EX-10.12






EXHIBIT 10.12




THE GOODYEAR TIRE & RUBBER COMPANY

DEFINED CONTRIBUTION EXCESS BENEFIT PLAN




     WHEREAS, the Company desires to establish a excess benefit plan for the purpose of providing
supplemental retirement benefits on an unfunded basis to a select group of management or highly
compensated employees eligible to participate in accordance with the terms hereof, as contemplated
by Section 201(2) of the Employee Retirement Income Security Act of 1974, as amended;



     NOW, THEREFORE, said excess benefit plan is hereby adopted October 7, 2008, effective January
1, 2005 to provide as follows:



ARTICLE I

DEFINITIONS




     For the purposes hereof, the following words and phrases shall have the meanings indicated:



          1. The “Act” shall mean the Employee Retirement Income Security Act of 1974, as amended.




          2. An “Affiliated Employer” shall mean any employer required to be affiliated with the Company
under Section 414(b), (c), or (m).




          3. The “Code” shall mean the Internal Revenue Code of 1986 as amended.




          4. The “Company” shall mean The Goodyear Tire & Rubber Company, an Ohio corporation, its
corporate successors and the surviving corporation resulting from any merger of The Goodyear Tire &
Rubber Company with any other corporation or corporations.










 



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          5. An “Employee” shall mean any person employed by an Employer on a salaried basis and
eligible to participate in the Savings Plan.




          6. An “Employer” shall mean the Company and any other Affiliated Employer who adopts the Plan
with the consent of the Company.




          7. An “Excess Benefit” is the benefit payable under this Plan pursuant to Article II.




          8. The “Excess Compensation” is the amount of compensation for any Participant in the Savings
Plan to the extent the Participant had compensation limited by either Code Sections 401(a)(17) or
415(c) from being taken into account in computing the Employer’s Retirement Contributions for the
Participant in the Savings Plan.




          9. The “Excess Contribution” shall be the amount of contribution made pursuant to Sections 3.3
or 3.4.




          10. A “Participant” shall mean any Employee who was a Participant in the Savings Plan and who
had Excess Compensation.




          11. “Plan” shall mean the plan as set forth herein, together with all amendments hereto, which
shall be called “The Goodyear Tire & Rubber Company Defined Contribution Excess Benefit Plan.”




          12. The “Savings Plan” shall mean either The Goodyear Tire & Rubber Company Employee Savings
Plan for Salaried Employees or The Goodyear Tire & Rubber Company Savings Plan for Retail
Employees, as the same shall be in effect on the various dates of an Employee’s participation.




     All other words and phrases used herein shall have the meanings given them in the Savings
Plans, unless a different meaning is clearly required by the context.









 



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ARTICLE II

EXCESS BENEFIT




          1. Eligibility. A Participant who dies or terminates employment with an Employer
under conditions that make such Participant or beneficiary eligible for a benefit derived from
Retirement Contributions under the Savings Plan, who had Excess Compensation and who does not
receive a benefit from The Goodyear Tire & Rubber Company Supplementary Pension Plan shall be
eligible for an Excess Benefit.




          2. Amount of Excess Benefit. The amount of the Excess Benefit shall be the sum of all
Excess Contributions notionally credited increased by (a) from January 1, 2005 until September 30,
2008, a seven (7) percent compounded annual return, and (b) commencing October 1, 2008, interest
credited at 120% of the Applicable Federal Long-Term Rate as of the first day of each quarter (as
prescribed under Section 1274(d) of the Code), compounded monthly, computed from the date of each
notional contribution.




          3. Excess Contributions. Excess Contributions will be notionally credited to a
Participant on the last day of any calendar month in which the Participant had Excess Compensation.
The Excess Contributions will be for the amount that the Participant would have had additional
Retirement Contributions to the Savings Plan for such month with respect to the Participant’s
Excess Compensation.




          4. Minimum Excess Contributions. If a Participant only received Retirement
Contributions of three (3) percent of Compensation under the Savings Plan for any given month then
the Excess Contributions under Section 3 of Article II will be five (5) percent of the Excess
Compensation of such Participant for such month.










 



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ARTICLE III

TIME AND FORM OF PAYMENT




          1. Payment of Benefits. Each Excess Benefit provided for hereunder shall be paid as a
lump sum to the Participant or to the Participant’s beneficiary under the Savings Plan, if the
Participant is deceased. Such lump sum payments will be made within 90 days after death to any
beneficiary or within 90 days after any Separation from Service if Participant is vested in the
Savings Plan and is not a Specified Employee. Any Participant who is a Specified Employee shall be
paid such lump sum on the first business day that is more than six months after the date of
Separation from Service.




          2.  Specified Employees. A Specified Employee is 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.




          3. Separation from Service. For purposes of establishing whether an employee has a
Separation from Service, the employee will be deemed to have a Separation from Service on the date
of termination of employment, if the employee after the date of termination of employment 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.










 



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ARTICLE IV

ADMINISTRATION




     The Plan is a plan maintained primarily for the purpose of providing deferred compensation for
a select group of management or highly compensated employees. Accordingly, the Plan shall be
construed and administered in the manner appropriate to maintain the Plan’s status as such under
the Act. To the extent that the Act applies to the Plan, the Company shall be the “named
fiduciary” of and the “plan administrator” of the Plan. The Company shall be responsible for the
general administration of the Plan and for carrying out the provisions hereof. The Employers shall
be responsible for making any required benefit payments under the Plan. The Company shall have the
sole and absolute authority and power to administer and carry out the provisions of the Plan,
except that the Employers shall make any required benefit payments hereunder; to determine all
questions relating to eligibility for and the amount of any benefit hereunder and all questions
pertaining to claims for benefits and procedures for claim review; to resolve all other questions
arising under the Plan, including any questions of construction; and to take such further action as
the Company shall deem advisable in the administration of the Plan. All actions taken and
decisions made by the Company hereunder be final and binding upon all interested parties.



