its sole
discretion of the Committee, a Participant may make a subsequent election
to receive payment of deferred Compensation, Bonus Compensation and/or a
Company Discretionary Contribution (and earnings thereon) in any of the forms
described in paragraphs (1), (2) or (3) of subsection (a) above,
notwithstanding the initial election as to form as reflected in the
pertinent deferral election form(s), provided that the following conditions are
met:


 


(1)                                  such election may not take effect until
at least 12 months after the date on which the election is made;


 


(2)                                  the payments that are subject to such
election (excluding payments upon death, disability, unforeseeable emergency or
change of control) must be delayed at least 5 years from the date the payments
would have otherwise been made; and


 


(3)                                  in the case of a distribution upon a
specified date or age, such election is made at least 12 months prior to the
date the payment is scheduled to be paid (or in the case of installment
payments, 12 months prior to the date the first amount was scheduled to be
paid).


 


(d)                                 Exceptions. Notwithstanding anything in subsections (a), (b) or
(c) above, or any other provision of the Plan, the following additional rules apply
to the form in which amounts are payable by this Plan:


 


(1)                                  Death of
Participant. Subject
to the requirements of subsections (a) and (c) of this section, a
Participant may designate, in his Beneficiary designation on file with the
Committee, the form in which payments on account of his death should be
made to his Beneficiary. In the event the Participant fails to designate a form of
death benefits, death benefits shall be paid in a single lump sum.


 


(2)                                  Disability of Participant. Subject to the requirements of subsections (a) and
(c) of this section, a Participant may elect the form in which
payments made pursuant to subsection 6.1(c)(2) shall be made. If the
Participant fails to timely make such election, payment shall be made in a
single lump sum.


 


(3)                                  Unforeseeable
Emergency. Payments made
pursuant to subsection 6.1(c)(3) shall be made in a single lump sum.


 


Section 7. Investment of Deferral and Vesting Accounts


 


The Deferral Account and Vesting Account maintained by the Trustee on
behalf of a Participant shall be credited with earnings (and losses) resulting
from investment by the Trustee.


 


16

















 


Participants
may request that amounts deposited and credited to their respective
Deferral Accounts and/or Vesting Accounts be invested in particular
investments, chosen from a set of options established by the Committee. The
Participants’ requests shall not be binding, however, and the Committee, in its
sole discretion, may elect to:


 


(a)                                  instruct the Trustee to decline to honor
Participant’s requests,


 


(b)                                 direct the Trustee to invest amounts
deposited and credited to Deferral Accounts and/or Vesting Accounts in another
manner, or


 


(c)                                  permit the Trustee to invest amounts
deposited and credited to Deferral Accounts and/or Vesting Accounts in the
manner the Trustee considers most appropriate.


 


Section 8. Vesting


 


8.1                               Deferral
Account. Deferred
Compensation, Bonus Compensation, Company Matching Contributions and Company
Discretionary Contributions (and earnings thereon) deposited and credited to an
active Participant’s or eligible Executive’s Deferral Account shall at all
times be considered entirely Nonforfeitable (that is, 100% vested).


 


(a)                                  Deferred
Compensation and Bonus Compensation. In no event shall a Participant’s Deferred
Compensation or Bonus Compensation be deposited and credited other than to his
Deferral Account.


 


(b)                                 Company
Matching Contributions. Company
Matching Contributions shall be deposited and credited to an active Participant’s
or eligible Executive’s Deferral Account only if at the time such Company
Matching Contributions are made (i) the active Participant or eligible
Executive is 100% vested pursuant to the vesting schedule set forth in Section 8.2(a) below,
and the Committee has not elected to apply additional vesting requirements to
such Company Matching Contributions (as described below), or (ii) the
active Participant or eligible Executive is not 100% vested pursuant to the
vesting schedule set forth in Section 8.2(a) below, but the
Committee has elected to treat such Company Matching Contributions as entirely
Nonforfeitable when made, in which event such accelerated vesting of the
Company Matching Contributions shall be described by the Committee in writing, and
such writing shall thereafter be considered a part of this Plan.


 


(c)                                  Company
Discretionary Contributions. Class A
Company Discretionary Contributions shall be deposited and credited to an
active Participant’s or eligible Executive’s Deferral Account only if at the
time such Company Matching Contributions are made the active Participant or
eligible Executive is 100% vested pursuant to the vesting schedule set
forth In Section 8.2(a) below.


