EX-10.13







EXHIBIT 10.13




THE GOODYEAR TIRE & RUBBER COMPANY




DEFERRED COMPENSATION PLAN FOR EXECUTIVES




(As Amended and Restated Effective October 7, 2008)














 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I — GENERAL
	 	 	 	 
	 
	 	 	 	 
	Section 1.1 Purpose
	 	 	1	 
	Section 1.2 Intent
	 	 	1	 
	Section 1.3 Effective Date
	 	 	1	 
	Section 1.4 Contractual Obligation of Employer
	 	 	2	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	DEFINITIONS AND USAGE
	 	 	 	 
	 
	 	 	 	 
	Section 2.1 Definitions
	 	 	2	 
	Section 2.2 Usage
	 	 	9	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	ELIGIBILITY
	 	 	 	 
	 
	 	 	 	 
	Section 3.1 Eligibility to Defer Performance Compensation
	 	 	9	 
	Section 3.2 Eligibility to Defer Salary
	 	 	9	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	COMPENSATION ELIGIBLE FOR DEFERRAL; NOTICE AND PARTICIPATION
	 	 	 	 
	 
	 	 	 	 
	Section 4.1 Performance Compensation
	 	 	10	 
	Section 4.2 Deferrable Salary
	 	 	10	 
	Section 4.3 Participation; Notice and Agreement Procedure
	 	 	11	 
	Section 4.4 Time for Filing Elections
	 	 	11	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	MANDATORY DEFERRALS
	 	 	 	 
	 
	 	 	 	 
	Section 5.1 Designated Participants Subject to Mandatory Deferrals
	 	 	12	 
	Section 5.2 Period of Deferral
	 	 	12	 
	Section 5.3 Election of Deferral Period
	 	 	12	 






(i)









 






	 	 	 	 	 
	 	 	Page
	ARTICLE VI
	 	 	 	 
	ACCOUNTS AND REFERENCE INVESTMENT ELECTIONS
	 	 	 	 
	 
	 	 	 	 
	Section 6.1 Deferred Compensation
	 	 	12	 
	Section 6.2 Accounts
	 	 	12	 
	Section 6.3 Reference Investment Procedure
	 	 	13	 
	Section 6.4 Equivalents; Reference Investment Elections
	 	 	13	 
	Section 6.5 Failure to Elect Reference Investments
	 	 	15	 
	Section 6.6 Adjustments to Account Balances
	 	 	15	 
	Section 6.7 No Responsibility for Results of Reference Investment Funds
	 	 	16	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	PAYMENT OF DEFERRED COMPENSATION
	 	 	 	 
	 
	 	 	 	 
	Section 7.1 Distribution Events
	 	 	16	 
	Section 7.2 Absence of Deferral Period Election
	 	 	19	 
	Section 7.3 Minimum Balance
	 	 	19	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	PAYMENTS FROM THE PLAN
	 	 	 	 
	 
	 	 	 	 
	Section 8.1 Time, Amount and Form of Payment
	 	 	20	 
	Section 8.2 Acceleration of Payment Upon Change of Control
	 	 	20	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	SOURCE OF PAYMENTS
	 	 	 	 
	 
	 	 	 	 
	Section 9.1 Payments from General Funds of Employers and Rabbi Trusts
	 	 	21	 
	Section 9.2 The Trusts
	 	 	21	 
	Section 9.3 Contributions and Expenses
	 	 	22	 
	Section 9.4 Trustee Duties
	 	 	22	 
	Section 9.5 Reversion of Trust Funds to Company or Participating Employer
	 	 	22	 






(ii)









 






	 	 	 	 	 
	 	 	Page
	ARTICLE X
	 	 	 	 
	DESIGNATION OF BENEFICIARIES
	 	 	 	 
	 
	 	 	 	 
	Section 10.1 Designation Procedure
	 	 	22	 
	Section 10.2 Payment to the Participant’s Representative
	 	 	23	 
	Section 10.3 Unclaimed Benefits
	 	 	24	 
	 
	 	 	 	 
	ARTICLE XI
	 	 	 	 
	ADMINISTRATION OF PLAN
	 	 	 	 
	 
	 	 	 	 
	Section 11.1 Administration
	 	 	24	 
	Section 11.2 Allocation of Fiduciary Responsibilities; Composition and Powers of Committee
	 	 	24	 
	Section 11.3 Indemnification
	 	 	26	 
	Section 11.4 Claims Procedures
	 	 	26	 
	 
	 	 	 	 
	ARTICLE XII
	 	 	 	 
	AMENDMENT AND TERMINATION
	 	 	 	 
	 
	 	 	 	 
	Section 12.1 Amendment of the Plan
	 	 	27	 
	Section 12.2 Termination of the Plan
	 	 	27	 
	 
	 	 	 	 
	ARTICLE XLII
	 	 	 	 
	MISCELLANEOUS PROVISIONS
	 	 	 	 
	 
	 	 	 	 
	Section 13.1 No Assignment
	 	 	29	 
	Section 13.2 Adoption of and Withdrawal from Plan by a Participating Employer
	 	 	30	 
	Section 13.3 Information Required
	 	 	30	 
	Section 13.4 Elections by Eligible Employees
	 	 	30	 
	Section 13.5 Notices by Committee or any Employer
	 	 	30	 
	Section 13.6 No Employment Contract or Commitment
	 	 	30	 
	Section 13.7 Severability
	 	 	31	 
	Section 13.8 Effect of IRS Determination
	 	 	31	 
	Section 13.9 Taxes and Withholding
	 	 	31	 
	Section 13.10 No Rights to Assets Created
	 	 	31	 
	Section 13.11 Precedent
	 	 	31	 
	Section 13.12 No Guarantees
	 	 	31	 
	Section 13.13 Expenses
	 	 	31	 
	Section 13.14 Claims of Other Person
	 	 	32	 
	Section 13.15 Captions
	 	 	32	 
	Section 13.16 Choice of Law
	 	 	32	 
	Section 13.17 Binding Agreement
	 	 	32	 
	Section 13.18
Compliance with Section 409A of the Code
	 	 	32	 






(iii)









 






THE GOODYEAR TIRE & RUBBER COMPANY

DEFERRED COMPENSATION PLAN FOR EXECUTIVES



This Restatement is to provide provisions for compliance with Section 409A of the Internal Revenue
Code for all benefits under this Plan that were not both earned and vested prior to January 1, 2005
within the meaning of Section 409A of the Code (“Post-2004 Benefits”). All provisions of the Plan
as last amended on December 3, 2002 apply to the accrued benefits that were earned and vested as of
December 31, 2004 within the meaning of Section 409A of the Code (“Pre-2005 Benefits”). Where a
prior provision no longer applies, that Section will be shown as the original applying to Pre-2005
Benefits (“Pre-2005 Provisions”) and the revised sections applying only to Post-2004 Benefits
(“Post-2004 Provisions”). Nothing contained herein is intended to materially enhance a benefit or
right with respect to Pre-2005 Benefits under the Plan as of October 3, 2004 or add a new material
benefit or right to such Pre-2005 Benefits.




     THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation (“Goodyear” or the “Company”) hereby
amends and restates the Deferred Compensation Plan for Executives of the Company (the “Plan”) as
hereinafter provided.



ARTICLE I

GENERAL




     Section 1.1. Purpose. The purpose of the Plan is to promote the greater success of
Goodyear and its participating wholly-owned subsidiaries by providing a means for a select group of
management and highly compensated employees of Goodyear and such subsidiaries (whose positions
enable them to make significant contributions to the profitability, competitiveness and growth of
the Company and its subsidiaries) to defer certain incentive and salary compensation.



     Section 1.2. Intent. The Plan is intended to be an unfunded, non-qualified plan
primarily for the purpose of providing the opportunity to officers and a select group of management
and highly compensated employees of the Company and participating wholly-owned subsidiaries of the
Company, as described under Sections 201(2), 301(a)(3), and 401(a)(l) of ERISA, to defer certain
compensation. The Plan is not intended to be a plan described in Section 401(a) of the Code.



     Section 1.3. Effective Date. The original provisions of the Plan shall be
effective as of January 1, 2002. If the provision is implementing Code Section 409A requirements,
the effective date will be January 1, 2005. Otherwise the effective date of any other provision
will



1









 




be as specified in the plan, or if not specified, it will be the date for which the applicable
changes to the Plan were approved by the Compensation Committee of the Goodyear Board of Directors
and adopted by the Goodyear Board of Directors. The rights, if any, of any Participant (as
hereinafter defined) in the Plan whose status as an employee of the Company or any Participating
Employer (as hereinafter defined) terminates for any reason shall be determined pursuant to the
Plan as in effect on the date such Participant ceases to be an employee of the Company or any
Participating Employer, unless a subsequently adopted provision of the Plan states otherwise.




     Section 1.4. Contractual Obligation of Employer. The obligation of the Company and
Participating Employers to make payments of Deferred Compensation (as hereinafter defined) in
accordance with the Plan are contractual, general unsecured obligations and liabilities of the
Company and, as applicable, Participating Employers to pay for services in accordance with the
terms of the Plan. It is intended that payments of Deferred Compensation under the Plan shall be
paid from one or more Trusts (as hereinafter defined) established for that purpose. If, and to the
extent that, the assets of such Trusts are not sufficient to make all payments of Deferred
Compensation required by the terms of the Plan, such shortfall shall be paid by the Company and, as
applicable, the Participating Employers. All Deferred Performance Amounts (as hereinafter defined)
and Deferred Salary Amounts (as hereinafter defined) will be recorded in Accounts (as hereinafter
defined) and, ordinarily, amounts equivalent thereto will be transferred by the Company and, as
applicable, the Participating Employers to their respective Trusts. Each Participant may elect,
from alternatives available under the Plan, to have Deferred Performance Amounts and Deferred
Salary Amounts, if any, adjusted by amounts equivalent to the amounts such Deferred Amounts, if
any, would realize (as earnings, gains and losses, net of expenses and taxes) if invested (for the
relevant period) in one or more of the mutual funds or other investment vehicles or reference rates
designated from time to time as the Reference Investment Funds (as hereinafter defined) available
under the Plan. No Participant or Beneficiary (as hereinafter defined) shall have any right, title
or interest whatever in or to any investment reserves, accounts, trusts or other funds or assets
that the Company or the Participating Employers may purchase, establish, or accumulate to aid in
paying Deferred Compensation as and when due to the Participants under the Plan. Nothing contained
in the Plan, and no action taken pursuant to its provisions, shall create or be construed to create
a trust or a fiduciary relationship of any kind between the Company (or a Participating Employer)
and a Participant, his or her Beneficiaries or any other person. Neither a Participant nor his or
her Beneficiaries shall acquire any right or interest under the Plan other or greater than that of
an unsecured creditor.



