**Exhibit 10.1**

 

**OXFORD INDUSTRIES, INC.**

 

**DEFERRED COMPENSATION PLAN**

 

**(As amended and restatedeffective September 1, 2010)**

 

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**TABLE OF CONTENTS**

 
| ** **                                            | ** **                                         | **Page** |
|-------------------------------------------------------|----------------------------------------------------|----------|
|                                                  |                                               |
| ARTICLE I  DEFINITIONS                           | 1                                                  |
| Section 1.1.                                     | Account                                            | 1        |
| Section 1.2.                                     | Beneficiary                                        | 1        |
| Section 1.3.                                     | Board                                              | 1        |
| Section 1.4.                                     | Code                                               | 1        |
| Section 1.5.                                     | Committee                                          | 1        |
| Section 1.6.                                     | Company                                            | 1        |
| Section 1.7.                                     | Compensation                                       | 1        |
| Section 1.8.                                     | Director                                           | 1        |
| Section 1.9.                                     | Discretionary Contribution                         | 2        |
| Section 1.10.                                    | Election Period                                    | 2        |
| Section 1.11.                                    | Eligible Compensation                              | 2        |
| Section 1.12.                                    | Eligible Employee                                  | 2        |
| Section 1.13.                                    | Eligible Participant                               | 2        |
| Section 1.14.                                    | Employee                                           | 2        |
| Section 1.15.                                    | ERISA                                              | 2        |
| Section 1.16.                                    | Excess Compensation                                | 2        |
| Section 1.17.                                    | 401(k) Plan                                   | 2        |
| Section 1.18.                                    | Matching Contribution                              | 2        |
| Section 1.19.                                    | Maximum Deferral Percentage                        | 2        |
| Section 1.20.                                    | Minimum Deferral Amount                            | 3        |
| Section 1.21.                                    | Oxford                                             | 3        |
| Section 1.22.                                    | Plan                                               | 3        |
| Section 1.23.                                    | Plan Year                                          | 3        |
| Section 1.24.                                    | Pre-2005 Oxford Plan                               | 3        |
| Section 1.25.                                    | Retirement Age                                     | 3        |
| Section 1.26.                                    | Separates from Service or Separation  from Service | 3        |
| (a)                                                   | Leaves of Absence                                  | 3        |
| (b)                                                   | Status Change                                      | 3        |
| (c)                                                   | Termination of Employment                          | 4        |
| (d)                                                   | Separation of Director                             | 4        |
| (e)                                                   | Controlled Group                                   | 4        |
| Section 1.27.                                    | Tommy Bahama Plan                                  | 4        |
| Section 1.28.                                    | Years of Service                                   | 4        |
|                                                  |                                               |     |
| ARTICLE II  PARTICIPATION AND DEFERRAL ELECTIONS | 5                                                  |
| Section 2.1.                                     | Start-Up Deferral Elections                        | 5        |
| (a)                                                   | Eligible Employees                                 | 5        |
| (b)                                                   | Directors                                          | 5        |
| Section 2.2.                                     | Annual Deferral Elections                          | 5        |
| (a)                                                   | Salary                                             | 5        |
| (b)                                                   | Bonuses                                            | 6        |
| (c)                                                   | Commissions                                        | 6        |
| (d)                                                   | Directors’ Deferrals                          | 6        |
| Section 2.3.                                     | Minimum Deferral Amount                            | 7        |
| Section 2.4.                                     | Ongoing Election                                   | 7        |
| Section 2.5.                                     | Effect of Hardship Withdrawal                      | 7        |

 

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| Section 2.6.                                       | Form of Elections                                  | 7      |
|---------------------------------------------------------|---------------------------------------------------------|--------|
|                                                    |                                                    |   |
| ARTICLE III  MATCHING CONTRIBUTIONS                | 7                                                       |
|                                                    |                                                    |
| ARTICLE IV  DISCRETIONARY CONTRIBUTIONS            | 7                                                       |
|                                                    |                                                    |
| ARTICLE V  ACCOUNT ADJUSTMENTS                     | 8                                                       |
| Section 5.1.                                       | General                                                 | 8      |
| Section 5.2.                                       | Deferrals                                               | 8      |
| Section 5.3.                                       | Matching and Discretionary  Contributions               | 8      |
| Section 5.4.                                       | Phantom Investments                                     | 8      |
| Section 5.5.                                       | Phantom Investment Election                             | 8      |
| Section 5.6.                                       | Phantom Investment Adjustments                          | 8      |
|                                                    |                                                    |   |
| ARTICLE VI  VESTING                                | 8                                                       |
| Section 6.1.                                       | Amounts Deferred                                        | 8      |
| Section 6.2.                                       | Matching Contributions                                  | 8      |
| Section 6.3.                                       | Discretionary Contributions                             | 8      |
|                                                    |                                                    |   |
| ARTICLE VII  DISTRIBUTIONS                         | 9                                                       |
| Section 7.1.                                       | Distribution Elections                                  | 9      |
| (a)                                                     | General                                                 | 9      |
| (b)                                                     | Ongoing Election                                        | 9      |
| (c)                                                     | Default                                                 | 9      |
| Section 7.2.                                       | Time of Distribution                                    | 9      |
| (a)                                                     | Separation from Service                                 | 9      |
| (b)                                                     | Death                                                   | 9      |
| (c)                                                     | In-Service                                              | 9      |
| (d)                                                     | Hardship Withdrawal due to  Unforeseeable Emergency     | 10     |
| (e)                                                     | Delay of Payments Under Certain  Circumstances          | 10     |
| Section 7.3.                                       | Distribution Forms                                      | 11     |
| (a)                                                     | Separation from Service After  Retirement Age           | 11     |
| (b)                                                     | Separation from Service Before  Retirement Age or Death | 11     |
| (c)                                                     | In-Service                                              | 11     |
| (d)                                                     | Installments                                            | 11     |
| Section 7.4.                                       | Beneficiary                                             | 11     |
|                                                    |                                                    |   |
| ARTICLE VIII  NO FUNDING OBLIGATION                | 11                                                      |
|                                                    |                                                    |
| ARTICLE IX  COMPLIANCE WITH CODE SECTION 409A | 12                                                      |
|                                                    |                                                    |
| ARTICLE X  MISCELLANEOUS                           | 12                                                      |
| Section 10.1.                                      | Medium of Payment                                       | 12     |
| Section 10.2.                                      | Making and Revoking Elections and  Designations         | 12     |
| Section 10.3.                                      | Statements                                              | 12     |
| Section 10.4.                                      | Claims Procedure                                        | 12     |
| Section 10.5.                                      | Withholding                                             | 12     |
| Section 10.6.                                      | No Liability                                            | 12     |
| Section 10.7.                                      | Nonalienation of Benefits                               | 12     |
| Section 10.8.                                      | Plan Administration                                     | 13     |
| Section 10.9.                                      | Construction                                            | 13     |
| Section 10.10.                                     | No Contract of Employment                               | 13     |
| Section 10.11.                                     | ERISA                                                   | 13     |

 

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| Section 10.12. | Amendment and Termination         | 13     |
|---------------------|-----------------------------------|--------|
| Section 10.13. | Pre-2005 Oxford Plan              | 13     |
| (a)                 | Pre-2005 Deferrals                | 13     |
| (b)                 | Post-2004 and Pre-2006 Deferrals  | 14     |
| Section 10.14. | Tommy Bahama Plan                 | 14     |
| (a)                 | Pre-2005 Deferrals                | 14     |
| (b)                 | Post-2004 and Pre-2006 Deferrals  | 14     |
| Section 10.15. | Special Transition Bonus Election | 14     |
|                |                              |   |
| EXHIBIT A      |                              | A-1    |
|                |                              |   |
| EXHIBIT B      |                              | B-1    |
|                |                              |   |
| EXHIBIT C      |                              | C-1    |
|                |                              |   |
| EXHIBIT D      |                              | D-1    |

 

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OXFORD INDUSTRIES, INC.

 

DEFERRED COMPENSATION PLAN

 

(As amended and restated effective September 1,2010)

 

The primary purpose of this Plan is to assist OxfordIndustries, Inc. (“Oxford”) and its subsidiaries in attracting andretaining employees and directors of exceptional ability by (a) allowing aselect group of management or highly-compensated employees of Oxford andcertain of its subsidiaries, and nonemployee members of Oxford’s Board ofDirectors, to defer the payment of a portion of their compensation thatotherwise would become payable to them, and (b) providing fordiscretionary contributions and matching contributions for Eligible Employeesbased on compensation that exceeds the compensation that may be taken intoaccount under the Oxford Industries, Inc. Retirement Savings Plan or as aresult of the dollar limitation applicable to the 401(k) Plan under Section 401(a)(17)of the Code.  This Plan is an amendmentand restatement of the Oxford Industries, Inc. Deferred Compensation Plan(as amended and restated effective January 1, 2008, and as subsequentlyamended).  The terms of the Plansupersede those of the Oxford Industries, Inc. Non-Qualified DeferredCompensation Plan adopted effective January 1, 2001, and the ViewpointInternational, Inc. Nonqualified Deferred Compensation Plan adoptedeffective July 20, 2001, except with respect to amounts deferred prior to January 1,2006, as provided in Sections 10.13 and 10.14.

 

ARTICLE I

 

DEFINITIONS

 

Section 1.1.                                           Account — meansthe bookkeeping account maintained by or at the direction of the Committee toshow as of any date the benefit of each Eligible Participant.  Separate subaccounts may be established andmaintained as part of an Eligible Participant’s Account as the Committee deemsnecessary or appropriate to administer this Plan.

 

Section 1.2.                                           Beneficiary — meansthe person or persons designated as such in accordance with Section 7.4.

 

Section 1.3.                                           Board — meansthe Board of Directors of Oxford.

 

Section 1.4.                                           Code — means the Internal RevenueCode of 1986, as amended, and rules and regulations promulgatedthereunder, and any successor thereto.

 

Section 1.5.                                           Committee — means the committee appointed by the Board to administer the Plan.

 

Section 1.6.                                           Company — means Oxford and each subsidiary of Oxford that is designated by theBoard as a participating company under this Plan.

 

Section 1.7.                                           Compensation — means, for any Plan Year, “compensation”as defined in the 401(k) Plan for purposes of determining the amount ofpre-tax contributions and matching contributions under such plan, withoutregard to any limitations on compensation imposed under Section 401(a)(17)of the Code, plus any deferrals made under this Plan for such Plan Year.

 

Section 1.8.                                           Director — means any individual who isa member of the Board and who is not an Employee.

 

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Section 1.9.                                           Discretionary Contribution — meansthe amount, if any, credited to an Eligible Employee’s Account in accordancewith Article IV.

 

Section 1.10.                                     Election Period — means an annualenrollment period described in Section 2.2(a), (b)(2), (c) and (d); a30-day (or shorter) enrollment period described in Section 2.1(a) and(b); or a Performance-based Election Period described in Section 2.2(b)(1).