 


17

















 


Class B Company Discretionary Contributions shall be deposited and
credited to an active Participant’s or eligible Executive’s Deferral Account
only if at the time such Company Discretionary Contributions are made the
Committee has elected to treat such Company Discretionary Contributions as
entirely Nonforfeitable when made, in which event such accelerated vesting of
the Company Discretionary Contributions shall be described by the Committee in
writing, and such writing shall thereafter be considered a part of this Plan.


 


8.2                               Vesting
Account. Company Matching
Contributions and Company Discretionary Contributions (and earnings thereon)
not deposited and credited to an active Participant’s or eligible Executive’s
Deferral Account shall be deposited and credited to his Vesting Account. Such
amounts shall be considered Nonforfeitable (i.e., “vested”) according to the rules set
forth below.


 


(a)                                  Company
Matching Contributions. Company
Matching Contributions (and earnings thereon) deposited and credited to a
Participant’s Vesting Account shall be considered Nonforfeitable (that is, the
Participant shall be considered “vested” in such amounts) according to the
following vesting schedule:


 


	
  Years
  of Vesting Service

  	
   

  	
  Nonforfeitable Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fewer than 1

  	
   

  	
  0

  	
  %

  
	
  At least 1 but fewer
  than 2

  	
   

  	
  25

  	
  %

  
	
  At least 2 but fewer
  than 3

  	
   

  	
  50

  	
  %

  
	
  At least 3 but fewer
  than 4

  	
   

  	
  75

  	
  %

  
	
  4 or more

  	
   

  	
  100

  	
  %

  



 


Notwithstanding the foregoing, the Committee reserves the discretion to
apply, with respect to one or more Participants, and/or with respect to such
Matching Contributions as the Committee shall designate, a different vesting schedule (“discretionary
vesting schedule”) which the Committee shall articulate in writing and which
shall thereafter be considered part of this Plan.


 


(b)                                 Company Discretionary
Contributions. Class A
Company Discretionary Contributions (and earnings thereon) deposited and
credited to a Participant’s Vesting Account shall be considered Nonforfeitable
according the schedule described in (a) above (without regard to the
last paragraph thereof).


 


Class B Company Discretionary Contributions (and earnings thereon)
deposited and credited to a Participant’s Vesting Account shall be considered
Nonforfeitable at the time and in the manner prescribed by the Committee in the
writing designating such Contributions as Class B


 


18

















 


Contributions. Such writing shall thereafter be considered part of
this Plan.


 


(c)                                  Termination
Prior to Vesting. In the
event a Participant terminates employment (by death, total and permanent
disability, retirement or otherwise) prior to the date on which the Company
Matching Contributions and/or Company Discretionary Contributions (and earnings
thereon) deposited and credited to his Vesting Account are considered Nonforfeitable,
such forfeitable Contributions shall thereafter be considered forfeited by the
Participant and, to the extent permitted by the agreement and declaration
establishing the Trust, shall immediately revert to the Employer. A Participant
shall not be deemed to have terminated his employment, notwithstanding his
failure to perform services for the Company, to the extent he remains on
the Company’s rolls during a period of authorized paid or unpaid leave of
absence.


 


(d)                                 Payment of
Forfeitable Contributions. In
the event amounts deposited and credited to an active Participant’s Vesting
Account would, but for this subsection, be payable to him prior to the date on
which such Contributions are considered Nonforfeitable pursuant to subsections (a) or
(b) above, payment of such Contributions shall be deferred until the date
on which such Contributions are considered Nonforfeitable due to additional
Vesting Service accrued by the active Participant. Payment shall be made not
later than the 15th day of the third calendar month after the close
of each calendar year in which such Contributions become Nonforfeitable.


 


In the event the Participant’s employment is terminated (by death,
total and permanent disability, retirement or otherwise) prior to the date on
which such Contributions (and earnings thereon) are considered as
Nonforfeitable, such Contributions shall thereafter be considered forfeited by
the Participant and, to the extent permitted by the agreement and declaration
establishing the Trust, shall immediately revert to the Employer. A Participant
shall not be deemed to have terminated his employment, notwithstanding his
failure to perform services for the Company, to the extent he remains on
the Company’s rolls during a period of authorized paid or unpaid leave of
absence.


 


8.3                               Vesting
Determinations. The
Committee’s determination concerning the extent to-which a Participant or
eligible Executive is considered “vested,” and the extent to which the Company
Matching Contributions and/or Company Discretionary Contributions (and earnings
thereon) deposited and credited to a Participants Vesting Account are
considered Nonforfeitable shall be final and binding on all Participants and
their Beneficiaries, as described in Section 12.