ARTICLE II

DEFINITIONS AND USAGE




     Section 2.1. Definitions. Wherever used in the Plan, the following words and phrases
shall have the meaning set forth below, unless the context plainly requires a different meaning:



2









 






     “Account” means the following “Accounts” to be maintained by the Committee for
each Participant for recordkeeping, measurement and accounting purposes; provided, that any
Plan assets will not be segregated among such “Accounts” and each Participant will have only
an unsecured contractual claim against his or her Employer for the amount of his or her
“Account” balances:




     (a) Performance Plan Account. An Account to record the amount of a
Participant’s Performance Compensation deferred pursuant to the provisions of Article IV of
the Plan in respect of a Plan Year, as from time to time adjusted to reflect any and all
Equivalents attributable to such Deferred Performance Amount.




     (b) Annual Salary Account. An Account to record the aggregate amount of a
Participant’s Salary deferred pursuant to the provisions of Article IV of the Plan in
respect of a Plan Year, as from time to time adjusted to reflect any and all Equivalents
attributable to such Deferred Salary Amount.



     “Affiliate” and “Associate” shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended.



     “Aggregate Deferred Amount” means, with respect to any Participant, the sum of all
Deferred Amounts with respect to such Participant during all Plan Years to the date (or Valuation
Date) on or as of which any determination of the amount thereof is being or to be made.



     “Agreement” and “Notice and Agreement” means an instrument executed and
delivered in accordance with Section 4.3 of the Plan, whereunder an Eligible Employee elects and
agrees with his or her Employer to (i) participate in the Plan in respect of a Plan Year by
deferring Performance Compensation or Deferrable Salary, as the case may be, in accordance with
Article IV of the Plan (a Participant must enter into a separate Agreement in respect of the
deferral of Performance Compensation and a separate Agreement in respect of the deferral of Salary
each Plan Year in order to defer Performance Compensation and Salary), (ii) defer all or a specific
amount or percentage of his or her Performance Compensation or Deferrable Salary, and (iii) comply
with and be bound by all the terms and conditions of the Plan.



     “Annual Salary Rate” means, with respect to each Plan Year: (i) if the Salary
Measurement Date is January 1 of such Plan Year, the Salary payable to an Employee during or in
respect of January of the Plan Year multiplied by twelve (12), or, (ii) if the Salary Measurement
Date is December 1 of the year preceding such Plan Year, the Salary payable to an Employee during
or in respect of the month of December of the year preceding such Plan Year multiplied by twelve
(12), or (iii) if the Salary Measurement Date is an Eligibility Date, the Salary payable to an
Employee during or in respect of such person’s first full month of Employment multiplied by the
number of full months remaining in such Plan Year subsequent to the Eligibility Date.



3









 





     “Beneficiary” means any person or entity (including a trust or the estate of a
Participant) designated in a written instrument executed by a Participant and delivered to the
Committee in accordance with the provisions of Section 10.1 of the Plan.



     “Board” means the Board of Directors of Goodyear.



     “Change of Control Event” means (i) the first date that any one person, or more than
one person acting as a group (as defined in Treasury Regulation Section 1.409A-3(i)(5)(v)(B),
acquires ownership of stock of the Company that, together with stock held by such person or group,
constitutes more than 50 percent of the total fair market value or total voting power of the stock
of the Company; or (ii) the first date any one person or more than one person acting as a group (as
determined under Treasury Regulation Section 1.409A-3(i)(5)(v)(B), 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 30 percent or more of the total voting power of the
stock of the Company; or (iii) the first date a majority of members of the Board is replaced during
any 12-month period by directors whose appointment or election is not endorsed by a majority of the
members of the Board before the date of the appointment or election. In any event, a change in
Control Event only occurs to the extent it qualifies as a change of Control Event under Treasury
Regulation Section 1.409A-3.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time, and
regulations and rulings promulgated thereunder.



     “Committee” means the Committee established under, and operating pursuant to the
provisions of, Article XI of the Plan.



     “Company” means The Goodyear Tire & Rubber Company, its successors and any corporation
into which it may be merged or consolidated.



     “Compensation Committee” means the Compensation Committee of the Board.



     “Deferrable Salary” means, with respect to each Eligible Employee and with respect to
each Plan Year, that portion of such Eligible Employee’s Salary that is net of all amounts required
to be withheld for tax or any deductions pursuant to elections for such deductions made prior to
the Participant’s election to defer under Section 4.4 for such Plan Year.



     “Deferred Amount” means, with respect to any Participant and any Plan Year, the sum of
the Deferred Performance Amount and the Deferred Salary Amount of such Participant during such Plan
Year.



     “Deferred Compensation” means, with respect to any Participant, the aggregate of all
Deferred Performance Compensation and Deferred Salary of such Participant for all Plan Years to the
date (or Valuation Date) on or as of which any determination of the amount thereof is being or to
be made.



4









 





     “Deferred Performance Amount” means, with respect to any Participant and any Plan
Year, the amount of Performance Compensation deferred by such Participant during such Plan Year
pursuant to Article IV of the Plan.



     “Deferred Performance Compensation” means, with respect to any Participant and any
Plan Year, the sum of the Deferred Performance Amount in respect of such Plan Year and all
Equivalents attributable to, and credited (or charged) to the Performance Plan Account in respect
of, such Deferred Performance Amount to the date (or Valuation Date) on or as of which any
determination of the amount thereof is being or to be made.



     “Deferred Salary” means, with respect to any Participant and any Plan Year, the sum of
the Deferred Salary Amount in respect of such Plan Year and all Equivalents attributable to, and
credited (or charged) to the Annual Salary Account in respect of, such Deferred Salary Amount to
the date (or Valuation Date) on or as of which any determination of the amount thereof is being or
to be made.



     “Deferred Salary Amount” means, with respect to any Participant and any Plan Year, the
amount of Salary deferred by such Participant during such Plan Year pursuant to Article IV of the
Plan.



     “Disability” or “Disabled” means:




	 	(a)	 	(the following only applies as a Pre-2005 Provision to Pre-2005 Benefits) a
physical or mental condition of a Participant resulting from a bodily injury, disease,
or mental disorder which renders the Participant incapable of continuing in the
Employment of any Employer or other Affiliate of the Company and results in such
Participant receiving or being entitled to receive benefits under the Company’s Long
Term Disability Income Plan or the Retirement Plan (or, if such Participant is then an
Employee of a Participating Employer, under similar plans, if any, of such
Participating Employer).
	 
	 	(b)	 	(the following only applies as a Post-2004 Provision to Post-2004 Benefits) a
Participant is disabled if the Participant receives at least 12 months of the Company’s
Long-Term Disability Benefits for Salaried Employees provided that the definition of
disability under such plan remains in compliance with Treasury Regulation Section
1.409A-3(i)(4).





     “Eligibility Date” means the first date on which an Employee is designated as first
eligible to participate in the Plan or any other nonqualified deferred compensation plan that is
aggregated with this Plan under Section 409A of the Code.



     “Eligible Employee” means (i) prior to January 1, 2008, any Employee of an Employer
who, at the time the determination thereof is being or to be made, (i) is employed within the
United States of America, (ii) is a citizen of or resident in the United States of America, (iii)
is a



5









 




participant in the Performance Plan for the then current Plan Year, (iv) has an Annual Salary
Rate of at least $170,000 per year and (v) is designated by the Committee as being eligible to
participate in the Plan Year; (ii) after December 31, 2008, any Employee of an Employer who, at the
time the determination thereof is being or to be made, (i) is either (1) employed within the United
States of America, or (2) employed as an expatriate outside the United States and the Company can
validate that participation by such Employee is not illegal under foreign law applicable to such
Employee and will have no adverse tax implications to the Company, (ii) is a citizen of or resident
in the Untied States of America, (iii) is a participant in the Performance Plan for the then
current Plan Year, (iv) has an Annual Salary Rate at the beginning of the Plan Year of at least the
amount provided by Section 401(a)(17) of the Code for the Plan Year, and (v) is designated by the
Committee as being eligible to participate in the Plan for the Plan Year.




     “Employee” means any person who is a full-time salaried employee of an Employer.



     “Employer” means and includes, as of the time at which a determination thereof is
being or to be made, the Company or any Participating Employer, or their respective successors and
assigns that adopt the Plan.



     “Employment” means the fact that and the period during which an Employee is regularly
employed by an Employer.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and regulations and rulings promulgated thereunder.



     “Equivalent” means, as at any time as of which any determination thereof is being or
to be made, the net amount (of the earnings, gains, losses, expenses and taxes in respect of
applicable Reference Investment Funds) attributed to any Deferred Performance Amount, or Deferred
Salary Amount, and credited (or charged) to the related Account, in accordance with the provisions
of Article VI of the Plan.



     “Net Performance Compensation” means the amount of compensation after withholding for
taxes and other deductions that would apply to Deferred Compensation.



     “Participant” means any, and includes each, (i) Eligible Employee participating or a
former Eligible Employee who continues to have deferrals because of participation in the Plan in
accordance with Articles III and IV of the Plan.



     “Participating Employer” means each subsidiary of the Company which is directly or
indirectly wholly-owned by the Company and is organized and existing under the laws of the United
States of America or any state thereof that adopts the Plan by action of its board of directors and
enters into a Trust Agreement.



     “Performance Compensation” means any amount earned by and payable to an Eligible
Employee under the Performance Plan in respect of any Plan Year thereof.



6









 





     “Performance Plan” means the Goodyear Performance Recognition Plan or the Management
Incentive Plan for any Performance Plan Year (payouts, if any, in respect of which would be made in
the year following the Performance Plan Year for such Performance Recognition Plan), as approved by
the Compensation Committee, or any plan designated by the Compensation Committee as the successor
to any such plan.



     “Performance Plan Year” means the period commencing January 1 and ending on December
31 in respect of which there is a Performance Plan in effect, where the payout, if any, thereunder
will be made in February of the following year.



     “Plan Year” means each period of one year beginning January 1 and ending December 31.



     “Recordkeeper” means that person or entity selected from time to time by the Committee
to establish and maintain Accounts and other records and to perform related services in respect of
the Plan and the Trusts.