 

Section 1.11.                             Eligible Compensation — meansall amounts that may be eligible for deferral under this Plan.  More specifically, (i) with respect toan Eligible Employee, “Eligible Compensation” means the Eligible Employee’sbase salary, bonus and, if authorized by the Committee for a Plan Year,commissions; and (ii) with respect to a Director, “Eligible Compensation”means cash compensation payable to the Director for service on the Board andcommittees thereof as cash retainers (excluding any such amount payable in theform of Oxford stock pursuant to an election by a Director made before thedeadline for making a deferral election under this Plan) and meeting fees.  Additionally, with respect to an EligibleEmployee, Eligible Compensation payable after the last day of the Plan Year forservices performed during the final payroll period described in Section 3401(b) ofthe Code containing the last day of the Plan Year shall be treated for purposesof this Plan as Eligible Compensation for services performed in the Plan Yearduring which such amount is paid.  Withrespect to a Director, Eligible Compensation payable before the last day of thePlan Year for services performed during the final quarterly compensation period(under Oxford’s compensation practices for Directors) containing the last dayof the Plan Year shall be treated for purposes of this Plan as EligibleCompensation for services performed in the Plan Year during which such amountis paid.

 

Section 1.12.                                     Eligible Employee — means, for each PlanYear, any Employee of a Company who was an Eligible Employee on December 31,2009, and any other Employee of a Company whose gross annual rate of basesalary is $150,000 or more.  TheCommittee in its discretion may adjust the foregoing salary threshold for PlanYears subsequent to Plan Year 2010; provided, however, that unless otherwisedetermined by the Committee, an increase in the salary threshold shall notapply to an Employee who commenced participation in the Plan prior to the PlanYear in which such increase is effective.

 

Section 1.13.                                         Eligible Participant — meanseach Director and Eligible Employee.

 

Section 1.14.                                     Employee — means an employee of Oxfordor any subsidiary of Oxford.

 

Section 1.15.                                     ERISA — means the Employee Retirement Income Security Act of 1974, as amended.

 

Section 1.16.                                     Excess Compensation — means the excess ofan Eligible Employee’s Compensation for a Plan Year over the Eligible Employee’s“compensation” as defined in the 401(k) Plan for purposes of determiningthe amount of pre-tax contributions and matching contributions under such planfor such Plan Year.

 

Section 1.17.                                     401(k) Plan — means the OxfordIndustries, Inc. Retirement Savings Plan, as amended and as in effect fromtime to time, or any other successor defined contribution maintained by Oxfordor another Company that qualifies under Section 401(a) of the Codeand satisfies the requirements of Section 401(k) of the Code.

 

Section 1.18.                                     Matching Contribution — meansthe amount credited to an Eligible Employee’s Account in accordance with Article III.

 

Section 1.19.                                     Maximum Deferral Percentage — means,with respect to an Eligible Participant for each Plan Year, the maximumpercentage of the Eligible Participant’s Eligible Compensation that can 

 

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be deferred under the Plan,which (i) with respect to an Eligible Employee, shall be 50% of his or herbase salary, 100% of his or her bonus and, if authorized by the Committee for aPlan Year, 50% of his or her commissions, unless otherwise determined by theCommittee prior to the beginning of such Plan Year; provided, however, that nodeferral election may reduce an Eligible Employee’s compensation below anamount necessary to satisfy applicable employment and income tax withholdingrequirements; and (ii) with respect to a Director, shall be 100% of his orher cash retainer and 100% of his or her meeting fees for each Plan Year,unless otherwise determined by the Committee prior to the beginning of suchPlan Year.

 

Section 1.20.                                     Minimum Deferral Amount — means,for each Plan Year, an amount equal to 1% of an Eligible Employee’s basesalary, unless otherwise determined by the Committee prior to the beginning ofsuch Plan Year.

 

Section 1.21.                                     Oxford — means Oxford Industries, Inc. and any successor to OxfordIndustries, Inc.

 

Section 1.22.                                     Plan — means this Oxford Industries, Inc. Deferred Compensation Plan, asamended and restated effective September 1, 2010, as it may be amended inaccordance with the terms hereof from time to time.

 

Section 1.23.                                     Plan Year — means the calendar year.

 

Section 1.24.                                     Pre-2005 Oxford Plan — meansthe Oxford Industries, Inc. Non-Qualified Deferred Compensation Planadopted effective January 1, 2001, as thereafter amended, as such amendedplan was in effect on October 3, 2004.

 

Section 1.25.                                     Retirement Age — means, with respect to anEligible Employee, age 55 and 5 Years of Service; each Director shall at alltimes be deemed to have attained Retirement Age for purposes of this Plan.

 

Section 1.26.                                     Separates from Service or Separation from Service — means the termination of employment with Oxford and its subsidiariesor cessation of Board service, as the case may be, in such a manner as toconstitute a “separation from service” (other than death) within the meaning ofSection 409A of the Code.

 

As a general overview of Code Section 409A’sdefinition of “separation from service”, an Eligible Participant separates fromservice if an Eligible Employee has a termination of employment or a Directorceases to perform services (in either case, other than for death) with Oxfordand all members of the controlled group, determined in accordance with thefollowing:

 

(a)                                  Leaves of Absence.  For Eligible Employees, the employmentrelationship is treated as continuing intact while the Eligible Employee is onmilitary leave, sick leave, or other bona fide leave of absence if the periodof such leave does not exceed 6 months, or, if longer, so long as the EligibleEmployee retains a right to reemployment with the Company or a member of thecontrolled group under an applicable statute or by contract.  A leave of absence constitutes a bona fideleave of absence only while there is a reasonable expectation that the EligibleEmployee will return to perform services for Oxford or a member of thecontrolled group.  If the period of leaveexceeds 6 months and the Eligible Employee does not retain a right toreemployment under an applicable statute or by contract, the employmentrelationship is deemed to terminate on the first date immediately followingsuch 6-month period.

 

(b)                                 Status Change.  Generally, if an Eligible Employee performsservices both as an Employee and an independent contractor, the EligibleEmployee must separate from service both as an 

 

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Employee and as an independentcontractor pursuant to standards set forth in Treasury Regulations to betreated as having a separation from service. However, if an Eligible Employee provides services as an Employee and asa member of the Board, the services provided as a Director are not taken intoaccount in determining whether the Eligible Employee has a separation fromservice as an Employee for purposes of this Plan.

 

(c)                                  Termination of Employment.  Whether a termination of employment hasoccurred is determined based on whether the facts and circumstances indicatethat the Company, all members of the controlled group and the Eligible Employeereasonably anticipate that (1) no further services will be performed aftera certain date, or (2) the level of bona fide services the EligibleEmployee will perform after such date (whether as an Employee or as anindependent contractor) will permanently decrease to no more than 20% of theaverage level of bona fide services performed (whether as an Employee or anindependent contractor) over the immediately preceding 36-month period (or thefull period of services to Oxford and all members of the controlled group ifthe Eligible Employee has been providing services to Oxford and all members ofthe controlled group for less than 36 months). Facts and circumstances to be considered in making this determinationinclude, but are not limited to, whether the Eligible Employee continues to betreated as an Employee for other purposes (such as continuation of salary andparticipation in employee benefit programs), whether similarly-situated serviceproviders have been treated consistently, and whether the Eligible Employee ispermitted, and realistically available, to perform services for other servicerecipients in the same line of business. For periods during which an Eligible Employee is on a paid bona fideleave of absence and has not otherwise terminated employment as described insubsection (a) above, for purposes of this subsection, the EligibleEmployee is treated as providing bona fide services at a level equal to thelevel of services that the Eligible Employee would have been required toperform to receive the compensation paid with respect to such leave ofabsence.  Periods during which anEligible Employee is on an unpaid bona fide leave of absence and has not otherwiseterminated employment are disregarded for purposes of this subsection(including for purposes of determining the applicable 36-month (or shorter)period).

 

(d)                                 Separation of Director.  For Directors, whether a separation fromservice has occurred is determined based on whether the facts and circumstancesindicate that Oxford and the Director reasonably anticipate that the Directorhas ceased to perform services under circumstances constituting a good faithand complete termination of the relationship (and only if Oxford does notanticipate a renewal of the relationship or the Director becoming anEmployee).  If a Director also providesadditional services as an independent contractor, the Director will not be consideredto have a separation from service for purposes of Section 409A until he orshe has separated from service both as a Director and as an independentcontractor.

 

(e)                                  Controlled Group.  For purposes of this Section 1.25, “controlledgroup” means any other entity that would be required to be aggregated withOxford under Code Sections 414(b) or (c), determined, however, by using “atleast 50 percent” instead of “at least 80 percent” in applying Code Section 414(b) or(c).

 

Section 1.27.                                     Tommy Bahama Plan — means the ViewpointInternational, Inc. Nonqualified Deferred Compensation Plan adoptedeffective July 20, 2001 as thereafter amended, as such amended plan was ineffect on October 3, 2004.

 

Section 1.28.                                     Years of Service — means “years ofservice” as defined in the 401(k) Plan.

 

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ARTICLE II

 

PARTICIPATIONAND DEFERRAL ELECTIONS

 

Section 2.1.                                           Start-Up Deferral Elections.  Each person who first qualifies as anEligible Participant after the beginning of a Plan Year but before the annualenrollment period for the next following Plan Year, or after the beginning of aperformance period, and who is treated as first becoming eligible toparticipate in the Plan or any “account balance” plan aggregated with the Planunder the plan aggregation rules of Section 409A of the Code, shallbe eligible to elect to participate in this Plan during the 30-day period (or ashorter period specified by the Committee) starting on the date he or she firstqualifies as an Eligible Participant. All such elections shall be made in conformance with the rules underSection 409A of the Code for determining whether such an EligibleParticipant may be treated as first becoming eligible.

 

(a)                                  Eligible Employees.  Each such Eligible Employee may elect priorto the end of such 30-day (or shorter) period to defer from his or her EligibleCompensation up to the Maximum Deferral Percentage (in whole percentageincrements) of his or her base salary and bonus, and (if authorized by theCommittee) commissions, for services performed after the date the EligibleEmployee’s deferral election is made and becomes effective.  Any such election shall be irrevocable at theend of such 30-day (or shorter) period and through the end of the Plan Year orperformance period for which it is made (except as provided in Section 2.5).  Any such deferral of salary, or ofcommissions if applicable, shall be effective beginning with the paycheck forthe first regular payroll period beginning after the deferral election is madeand becomes effective.  The amount of anybonus deferred with respect to an election made after the beginning of aperformance period will be prorated in accordance with Section 409A of theCode.