 


19

















 


Section 9. Designation of
Beneficiaries


 


9.1                               General Rule. A Participant may designate a
Beneficiary or Beneficiaries who are to receive upon his death the payments
that otherwise would have been paid to him. Subject to the requirements of
Section 6.2, such
Beneficiary designation may include an election concerning the form in
which death benefits are to be paid by the Plan to the Beneficiary or
Beneficiaries. All designations shall be in writing and shall be effective only
if and when delivered to the Committee or its designee during the lifetime of
the Participant.


 


9.2                               Special Rule for
Married Participants. Notwithstanding
Section 9.1, the spouse of a married Participant shall be deemed to be the
Participant’s sole primary Beneficiary, unless the Participant designates a primary
Beneficiary other than his spouse and the spouse consents to such designation
in writing, on a form the Committee or its designee shall provide, and the
spouse’s signature is notarized.


 


9.3                               Changing Beneficiary
Designations. Subject
to Section 9.2, a Participant may from time to time during his
lifetime, change his Beneficiary or Beneficiaries by a written instrument
delivered to the Committee or its designee. The term “Beneficiary” may include
a trust, so long as the trust survives the Participant’s death.


 


9.4                               Failure to
Designate a Beneficiary. In the
event that a Participant is not survived by a Beneficiary, or if for any reason
a Beneficiary designation shall be ineffective in whole or in part, the distribution
that otherwise would have been paid to such Participant shall be paid to his
estate, and in such event the term “Beneficiary” shall include his estate.


 


Section 10. Merger,
Consolidation and Sale of Assets


 


10.1                        Merger. In the event the Company desires to
consolidate with, merge into, or transfer all or substantially all of its
assets to another entity (hereinafter referred to as a “Successor Employer”),
the Company and such Successor Employer may agree that the Successor
Employer shall assume the Company’s obligations under this Plan in whole or in
part. In no event shall such merger, consolidation or transfer extinguish the
Company’s or the Successor Employer’s obligations to Participants and their
Beneficiaries under this Plan.


 


10.2                        Acquisition by
Another Employer. In the
event the Company is sold to another corporation or other party(ies) (“New
Company”), the Company may agree with such New Company that the New
Company shall assume the obligations under this Plan in whole or in part. In no
event shall such sale extinguish the Company’s or New Company’s obligations to
Participants and their Beneficiaries under this Plan.


 


Section 11. Rights of
Participants


 


Notwithstanding the depositing and crediting of amounts to the Deferral
Account and/or Vesting Account maintained by the Trustee on behalf at a
Participant, the right of the Participant, or his Beneficiary, to receive a
distribution under this Plan shall be an unsecured claim against the general
assets of the Company. Participants and Beneficiaries shall have the status of
general unsecured creditors of the Company. This Plan constitutes a mere
promise by the Company to make benefit payments in the future.


 


20

















 


The Deferral Account or Vesting Account maintained by the Trustee on
behalf of a Participant may not in any way be encumbered or assigned by a
Participant or his Beneficiary.


 


Nothing in this Plan shall give any Participant the right to be
retained as an Executive or an employee of the Company, affect the right of the
Company to remove any Executive or employee, or give any Executive or employee
(or his Beneficiary) the right to receive a particular amount of Compensation,
Bonus Compensation or Company Discretionary Contribution from the Company.


 


Section 12. Administration


 


12.1                        Administrative
Committee. The Committee shall
administer the Plan. The Committee may appoint an administrative committee
(the “Administrative Committee”) to assist it in the administration of the
Plan. The Administrative Committee may act on behalf of the Committee with
respect to all matters concerning the Plan, except for those matters the
Committee specifically reserves, in this Plan or otherwise, for its own action.
The initial members of the Administrative Committee shall be Troy D. Cook and
James K. Schwartz. The Board or the Committee may remove, replace, or
appoint members of the Administrative Committee at any time.


 


12.2                        Powers of
Administrative Committee. The
Committee shall have the power to interpret the Plan and to determine all
questions that arise under it. Such power includes, for example, the
discretionary authority necessary to determine eligibility for benefits and to
construe the terms of the Plan. All payments of benefits under the Plan shall
be made by the Company or by the Trustee in accordance with the terms of this
Plan and the agreement and declaration establishing the Trust. The decision of
the compensation committee upon all matters within the scope of its authority
shall be final and binding on all parties, shall be subject to the most
deferential standard on review, and shall not be affected by any actual or
alleged conflict of interest. No member of the Committee or the Administrative
Committee may act, in his capacity as a member of the Committee or
Administrative Committee, with respect to a matter concerning his eligibility
or benefits under the Plan.