     “Reference Investment Funds” means those mutual funds, bank common trust funds,
insurance contracts and other investment vehicles and reference rates which, in accordance with the
provisions of Article VII of the Plan, are used as the reference for the determination and
measurement of Equivalents to be attributed to the Deferred Amounts of Participants, as from time
to time selected by the Compensation Committee pursuant to the provisions of Article VII of the
Plan and identified at Annex I to the Plan.



     “Retirement” means, (i) for pre-2005 Benefits with respect to any Participant, the
termination of employment with the Company (or other Participating Employer) after either 30 years
of service or 10 years of service and the attainment of age 55.



     (ii) for Post-2004 Benefits with respect to any Participant, a separation from service with
the Company (or other Participating Employer) after 10 years of service and attainment of age 55.
For purposes of establishing whether an employee has had a separation from service, the employee
will be deemed to have a separation from service on the date of retirement, if the employee after
the date of retirement is not reasonably anticipated to provide a level of bona fide services that
exceeds 25% of the average level of bona fide services provided by the employee in the immediately
preceding 36 months (or the total period of employment, if less than 36 months), within the meaning
of Section 409A of tax code.



     “Retirement Plan” means the Company’s Salaried Pension Plan, as amended and in effect
from time to time.



     “Salary” means the amount of base salary (as determined before any contributions to
the Savings Plan (or any similar plan of any Participating Employer) and before any withholding for
taxes, payroll taxes or charges and deductions for benefits provided by the Company or any other
Employer) paid or payable to an Employee during the period in respect of which a determination with
respect to such base salary is being or to be made.



7









 





     “Salary Measurement Date” shall mean, with respect to each Plan Year: (i) with
respect to each person who is an Employee on the first day of such Plan Year, (a) if used in
determining whether an Employee is an Eligible Employee for the purpose of deferring Performance
Compensation during such Plan Year, January 1 of such Plan Year, and (b) if used in determining
whether an Employee is an Eligible Employee for the purpose of deferring Salary during such Plan
Year, December 1 of the year preceding such Plan Year; and (ii) in respect of each person who
becomes an Employee during such Plan Year, the Eligibility Date of such Employee.



     “Savings Plan” means the Employee Savings Plan for Salaried Employees of the Company,
as amended and in effect from time to time.



     “Specified Employee” (term only applies to Post-2004 Provisions) means an employee who
is a specified employee in accordance with Section 409A of the Code. The specified employee
identification date for the Plan is December 31 of each year. The specified employee effective
date for the Plan is each following January 1.



     “Subsidiary” means any corporation, joint venture or other entity of which (or in
which) more than 50% of the outstanding capital stock, or interest in the profits, is owned by the
Company and one or more other Subsidiaries, or by one or more other Subsidiaries.



     “Trust” or “Trust Fund” means each of (i) the “Rabbi Trust” to be established
under a Trust Agreement to be entered into by the Company to receive and invest amounts transferred
to it by the Company for future payment as Deferred Compensation under the Plan, which trust’s
assets will be subject to the claims of general creditors of the Company, and (ii) each “Rabbi
Trust” established under a Trust Agreement entered into by a Participating Employer to receive and
invest amounts transferred to such “Rabbi Trust” by such Participating Employer for future payment
as Deferred Compensation under the Plan, which trust’s assets will be subject to the claims of
general creditors of the Participating Employer establishing such “Rabbi Trust”; and
“Trusts” and “Trust Funds” means all such Trusts and Trust Funds.



     “Trust Agreement” means each of (i) a Rabbi Trust Agreement between the Company and
the Trustee to provide for the Trust to be established by the Company, and (ii) a similar agreement
between a Participating Employer and such Trustee; and “Trust Agreements” means all such
Trust Agreements.



     “Trustee” means the individual(s), corporation(s) or other entity(ies) appointed by
the Company and each of the Participating Employers, pursuant to the Trust Agreements, to hold and
manage the Trust Funds as “Rabbi Trusts”.



     “Valuation Date” means the close of each business day during each Plan Year, of which
the Trustee will determine the fair market value of the Trust Fund and the Recordkeeper will
determine the amount (balance) of each Account.



8









 







     Section 2.2. Usage. Except where otherwise indicated by the context, any masculine
terminology used herein shall also include the feminine and vice versa, and the definition of any
term herein in the singular shall also include the plural and vice versa.



ARTICLE III

ELIGIBILITY




     Section 3.1. Eligibility to Defer Performance Compensation.  Any Eligible Employee
may elect to defer all or certain portions of his or her Performance Compensation in respect of
each Performance Plan Year commencing on January 1 of any year in the amount, for the deferral
period and in the manner provided in the Plan, if: (a) such Employee was an Eligible Employee at
January 1 of such Performance Plan Year, using January 1 of such Performance Plan Year as the
Salary Measurement Date; or (b) the Eligibility Date of such Employee occurs during the period
January 2 through August 31, inclusive, of such Performance Plan Year.



     (The following only applies as an additional Post-2004 Provision of Section 3.1 applying to
Post-2004 Benefits)



     The Performance Compensation subject to deferral by any Employee eligible under Section 3.1(b)
shall be limited to the amount of Performance Compensation that is equal to the Performance
Compensation earned by such Employee during the Performance Plan Year multiplied by a percentage
determined where the numerator is the number of days remaining in the Performance Plan Year after
the election becomes irrevocable and the denominator is the total number of days in the period
commencing with the Eligibility Date and ending on the last day in the performance period.



     Section 3.2. Eligibility to Defer Salary. Any Eligible Employee may elect to defer all
or certain portions of his or her Deferrable Salary in respect of any Plan Year commencing on
January 1 of any year in the amount, for the deferral period and in the manner provided for herein
if: (a) such Employee was an Eligible Employee at January 1 of such Plan Year using December 1 of
the year preceding such Plan Year as the Salary Measurement Date, or (b) the Eligibility Date of
such Employee was during the period January 2 through August 31, inclusive, of such Plan Year and
on his or her Eligibility Date such Employee was an Eligible Employee, determined using his or her
Eligibility Date as the Salary Measurement Date.



     (The following only applies as an additional Post-2004 Provision of Section 3.2)



The election will only apply to Deferrable Salary earned beginning with the second payroll period
commencing immediately after the election becomes irrevocable.







9









 






ARTICLE IV

COMPENSATION ELIGIBLE FOR DEFERRAL: NOTICE AND PARTICIPATION



     Section 4.1. Performance Compensation. (a) Any Eligible Employee may elect (within the
time period specified in Section 4.4 of the Plan) to defer the payment of all or a portion of his
or her Performance Compensation in respect of any Performance Plan Year, in which event such
Deferred Performance Amount (as adjusted by related Equivalents) shall be payable as Deferred
Performance Compensation under the Plan. An Eligible Employee may specify all or any portion of his
or her Performance Compensation in respect of a Performance Plan Year for deferral; provided, that:
(i) if expressed as a dollar amount, the amount of Performance Compensation to be deferred shall be
$3,600 or any greater dollar amount thereof which is a multiple of $100; and (ii) if expressed as a
percentage of Performance Compensation in respect of such Performance Plan Year, the amount of
Performance Compensation to be deferred shall be 5% or any greater whole percentage thereof. If a
Participant selects a dollar amount of Performance Compensation for deferral and the amount so
selected exceeds the amount of Performance Compensation available for deferral, the Participant
shall be deemed to have elected to defer 100% of his or her Net Performance Compensation for such
Performance Plan Year.



     (b) In the event the amount of a Participant’s Performance Compensation in any Plan Year not
deferred pursuant to the Plan is not sufficient to pay all required withholding and payroll taxes
then the amount of Performance Compensation subject to deferral in such Plan Year may be reduced by
the amount necessary to provide for the payment of such taxes.



     (The following only applies as a Pre-2005 Provision to Pre-2005 Benefits)



     If any election would result in the deferral of less than $3,600 of Performance Compensation
in a Plan Year, such election will be invalid and no deferral of Performance Compensation will be
made pursuant to such election.



     Section 4.2. Deferrable Salary. Any Eligible Employee may elect (within the time
period specified in Section 4.4 of the Plan) to defer the payment of all or a portion of his or her
Deferrable Salary in respect of any Plan Year, in which event such Deferred Salary Amount (as
adjusted by related Equivalents) shall be payable as Deferred Salary Compensation under the Plan.
An Eligible Employee may specify any portion of Deferrable Salary in respect of a Plan Year for
deferral; provided, that: (i) if expressed as a dollar amount, the amount of Salary to be deferred
shall be $3,600 or any greater amount which is a multiple of $100, and (ii) if expressed as a
percentage of Deferrable Salary for such Plan Year, the amount of Salary to be deferred shall be 5
% of Deferrable Salary for such Plan Year or any greater whole percentage thereof.



     In the event the amount of a Participant’s Salary in any Plan Year not deferred pursuant to
the Plan is not sufficient to pay all required tax withholdings, payroll taxes and benefit
contributions relating to changes to cafeteria plan elections, then the amount of Deferrable Salary
subject to deferral in such Plan Year may be reduced by the amount necessary to provide for the
payment of such taxes and benefit contributions.



     (The following only applies as a Pre-2005 Provision to Pre-2005 Benefits):



10









 





     If any election would result in the deferral of less than $3,600 of Deferrable Salary during
the Plan Year, such election will be invalid and no deferral of Salary will be made pursuant to
such election.



     Section 4.3. Participation: Notice and Agreement Procedure. (a) Any Eligible Employee
may become a Participant by giving timely notice of the Net Performance Compensation or Deferrable
Salary such Eligible Employee desires to defer by executing and delivering to the Committee an
Agreement as provided in this Section 4.3 and in Section 4.4 of the Plan.



     (b) Each Eligible Employee may elect to defer all or a portion (within the limits specified
at Sections 4.1 and 4.2 of this Article IV) of his or her Net Performance Compensation for any
Performance Plan Year or Deferrable Salary for any Plan Year (as each is adjusted by related
Equivalents) for payment as Deferred Compensation under the Plan by executing and delivering to the
Committee (within the time limits specified in respect of elections to defer specified at Section
4.4 of the Plan) one or more Agreements. Each Agreement shall provide, among other things, for (i)
the amount (expressed in dollars) or portion (expressed as a percentage) of Net Performance
Compensation or Deferrable Salary to be deferred, (ii) the period such amount shall be deferred and
the form of payment in accordance with Section 7.1(d), and (iii) the Reference Investment Fund or
Funds with reference to which the Deferred Amounts will be attributed Equivalents in accordance
with Article VI of the Plan, all in accordance with the Plan and the Rules of the Committee.