 

(b)                                 Directors.  Each such Director may elect prior to the endof such 30-day (or shorter) period to defer from his or her EligibleCompensation up to the Maximum Deferral Percentage (in whole percentageincrements) of his or her cash retainer and meeting fees for services performedthereafter.  Such deferral electionsshall first relate to (i) a Director’s cash retainer for the 3-monthperiod for which quarterly payments of Director compensation are made thatbegins after the date the Director’s deferral election is made and becomeseffective, and (ii) a Director’s meeting fees for all meetings of theBoard (or a committee thereof) that are held after the date the Director’sdeferral election is made and becomes effective.  Each Director on September 1, 2010, mayelect to participate in the Plan for the remainder of the 2010 Plan Year on orprior to September 13, 2010.  In anycase, any such election shall be irrevocable at the end of such 30-day (orshorter) period and through the end of the Plan Year for which it is made(except as provided in Section 2.5).

 

Section 2.2.                                           Annual Deferral Elections.

 

(a)                                  Salary.  An Eligible Employee shall have the rightduring the enrollment period established by the Committee to defer up to theMaximum Deferral Percentage (in whole percentage increments) of his or her basesalary for services performed in the following Plan Year.  Any such election that is not revoked by December 31following (or coinciding with) the end of the enrollment period shall becomeirrevocable (at the end of the day) on such December 31 and shall remainirrevocable through the end of the Plan Year for which it is made (except asprovided in Section 2.5).

 

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(b)                                 Bonuses.

 

(1)                                  Performance-Based Compensation Bonus.  An Eligible Employee may elect during theannual enrollment period or any other election period described in clause (iii) belowto defer up to the Maximum Deferral Percentage (in whole percentage increments)of a “performance-based compensation” bonus earned for services performedduring such performance period; provided that (i) such bonus constitutes “performance-basedcompensation” within the meaning of Section 409A of the Code, (ii) theperformance period is at least 12 months, (iii) the election period endsat least 6 months before the end of the performance period (the “Performance-basedElection Period”), (iv) the Eligible Employee has been an Employeecontinuously from the date upon which the performance criteria were establishedthrough the date of such election, and (v) at the time of the election,the performance-based compensation is not substantially certain to be paid oris not readily ascertainable.  Any suchelection that is not revoked by the end of the applicable enrollment perioddescribed above shall be irrevocable immediately following such enrollmentperiod and shall remain irrevocable through the end of the performance period(except as provided in Section 2.5).

 

(2)                                  Other Bonuses.  If a bonus is not intended to satisfy therequirements for “performance-based compensation” within the meaning of Section 409Aof the Code, then an Eligible Employee may elect during an annual enrollmentperiod established by the Committee to defer up to the Maximum DeferralPercentage (in whole percentage increments) of such bonus that otherwise wouldbe payable to such Eligible Employee for services performed during theperformance period that begins in the following Plan Year.  Any such election that is not revoked by December 31following (or coinciding with) the end of the enrollment period shall becomeirrevocable (at the end of the day) on such December 31 and shall remainirrevocable through the end of such performance period (except as provided in Section 2.5).

 

(c)                                  Commissions.  If the Committee in its discretion determinesto allow deferrals to be made with respect to commissions for any Plan Year, anEligible Employee may elect during the annual enrollment period established bythe Committee preceding such Plan Year to defer up to the Maximum DeferralPercentage (in whole percentage increments) of his or her commissions that aretreated under Section 409A of the Code as attributable to servicesperformed by him or her during such Plan Year. Any such election that is not revoked by December 31 following (orcoinciding with) the end of the enrollment period shall become irrevocable (atthe end of the day) on such December 31 and shall remain irrevocablethrough the end of such performance period (except as provided in Section 2.5).

 

(d)                                 Directors’ Deferrals.

 

(1)                                  Cash Retainers.  A Director shall have the right during theenrollment period established by the Committee to defer up to the MaximumDeferral Percentage (in whole percentage increments) of his or her cashretainers for services in the following Plan Year.  Such deferral elections shall relate to aDirector’s cash retainers that would, absent such deferral, have been paidduring such Plan Year (*e.g.*, quarterlypayments of cash retainers that are regularly paid at the end of March, June, September andDecember of each Plan Year under Oxford’s compensation practices for Directors,or otherwise as in effect from time to time). Any such election that is not revoked by December 31 following (orcoinciding with) the end of the enrollment period shall become irrevocable (atthe end of the day) on such December 31 and shall remain irrevocablethrough the end of the Plan Year for which it is made (except as provided in Section 2.5).

 

(2)                                  Meeting Fees.  A Director shall have the right during the enrollmentperiod established by the Committee to defer up to the Maximum Deferral Percentage(in whole percentage increments) of his or her meeting fees for services in thefollowing Plan Year.  Such 

 

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deferral elections shall relate to a Director’s meeting fees that would,absent such deferral, have been paid during such Plan Year (*e.g.*, payments of meeting fees that are regularly made inconnection with each meeting of the Board or a committee thereof in accordancewith Oxford’s compensation practices for Directors, or otherwise as in effectfrom time to time).  Any such electionthat is not revoked by December 31 following (or coinciding with) the endof the enrollment period shall become irrevocable (at the end of the day) onsuch December 31 and shall remain irrevocable through the end of the PlanYear for which it is made (except as provided in Section 2.5).

 

Section 2.3.                                           Minimum Deferral Amount.  An Eligible Employee’s deferral elections fora Plan Year must provide for a deferral at least equal to the Minimum DeferralAmount for the Eligible Employee for that Plan Year (prorated for a start-upelection pursuant to Section 2.1 or upon Separation from Service during aPlan Year).

 

Section 2.4.                                           Ongoing Election.  A deferral election made in accordance withSections 2.1 or 2.2 shall remain in effect for a subsequent Plan Year (orsubsequent performance period in the case of a “performance-based compensation”deferral) unless revised or revoked during the enrollment period for such PlanYear or performance period, unless the Committee requires a new election.

 

Section 2.5.                                           Effect of Hardship Withdrawal.  An Eligible Participant who has taken ahardship withdrawal pursuant to Section 7.2(d), or has taken a hardshipwithdrawal pursuant to the 401(k) Plan, shall have his or her deferralelection under this Plan automatically cancelled effective immediately uponsuch withdrawal and for the remainder of the Plan Year and performance period,or for the remainder of the Plan Year and any subsequent Plan Year andperformance period in which deferrals under the 401(k) Plan aresuspended.  Such Eligible Participant mayrecommence participation in the Plan only during an annual enrollment period ora Performance-based Election Period and his or her election shall not becomeeffective until the beginning of the following Plan Year or, with respect tothe deferral of “performance-based compensation,” the applicable performanceperiod.

 

Section 2.6.                                           Form of Elections.  Any deferral election shall be made in theform and manner provided by the Committee for this purpose and in accordancewith such other rules and procedures as may be established from time totime by the Committee.

 

ARTICLE III

 

MATCHINGCONTRIBUTIONS

 

Unless otherwise determined by the Committee, Oxfordshall credit the Account of each Eligible Employee who elects to defer theMinimum Deferral Amount for a Plan Year with a Matching Contribution equal to2% of his or her Excess Compensation for such Plan Year.  (Matching Contributions do not apply withrespect to Directors).

 

ARTICLE IV

 

DISCRETIONARYCONTRIBUTIONS

 

The Committee may credit each Eligible Employee’sAccount with a Discretionary Contribution, if any, at such times and in suchamounts as recommended by the Committee and approved by the Nominating,Compensation & Governance Committee of the Board, or the Board, in itssole discretion.  (DiscretionaryContributions do not apply with respect to Directors).

 

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ARTICLEV

 

ACCOUNTADJUSTMENTS

 

Section5.1.                                           General.  An Eligible Participant’sbenefit under this Plan shall be based entirely on the dollar value credited tohis or her Account at any time, which will depend upon the amount deferredunder Article II, any Matching Contributions credited under Article III, anyDiscretionary Contributions credited under Article IV, and the phantominvestment adjustments made in accordance with this Article V.

 

Section5.2.                                           Deferrals.  Amounts deferred by an EligibleParticipant shall be credited to his or to her Account as soon as practicableafter the date that such Eligible Compensation otherwise would have beenpayable to the Eligible Participant if no election had been made under ArticleII.

 

Section5.3.                                           Matching and Discretionary Contributions.  The Matching Contribution and DiscretionaryContribution, if any, shall be credited to an Eligible Employee’s Account as ofthe end of the calendar year, or at such time as otherwise may be determined bythe Committee in its absolute discretion.

 

Section5.4.                                           Phantom Investments.  The Committee from time to timeshall select one or more investment funds that will serve as hypotheticalinvestment options for the deferrals, Matching Contributions and DiscretionaryContributions credited to an Account (“phantom investment funds”).  The Committee may establish limits on theportion of an Account that may be invested hypothetically in any phantominvestment fund or in any combination of phantom investment funds.

 

Section5.5.                                           Phantom Investment Election.  Each Eligible Participant shall electpursuant to procedures established by the Committee to treat the amountscredited to his or her Account as if they were invested in one or more phantominvestment funds (a “phantom investment election”).  An Eligible Participant may change his or herphantom investment elections in accordance with the Committee’sprocedures.  Any phantom investmentelection shall be effective only if made in accordance with the Committee’sprocedures.

 

Section5.6.                                           Phantom Investment Adjustments.  The Committee shall cause the EligibleParticipant’s Account to be adjusted from time to time for any earnings andlosses as if it were invested in accordance with the Eligible Participant’sphantom investment elections.  Suchadjustments shall be made until his or her Account is distributed in full underArticle VII.

 

ARTICLEVI

 

VESTING

 

Section6.1.                                           Amounts Deferred.  An Eligible Participant shall be 100% vestedat all times in the Eligible Participant’s deferrals and the earnings thereon.

 

Section6.2.                                           Matching Contributions.  An Eligible Employee’s MatchingContributions, and earnings thereon, shall be 100% vested at all times, unlessotherwise determined by the Committee prior to crediting to the EligibleEmployee’s Account.

 

Section6.3.                                           Discretionary Contributions.  An Eligible Employee’s DiscretionaryContributions, and earnings thereon, shall become vested as determined by theCommittee and as approved by the Nominating, Compensation & GovernanceCommittee of the Board, or the Board.

 

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ARTICLEVII

 

DISTRIBUTIONS

 

Section7.1.                                           Distribution Elections.

 

(a)                                  General.  At the same time as an Eligible Participantmakes a deferral election under Article II, he or she shall elect, pursuant toSection 7.2, the time as of which contributions credited to his or her Accountfor such Plan Year (adjusted as provided under Article V) will be distributedand, pursuant to Section 7.3, the form in which such distribution will be made.

 

(b)                                 Ongoing Election.  In the absence of any contrary ruleestablished by the Committee before the applicable Election Period, aSeparation from Service distribution election shall remain in effect forcontributions credited to an Account for a subsequent Plan Year (or subsequentperformance period in the case of a “performance-based compensation” deferral),unless revised or revoked during the Election Period for such Plan Year or thePerformance-based Election Period.  Anin-service distribution election will apply only to the Plan Year orperformance period with respect to which the election was made and will notapply to a subsequent Plan Year or performance period.