 


Section 13. Claims and
Appeals


 


13.1                        Claims for
Benefits; Initial Processing. Claims
for benefits under the Plan normally will be approved or denied by the
Committee within 90 calendar days after they are received by the Committee or
its designee. If an extension of time is required to process the claim, the
extension will not exceed 90 calendar days, and the claimant shall be provided
notice of any extension. The notice shall explain the reason for the extension
and when a decision will be made. Claims not resolved prior to the end of the
extension may be deemed denied.


 


13.2                        Claim Denial. If a claim for benefits is denied (or deemed
denied), the Committee or its designee shall provide the claimant with written
notice reflecting the reasons for the denial, with a specific reference to the
Plan provisions upon which the decision was based. The notice shall also
reflect any additional information that may be necessary for the claimant’s
claim to be approved.


 


21

















 


13.3                        Appealing a
Denied Claim. A
claimant may appeal the denial of a claim by writing the Committee and
stating that he wishes to appeal. In order to be considered, the appeal must be
received by the Committee or its designee no more than 90 calendar days after
notice of the denial is provided (or, if no notice is provided, then after the
earliest date on which the claimant is entitled to deem the claim denied).


 


13.4                        Processing
Appeals. If a claimant
appeals a denial of a claim, the Board shall review the claim and any
additional information furnished by the claimant. The Board shall decide the
appeal within 60 calendar days after it is received, but in unusual
circumstances may delay resolution of the appeal for an additional 60
calendar days. The claimant shall be notified of any delay within 60 calendar
days after the appeal is received by the Committee or its designee. After the
appeal is decided, the Board shall notify the claimant in writing of its
decision, and explain how the appeal was decided and what Plan provisions were
relied upon.


 


Section 14.
Amendments and Termination


 


14.1                        Amendment. The Company in its absolute discretion, without
notice, may at any time and from time to time, modify or amend, in whole
or in part, any or all of the provisions of the Plan. No such modification or
amendment may, without the consent of a Participant (or his Beneficiary in the
case of his death) reduce the right of a Participant (or his Beneficiary, as
the case may be) to the payment of any amount deposited and credited to
his Deferral Account and any Nonforfeitable amount deposited and credited to
his Vesting Account under the Plan as of the date of such modification or
amendment. Any modification or amendment of the vesting schedule described
in Section 8.2 shall not apply to any amounts deposited and credited to a
Participant’s Vesting Account as of the date of such modification or amendment,
unless the Participant otherwise consents in writing.


 


14.2                        Suspension and
Termination. The
Company in its absolute discretion, without notice, at any time may suspend
or terminate the Plan. In addition, the Committee may suspend or terminate
an active Participant’s further participation in the Plan at any time. Other
than earnings on a Participant’s Deferral Account or Vesting Account credited
under Section 7, no additional Compensation or Bonus Compensation may be
deferred, and no additional Company Matching Contributions or Company
Discretionary Contributions shall be deposited or credited to the Deferral
Account and/or Vesting Account of any Participant following suspension or
termination of the Plan, or to such Accounts of an inactive Participant
following termination of his or her participation in the Plan. Upon termination
of a Participant’s participation in the Plan, distribution of a Participant’s
Plan benefit shall be made in the manner and at the time described under the
Plan’s normal provisions.


 


Upon suspension of the Plan, distribution of a Participant’s Plan
benefit shall be made in the manner and at the time described under the Plan’s
provisions, and the Trust shall not terminate until all monies on deposit
thereunder are either paid to Participants and their Beneficiaries, or returned
to the Employer, as provided for under the agreement and declaration
establishing the Trust. Upon suspension of the Plan, a Participant whose
Vesting Account balance includes amounts that are not Nonforfeitable under Section 8
hereof, shall continue to be credited with vesting service, for purposes of Section 8,
for and on account of his service with the Company after suspension of the
Plan.


 


22

















 


In the event the Company elects
to terminate the Plan, all forfeitable amounts then on deposit with and
credited to Participants’ Vesting Accounts shall be deemed Nonforfeitable and,
notwithstanding anything herein to the contrary, all Plan benefits shall be
paid in a lump sum not later than the 15th day of the third calendar
month after the close of each calendar year in which termination of the Plan
occurred. The Company represents and warrants that in the event the Company
elects to terminate the Plan, the Company shall comply with applicable
requirements under Code Section 409A and regulations issued thereunder
with respect to termination of the Plan.


 


Section 15. Applicable Laws


 


The Plan shall be construed, administered, and governed in all respects
under and by the laws of the State of Kansas, to the extent federal law does
not apply.