     (c) Each Agreement shall be in one of the alternative forms as prescribed by the Committee
and shall be properly completed and executed by the Participant and delivered to the Committee
within the periods for the filing thereof specified in Section 4.4 of the Plan. Any electronic
election will be deemed executed upon sending by Participant from a secure platform which
incorporates protected individual accounts.



     (d) An Agreement shall be effective no earlier than the date on which it is delivered to the
Committee and shall continue in effect (unless sooner terminated in accordance with the provisions
of the Plan and the Agreement) until the Deferred Performance Compensation or Deferred Salary
attributable to such Agreement has been paid in accordance with the Plan.



     Section 4.4. Time for Filing Elections. Any Agreement to defer Net Performance
Compensation or Deferrable Salary in respect of any Plan Year shall be filed with the Committee by
and shall become irrevocable as of:



     (a) With respect to Performance Compensation in respect of any Performance Plan Year: (i)
in the case of an Eligible Employee at January 1 of such Performance Plan Year, (A) for Plan Years
prior to January 1, 2005, March 30 of the applicable Performance Plan Year, (B) for Plan Years
beginning January 1, 2005 and ending December 31, 2008, June 30th of the applicable
Performance Plan Year, and (C) for Plan Years beginning after December 31, 2008 the day immediately
prior to the commencement of the applicable Performance Plan Year in respect of



11









 




which such deferral election is being or to be made; and (ii) in the case of an Eligible Employee
who first becomes eligible to defer amounts under this Plan during a Plan Year, (within the meaning
of Section 409A of the Code and after applying the aggregation rules) the 30th day after
the Eligibility Date of such Eligible Employee, but in no event shall such election be permitted
after September 30 of such Performance Plan Year.




     (b) With respect to Deferrable Salary in respect of any Plan Year: (i) in the case of an
Eligible Employee at January 1 of such Plan Year, December 31 of the calendar year prior to the
Plan Year in respect of which such election to defer Salary is being made; and (ii) in the case of
an Eligible Employee whose Eligibility Date occurs during such Plan Year, the 30th day
after the Eligibility Date of such Eligible Employee, but in no event shall any such election be
permitted after September 30 of such Plan Year.



ARTICLE V

[RESERVED]




ARTICLE VI

ACCOUNTS AND REFERENCE INVESTMENT ELECTIONS




     Section 6.1. Deferred Compensation. A Participant’s Deferred Compensation shall be
equal to the total amount of all Deferred Amounts of such Participant, plus all Equivalents
attributable to each Deferred Performance Amount and each Deferred Salary Amount of such
Participant, and credited (or charged) to, each of the Performance Plan Accounts and Annual Salary
Accounts of such Participant pursuant to this Article VI.



     Section 6.2. Accounts. The Company and each Participating Employer shall establish and
maintain, or cause to be established and maintained, pursuant to the terms of the Plan Accounts for
each Participant, consisting of Performance Plan Accounts, each of which will be credited with the
Deferred Performance Amount of such Participant in a Plan Year and Annual Salary Accounts, each of
which will be credited with the Deferred Salary Amount of such Participant during such Plan Year,
in each case to be adjusted by Equivalents attributable thereto in accordance with this Article VI.
In respect of each Participant, a separate Performance Plan Account shall be established and
maintained in respect of each Plan Year, the balance of which at any Valuation Date represents the
amount of such Participant’s Deferred Performance Compensation for such Plan Year. In respect of
each Participant, a separate Annual Salary Account shall be established and maintained in respect
of each Plan Year, the balance of which at any Valuation Date represents the amount of such
Participant’s Deferred Salary Compensation for such Plan Year. All amounts (of Equivalents)
credited (or charged) to an Account shall be credited (or charged) solely for purposes of
measurement, accounting, computation and recordkeeping. The obligation of an Employer to pay the
amount in its Accounts is its general, unsecured contractual obligation and any assets maintained
by such Employer to satisfy such claims shall be subject to the claims of such Employer’s general
creditors.



12









 





     Section 6.3. Reference Investment Procedure. At the time a Participant makes his or
her election to defer Performance Compensation or Salary in respect of any Plan Year, such
Participant may express his or her choice of Reference Investment Fund or Funds and the allocation
of his or her Performance Plan Account and Annual Salary Account among one or more such Reference
Investment Funds. The Compensation Committee shall have absolute discretion in the selection of
Reference Investment Funds available and may, from time to time, change the available Reference
Investment Funds as it deems appropriate. Any such change of Reference Investment Funds shall be
communicated to Participants in accordance with procedures adopted by the Committee.



     Section 6.4. Equivalents: Reference Investment Elections. (a) In accordance with
elections made by Participants in accordance with Section 6.3 and this Section 6.4, each Deferred
Performance Amount and Deferred Salary Amount will be credited with earnings and gains and charged
with losses, expenses and taxes in amounts equal to the amount such Deferred Performance Amount or
Deferred Salary Amount would have been credited, net of all losses, expenses and taxes, or charged
(where such losses, expenses and taxes exceeded earnings and gains) if such Deferred Performance
Amount or Deferred Salary Amount had been invested during the relevant period in one or more of the
Reference Investment Funds in accordance with such election (such amounts being herein referred to
as “Equivalents”). On a Valuation Date an Account will be credited with all such earnings and
gains, net of all losses, expenses and taxes, or charged for any losses, expenses and taxes to the
extent such amounts exceed earnings and gains, such Deferred Performance Amount or Deferred Salary
Amount as would have accrued if such amounts had been invested in the Reference Investment Funds
selected from time to time by such Participant (or, if applicable, in accordance with Section 6.5
of the Plan). Equivalents in respect of any Deferred Performance Amount or Deferred Salary Amount
(or portion thereof) shall be equal to the amount of increase or decrease, as the case may be, net
of all expenses and taxes which would have been incurred, in the value of such Deferred Amount had
such Deferred Amount been invested in the applicable Reference Investment Fund or Funds (in
accordance with the Participant’s elections as from time to time in effect or, if applicable, in
accordance with Section 6.5 of the Plan) from the date deferred through the applicable Valuation
Date.



     (b) Reference Investment Funds Available. The Company and the Recordkeeper will
maintain records in respect of the Accounts of each Participant which measure in accordance with
the elections made by such Participant in respect of his or her Deferred Amounts the earnings,
gains and losses attributable to such Deferred Amounts as though invested in one or more of the
Reference Investment Funds within the categories described below, as specifically selected by the
Compensation Committee and identified at Annex I to the Plan:




     (1) Reference Money Market Fund. The reference investment shall be a mutual
fund or bank common trust fund which invests in various short-term U.S. Government
securities and/or similar instruments, including Treasury Bills, certificates of deposit and
other high quality instruments.




     (2) Reference Equity Index Fund. The reference investment shall be a mutual
fund or bank common trust fund which invests in common stocks of companies



13









 






comprising the S&P 500 Index on a weighted basis substantially similar to the weighting
of the S&P 500 Index.




     (3) Reference Bond Fund. The reference investment shall be a mutual fund or
bank common trust fund which invests in a diversified portfolio of government and high
quality corporate bonds (generally A rated or higher) with average maturities of up to 5
years.




     (4) Reference Balanced Fund. The reference investment shall be a mutual fund
or bank common trust fund which invests primarily in S&P 500 equities and government and
corporate bonds.




     (5) Reference Growth Fund. The reference investment shall be a mutual fund
which focuses on growth equities.



     (c) Changes in Reference Investment Funds Available. The Reference Investment Funds
available to Participants may be changed at any time and from time to time by the Compensation
Committee. The Committee will give timely notice of any such change to each Participant. A
Participant must change his or her election before implementation of such change if such change
eliminates the availability of a Reference Investment Fund which was being used to measure
Equivalents to be credited (or charged) to any Account of such Participant.



     (d) Plan Investment Elections. Participants shall make their reference investment
elections using the following procedures:




     (1) Initial Election For Deferred Amounts. At the time any election to defer
Performance Compensation or Salary is made a Participant can elect to have the Deferred
Performance Amount or the Deferred Salary Amount, as the case may be, accrue Equivalents
related to one or more of the Reference Investment Funds in five percent (5%) increments;
provided, that the Participant must complete his or her investment election no later than
the deadline established by the Committee.




     (2) Change in Investment Election. Effective for the close of any business
day, a Participant may change his or her investment election for all of his existing
Accounts in 5 percent increments. Such election will affect all Deferred Amounts and the
balance of all existing Accounts, but shall not affect any Accounts thereafter established
in respect of future deferrals. To effect a change, the Participant must complete his
investment election under guidelines established by the Committee.



     (e) Allocation of Reinvestments of Reference Investment Fund Distributions. All
Equivalents (earnings, gains and losses net after expenses and taxes) attributable to any Account
as measured in respect of any Reference Investment Funds will be deemed to include any
distributions by such Reference Investment Fund, which distributions shall be deemed to be
reinvested in the same Reference Investment Fund after deducting any expenses and taxes
attributable to such reinvestment.



14









 





     (f) Special Election Rules. The Committee may permit (1) Participants to elect to
have their Accounts allocated among available Reference Investment Funds in increments greater or
lesser than 5 percent, (2) more options of Reference Investment Funds, (3) other election filing
dates, and/or (4) any other variations as it considers proper, under regulations adopted by the
Committee and published to Participants.



     Section 6.5. Failure to Elect Reference Investments. Any portion of an Account of a
Participant with respect to which such Participant has not indicated to the Committee a Reference
Investment Fund (whether due to the failure of the Participant to timely complete and file his or
her election or otherwise) shall be deemed to accrue Equivalents as though such portion of the
Account were invested in the Reference Money Market Fund, or in such other investment or reference
rate as the Compensation Committee may select.



     Section 6.6. Adjustments to Account Balances.



     (a) Regular Valuation Dates. As of each Valuation Date, the Company and the
Recordkeeper will determine the fair market value of each Account of each Participant. On each
Valuation Date, each Account will be adjusted to reflect the following events in order since the
preceding Valuation.




     (1) The increase or decrease in the amount of Equivalents (the pro rata share of the
net earnings, gains and losses, net of expenses and taxes of the Reference Investment Fund
or Funds in which the Account is deemed to be invested);




     (2) Deferred Amounts in a new Account;




     (3) Distributions, if any, from the Account; and




     (4) Changes in Reference Investment Fund or Funds under Section 6.4(d)(2) of the
Plan.



     (b) Valuations Binding. In determining the value of each Account of each Participant,
the Committee will exercise its best judgment as to the value of such Account. All determinations
of value of Accounts shall be binding upon Participants and their Beneficiaries.