 

(c)                                  Default.  If an Eligible Participant fails to make anelection as to the time or form of distribution of his or her Account (orsubaccount, as applicable), his or her distribution will be made in a lump sumin the first calendar month that begins 6 months after the date of his or herSeparation from Service.

 

Section7.2.                                           Time of Distribution.  Distribution of an Eligible Participant’sAccount (or subaccount, as applicable) may be made as a result of the EligibleParticipant’s Separation from Service, death, the occurrence of a hardship dueto an unforeseeable emergency, or at a specified time while the EligibleParticipant is still an Employee or a Director.

 

(a)                                  Separation from Service.  If distribution is made as a result of theEligible Participant’s Separation from Service, it will be made or commence inthe first calendar month that begins (1) 6 months or 12 months (asselected by the Eligible Participant) after the date the Eligible ParticipantSeparates from Service, if the Separation from Service is after Retirement Age,or (2) 6 months after the date the Eligible Employee Separates fromService, if the Separation from Service is before Retirement Age.  If distribution is to be made in annualinstallments, any subsequent annual installments shall be made in February ofthe applicable year.

 

(b)                                 Death.  If an Eligible Participant dies beforedistributions commence, distribution will be made in the first month of thecalendar quarter immediately following the quarter in which his or her deathoccurred.  If an Eligible Participantdies after distributions have commenced pursuant to his or her Separation fromService or paragraph (c) below, the balance, if any, of his or her Account willbe distributed in the first month of the calendar quarter immediately followingthe quarter in which his or her death occurred.

 

(c)                                  In-Service.  An Eligible Participant may elect that his orher subaccount for a Plan Year or performance period be distributed or commenceto be distributed in February of any calendar year that begins at least 2 yearsafter the end of the Plan Year for which the deferrals were credited to suchsubaccount; provided he or she is an Employee or a Director on the date of thedistribution.  An Eligible Participantmay revise such in-service distribution election to change the time of distribution;provided, however, that (1) the revision will not take effect until 12 monthsafter the date it is made, (2) the revision must be made at least 12 monthsbefore the in-service distribution otherwise would commence, and (3) thein-service distribution will be deferred for at least 5 years from the date thein-service distribution would have commenced in the absence of the revision.

 

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(d)                                 Hardship Withdrawal due to Unforeseeable Emergency.  An Eligible Participant shallhave the right to request that the Committee distribute all, or a part of, hisor her Account to him or to her in a lump sum if he or she experiences severefinancial hardship resulting from an illness or accident of the EligibleParticipant, the spouse of the Eligible Participant or a dependent (as definedin Section 152 of the Code, without regard to subsections (b)(1), (b)(2) and(d)(1)(B) thereof) of the Eligible Participant, loss of the EligibleParticipant’s property due to casualty, or other similar extraordinary and unforeseeablecircumstances arising as a result of events beyond the control of the EligibleParticipant (an “unforeseeable emergency”). The Committee shall have the sole discretion to determine whether togrant an Eligible Participant’s withdrawal request under this Section 7.1(d)and the amount to distribute to the Eligible Participant; provided, however,that no distribution shall be made to an Eligible Participant under thisSection 7.1(d) to the extent that such hardship is or may be relieved (1) throughreimbursement or compensation by insurance or otherwise, (2) byliquidation of the Eligible Participant’s assets, to the extent the liquidationof the Eligible Participant’s assets would not itself cause severe financialhardship, or (3) by a permissible cessation of deferral elections under thisPlan.  The amount of any distributionsfrom an Eligible Participant’s Account pursuant to this Section 7.1(d) shall belimited to the amount necessary to meet the unforeseeable emergency, plusamounts necessary to pay taxes reasonably anticipated as a result of thedistribution.  An Eligible Participantwho takes a hardship withdrawal under this Section 7.1(d) will be ineligible tomake deferrals under the Plan for the remainder of the Plan Year andperformance period.  Distribution shallbe made in the calendar month following the determination by the Committee thata hardship withdrawal will be permitted.

 

(e)                                  Delay of Payments Under Certain Circumstances.  Notwithstanding the provisionsof paragraph (a) through (d) above, to the extent permitted by Section 409A ofthe Code, Oxford, in its discretion, may delay payment to a date after thepayment date designated in such paragraphs under any of the followingcircumstances:

 

(1)                                  Payments that Would Jeopardize Oxford and its Subsidiaries as a GoingConcern.  Paymentwill be delayed where the Committee determines that the making of the paymentat the time specified under the Plan would jeopardize the ability of Oxford andits subsidiaries to continue as a going concern; provided that such delayedpayment will be made during the first taxable year of Oxford in which themaking of the payment will not have such effect.

 

(2)                                  Payments that Would Violate Federal Securities Laws or Other ApplicableLaw.  Paymentwill be delayed where the Committee reasonably anticipates that the making ofthe payment will violate federal securities laws or other applicable law;provided that the delayed payment is made at the earliest date at which theCommittee reasonably anticipates that the making of the payment will not causesuch violation.

 

(3)                                  Payments Subject to Section 162(m).  Payment to an Eligible Participant may bedelayed to the extent that Oxford reasonably anticipates that if the paymentwere made as scheduled, Oxford’s deduction with respect to such payment wouldnot be permitted due to the application of Section 162(m) of the Code; providedthat the payment is made either during the Eligible Participant’s first taxableyear in which Oxford reasonably anticipates, or should reasonably anticipate,that if the payment is made during such year, the deduction of such paymentwill not be barred by application of Section 162(m) of the Code or during theperiod beginning with the date of the Eligible Participant’s Separation fromService and ending on the later of the last day of the taxable year of Oxfordin which the Eligible Participant Separates from Service or the 15th day of the third month followingthe Eligible Participant’s Separation from Service; provided further that whereany scheduled payment to a specific Eligible Participant in a taxable year ofOxford is delayed in accordance with this Section 7.2(e)(3), all scheduledpayments to such Eligible Participant that could be delayed in accordance withthis Section 7.2(e)(3) also will be delayed.

 

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Section7.3.                                           Distribution Forms.

 

(a)                                  Separation from Service After Retirement Age.  An Eligible Participant mayelect that if he or she Separates from Service after Retirement Age, his or hersubaccount for a Plan Year shall be distributed in a lump sum or annualinstallments over 2 to 15 years. Notwithstanding anything in this paragraph (a) to the contrary, if theEligible Participant’s Account balance following Separation from Service isless than $25,000, then the Account will be distributed in a lump sum, ratherthan installments.

 

(b)                                 Separation from Service Before Retirement Age or Death.  If an Eligible EmployeeSeparates from Service before Retirement Age or if any Eligible Participantdies before his or her entire Account is distributed, his or her entire Accountwill be distributed in a lump sum, regardless of whether in-servicedistributions have commenced pursuant to Section 7.2(c).

 

(c)                                  In-Service.  An Eligible Participant may elect that anin-service distribution be paid in a lump sum or in annual installments over 2to 5 years.  An Eligible Participant mayrevise such in-service distribution election to change the form of distribution;provided, however, that (1) the revision will not take effect until 12 monthsafter the date it is made, (2) the revision must be made at least 12 monthsbefore the in-service distribution otherwise would commence, and (3) thein-service distribution will be deferred for at least 5 years from the date thein-service distribution would have commenced in the absence of therevision.  If the Eligible ParticipantSeparates from Service before Retirement Age or dies, his or her Account willbe distributed in accordance with Section 7.3(b) and not this Section 7.3(c),even if distributions had commenced under this Section 7.3(c).  However, if the Eligible ParticipantSeparates from Service after Retirement Age, then distribution of anysubaccount that had commenced under this Section 7.3(c) shall continue to bepaid as scheduled, but payment of any subaccounts that had not commenced underthis Section 7.3(c) shall be made in accordance with the form elected inSection 7.3(a).

 

(d)                                 Installments.  The amount of any installment distributableunder this Section 7.3 shall be computed by multiplying the portion of theEligible Participant’s Account (or subaccount, as applicable) to be distributedin installments by a fraction, the numerator of which shall be one and thedenominator of which shall be the number of installments remaining after suchinstallment has been paid plus one.

 

Section7.4.                                           Beneficiary.  An Eligible Participant shalldesignate (on a form provided for this purpose) a person, or more than oneperson, as his or her Beneficiary to receive the balance credited to his or herAccount in the event of his or her death. An Eligible Participant may change his or her Beneficiary designation atany time.  If no Beneficiary designationis in effect on the date an Eligible Participant dies or if no designatedBeneficiary survives the Eligible Participant, the Eligible Participant’sestate automatically shall be treated as his or her Beneficiary under thisPlan.

 

ARTICLEVIII

 

NOFUNDING OBLIGATION

 

The obligation of the Company to make any distributionsunder this Plan shall be unfunded and unsecured; all distributions to, or onbehalf of, an Eligible Participant under this Plan shall be made from thegeneral assets of the Company, and any claim by an Eligible Participant orBeneficiary against the Company for any distribution under this Plan shall betreated, with respect to a Director, the same as a claim of any general andunsecured creditor of Oxford, or with respect to an Eligible Employee, the sameas a claim of any general and unsecured creditor of Oxford or any other Companyby whom the Eligible Employee was employed. Notwithstanding the foregoing, Oxford may, in its discretion, establishone or more irrevocable grantor trusts for the purpose of funding all or partof the obligations under this Plan; provided, however, that the terms of anysuch trusts require that the assets thereof remain subject to the 

 

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claims of Oxford’s and the other Company’s judgmentcreditors and are non-assignable and non-alienable by any Eligible Participantor Beneficiary prior to distribution thereof.

 

ARTICLEIX

 

COMPLIANCEWITH CODE SECTION 409A

 

Oxford intends that this Plan meet the requirements ofSection 409A(a)(2), (3) and (4) of the Code (and any successor provisions ofthe Code) and the regulations and other guidance issued thereunder (the “Requirements”)and be operated in accordance with such Requirements so that compensationdeferred under this Plan (and applicable investment earnings) shall not beincluded in income under Section 409A of the Code.  Any ambiguities in this Plan shall beconstrued to effect the intent as described in this Article IX.  If any provision of this Plan is found to bein violation of the Requirements, then such provision shall be deemed to bemodified or restricted to the extent and in the manner necessary to render suchprovision in conformity with the Requirements, or shall be deemed excised fromthis Plan, and this Plan shall be construed and enforced to the maximum extentpermitted by the Requirements as if such provision had been originallyincorporated in this Plan as so modified or restricted, or as if such provisionhad not originally been incorporated in this Plan, as the case may be.

 

ARTICLEX

 

MISCELLANEOUS

 

Section10.1.                                     Medium of Payment.  All distributions under this Plan shall bemade in cash.