ARTICLE V

AMENDMENT AND TERMINATION




          1.
Right to Amend or Terminate. The Company reserves the right in its sole and
absolute discretion to amend or terminate the Plan at any time by action of its Board of Directors
subject to the requirements of this Article; provided, however, that no such










 



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action shall adversely affect the right of any Employee or beneficiary to any Excess Benefit
determined under the provisions of the Plan previously in effect for any period of time that the
Employee was a Participant.




          2. Notwithstanding the foregoing, no termination or amendment of this Plan may accelerate
payment of Excess 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 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










 



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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 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 VI

ADOPTION BY AFFILIATED EMPLOYERS










 



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     Any Affiliated Employer that at the time is not an Employer hereunder may adopt the Plan and
become an Employer hereunder by action of its Board of Directors and by filing written notice
thereof with the Company. Each Employer other than the Company shall have the right to withdraw
from the Plan by action of its Board of Directors and by filing written notice thereof with the
Company, in which event the Employer shall cease to be an Employer for purposes of the Plan;
provided, however, that no withdrawal shall affect the right of any Employee or beneficiary to any
Excess Benefits for any period of time that the Employee was an Excess Benefit Employee.



ARTICLE VII

MISCELLANEOUS




     1. Non-Alienation of Retirement Rights or Benefits. No Employee and no beneficiary of
an Employee shall encumber or dispose of such person’s right to receive any payments hereunder.
Payments hereunder, or the right thereto, are expressly declared to be non-assignable and
non-transferable. If an Employee or beneficiary attempts to assign, transfer, alienate, or
encumber the right to receive any payment hereunder or permits the same to be subject to
alienation, garnishment, attachment, execution, or levy of any kind, then thereafter during the
life of such Employee or beneficiary, and also during any period in which any Employee or
beneficiary is incapable in the judgment of an Employer of attending to personal financial affairs,
any payments which an Employer is required to make hereunder may be made, in the sole and absolute
discretion of the Employer, either directly to such Employee or beneficiary or to any other person
for the future care, use or benefit of such Employee or beneficiary or that of such person’s
dependents, if any. Each such payment may be made without the









 



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intervention of a guardian, the receipt of the payee shall constitute complete satisfaction for the
Employer with respect thereto, and the Employer shall have no responsibility for the proper
application thereof.




     2. Plan Non-Contractual. Nothing herein contained shall be construed as a commitment
or agreement on the part of any person employed by an Employer to continue employment with the
Employer, and nothing herein contained shall be construed as a commitment on the part of an
Employer to continue the employment, the annual rate of compensation, or any term or condition of
employment of such person for any period, and all Employees shall remain subject to discharge to
the same extent as if the Plan had never been put into effect.



     3. Interest of Employee an Unfunded, Unsecured Promise. The provision of this
paragraph 3 shall apply notwithstanding any other provision of the Plan to the contrary. All
benefits payable under the Plan are payable solely from an Employer’s general assets. The
obligation of an Employer under the Plan to provide an Employee or beneficiary a benefit is solely
the unfunded, unsecured promise of the Employer to make payments as provided herein. No person
shall have any interest in, or a lien or prior claim upon, any property of an Employer with respect
to such benefits greater than that of a general creditor of the Employer.



     4. 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 any Employer,
its officers, employees, or directors, except any such rights as are specifically provided for in
the Plan or are hereafter created in accordance with the terms and provisions of the Plan.









 



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     5. Absence of Liability. No member of the Board of Directors of any Employer nor any
officer of any Employer shall be liable for any act or action hereunder, whether of commission or
omission, taken by any other member, or by an officer, agent, or employee, or, except in
circumstances involving his bad faith, for anything done or omitted to be done by himself.



     6. No Competition. The right of any Employee or beneficiary to an Excess Benefit will
be terminated, or, if payment thereof has begun, all further payments will be discontinued and
forfeited in the event such Employee (i) at any time subsequent to the effective date wrongfully
discloses any secret process or trade secrets of the Company or any Affiliated Employer, or any of
the Company’s subsidiaries, or (ii) engages, either directly or indirectly, as an officer, trustee,
employee, consultant, partner, or substantial shareholder, on his own account or in any other
capacity, in a business venture that within the ten-year period following his retirement the
Company’s Board of Directors reasonably determines to be competitive with the Company’s or any of
its Affiliated Employers, or any of the Company’s subsidiaries, to a degree materially contrary to
the best interests of the Company or any of its Affiliated Employers, or any of the Company’s
subsidiaries.



     7. Severability. The invalidity or unenforceability of any particular provision of
the Plan shall not effect any other provision hereof, and the Plan shall be construed in all
respects as if such invalid or unenforceable provision were omitted herefrom.



     8. Governing Law. The provisions of the Plan shall be governed by and construed in
accordance with the laws of the State of Ohio.



     9. 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









 



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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.




Executed this 22nd day of December, 2008.



	 	 	 	 	 
	 	THE GOODYEAR TIRE & RUBBER COMPANY

 	 
	 	By:  	/s/
Joseph B. Ruocco	 
	 	 	Joseph B. Ruocco 	 
	 	 	Title:  	Senior Vice President, Human Resources 	 
	 
	 	ATTEST:
 	 
	 	By:  	/s/
Bertram Bell	 
	 	 	Bertram Bell 	 
	 	 	Assistant Secretary