     (c) Allocation Date. All allocations of Equivalents will be considered to have been
made as of the Valuation Date, regardless of when allocations are actually made.



     (d) Statements of Account Balances. As soon as practicable after the end of each Plan
Year, the Committee will provide to each Participant, or his or her Beneficiary, a statement
showing with respect to each Account of such Participant: (1) the balance of such Account on
January 1 of such Plan Year, (2) all Equivalents attributable to such Account during such Plan
Year, (3) all distributions from such Account during such Plan Year and (4) the balance of such
Account on December 31 of such Plan Year. During each Plan Year, the Committee may provide



15









 




statements quarterly setting forth the balance of each Account of a Participant as at the end of a
quarter and such other information in respect thereof as the Committee shall deem appropriate. If a
Participant has Accounts with more than one Employer, the reports and records relating to such
Accounts will be reported to the Participant without indicating which Employer established the
Account, unless such Employer is bankrupt or insolvent.




     (e) Correction of Mistakes. In the event the Committee discovers that a mistake has
been made in an allocation to or distribution from any Account, or any other mistake which affects
an Account, it will correct the mistake as soon as practicable. If an overpayment has been made,
the Committee will seek cash reimbursement. (i) For pre-2005 Benefits, if an underpayment has been
made, the amount of the underpayment will be paid pursuant to Article XIII unless the Committee
determines the amount to be minimal, in which case it will be paid as a lump sum payment. (ii) For
post-2004 Benefits, if an underpayment has been made, the amount of underpayment will be made as
soon as possible.



     Section 6.7. No Responsibility for Results of Reference Investment Funds. The Company
shall not, and the Participating Employers, the Board of Directors, the Compensation Committee and
the Committee shall not, have any responsibility or liability in the event any Reference Investment
Fund selected by any Participant shall result in any reduction in any Deferred Amount or reduce
from one Valuation Date to the next Valuation Date the amount of such Participant’s Deferred
Compensation or fail to result in any increase of Deferred Compensation.



ARTICLE VII

PAYMENT OF DEFERRED COMPENSATION




     Section 7.1. Distributions Events. Deferred Compensation under the Plan shall be
payable as follows:



     (a) Separation from service for Other than Retirement, Death or After Becoming
Disabled. In the event that a Participant’s Employment with the Company or any Participating
Employer shall be terminated by reason of voluntary termination, layoff due to job elimination or
job relocation, involuntary termination for any reason or any other termination for any other
reason other than Retirement, Death or after becoming Disabled, the entire amount of his or her
Deferred Compensation shall be paid within sixty (60) days after such termination of Employment;
provided, however, that if a Participant immediately upon termination becomes an
employee of any Subsidiary of the Company, such Participant shall not be deemed to have had a
separation from service with the Company until the Participant’s termination from the Subsidiary
and all members of the control group (as defined under Section 414 of the Code) of the Company for
the purpose of this Section 7.1, although such Participant shall no longer be an Eligible Employee
if such Subsidiary is not a Participating Employer.



     (The following is an additional provision applying only as a Post-2004 Provision to Post-2004
Benefits)



16









 





     Further provided, that if the Participant is a Specified Employee upon separation from
service, then the entire amount of Deferred Compensation shall be payable on the first business day
that is more than six (6) months following the separation from service.



     The phrase termination of employment, or words to a similar effect, shall mean a separation
from service within the meaning of Section 409A of the Code, except that for purposes of
establishing whether an employee has had a separation from service, the employee will be deemed to
have a separation from service on the date of termination, if the employee after the date of
termination is not reasonably anticipated to provide a level of bona fide services that exceeds 25%
of the average level of bona fide services provided by the employee in the immediately preceding 36
months (or the total period of employment, if less than 36 months), within the meaning of Section
409A of tax code.



     (b) Death of Participant. In the event of a Participant’s death (whether before or
after his or her Retirement or Disability), the entire amount of his or her Deferred Compensation
shall be paid to his or her Beneficiaries in a lump sum within sixty (60) days after the date of
such Participant’s death.



     (c) Separation from Service by Retirement or Becoming Disabled. In the event a
Participant shall separate from service after meeting the requirements for Retirement or becoming
Disabled, the distribution of his or her Deferred Compensation shall be made in accordance with the
election of such Participant made in accordance with subsection (d) or subsection (e) of this
Section 7.1, (i) or, if no election has been made by such Participant, in accordance with Section
7.2 of the Plan.



     (d) In accordance with Elections. If Deferred Compensation has not been paid pursuant
to subsections (a) or (b) above, then it shall be paid pursuant to the time and form of the
elections made pursuant to this subsection (d). A Participant must, at the time he or she notifies
the Committee of his or her election to have all or a portion of his or her Deferrable Salary or
Net Performance Compensation in respect of any Plan Year payable as Deferred Compensation under the
Plan, specify the payment of such Deferred Compensation only in the following forms thereof:




     (i) (only applies as a Pre-2005 Provision) In a lump sum on the 15th of
January following the second anniversary of the date such election of the Deferred Salary
Amount or Deferred Performance Amount was made;




          (Only applies as a Post-2004 Provision) In a lump sum on the 15th of the January
following the specified anniversary of the end of the Plan Year the Deferred Compensation was
earned where the Participant specifies an anniversary of between 2 and 15 years at the time of
election to defer; or




     (ii) In a lump sum on the fifteenth (15th) day of January of the year following the
year of such Participant’s Retirement or Disability (the following clause only applies



17









 






as a Post-2005 Provision with respect to Post-2005 Benefits) provided, however, that if
the Participant is a Specified Employee upon Retirement, the Lump Sum shall be payable on
the later of (1) the first business day that is more than six (6) months following
Retirement or (2) the fifteenth day of January of the year following the year of such
Participant’s Retirement; or




     (iii) (the following only applies as a Pre-2005 Provision) In annual installments
over a period of not less than five (5) or more than fifteen (15) years, commencing in each
case on the 15th day of January of the year following the date of such Participant’s
Retirement or Disability, each installment to equal the aggregate amount of all Deferred
Compensation of such Participant then remaining in his or her Account or Accounts subject to
such election, determined as at the Valuation Date immediately prior to such distribution
date, divided by the number of installments then remaining to be made (including the
installment to be paid on such distribution date);




     (iv) (The following only applies as a Post-2004 Provision) In annual installments
over a period specified by the Participant at the time of the deferral election of no less
than 2 years and no more than fifteen (15) years, commencing in each case on the 15th day of
January of the year following the date of such Participant’s Retirement or Disability
provided, however, that if the Participant is a Specified Employee upon Retirement the first
installment shall be payable at the later of (1) the first business day that is more than
six (6) months following Retirement, or (2) the fifteenth day of January of the year
following the date of such Participant’s Retirement, each installment to equal the aggregate
amount of all Deferred Compensation of such Participant then remaining in his or her Account
or Accounts subject to such election, determined as at the Valuation Date immediately prior
to such distribution date, divided by the number of installments then remaining to be made
(including the installment to be paid on such distribution date); or




     (v) (The following only applies as a Post-2004 Provision) In annual installments
over a period specified by the Participant at the time of the deferral election of no more
than fifteen (15) years, commencing in each case on the 15th day of January following the
specified anniversary of the end of the Plan Year the Deferred Compensation was earned where
the Participant specifies an anniversary of between 2 and 15 years at the time of election
to defer, each installment to equal the aggregate amount of all Deferred Compensation of
such Participant then remaining in his or her Account or Accounts subject to such election,
determined as at the Valuation Date immediately prior to such distribution date, divided by
the number of installments then remaining to be made (including the installment to be paid
on such distribution date).



     (e) (The following only applies as a Pre-2005 Provision) Extension of Deferral
Period. If the deferral period for any Deferred Amount specified by a Participant in an
effective Agreement (or in any subsequent election form pursuant to this subsection (e)) is two
years (as provided in



18









 




clause (i) of subsection (d) of this Section 7.1), such Participant may extend the deferral of
such Deferred Amount at his or her election to any date permitted by Section 7.1(d) if, and only
if, such election is made at least twelve (12) months prior to the expiration of the deferral
period provided under such Agreement (or subsequent election form) and in the calendar year prior
to the calendar year during which such Deferred Compensation would have been paid but for this
clause.




     Section 7.2. Elections of Deferral Period and Payment Forms. With respect to any
Deferred Amount of an active Employee, the period of deferral and form of distribution will be
determined in accordance with the elections in Section 7.1 except as otherwise determined under
this Section 7.2 as follows:



     (a) Absence of Deferral Period Election. With respect to any Deferred Amount of a
Participant for which no effective election as to time of payment has been filed with the
Committee, such related Deferred Compensation will be paid in a lump sum on the earlier of (a) the
second (2nd) anniversary of (i) to the extent such Deferred Compensation is a Deferred Performance
Amount, the date such Deferred Performance Amount would have been paid (but for such deferral
election) or (ii) to the extent such Deferred Compensation is a Deferred Salary Amount, the
fifteenth (15th) day of January of the year following the Plan Year during which such Deferred
Salary Amount would have been paid (but for such deferral election), or (b) the fifteenth (15th)
day of the year following the year of such Participant’s Retirement or Disability, (The following
clause is a Post-2004 Provision applying only to Post-2004 Benefits) provided that if the
Participant retires while a Specified Employee, payment will be on the later of (1) the first
business day that is more than six (6) months following the date of Retirement or (2) the fifteenth
(15th) day of the year following the Participant’s Retirement.



     (b) (The following only applies as a Pre-2005 Provision applying to Pre-2005 Benefits) An
employee may change an election made under 7.1(d) (ii) or (iii) for his form of distribution if the
election is at least 12 months before Retirement. Such extension or change in the election will
not be valid until the 12 months have expired. If a distribution would have otherwise been made
under this Article VII pursuant to the last election applicable to such Deferred Compensation
before the expiration of the 12 months, then the prior election will control the time and form of
distribution.



     (c) (The following only applies as a Pre-2005 Provision applying to Pre-2005 Benefits)
Notwithstanding the other provisions of this Section 7.2, employees or retirees may elect to have
any or all of their Deferred Compensation paid out as soon as administratively possible in a lump
sum payment made at 90% of their Deferred Compensation payable under the other provisions of this
Section 7.2 provided that in the case of any elected officer of the Company, such election is only
valid if such election is approved by the Compensation Committee in its sole discretion.