 

Section10.2.                                     Making and Revoking Elections and Designations.  Any election or designation or revisedelection or designation under this Plan shall be effective only when the properlycompleted election or designation form is received by the Committee or itsdelegate before the Eligible Participant’s death, subject to the rules setforth in this Plan.

 

Section10.3.                                     Statements.  Oxford or its agent shallprovide periodic statements to the Eligible Participant to show his or herAccount balance.

 

Section10.4.                                     Claims Procedure.  Any claim for a benefit underthis Plan shall be filed and resolved in accordance with the claims procedureprovided under the 401(k) Plan, which procedure hereby is incorporated in thisPlan by reference, except that (a) the Committee of this Plan shall be theentity with whom a claim for review should be filed under this Plan and (b) theCommittee has absolute discretion to resolve any claims under this Plan.

 

Section10.5.                                     Withholding.  The Company may take whatever action that theCompany deems appropriate to satisfy applicable federal, state and local incometax withholding requirements that the Company determines applicable under thisPlan.

 

Section10.6.                                     No Liability.  No Eligible Participant and noBeneficiary of an Eligible Participant shall have the right to look to, or haveany claim whatsoever against, any officer, director, employee or agent of theCompany in his or her individual capacity for the distribution of any Account.

 

Section10.7.                                     Nonalienation of Benefits.  No benefit or payment under this Plan shallbe subject in any manner to anticipation, alienation, sale, transfer,assignment, pledge, encumbrance, levy or charge, and any attempt so toanticipate, alienate, sell, transfer, assign, pledge, encumber, levy upon orcharge the same shall be void.

 

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Section10.8.                                     Plan Administration. The Committee shall be the administrator of this Plan, and theCommittee has the exclusive responsibility and complete discretionary authorityto control the operation, management and administration of this Plan, with allpowers necessary to enable it properly to carry out those responsibilities,including (but not limited to) the power to construe this Plan, to determineeligibility for benefits, to settle disputed claims and to resolve alladministrative, interpretive, operational, equitable and other questions thatarise under this Plan.  The decisions ofthe Committee on all matters within the scope of its authority shall be finaland binding.  To the extent adiscretionary power or responsibility under this Plan is expressly assigned toa person by the Committee, that person will have complete discretionary authorityto carry out that power or responsibility and that person’s decisions on allmatters within the scope of that person’s authority will be final andbinding.  Notwithstanding the foregoing,no Eligible Participant shall participate in any determination that relatessolely or primarily to his or her own Account.

 

Section10.9.                                     Construction.  This Plan shall be construed inaccordance with the laws of the State of Georgia.  Headings and subheadings have been added onlyfor convenience of reference and shall have no substantive effectwhatsoever.  All references to thesingular shall include the plural and all references to the plural shallinclude the singular.

 

Section10.10.                               No Contract of Employment.  Nothing contained in this Plan shall beconstrued as a contract of employment between the Company and an EligibleParticipant, as a right of any Eligible Employee to be continued in theemployment of the Company, as a right of any Director to remain on the Board,or as a limitation of the otherwise applicable rights of the Company todischarge an Eligible Employee with or without cause, or to cause a Director’sservice on the Board to end.

 

Section10.11.                               ERISA.  Oxford intends that this Plancome within the various exceptions and exemptions to ERISA for a planmaintained for a “select group of management or highly compensated employees”as described in Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA.  Any ambiguities in this Plan shall beconstrued to affect the intent as described in this Section 10.11.

 

Section10.12.                               Amendment and Termination.  The Nominating, Compensation & GovernanceCommittee of the Board, or the Board, shall have the right to amend this Planfrom time to time and to terminate this Plan at any time; provided, however,that (a) the balance credited to each Account immediately after any suchamendment or termination shall be no less than the balance credited to suchAccount immediately before such amendment or termination (as adjusted forphantom investment fund performance), (b) the Nominating, Compensation &Governance Committee, or the Board, may accelerate the distribution of Accountbalances under this Plan upon termination to the extent permissible underSection 409A of the Code, and (c) except to conform to the requirements of Section409A of the Code, no amendment or termination shall adversely affect anEligible Participant’s right to the distribution of his or her Account or hisor her Beneficiary’s right to the distribution of such Account.

 

Section10.13.                               Pre-2005 Oxford Plan.

 

(a)                                  Pre-2005 Deferrals.  The Pre-2005 Oxford Plan and any liabilitiesthereunder were made a part of this Plan effective as of January 1, 2006.  Any amounts deferred before January 1, 2005under the Pre-2005 Oxford Plan (as determined in accordance with Section 409Aof the Code) shall be governed by the terms of the Pre-2005 Oxford Plan, whichis attached to this Plan as Exhibit A. Nothing herein is intended to give any additional benefits to or enhancethe benefits of a participant in the Pre-2005 Oxford Plan and it is intendedthat amounts deferred under that plan (and any earnings on such amounts) arenot subject to Section 409A of the Code. There shall be no further deferrals under the terms of the Pre-2005 OxfordPlan after December 31, 2004.

 

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(b)                                 Post-2004 and Pre-2006 Deferrals.  The Pre-2005 Oxford Plan was amended tocomply with Section 409A of the Code in the form of the addendum attached tothis Plan as Exhibit B with respect to amounts deferred in taxable yearsbeginning after December 31, 2004 and before January 1, 2006.

 

Section10.14.                               Tommy Bahama Plan.

 

(a)                                  Pre-2005 Deferrals.  The Tommy Bahama Plan and any liabilitiesthereunder were made a part of this Plan effective as of January 1, 2006.  Any amounts deferred before January 1, 2005under the Tommy Bahama Plan (as determined in accordance with Section 409A ofthe Code) shall be governed by the terms of the Tommy Bahama Plan, which isattached to this Plan as Exhibit C. Nothing herein is intended to give any additional benefits to or enhancethe benefits of a participant in the Tommy Bahama Plan and it is intended thatamounts deferred under that plan (and any earnings on such amounts) are notsubject to Section 409A of the Code. There shall be no further deferrals underthe terms of the Tommy Bahama Plan after December 31, 2004.

 

(b)                                 Post-2004 and Pre-2006 Deferrals.  The Tommy Bahama Plan was amended to complywith Section 409A of the Code in the form of the addendum attached to this Planas Exhibit D with respect to amounts deferred in taxable years beginning afterDecember 31, 2004 and before January 1, 2006.  Each Deferred Compensation Account maintainedunder the Tommy Bahama Plan for a person who was an active Employee on January1, 2006 became fully vested as of January 1, 2006.

 

Section10.15.                               Special Transition Bonus Election.  Notwithstanding any contrary provision in thePlan, the Committee was authorized in its discretion to allow an EligibleEmployee to elect during 2007 (in accordance with procedures established by theCommittee and in compliance with transition guidance provided under IRS Notice2006-79) to defer up to the Maximum Deferral Percentage of any bonusattributable to a performance period beginning in 2007 that otherwise would bea short-term deferral (within the meaning of Section 409A of the Code) payablein 2007 or 2008.

 

IN WITNESS WHEREOF, Oxford Industries, Inc. has causedthis Plan document to be executed as of this 31st day of August, 2010.

 

 
| ATTEST:                                          |   | OXFORD INDUSTRIES, INC.                       |
|--------------------------------------------------|--------|-----------------------------------------------|
|                                             |   |                                          |
|                                             |   |                                          |
| /s/ Suraj A. Palakshappa                         |   | /s/ Thomas E. Campbell                        |
|                                             |   |                                          |
| By:  Suraj A.  Palakshappa, Asst. Secretary |   | By:  Thomas E.  Campbell, Vice President |

 

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**EXHIBIT A**

 

**OXFORD INDUSTRIES, INC.**

 

**NON-QUALIFIED DEFERREDCOMPENSATION PLAN**

 

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**OXFORD INDUSTRIES, INC.**

 

**NON-QUALIFIED DEFERREDCOMPENSATION PLAN**

 

**ARTICLE I - PURPOSE; EFFECTIVEDATE**

 

1.1.                              **Purpose**.  The purpose of this Oxford Industries, Inc.Non-Qualified Deferred Compensation Plan (the “Plan”) is to permit a selectgroup of management and highly compensated employees of Oxford Industries, Inc.and its subsidiaries (the “Company”) to defer the receipt of income which wouldotherwise become payable to them.  It isintended that this Plan, by providing this deferral opportunity, will assistthe Company in attracting and retaining individuals of exceptional ability.

 

1.2.                              **Effective Date**.  The Plan shall be effective as of January 1,2001.

 

**ARTICLE II - DEFINITIONS**

 

For the purpose of this Plan, the following terms shallhave the meanings indicated unless the context clearly indicates otherwise:

 

2.1.                              **Account(s)**.  “Account(s)” means the account or accounts maintainedon the books of the Company used solely to calculate the amount payable to eachParticipant under this Plan and shall not constitute a separate fund orassets.  The Accounts available for eachParticipant shall be identified as:

 

a)                                      Retirement Account and/or,

 

b)                                     Up to two In-Service Accounts.

 

2.2.                              **Beneficiary**.  “Beneficiary” means the person, persons orentity, as designated by the Participant, entitled under Article VI to receiveany Plan benefits payable after the Participant’s death.

 

2.3.                              **Board**.  “Board” means the Board of Directors of theCompany.

 

2.4.                              **Change in Control**.  A “Change in Control” shalloccur if:

 

a)                                      Any “person” or “group” (within the meaning of Sections 13(d) and14(d)(2) of the Securities Exchange Act of 1934, as amended) becomes the “beneficialowner” (as defined in Rule 13-d under such Act) of more than fifty (50%) of thethen outstanding voting stock of the Company, other than through a transactionarranged by, or consummated with the prior approval of, the Board; or

 

b)                                     During any period of two (2) consecutive years, individuals who at thebeginning of such period constitute the Board (and any new Director whoseelection by the Board or whose nomination for election by the stockholders ofthe Company was approved by a vote of at least two-thirds (2/3) of theDirectors at the beginning of such period or whose election or nomination forelection was previously so approved) cease for any reason to constitute amajority thereof; or

 

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c)                                      The shareholders of Company approve a merger or consolidation of Companywith any other corporation, other than a merger or consolidation which wouldresult in the voting securities of a Company outstanding immediately priorthereto continuing to represent (either by remaining outstanding or by beingconverted into voting securities of the surviving entity) more than eightypercent (80%) of the combined voting power of the voting securities of Companyor such surviving entity outstanding immediately after such merger orconsolidation; or

 

d)                                     The shareholders of Company approve a plan of complete liquidation ofCompany or an agreement for the sale or disposition by Company of all orsubstantially all of the Company’s assets.

 

2.5.                              **Committee**.  “Committee” means the Committee appointed bythe Board to administer the Plan pursuant to Article VII.