 


Section 16. 409A Compliance


 


In the event that any provision of this Plan shall be determined to
contravene Code Section 409A, the regulations promulgated thereunder,
regulatory interpretations or announcements with respect to Section 409A,
any such provision shall be void and have no effect and may be amended by
the Company without the consent of the Participant, for the purpose of Section 409A
compliance. Moreover, this Plan shall be interpreted at all times in such a
manner that the terms and provisions of the Plan comply with Code Section 409A,
the regulations promulgated thereunder, and regulatory interpretations or
announcements with respect to Section 409A. The Company shall have the
authority to void any Participant election hereunder if necessary to maintain
the Plan in compliance with Code Section 409A.


 


Section 17. Incompetency


 


Every person receiving or claiming payments under this Plan shall be
conclusively presumed to be mentally competent until the date on which the
Committee or its designee receives written notice, in a form and manner
acceptable to the Committee, that such person is incompetent and that a
guardian, conservator, or other person, legally vested with the care of his estate
has been appointed. In the event a guardian or conservator or the estate of any
person receiving or claiming payments under this Plan shall be appointed by a
court of competent jurisdiction, benefit payments may be made to such
guardian or conservator, provided that proper proof of appointment and
continuing qualification are furnished in a form and manner acceptable to
the Committee or its designee. Any such payment so made shall be a complete
discharge of any liability therefor.


 


Section 18. Expenses


 


Costs of administration of the Plan and all taxes imposed on the Plan
or Trust shall be paid by the Company. Participants’ Deferral Accounts or
Vesting Accounts shall not be reduced for these amounts. Notwithstanding the
foregoing, Participants’ Deferral Accounts and Vesting Accounts shall bear the
expense of any and all transaction costs and fees associated with the
investment of their Accounts and any per capita Trustee’s fee. The aggregate
total of any Trustee’s fees based on the aggregate value of assets in the Trust
(both the Group Trust and Individual Trusts) may be apportioned among the
Accounts of Participants on a pro rata (in the


 


23

















 


proportion
that a Participant’s Account balances bear to the Account balances of other
Participants) or per capita basis, in the discretion of the Committee.


 


Section 19. Notices


 


Any notice or election required or permitted to be given hereunder
shall be in writing. Participant elections shall be in the form prescribed
by the Committee, and shall be deemed to be filed with the Committee:


 


(a)                                  On the date it is personally delivered to the
Committee (or its designee), or


 


(b)                                 Five business days after it is sent by
registered or certified mail, addressed to the Committee (or its designee) at
the Company’s address.


 


Section 20. Withholding and
Deductions


 


All payments made under the
Plan by the Company or the Trustee to any Participant or Beneficiary, shall be
subject to applicable withholding and to such other deductions that are
required by applicable law, and to the delivery to the Committee (or its
designee) or the Trustee of any documents, applications or other information
deemed necessary by the Committee or the Trustee, in their sole-discretion, as
a condition precedent to payment.


 


Section 21. Invalidity of
Provisions


 


If any provision of the Plan is held or found to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provisions hereof, and the Plan shall be construed and enforced as if such
provision had not been included. Similarly, in the event any provision of the
Plan is held or found to be ineffective or unenforceable with respect to
allowing for the deferral of income taxation as intended by the Plan, such
provision shall be severed from the provisions of the Plan that are so
effective or enforceable, and such latter provisions shall be considered to
constitute a separate arrangement.


 


Section 22. Tax Advantages
Not Guaranteed


 


Neither the Company, the Committee, the Administrative Committee, nor
any other person guarantees that any particular Participant or Beneficiary will
achieve the tax advantages contemplated by this Plan, and neither the Company,
the Committee, the Administrative Committee or any other person indemnifies or
holds harmless a Participant or Beneficiary with respect to liability, whether
or not unintended or unforeseen, for income taxes, excise taxes, interest
and/or penalties, or any other liability, arising from or incurred in
connection with this Plan.


 


In the event any benefits payable hereunder to a Participant or
Beneficiary are subjected to taxation prior to the date such benefits are
payable under the terms of the Plan, the payment of such benefits shall be
accelerated so that, to the extent practicable, the Participant or Beneficiary
receives such benefits in the taxable year in which such amounts are subjected
to taxation.


 


24

















 


Section 23. Return of
Company Contributions


 


Nothing in this Plan nor the agreement and declaration establishing the
Trust shall be construed to prevent the return to the Company of amounts
contributed to the Trust by the Company due to a mistake of fact or law,
including (but not limited to) erroneous calculations or erroneous determinations
of eligibility.


 


IN WITNESS WHEREOF, the Company hereby adopts this amendment and
restatement of the NPC International, Inc. Deferred Compensation and
Retirement Plan this 27th day of April, 2006.


 


	
   

  	
  NPC INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Cook

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  SR VP

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
						



 


25