     Section 7.3. Minimum Balance. (The following only applies as a Pre-2005 Provision
applying to Pre-2005 Benefits) Notwithstanding the foregoing, in the event that a Participant’s
Employment is terminated for any reason and the aggregate undistributed amount of all of his or her
Deferred Compensation is $50,000 or less, as at the Valuation Date immediately prior to



19









 




such termination of Employment, the entire amount of all of his or her Accounts shall be paid
in a lump sum within sixty (60) days after his or her termination of Employment.




     (The following only applies as a Post-2004 Provision applying to Post-2004 Benefits).
Notwithstanding the foregoing, and to the extent permitted by Section 409A of the Code, the
Committee may, in its sole discretion, require a mandatory lump sum payment of a Participant’s
Deferred Compensation if the undistributed amount does not exceed the applicable dollar limit under
Section 402(g)(1)(B) of the Code, provided that the payment liquidates the Participant’s entire
interest in the Plan (applying the Plan aggregation rules).



ARTICLE VIII

PAYMENTS FROM THE PLAN




     Section 8.1. Time, Amount and Form of Payment. Each payment of a Participant’s
Deferred Compensation to such Participant will be subject to the following rules and any other
rules adopted from time to time by the Committee and uniformly applied:



     (a) Time and Form of Payment. The Committee will cause the Company (or other
Employer, as applicable) to pay, or cause to be paid, the Deferred Compensation of a Participant to
such Participant or his or her Beneficiaries at the time or times and in the form (lump sum or
installments) specified in Article VII of the Plan and in the Agreement or other payment election
form submitted to the Committee in accordance with the terms of the Plan.



     (b) Amount of Payment. Each amount of Deferred Compensation to be paid to a
Participant will be determined as of the Valuation Date on or next preceding the date such payment
is due to such Participant.



     (c) Medium of Payment. Each Participant or his or her Beneficiaries will receive all
payments of such Participant’s Deferred Compensation in cash.



     Section 8.2.
Acceleration of Payment Upon Change of Control. (a) Pre-2005 Provision applying
to Pre-2005 Benefits only. In the event a Change of Control occurs, the entire amount of Deferred
Compensation of each Participant shall be immediately paid to such Participant (or, if applicable,
his or her Beneficiaries) and no additional deferrals of Performance Compensation, Salary or other
cash compensation will be made under the Plan (notwithstanding any outstanding election for such
deferrals) and the Plan shall automatically terminate effective as of the Change of Control Date.



     (b) Post-2004 Provision applying to Post-2004 Benefits only. In the event a Participant
incurs a separation from service within two years of the occurrence of a Change of Control Event,
the entire amount of Deferred Compensation of such Participant shall be immediately paid to such
Participant (or, if applicable, his or her Beneficiaries), provided, that if the Participant is a
Specified Employee upon separation from service, then the entire amount of Deferred Compensation
shall be payable on the first business day that is more than six (6) months following the
separation from service, and no additional deferrals of Performance



20









 




Compensation, Salary or other cash compensation will be made under the Plan (notwithstanding any
outstanding election for such deferrals).




ARTICLE IX

SOURCE OF PAYMENTS




     Section 9.1. Payments from General Funds of Employers and Rabbi Trusts. All payments
of Deferred Compensation under and in accordance with the Plan shall be paid in cash from the
general funds of the applicable Employer and there shall be no requirement that any special or
separate trust, fund or account shall be established in the name of any Participant or Beneficiary
or other segregation of assets made to assure such payments; provided, however, that each of the
Company and the Participating Employers intends to establish a Trust and may establish a
bookkeeping reserve to meet its obligations under the Plan. To the extent that any Participant,
Beneficiary or other person has a right to receive payments of Deferred Compensation from the
Company or a Participating Employer under the Plan, such right shall be no greater than the right
of any unsecured general creditor of the Company or such Participating Employer.



     Section 9.2. The Trusts. (a) A Trust to be known as the Rabbi Trust for the Deferred
Compensation Plan for Executives of the Company (the “Company Trust”) will be established pursuant
to a Trust Agreement between the Company and the Trustee and is intended to be maintained as a
“grantor trust” under section 671 of the Code. The assets of the Company Trust will be held,
invested and disposed of by the Trustee in accordance with the terms of the Company Trust, for the
exclusive purpose of paying Deferred Compensation to Participants or their Beneficiaries as and
when due under the Plan. The assets of the Company Trust shall at all times be subject to the
claims of the Company’s general creditors in the event of the Company’s insolvency or bankruptcy.



     (b) Each Participating Employer shall prior to permitting any Eligible Employee to
participate in the Plan, enter into and maintain a Trust for the Deferred Compensation Plan for
Executives of the Company for Participants who are Employees of such Participating Employer (each
an “Employer Trust”), which shall be established pursuant to a Trust Agreement between such
Participating Employer and the Trustee and shall be intended to be maintained as a “grantor trust”
under 671 of the Code. The assets of each Employer Trust will be held, invested and disposed of by
the Trustee in accordance with the terms of the Employer Trust for the exclusive purpose of paying
Deferred Compensation to Participants employed by such Participating Employer or their
Beneficiaries as and when due under the Plan. The assets of each Employer Trust shall at all times
be subject to the claims of the general creditors of the Participating Employer that established
such trust in the event of such Participating Employer’s insolvency or bankruptcy.



     (c) The Company Trust and each Employer Trust (herein collectively referred to as the
“Trusts”) shall each contain substantially the same provisions and have the same Trustee and



21









 




shall, to the extent practicable, be administered and invested jointly, except that the assets
shall be separate and subject only to the general creditors of the Employer which is the grantor of
the applicable Trust.




     Section 9.3. Contributions and Expenses. To the extent permitted by Section 409A of
the Code, The Company and Participating Employers may, from time to time, make contributions to
their respective Trusts in accordance with the applicable Trust Agreement and the Plan. Deferred
Compensation payable under the Plan and expenses chargeable to the Participants in accordance with
the Plan are intended first to be paid from the applicable Trusts. To the extent the funds in such
Trusts are not sufficient (or are not paid by the Trustee), all Deferred Compensation shall be paid
by the Company or the applicable Participating Employer.



     Section 9.4. Trustee Duties. The powers, duties and responsibilities of the Trustee
shall be as set forth in the Trust Agreements and nothing contained in the Plan, either expressly
or by implication, shall impose any additional powers, duties or responsibilities upon the Trustee.
The Trustee shall make investments in the Trusts as directed by the Committee, consistent with the
provisions of the Plan and the Trust Agreements. The Trustee may hold cash and other liquid
investments in such amounts as the Committee may deem appropriate.



     Section 9.5. Reversion of Trust Funds to Company or Participating Employer.



     (a) The Company shall have no beneficial interest in the Company Trust and no part of the
Company Trust shall revert or be repaid to the Company, except the assets will be available to pay
the general creditors of the Company in the case of insolvency and as expressly provided in the
Plan or the Trust Agreement which establishes the Company Trust.



     (b) No Participating Employer shall have a beneficial interest in such Employer’s Employer
Trust and no part of such Employer Trust shall revert or be repaid to such Participating Employer,
except the assets will be available to pay the general creditors of the Participating Employer in
the case of insolvency and as expressly provided in the Plan or the Trust Agreement which
establishes such Employer Trust.



ARTICLE X

DESIGNATION OF BENEFICIARIES




     Section 10.1. Designation Procedure. Each Participant may designate one beneficiary or
several beneficiaries (such beneficiary or beneficiaries of a Participant herein referred to as the
Participant’s “Beneficiaries”) to receive any balance, or portion thereof, of his or her Accounts
which may be payable under the Plan upon his or her death. To be effective, each designation must
be in writing on a form provided by the Committee and must be signed by the Participant and filed
with the Committee prior to the Participant’s death. Each Participant may name one or more primary
Beneficiaries and one or more contingent Beneficiaries; provided that if a Participant names more
than one Beneficiary, the Participant shall designate the percentage payable to each. A Participant
may from time to time revoke or change his or her Beneficiaries



22









 




designation without the consent of any Beneficiary by filing a new designation with the
Committee, and each change will revoke all prior designations of Beneficiaries. The last such
designation of Beneficiaries received by the Committee shall be controlling; provided, however,
that no designation, or change or revocation thereof, shall be effective unless received by the
Committee prior to the Participant’s death, and in no event shall it be effective as of a date
prior to such receipt.




     (b) Absence of Designation. If no designation of Beneficiaries is in effect at the
time of a Participant’s death, if no designated Beneficiary survives the Participant, or if the
Participant’s designation of Beneficiaries conflicts with law, then the Participant’s estate shall
be the Beneficiary entitled to receive all Deferred Compensation then unpaid. The Committee may
direct the Company or any Participating Employer to retain such unpaid Deferred Compensation
without liability for any interest thereon or other earnings or gains thereon, until the rights
thereto are determined, or the Committee may direct the Company or Participating Subsidiary to pay
such unpaid Deferred Compensation into any court of appropriate jurisdiction, and such payment
shall completely discharge all liability of the Company and, if applicable, any Participating
Employer for unpaid Deferred Compensation.



     (c) Payment to Minor or Incompetent Beneficiaries. In the event a deceased
Participant’s Beneficiary is a minor, is legally incompetent, or cannot be located after reasonable
effort, the Committee will make payment to the court-appointed guardian or representative of such
Beneficiary, or to a trust established for the benefit of such Beneficiary, as applicable.



     (d) Judicial Determination. In the event the Committee for any reason considers it
improper to direct any payment as specified in this Section 10.1, it may have a court of competent
jurisdiction determine to whom payments should be made, in which event all expenses incurred in
obtaining such determination may be deducted from the unpaid Deferred Compensation or charged to
the payee. Any such payment shall constitute a complete discharge of all liability of the Employers
to such Participant under the Plan.



     Section 10.2. Payment to Participant’s Representative. If a Participant is incompetent
to handle his or her affairs as of any date designated by such Participant as a date on which a
payment of all or a portion of such Participant’s Deferred Compensation is to be made, the
Committee will make any payments due to such Participant to his or her court-appointed personal
representative or, if none is appointed, the Committee may in its discretion make payments to his
or her spouse, a child, a parent, or a brother or sister, or any other person deemed by the
Committee to have incurred expenses for the care or maintenance of such Participant, in such manner
and proportions as the Committee may determine; provided that the Committee may request a court of
competent jurisdiction to determine the payee, in which event, to the extent permitted by Section
409A of the code, all expenses incurred in obtaining the determination may be deducted from the
unpaid Deferred Compensation or charged to the payee. Any such payment shall constitute a complete
discharge of all liability of the Employers to such Participant under the Plan.