 

2.6.                              **Company**.  “Company” means Oxford Industries, Inc., aGeorgia corporation, and any directly or indirectly affiliated subsidiarycorporations, any other affiliate which is designated by the Board, or anysuccessor to the business thereof.

 

2.7.                              **Compensation**.  “Compensation” means the base salary,commissions and/or bonus compensation payable to a Participant with respect toemployment services performed for the Company by the Participant and Companymatching contributions that would otherwise be included in “wages” for purposesof federal income tax withholding.  Forpurposes of this Plan, Compensation shall be calculated before reduction forany amounts deferred by the Participant pursuant to the Company’s tax qualifiedplans which may be maintained under Section 401(k) or Section 125 of theInternal Revenue Code of 1986, as amended, (the “Code”), or pursuant to thisPlan or any other non-qualified plan which permits the voluntary deferral ofcompensation.  Inclusion of any otherforms of compensation is subject to Committee Approval.

 

2.8.                              **Deferral Commitment**.  “Deferral Commitment” means acommitment made by a Participant and accepted by the Committee to defer aportion of Compensation paid to or earned such Participant during a specifiedDeferral Period.  The Deferral Commitmentshall apply to each payment of salary and/or bonus, as applicable, earned by orpayable to a Participant for a given Deferral Period, and shall specify theAccount or Accounts to which such deferrals shall be credited.  Such designation shall be made in wholepercentages and shall be made in a form acceptable to the Committee.  Once made, a Deferral Commitment shall,except as otherwise provided herein, be irrevocable by the Participant for theDeferral Period to which it applies.

 

2.9.                              **Deferral Period**.  “Deferral Period” means a calendar year towhich a Deferral Commitment applies.

 

2.10.                        **Determination Date**.  “Determination Date” means thelast business day of each calendar month.

 

2.11.                        **Disability**.  “Disability” means a physical or mentalcondition that prevents the Participant from satisfactorily performing theParticipant’s duties for Company.  TheCommittee shall, in its sole discretion, determine the existence of Disabilityand may rely on such evidence of disability as it deems appropriate, includinga determination of disability under the Company’s long-term disability plan oradvice from a medical examiner satisfactory to the Committee.

 

2.12.                        **Discretionary Contribution**.  “Discretionary Contribution”means the Company contribution credited to a Participant’s Account(s) underSection 4.5, below.

 

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2.13.                        **Distribution Election**.  “Distribution Election” meansthe form prescribed by the Committee and completed by the Participant,indicating the chosen form of payment for benefits payable from each Accountunder this Plan, as elected by the Participant.

 

2.14.                        **Financial Hardship**.  “Financial Hardship” means asevere, unexpected and unforeseeable financial hardship of the Participantresulting from a Disability of the Participant, a sudden and unexpected illnessor accident of the Participant or of a dependent of the Participant, uninsuredloss of the Participant’s property due to casualty, or other similarextraordinary and unforeseeable circumstance arising as a result of eventsbeyond the control of the Participant. Financial Hardship shall be determined based upon such standards as are,from time to time, established by the Committee, and such determination shallbe in the sole discretion of the Committee.

 

2.15.                        **401(k) Plan**.  “401(k) Plan” means the Oxford Industries,Inc. Retirement Savings Plan, or any other successor defined contribution planmaintained by the Company that qualifies under Section 401(a) of the Code andsatisfies the requirements of Section 401(k) of the Code.

 

2.16.                        **Investment Option**.  “Investment Option” means one ormore of the independently established funds or indices that are identified andlisted by the Committee.  TheseInvestment Options are used solely to calculate the investment gains or lossesthat are credited to each Participant’s Account(s) in accordance with ArticleIV.  The determination of the investmentgains or losses attributable to the performance of each Investment Option shallbe made by the Committee in its reasonable discretion.  The Committee shall select and provide a listof the various Investment Options available to the Participants with respect tothis Plan; provided, that the Committee may amend such list from time to timein its sole discretion.

 

2.17.                        **Matching Contribution**.  “Matching Contribution” meansthe Company contribution credited to a Participant’s Account(s) under Section4.4, below.

 

2.18.                        **Participant**.  “Participant” means any employee who iseligible pursuant to Section 3.1 to participate in this Plan and who haselected to defer Compensation under this Plan in accordance with ArticleIII.  Such employee shall remain a Participantin this Plan for the period of deferral and until such time as all benefitspayable under this Plan have been paid in accordance with the provisionshereof.

 

2.19.                        **Plan**.  “Plan” means this Oxford Industries, Inc.Non-Qualified Deferred Compensation Plan, as amended from time to time.

 

2.20.                        **Retirement**.  “Retirement” means the termination ofemployment with the Company of the Participant on or after attaining age 65 oron or after attaining age 55 with at least 7 Years of Service, or a terminationof employment that has received the approval by the Committee as qualifying asa Retirement under this Plan.

 

2.21.                        **Years of Service**.  “Years of Service” shall havethe meaning provided for such term for purposes of vesting under the 401(k)Plan, whether or not the Participant is a participant in such plan.

 

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**ARTICLE III - ELIGIBILITY ANDPARTICIPATION**

 

3.1.                              **Eligibility and Participation**.

 

a)                                      Eligibility.  Eligibility to participate in the Plan for aDeferral Period shall be limited to a select group of management or highlycompensated employees of the Company designated by management, from time totime, and approved by the Committee.

 

b)                                     Participation.  An employee’s participation in the Plan for aDeferral Period shall be effective upon notification to the employee by theCommittee of eligibility to participate, completion and submission of aDeferral Commitment,  DistributionElection Form and Investment Allocation Form to the Committee no later than thedeadline established by the Committee, and the acceptance by the Committee ofsuch forms.

 

3.2.                              **Form of Deferral**. A Deferral Commitment shall be made with respect to each payment ofsalary, commissions and/or bonus earned by or payable to a Participant duringthe Deferral Period, and shall designate the portion of each deferral thatshall be allocated among the various Accounts. The Participant shall set forth the amount to be deferred as a fullpercentage of salary, commission and/or bonus. In addition, the Participant shall specify in a separate form (known asthe “Investment Allocation Form”) filed with the Committee, the Participant’sinitial allocation of the amounts deferred into each Account among the variousavailable Investment Options.

 

3.3.                              **Limitations on Deferral Commitments**.  The maximum percentage of eachpayment of base salary and commissions that may be deferred during a DeferralPeriod shall be fifty percent (50%), and the maximum percentage of bonuscompensation that may be deferred during the Deferral Period shall be onehundred percent (100%).  The Committeemay set such additional limitations for a Deferral Period, as it determines inits sole discretion, once it has reviewed the participation level for suchDeferral Period.

 

3.4.                              **Commitment Limited by Termination**.  If a Participant terminatesemployment with Company prior to the end of a Deferral Period, the DeferralCommitment in effect for such Deferral Period shall be revoked as of the dateof such termination.

 

3.5.                              **Modification of Deferral Commitment**.  Except as provided in Sections3.4 and 5.5, a Deferral Commitment for a Deferral Period shall be irrevocableby the Participant during such Deferral Period.

 

3.6.                              **Change in Employment Status**.  If the Committee, in its solediscretion, determines that the Participant no longer qualifies as a member ofa select group of management or highly compensated employees, as determined inaccordance with the Employee Retirement Income Security Act of 1974, asamended, the Committee may, in its sole discretion, terminate any DeferralCommitment currently in effect, prohibit the Participant from making any futureDeferral Commitments and/or distribute the Participant’s Account Balances inaccordance with Article V of this Plan as if the Participant had terminatedemployment with the Company as of that time.

 

**ARTICLE IV - DEFERREDCOMPENSATION ACCOUNT**

 

4.1.                              **Accounts**.  The Compensation deferred by a Participantunder the Plan, any Matching Contributions deferred under the Plan,Discretionary Contributions and Earnings shall be credited to the Participant’sAccount(s).  The Participant shalldesignate the portion of each deferral that will be 

 

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credited to each Account as set forth in Section3.2(a).  These Accounts shall be usedsolely to calculate the amount payable to each Participant under this Plan andshall not constitute a separate fund of assets.

 

4.2.                              **Timing of Credits; Withholding**.  A Participant’s deferredCompensation shall be credited to each Account designated by the Participant onthe last business day of the month during which the compensation deferred wouldhave otherwise been payable to the Participant. Any Matching Contributions shall be credited to each Account on the lastbusiness day of the month during which the deferred Compensation to which theMatching Contributions relates was credited to each Account.  Any Discretionary Contributions shall becredited to the appropriate Account(s) as provided by the Committee.  Any withholding of taxes or other amountswith respect to deferred Compensation that is required by local, state orfederal law shall be withheld from the Participant’s corresponding non-deferredportion of the Compensation to the maximum extent possible, and any remaining amountshall reduce the amount credited to the Participant’s Account in a mannerspecified by the Committee.

 

4.3.                              **Investment Options**.  A Participant shall designate,at a time and in a manner acceptable to the Committee, one or more InvestmentOptions for each Account to be used for the sole purpose of determining theamount of Earnings to be credited or debited to such Account.  Such election shall designate the portion ofeach deferral of Compensation made into each Account that shall be allocatedamong the available Investment Option(s), and such election shall apply to eachsucceeding deferral of Compensation until such time as the Participant shallfile a new election with the Committee. Upon notice to the Committee, theParticipant may also reallocate the balance in each Investment Option among theother available Investment Options as of the next succeeding DeterminationDate, but in no event shall such re-allocation occur more frequently thanmonthly.

 

4.4.                              **Matching Contributions**.  The Company shall credit theportion elected by the Participant of the Company’s total Matching Contributionon behalf of the Participant to the Account designated by the Participant.

 

4.5.                              **Discretionary Contributions**.  The Company may makeDiscretionary Contributions to a Participant’s Account.  Discretionary Contributions shall be creditedand shall become vested at such times and in such amounts as recommended by theCommittee and approved by the Compensation Committee of the Board, or the Board,in its sole discretion.  Unless theCommittee specifies otherwise, such Discretionary Contribution shall beallocated among the various Accounts in the same proportion as set forth insection 4.1.

 

4.6.                              **Determination of Accounts**.  Each Participant’s Account as ofeach Determination Date shall consist of the balance of the Account as of theimmediately preceding Determination Date, adjusted as follows:

 

a)                                      **New Deferrals**.  Each Account shall be increased by anydeferrals credited since the prior Determination Date.

 

b)                                     **Company Contributions**.  Each Account shall be increasedby any Matching and/or Discretionary Contributions credited since the priorDetermination Date.

 

c)                                      **Distributions**.  Each Account shall be reduced by the amountof each benefit payment made from that Account since the prior DeterminationDate.  Distributions shall be deemed tohave been made proportionally from each of the Investment Options maintainedwithin such Account based on the proportion that such Investment Option bearsto the sum of all 

 

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Investment Options maintained within such Accountfor that Participant as of the Determination Date immediately preceding thedate of payment.