23









 





     Section 10.3. Unclaimed Benefits. In the event the Committee cannot locate, with
reasonable effort, any person entitled to receive a Participant’s unpaid balance of Deferred
Compensation the obligation of the Employer to make any payment of such Participant’s Deferred
Compensation will be canceled on the fifth anniversary after the first day on which a payment of
such Deferred Compensation was due to be paid, but will be reinstated within sixty (60) days after
the Participant or a Beneficiary is located.



ARTICLE XI

ADMINISTRATION OF PLAN




     Section 11.1. Administration. The Plan shall be administered by the Committee, as
appointed by the Compensation Committee (and which may be the Compensation Committee).
Determinations by the Committee as to any questions arising under the Plan shall be final,
conclusive and binding upon all persons including Participants, Beneficiaries, the Company and
Participating Employers. A member of the Committee who is also a Participant must abstain from
voting on any matter relating to his or her participation in the Plan or to his or her Deferred
Compensation.



     Section 11.2. Allocation of Fiduciary Responsibilities: Composition and Powers of
Committee. The fiduciaries will have the powers and duties described below, and may delegate
their duties to the extent permitted under ERISA;



     (a) Company. The Company, through the Compensation Committee, will be responsible for
appointing and removing Committee members, approving the adoption of the Plan by each new
Participating Employer and designating Eligible Employees.



     (b) The Committee. 




     (1) Appointment and Termination of Office. The Committee will consist
of not less than three (3) or more than five (5) individuals who will be appointed by and
serve at the pleasure of the Compensation Committee. The Compensation Committee will have
the right to remove any member of the Committee at any time. A member of the Committee may
resign at any time by written resignation to the Committee and the Compensation Committee.
The Compensation Committee will appoint a successor to fill any vacancy in the Committee’s
membership.




     (2) Organization of Committee. The Committee will elect a Chairman from among
its members, and will appoint a Secretary who may or may not be a Committee member. The
Committee may appoint or retain such agents (including legal counsel and accountants) who
may or may not be Committee members, as it considers necessary for the effective performance
of its duties in administering the Plan, and may delegate to such agents such ministerial
powers and duties as it considers expedient or appropriate. The Committee may fix the
compensation of the agents within the limits set by the



24









 




Compensation Committee. Committee members who are employed by the Company or a
Participating Employer shall serve as such without additional compensation.




     (3) Committee Meetings. The Committee will hold meetings at least annually. A
majority of the members then in office will constitute a quorum. All actions of the
Committee may be taken with or without a meeting. Each action of the Committee taken at a
meeting shall be taken on a majority vote of all members of the Committee then in office.
Any action taken without a meeting shall be in writing and signed by a majority of the
members of the Committee then in office. The Committee may establish such other rules and
procedures for taking action with or without a meeting as it shall deem appropriate.



     (4) Powers of the Committee. The Committee will have primary responsibility
for administering the Plan, and all powers necessary to enable it to properly perform its
duties, including but not limited to the following powers and duties:




     (A) Rules. The Committee may adopt rules, regulations and procedures
as it deems necessary for the performance of its duties under the Plan, except to
the extent that such rules, regulations and procedures conflict with the express
provisions of the Plan or written policies or directives of the Compensation
Committee.




     (B) Interpretation. The Committee will have the power to interpret the
Plan and to decide all questions arising under the Plan; provided, however, that the
Compensation Committee shall also have the power and authority to interpret the Plan
and interpretations, rules and regulations adopted by the Compensation Committee
shall control.




     (C) Individual Accounts. The Committee, or the Recordkeeper acting for
it, will maintain individual Accounts for each Participant and will allocate
Equivalents in respect of Deferred Amounts to the proper Accounts.




     (D) Participant Data. The Committee will request from the Company and
the Participating Employers complete information regarding the Deferred Amounts of
each Participant and such other information as it considers necessary from time to
time, and will treat Employer records as conclusive with respect to such
information.




     (E) Payments. The Committee will direct the payment of Account
balances from the Trust (or from the Company or the Participating Employer, as the
case may be), and will specify the Participant (or Beneficiary or Beneficiaries) to
be paid and the amount, the time and the conditions, if any, of each payment.




     (F) Disclosure. The Committee will prepare and distribute, or cause to
be prepared and distributed, to the Participants copies of the Plan, notices and
other



25









 






information about the Plan in such manner as it deems appropriate and in compliance
with applicable law.




     (G)
Agreements and Other Forms. The Committee will provide
forms of Agreements for use by Eligible Employees to elect to participate in the
Plan and other forms for use by Participants in respect of their participation in
the Plan.




     (H) Financial Information. The Committee will periodically prepare, or
cause to be prepared, reports of the Plan’s operation and will submit a copy of each
report to the Compensation Committee and cause a copy to be maintained in the office
of the Secretary of the Company and each Participating Employer.



     (I) Reporting and Tax Returns. The Committee will cause to be filed
all reports and tax returns required under ERISA and the Code.



     Section 11.3. Indemnification. The Company and each of the Participating Employers
will indemnify and hold harmless the Committee and each member, and each person to whom the
Committee has delegated responsibility under this Article XI (each an “Other Person”), from and
against any and all losses, costs, liabilities or expenses that may be imposed upon or incurred by
them in connection with or resulting from any claim, action, suit, or proceeding to which any
member of the Committee or such Other Person is or may be a party or may be involved by reason of
any action taken or failure to act under the Plan, or for any other reason, and from and against
any and all amounts paid by the members of the Committee (or any of them) or such Other Person or
Persons in settlement (if with the Company’s approval) of, or paid by them in satisfaction of a
judgment in, any such action, suit or proceeding and from and against any other joint or several
liability for their acts and omissions and for the acts and omissions of their duly appointed
agents in the administration of the Plan, except for their own willful breach of fiduciary duty or
willful misconduct.



     Section 11.4. Claims Procedures. (a) Application for Payment of Deferred
Compensation. The Committee will, if possible, furnish to each Participant timely information
concerning distributions of Deferred Compensation due under the Plan to such Participant at least
one year prior to the anticipated date of such distribution. The Committee may request any
Participant, Beneficiary or other person claiming the right to receive payments of Deferred
Compensation under the Plan to submit a written application, together with such information as the
Committee considers necessary to process the claim. (The following is a Post-2004 Provision only)
In any event, the Committee will pay by the end of the year any amount that is payable in such year
pursuant to the terms of the Plan and any effective elections that have been made.



     (b) Action on Application. Within ninety (90) days after receipt of an application
and all necessary information, the Committee will furnish the claimant a written notice of its
decision. If the Committee denies the claim in whole or in part, the notice will set forth (1)
specific reason for the denial, with specific reference to Plan provisions upon which the denial is
based; (2) a description of any additional information or material necessary to process the
application with an



26









 




explanation why such material or information is necessary; and (3) an explanation of the claim
review procedure under the Plan.




     (c) Claim Review. Any Participant, Beneficiary or other claimant who does not agree
with the decision rendered on the application may request that the Committee review the decision.
Each request for review must be made in a writing addressed to and filed with the Committee within
sixty (60) days after the claimant receives the decision, or if the application has neither been
approved nor denied within the 90-day period specified in subsection (b), then the request must be
made within 60 days after expiration of the 90-day period. Concurrently with filing the request for
review the claimant may submit in writing to the Committee a statement of the issues raised by his
appeal and supporting arguments and comments. Where the Committee believes that the issues raised
by the claimant’s appeal may be more efficiently or fairly processed by taking testimony of the
claimant or others, it will set the matter for oral hearing and give the claimant reasonable notice
of the time and place. The Committee will proceed promptly to resolve all issues raised by the
claimant’s appeal and will render a written decision on the merits within 60 days following the
claimant’s request for review. Any determination by the Committee after completion of the review
process set forth herein shall be binding upon the Company and the claimant.



ARTICLE XII

AMENDMENT AND TERMINATION




     Section 12.1. Amendment of the Plan. The Plan may be amended, modified or suspended by
the Company pursuant to action taken by the Board or by the Compensation Committee; provided,
however, that no such action shall have the effect of reducing or eliminating any Account balance
as at the effective date of any such amendment, modification or suspension or otherwise impairing
or adversely affecting the rights of any Participant or Beneficiary to payment of Deferred
Compensation under the Plan which had accrued prior to the date of such action. In the event of any
amendment to, or modification or suspension of, the Plan, the Company will promptly notify each
Participant of such amendment, modification or suspension of the Plan. Any such amendment shall be
made by, and any such modification or suspension shall be evidenced by, written instrument executed
by the Company.



     Section 12.2. Termination of the Plan. Although the Company expects the Plan to be
continued indefinitely, the Company reserves the absolute right to terminate the Plan at any time
by action taken by the Board or the Compensation Committee in accordance with this Section.
Subsections (a), (b) and (c) apply after December 31, 2004.



          1. Notwithstanding the foregoing, no termination or amendment of this Plan may accelerate
payment of Post-2004 Benefits to any Participant except under the following conditions subject to
the mandatory six-month delay for Specified Employees:




          (1) The Company may terminate and liquidate the Plan within 12 months of a



27









 






corporate dissolution taxed under section 331, or with the approval of a bankruptcy court
pursuant to 11 U.S.C. §503(b)(1)(A), provided that the amounts deferred under the Plan are included
in the Participants’ gross incomes in the latest of the following years (or, if earlier the taxable
year in which the amount is actually or constructively received): (a) the calendar year in which
the Plan termination and liquidation occurs; (b) the first calendar year in which the amount is no
longer subject to a substantial risk of forfeiture; or (c) the first calendar year in which the
payment is administratively practicable.




     (2) The Company may terminate and liquidate the Plan pursuant to irrevocable action taken by
the Board of Directors within the 30 days preceding or the 12 months following a change in control
event (as defined in Treasury Regulation §1.409A-3(i)(5)), provided that this paragraph will only
apply to a payment under a plan if all agreements, methods, programs, and other arrangements
sponsored by the Company immediately after the time of the change in control event with respect to
which deferrals of compensation are treated as having been deferred under a single plan under
Treasury Regulation §1.409A-1(c)(2) are terminated and liquidated with respect to each Participant
that experienced the change in control event, so that under the terms of the termination and
liquidation all such participants are required to receive all amounts of compensation deferred
under the terminated agreements, methods, programs and other arrangements within 12 months of the
date the Company irrevocably takes all necessary action to terminate and liquidate the agreements,
methods, programs, and other arrangements.