 

d)                                     **Earnings**.  Each Account shall be increased or decreasedby the Earnings credited to such Account since the prior Determination Date asthough the balance of that Account as of the beginning of the current month hadbeen invested in the applicable Investment Options chosen by the Participant.

 

4.7.                              **Vesting of Accounts**.  Each Participant shall be vestedin the amounts credited to such Participant’s Account and Earnings thereon asfollows:

 

a)                                      **Amounts Deferred**.  A Participant shall be onehundred percent (100%) vested at all times in the Participant’s deferrals ofsalary, commission and/or bonus and the Earnings thereon.

 

b)                                     **Matching Contributions**.  A Participant shall be onehundred percent (100%) vested at all times in the Matching Contributions madeunder the Plan and the Earnings thereon.

 

c)                                      **Discretionary Contributions**.  A Participant’s DiscretionaryContributions and Earnings thereon shall become vested as determined by theCommittee and as approved by the Compensation Committee of the Board, or theBoard.

 

4.8.                              **Statement of Accounts**.  Each Participant shall receive astatement showing the balances in the Participant’s Account on a quarterlybasis.

 

**ARTICLE V - PLAN BENEFITS**

 

5.1.                              **Retirement Account**.  The vested portion of aParticipant’s Retirement Account shall be distributed to the Participant uponthe Participant’s termination of employment with the Company.  Benefits under this section shall be payablethe January following termination of employment, but no sooner than thirty (30)days following termination.  The form ofbenefit payment shall be that form selected by the Participant pursuant toSection 5.6 unless the Participant terminates employment prior to Retirement,in which event, the Retirement Account shall be paid in the form of a lump sumpayment unless the Committee determines, upon written request, to allow the paymentto be made in the form designation on the Distribution Election Form.

 

5.2.                              **In-Service Account**. The vested portion of a Participant’s In-Service Account shall bedistributed to the Participant upon the date chosen by the Participant in theDistribution Election Form, but in no event shall the date specified forcommencement of payment be earlier than five (5) years from the beginning ofthe first Deferral Period during which the Participant elected compensation tobe deferred into that Account.  The formof benefit payment shall be that form selected by the Participant pursuant toSection 5.7.  However, if the Participantterminates employment with the Company prior to the date so chosen by theParticipant, the vested portion of the In-Service Account shall be added to theRetirement Account as of the date of termination of service and shall be paidin accordance with the provisions of Section 5.1.

 

5.3.                              **Death Benefit**.  Upon the death of a Participant, Companyshall pay to the Participant’s Beneficiary an amount equal to the remainingunpaid and vested Account balance in each Account in the form of a lump sumpayment.

 

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5.4.                              **Hardship Distributions**.  Upon a finding that aParticipant has suffered a Financial Hardship, the Committee may, in its solediscretion, amend the existing Deferral Commitment, or make distributions fromany or all of the Participant’s Accounts. The amount of such distribution shallbe limited to the amount reasonably necessary to meet the Participant’s needsresulting from the Financial Hardship plus applicable taxes, and shall notexceed the Participant’s vested Account balances.  If payment is made from any or all of theParticipant’s accounts due to Financial Hardship, the Participant’s deferralsunder this Plan shall cease for the remainder of the current Deferral Periodand the next subsequent Deferral Period.

 

5.5.                              **Withdrawal with Penalty**.  The Participant may elect, inthe sole discretion of the Participant, to withdraw from participation in thisPlan, and to cause the total vested portion of the Participant’s Accountbalances to be distributed in accordance with this Article V as if theParticipant had terminated service with the Company as of the time of suchelection, except that such Account balances shall be reduced by a penalty often percent (10%) of such Account Balances. The Participant’s account balances, less the 10% penalty, shall be paidto the Participant or the Participant’s Beneficiary as soon as administrativelypractical in the form of a lump sum payment. The Participant, or the Participant’s Beneficiary, may file such anelection at any time prior to the complete payment of benefits due under thisPlan.  Upon the filing of this election,any Deferral Commitment for the current Deferral Period shall be terminated andthe Participant shall be prohibited from participating in this Plan for thenext subsequent Deferral Period.

 

5.6.                              **Form of Payment**.  Unless otherwise specified in paragraphs 5.1,5.2, 5.3, or 5.5, the benefits payable from any Account under this Plan shallbe paid in the form of benefit as provided below, and as specified by theParticipant in the Distribution Election, which election shall be irrevocableonce made.  The permitted forms ofbenefit payments are:

 

a)                                      A lump sum amount which is equal to the vested Account balance;

 

b)                                     In the event of distributions from the Retirement Account, annualinstallments for a period of five (5), ten (10) or fifteen (15) years where theannual payment shall be equal to the balance of the Account immediately priorto the payment, multiplied by a fraction, the numerator of which is one (1) andthe denominator of which commences at the number of annual payment initiallychosen and is reduced by one (1) in each succeeding year.  Earnings on the unpaid balance shall be basedon the most recent allocation among the available Investment Options chosen bythe Participant, made in accordance with Section 4.3;

 

c)                                      In the event of distributions from the In-Service Account, annualinstallments for a period up to five (5) where the annual payment shall beequal to the balance of the Account immediately prior to the payment,multiplied by a fraction, the numerator of which is one (1) and the denominatorof which commences at the number of annual payment initially chosen and isreduced by one (1) in each succeeding year. Earnings on the unpaid balance shall be based on the most recentallocation among the available Investment Options chosen by the Participant,made in accordance with Section 4.3; and,

 

d)                                     Any other form of payment requested by the Participant and approved bythe Committee.

 

5.7.                              **Small Account**.  Except as otherwise determined by theCommittee, if the total of a Participant’s vested, unpaid Account balances asof the Participant’s Retirement is less than $25,000, the remaining unpaid,vested Account(s) shall be paid in a lump sum, notwithstanding any election bythe Participant to the contrary.

 

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5.8.                              **Withholding; Payroll Taxes**.  The Company shall withhold fromany payment made pursuant to this Plan any taxes required to be withheld fromsuch payments under local, state or federal law.

 

5.9.                              **Payment to Guardian**.  If a Plan benefit is payable toa minor or a person declared incompetent or to a person incapable of handlingthe disposition of the property, the Committee may direct payment to theguardian, legal representative or person having the care and custody of suchminor, incompetent or person.  TheCommittee may require proof of incompetency, minority, incapacity orguardianship as it may deem appropriate prior to distribution.  Such distribution shall completely dischargethe Committee and Company from all liability with respect to such benefit.

 

5.10.                        **Effect of Payment**.  The full payment of theapplicable benefit under this Article V shall completely discharge allobligations on the part of the Company to the Participant (and the Participant’sBeneficiary) with respect to the operation of this Plan, and the Participant’s(and Participant’s Beneficiary’s) rights under this Plan shall terminate.

 

**ARTICLE VI - BENEFICIARYDESIGNATION**

 

6.1.                              **Beneficiary Designation**.  Each Eligible Participant shallhave the right, at any time, to designate one (1) or more persons orentities as Beneficiary (both primary as well as secondary) to whom benefitsunder this Plan shall be paid in the event of Participant’s death prior tocomplete distribution of the Participant’s vested Account balance.  Each Beneficiary designation shall be in awritten form prescribed by the Committee and shall be effective only when filedwith the Committee during the Participant’s lifetime.

 

6.2.                              **Changing Beneficiary**.  Any Beneficiary designation maybe changed by the filing of a new Beneficiary designation with the Committee.

 

6.3.                              **No Beneficiary Designation**.  If any Participant fails todesignate a Beneficiary in the manner provided above, if the designation isvoid, or if the Beneficiary designated by a deceased Participant dies beforethe Participant or before complete distribution of the Participant’s benefits,the Participant’s Beneficiary shall be the Participant’s estate.

 

6.4.                              **Effect of Payment**.  Payment to the Beneficiary shallcompletely discharge the Company’s obligations under this Plan.

 

**ARTICLE VII - ADMINISTRATION**

 

7.1.                              **Committee; Duties**.  This Plan shall be administeredby the Committee, which shall consist of not less than three (3) personsappointed by the Board, except after a Change in Control as provided in Section 7.5.  The Committee shall have the authority tomake, amend, interpret and enforce all appropriate rules and regulationsfor the administration of the Plan and decide or resolve any and all questions,including interpretations of the Plan, as may arise in suchadministration.  A majority vote of theCommittee members shall control any decision. Members of the Committee may be Participants under this Plan.

 

7.2.                              **Agents**.  The Committee may, from time to time, employagents and delegate to them such administrative duties as it sees fit, and mayfrom time to time consult with counsel who may be counsel to the Company.

 

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7.3.                              **Binding Effect of Decisions**.  The decision or action of theCommittee with respect to any question arising out of or in connection with theadministration, interpretation and application of the Plan and the rules andregulations promulgated hereunder and with respect to determining eligibilityto participate in the Plan, whether, when and in what amount benefits arepayable under the Plan, and any factual determinations shall made in theCommittee’s sole discretion and shall be final, conclusive and binding upon allpersons.

 

7.4.                              **Indemnity of Committee**.  The Company shall indemnify andhold harmless the members of the Committee against any and all claims, loss,damage, expense or liability arising from any action or failure to act withrespect to this Plan on account of such member’s service on the Committee,except in the case of gross negligence or willful misconduct.

 

7.5.                              **Election of Committee After Change in Control**.  After a Change in Control,vacancies on the Committee shall be filled by majority vote of the remainingCommittee members and Committee members may be removed only by such avote.  If no Committee members remain, anew Committee shall be elected by majority vote of the Participants in the Planimmediately preceding such Change in control. No amendment shall be made to Article VII or other Plan provisionsregarding Committee authority with respect to the Plan without prior approvalby the Committee.

 

**ARTICLE VIII - CLAIMSPROCEDURE**

 

8.1.                              **Claim**.  Any person or entity claiming a benefit,requesting an interpretation or ruling under the Plan (hereinafter referred toas “Claimant”), or requesting information under the Plan shall present therequest in writing to the Committee, which shall respond in writing as soon aspracticable.

 

8.2.                              **Denial of Claim**.  If the claim or request is denied, thewritten notice of denial shall state:

 

a)                                      The reasons for denial, with specific reference to the Plan provisions onwhich the denial is based;

 

b)                                     A description of any additional material or information required and anexplanation of why it is necessary; and

 

c)                                      An explanation of the Plan’s claim review procedure.

 

8.3.                              **Review of Claim**.  Any Claimant whose claim or request is deniedor who has not received a response within sixty (60) days may request a reviewby notice given in writing to the Committee within sixty (60) days followingsuch denial or lack of response.  Theclaim or request shall be reviewed by the Committee.