     (3) The Company may terminate and liquidate the Plan, provided that (a) the termination and
liquidation does not occur proximate to a downturn in the financial health of the Company; (b) the
Company terminates and liquidates all agreements, methods, programs, and other arrangements
sponsored by the Company that would be aggregated with any terminated



28









 




and liquidated agreements, methods, programs, and other arrangements under Treasury Regulation
§1.409-1(c) if any Participant had deferrals of compensation under all of the agreements, methods,
programs, and other arrangements that are terminated and liquidated; (c) no payments in liquidation
of the Plan are made within 12 months of the date the Company takes all necessary action to
irrevocably terminate and liquidate the Plan other than payments that would be payable under the
terms of the Plan if the action to terminate and liquidate the Plan had not occurred; (d) all
payments are made within 24 months of the date the Company takes all necessary action to
irrevocably terminate and liquidate the Plan; and (e) the Company does not adopt a new plan that
would be aggregated with any terminated and liquidated plan under Treasury Regulation §1.409A-1(c)
if the same service provider participated in both plans, at any time within three years following
the date the service recipient takes all necessary action to irrevocably terminate and liquidate
the Plan.




ARTICLE XIII

MISCELLANEOUS PROVISIONS




     Section 13.1. No Assignment. The right of any Participant or any of his or her
Beneficiaries to receive Deferred Compensation under the Plan shall not be assigned, anticipated,
transferred, pledged or encumbered, either voluntarily or by operation of law, nor shall any amount
of a Participant’s Deferred Compensation be subject to the claim or legal process of any creditor
of such Participant, or subject to seizure for payment of any debts or judgments, except as
provided in Article X of the Plan with respect to designation of Beneficiaries and except as may
otherwise be required by law. If any Participant shall, or shall attempt to, assign, transfer,
pledge or encumber any amount payable under the Plan, or if by reason of such Participant’s
bankruptcy or other event happening at any time any such payment would be made subject to his or
her debts or liabilities or would otherwise devolve upon anyone else and not be enjoyed by him or
her or his or her Beneficiary, the Compensation Committee may, in its sole discretion, terminate
such Participant’s right to any such payment of Deferred Compensation and, to the extent permitted
by Section 409A of the Code, direct that the same be held and applied to or for the benefit of such
Participant or his or her spouse, children or other dependents, or any of them, in such manner as
the Compensation Committee may deem appropriate.



29









 





     Section 13.2. Adoption of and Withdrawal from Plan by a Participating Employer.



     (a) Any domestic wholly-owned subsidiary of the Company which at the time is not a
Participating Employer, may, with the consent of the Committee, adopt the Plan and become a
Participating Employer by causing an appropriate written instrument evidencing such adoption to be
executed pursuant to the authority of its board of directors and filed with the Company and by
executing a Trust Agreement in form and substance satisfactory to the Committee.



     (b) Any Participating Employer may, by action of its board of directors, withdraw from the
Plan, such withdrawal to be effective upon notice in writing to the Committee, and shall thereupon
cease to be an Employer with respect to future contributions by its Employees to the Plan. A
Participating Employer shall be entitled to terminate the Plan with respect to its participation,
if the Participating Employer meets the requirements of Section 12.2 when the Participating
Employer is substituted for the Company.



     Section 13.3. Information Required. Each Participant shall provide the Committee with
such pertinent information concerning himself or herself and his or her Beneficiaries relating to
Plan participation by the Participant as the Committee may specify, and no Participant or
Beneficiary or other person shall have any rights in or be entitled to any payments of Deferred
Compensation under the Plan unless such information is provided to the Committee.



     Section 13.4. Elections by Eligible Employees. Any elections, designations, requests,
notices, instructions and other communications from an Eligible Employee, Participant, Beneficiary
or other person to the Committee required or permitted under the Plan shall be in such form as is
prescribed from time to time by the Committee, shall be delivered as specified by the Committee and
shall be deemed to have been given and delivered only upon actual receipt thereof by the Committee.



     Section 13.5. Notices by Committee or any Employer. All notices, statements, reports
and other communications from the Committee or any Employer to any Eligible Employee, Participant,
Beneficiary or other person required or permitted under the Plan shall be deemed to have been duly
given when delivered to such Eligible Employee, Participant, Beneficiary or other person.



     Section 13.6. No Employment Contract or Commitment. The Plan is not, and shall not be
deemed to constitute, a contract of employment between the Company, or any other Employer or other
Subsidiary or Affiliate of the Company, and a Participant. Neither the Plan nor any action taken
hereunder by the Company or any Participating Employer shall constitute a commitment or agreement
to continue the Employment of any Participant or shall be held or construed to confer on a
Participant any right to continued Employment with the Company or any Participating Employer or any
other Subsidiary or Affiliate of the Company, or as a commitment to continue the rate of
compensation of any Participant, or as affecting the right of the Company or any Participating
Employer to terminate the Employment of any Participant, Eligible Employee or any other employee at
any time, with or without cause.



30









 





     Section 13.7. Severability. In the event any provision of the Plan shall be held
invalid or illegal for any reason, any illegality or invalidity shall not affect the remaining
parts of the Plan and the Plan shall be construed and enforced as if the illegal or invalid
provision had been omitted, and the Company shall have the privilege and opportunity to correct and
remedy questions of illegality or invalidity by amendment as provided in the Plan.



     Section 13.8. Effect of IRS Determination. For Pre-2005 Benefits, if any Deferred
Amount is found in a “determination” (within the meaning of Section 1313(a) of the Code) to have
been includible in gross income by a Participant prior to the payment thereof as provided under the
Plan, such Deferred Amount (as adjusted by Equivalents to the applicable Valuation Date) shall be
immediately paid to such Participant notwithstanding such Participant’s election or any other
provision of the Plan.



     Section 13.9. Taxes and Withholding. All payments of Deferred Compensation in
accordance with the Plan shall be subject to such withholding for taxes and deductions for payroll
and other taxes (federal, state or local) as may be due thereon and the determination by the
Committee as to the amounts withheld from such payments shall be binding upon each Participant and
his or her Beneficiaries.



     Section 13.10. No Rights to Assets Created. The obligations of the Company or any
Participating Employer to make payments of Deferred Compensation under the Plan shall constitute a
liability of the Company or a Participating Employer, as the case may be, to the Participant and
his or her Beneficiaries. Such payments of Deferred Compensation shall be made from the general
funds of the Company or the Participating Employer, as the case may be, or from the Trusts. Neither
the Company nor any Participating Employer shall be required to establish or maintain the Trusts or
any special or separate fund or trust or otherwise to segregate assets to assure that such payments
shall be made, and neither a Participant nor his or her Beneficiaries shall have any interest in
any particular asset of the Company or any Participating Employer or in the Trusts or any other
trust by reason of the Company’s (or a Participating Employer’s) obligations hereunder. Nothing
contained in the Plan shall create or be construed as creating a trust of any kind or any other
fiduciary relationship between the Company or any Participating Employer and a Participant or his
or her Beneficiaries.



     Section 13.11. Precedent. Except as otherwise specifically provided, no action taken
in accordance with the Plan by the Employers or the Committee shall be construed or relied upon as
a precedent for similar action under similar circumstances.



     Section 13.12. No Guarantees. No employer guarantees that any Reference Investment
Fund will not result in a reduction of, or loss to, any Deferred Amount or Deferred Compensation or
any Account. Neither the Company, nor any Participating Employer nor the Trustee guarantees the
amount or payment of any Deferred Compensation or other amount payable to any Participant under the
Plan.



     Section 13.13. Expenses. The expenses of administration of the Plan, including the
payment of the fees of the Trustee and the Recordkeeper, shall be paid by the Company.



31









 





     Section 13.14. Claims of Other Persons. The provisions of the Plan shall in no event
be construed as giving any person, firm or corporation any legal or
equitable right as against the Company or any Participating Employer or their respective officers, directors or employees, except
as expressly provided for in the Plan.



     Section 13.15. Captions. The captions preceding the Articles, Sections and subsections
hereof have been inserted solely as a matter of convenience and in no way define or limit the scope
or intent of any provisions thereof.



     Section 13.16. Validity of the Plan. The validity of the Plan shall be determined, and
the Plan shall be governed by and construed and interpreted, in accordance with the laws of the
State of Ohio.



     Section 13.17. Plan Binding on Parties. The Plan shall be binding upon the Employees,
all Participants and Beneficiaries, and, as the case may be, the heirs, executors, administrators,
successors and assigns of each of them. Obligations incurred by the Company or any Participating
Employer shall be binding upon the Company or such Participating Employer, as the case may be, and
shall inure to the benefit of the Participants or their Beneficiaries.



     Section 13.18 Compliance with Section 409A of the Code. (a) It is intended that the
Plan comply with the provisions of Section 409A of the Code, 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 Beneficiaries. This Plan shall be construed, administered, and governed in a manner that
affects such intent, and the Committee shall not take any action that would be inconsistent with
such intent.



     (b) Although the Committee shall use its best efforts to avoid the imposition of taxation,
interest and penalties under Section 409A of the Code, the tax treatment of deferrals under this
Plan is not warranted or guaranteed. Neither the Company, the other members of the Affiliated
Group, the Board, nor the Committee (nor its designee) 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.



     (c) Any reference in this Plan to Section 409A of the Code will also include any proposed,
temporary or final regulations, or any other guidance promulgated with respect to such 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 Section 409(A)(a)(1) of the Code.



* * *






32









 




     Executed at Akron, Ohio, this 22nd day of December, 2008.



	 	 	 	 	 
	 	 	 	The Goodyear Tire & Rubber Company

 	 
	 	By:  	 /s/
Joseph B. Ruocco	 
	 	 	Joseph B. Ruocco 	 
	 	 	Senior Vice President, Human Resources 	 
	 



ATTEST:




/s/ Bertram
Bell                                               

Bertram Bell

Assistant Secretary




33









 





ANNEX I

TO

THE GOODYEAR TIRE & RUBBER COMPANY

DEFERRED COMPENSATION PLAN FOR EXECUTIVES



The Reference Investment Funds are as follows:





	1.	 	Money Market Fund. The Benchmark Fixed Income — Government Select Portfolio.
	 
	2.	 	Bond Fund. The Benchmark Short-Intermediate Bond Portfolio.
	 
	3.	 	Equity Index Fund. The Benchmark Equity Index Portfolio.
	 
	4.	 	Balanced Fund. The Benchmark Balance Portfolio.
	 
	5.	 	Growth Fund. The Twentieth Century Ultra Investment Fund.






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