 

8.4.                              **Final Decision**.  The decision on review shall normally be madewithin sixty (60) days after the Committee’s receipt of claimant’s claim orrequest.  If an extension of time isrequired for a hearing or other special circumstances, the Claimant shall benotified and the time limit shall be one hundred twenty (120) days.  The decision shall be in writing and shallstate the reasons and the relevant Plan provisions.  All decisions on review shall be made in theCommittee’s sole discretion and shall be final and binding on all parties.

 

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**ARTICLE IX - AMENDMENTAND TERMINATION OF PLAN**

 

9.1.                              **Amendment**.  The Board may at any time amend the Plan bywritten instrument, notice of which is given to all Participants and toBeneficiaries receiving installment payments, subject to the following;provided, that no amendment shall reduce the amount accrued in any Account asof the date such notice of the amendment is given.

 

9.2.                              **Company’s Right to Terminate**.  The Board may at any timepartially or completely terminate the Plan, as it determines in its solediscretion.

 

a)                                      **Partial Termination**.  The Board may partiallyterminate the Plan by instructing the Committee not to accept DeferralCommitments for future Deferral Periods. If such a partial termination occurs, the Plan shall continue to operateand be effective with regard to Deferral Commitments entered into prior to theeffective date of such partial termination.

 

b)                                     **Complete Termination**.  The Board may completelyterminate the Plan by instructing the Committee not to accept DeferralCommitments for future Deferral Periods, and by terminating all currentDeferral Commitments.  In the event ofcomplete termination, the Plan shall cease to operate and Company shalldistribute each Account to the appropriate Participant.  Payment shall be made as a lump sum.

 

**ARTICLE X - MISCELLANEOUS**

 

10.1.                        **Unfunded Plan**.  This plan is an unfunded plan maintainedprimarily to provide deferred compensation benefits for a select group of “managementor highly-compensated employees” within the meaning of the Employee RetirementIncome Security Act of 1974, as amended (“ERISA”), and therefore is exempt fromthe provisions of Parts 2, 3 and 4 of Title I of ERISA.  Accordingly, the Board may take such actionsas it, in its sole discretion, deems appropriate if it is determined by theUnited States Department of Labor, a court of competent jurisdiction, or anopinion of counsel that the Plan constitutes an employee pension benefit planwithin the meaning of Section 3 (2) of ERISA (as currently in effector hereafter amended) which is not so exempt.

 

10.2.                        **Unsecured General Creditor**.  Notwithstanding any other provisionof this Plan, Participants and Participants’ Beneficiary shall be unsecuredgeneral creditors, with no secured or preferential rights to any assets ofCompany or any other party for payment of benefits under this Plan.  Any property held by Company for the purposeof generating the cash flow for benefit payments shall remain its general,unpledged and unrestricted assets. Company’s obligation under the Plan shall be an unfunded and unsecuredpromise to pay money in the future.

 

10.3.                        **Trust Fund**.  Company shall be responsible for the paymentof all benefits provided under the Plan. At its discretion, Company may establish one (1) or more trusts,with such trustees as the Board may approve, for the purpose of assisting inthe payment of such benefits.  Althoughsuch a trust shall be irrevocable, its assets shall be held for payment of allCompany’s general creditors in the event of insolvency.  To the extent any benefits provided under thePlan are paid from any such trust, Company shall have no further obligation topay them.  If not paid from the trust,such benefits shall remain the obligation of Company.

 

10.4.                        **Nonassignability**.  Neither a Participant nor anyother person shall have any right to commute, sell, assign, transfer, pledge,anticipate, mortgage or otherwise encumber, transfer, hypothecate or convey inadvance of actual receipt the amounts, if any, payable hereunder, or any partthereof, which are, and all rights to which are, expressly declared to beunassignable and non-transferable.  Nopart of 

 

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the amounts payable shall, prior to actualpayment, be subject to seizure or sequestration for the payment of any debts,judgments, alimony or separate maintenance owed by a Participant or any otherperson, nor be transferable by operation of law in the event of a Participant’sor any other person’s bankruptcy or insolvency.

 

10.5.                        **Not a Contract of Employment**.  This Plan shall not constitute acontract of employment between Company and the Participant.  Nothing in this Plan shall give a Participantthe right to be retained in the service of Company or to interfere with theright of the Company to discipline or discharge a Participant at any time.

 

10.6.                        **Protective Provisions**.  A Participant shall cooperatewith Company by furnishing any and all information requested by Company inorder to facilitate the payment of benefits hereunder and by taking such actionas may be requested by Company.

 

10.7.                        **Governing Law**.  The provisions of this Plan shall beconstrued and interpreted according to the laws of the State of Georgia, exceptas preempted by federal law.

 

10.8.                        **Validity**.  If any provision of this Plan shall be heldillegal or invalid for any reason, said illegality or invalidity shall not affectthe remaining parts hereof, but this Plan shall be construed and enforced as ifsuch illegal and invalid provision had never been inserted herein.

 

10.9.                        **Notice**.  Any notice required or permitted under thePlan shall be sufficient if in writing and hand delivered or sent by registeredor certified mail.  Such notice shall bedeemed given as of the date of delivery or, if delivery is made by mail, as ofthe date shown on the postmark on the receipt for registration orcertification.  Mailed notice to theCommittee shall be directed to the company’s primary business address.  Mailed notice to a Participant or Beneficiaryshall be directed to the individual’s last known address in company’s records

 

10.10.                  **Successors**.  The provisions of this Plan shall bind andinure to the benefit of Company and its successors and assigns.  The term successors as used herein shallinclude any corporate or other business entity which shall, whether by merger,consolidation, purchase or otherwise acquire all or substantially all of thebusiness and assets of Company, and successors of any such corporation or otherbusiness entity.

 

 
|   | **OXFORD INDUSTRIES, INC.** |
|--------|----------------------------------|
|   |                             |   |
|   | By:                              |   |
|   | Name:                            | Thomas E. Campbell |
|   | Title:                           | Vice President |

 

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**EXHIBIT B**

 

**PRE-2005 OXFORD PLAN**

 

**SPECIAL RULES APPLICABLE TO 2005COMPENSATION**

 

Notwithstanding any other provision of the Pre-2005Oxford Plan to the contrary, the provisions of this Exhibit B shallsupersede all inconsistent provisions of the Pre-2005 Oxford Plan with respectto amounts deferred in taxable years beginning after December 31, 2004 andbefore January 1, 2006 (and earnings on such amounts).  All other provisions of the Pre-2005 OxfordPlan shall apply with respect to such deferrals to the extent not inconsistentwith the provisions of this Exhibit B or Section 409A of the Code, asdetermined by the Committee in its sole and absolute discretion.  This Exhibit B is intended to (a) satisfythe requirements of Section 409A(a)(2), (3) and (4) of the Codefor deferrals made after December 31, 2004 and before January 1, 2006and (b) not constitute a material modification of the Pre-2005 Oxford Planwith respect to amounts deferred before January 1, 2005.

 

1.                                       Account(s).  A separate bookkeeping account shallbe established to account for deferrals made in taxable years beginning after December 31,2004 and before January 1, 2006 and any earnings on such deferrals.  The portion of any Account that was not fullyvested on December 31, 2004 shall be treated as a deferral made in taxableyears beginning after December 31, 2004.

 

2.                                       Participation.  A Deferral Commitment shall onlyapply to defer a portion of Compensation consisting of base salary, commissionsand/or bonus compensation earned by a Participant during the DeferralPeriod.  The deadline for completion andsubmission of a Deferral Commitment and Distribution Election Form is December 31,2004.

 

3.                                       Changein Employment Status.  The provisions of Section 3.6 of thePre-2005 Oxford Plan shall not apply.

 

4.                                       HardshipDistributions.  The provisions of Sections 2.14 and 5.4 ofthe Pre-2005 Oxford Plan shall not apply, and Section 7.2(d) of thePlan shall apply as if incorporated in the Pre-2005 Oxford Plan.

 

5.                                       Distributionof Retirement Account.  In order for a termination of employment withthe Company to trigger a distribution, the termination of employment mustqualify as a “separation from service” within the meaning of Section 409Aof the Code and the regulations thereunder. Distribution upon termination of employment will be made in the formselected by the Participant, unless the Participant terminates employment priorto Retirement, in which case the Retirement Account shall be paid in the formof a lump sum payment, with no Committee discretion to pay in anotherform.  A distribution made as a result ofthe Participant’s separation from service (whether prior to or upon Retirement)will commence in the first calendar month that is 6 months from the date theParticipant terminates employment.  “Retirement”means the separation from service with the Company of the Participant on orafter attaining age 55 with at least 7 Years of Service.

 

6.                                       In-ServiceAccount.  AParticipant may revise an in-service distribution election to change the timeof distribution; provided, however, that (1) the revision will not takeeffect until 12 months after the date it is made, (2) the revision must bemade at least 12 months before the in-service

 

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distribution otherwise would commence, and (3) thein-service distribution will be deferred for at least 5 years from the date thein-service distribution would have commenced in the absence of the revision.

 

7.                                       Death.  If distribution is made as aresult of the Participant’s death under Section 5.3 of the Pre-2005 OxfordPlan, distribution will commence in the first month of the calendar quarterimmediately following the quarter in which his or her death occurred.

 

8.                                       Withdrawalwith Penalty.  The provisions of Section 5.5 of thePre-2005 Oxford Plan shall not apply.

 

9.                                       Delayof Payments Under Certain Circumstances.  Section 7.2(e) of the Plan shallapply as if incorporated in the Pre-2005 Oxford Plan.

 

10.                                 Amendmentand CompleteTermination.  The provisions of Sections 9.1 and 9.2(b) ofthe Pre-2005 Oxford Plan shall not apply, and Section 10.12 of the Planshall apply as if incorporated in the Pre-2005 Oxford Plan.

 

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**EXHIBIT C**

 

**VIEWPOINT INTERNATIONAL, INC.**

 

**NONQUALIFIED DEFERREDCOMPENSATION PLAN**

 

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**NONQUALIFIED DEFERREDCOMPENSATION PLAN**

 

**SECTION 1**

Definitions

 

1.1. Affiliate. “Affiliate” means anycorporation, partnership, joint venture, association or similar organization orentity that is required to be aggregated with the Company pursuant to CodeSections 414(b), (c), or (m).

 

1.2. Code. “Code” means the Internal Revenue Codeof 1986, as amended from time to time. Any reference to a section of the Codeincludes any comparable section or sections of any future legislation thatamends, supplements or supersedes that section.

 

1.3. Company. “Company” means ViewpointInternational, Inc. located at 1071 Avenue of the Americas, NY, NY 10018,employer tax identification number 13-3676108, which Company has establishedthe Plan, as set forth herein.

 

1.4. Compensation. “Compensation” means (*select one option):*

 
| Option 1. | þ | Total taxable salary, bonuses and commissions paid to  a Participant by the Employer (determined without regard to any amounts in  the Participant’s Deferred Compensation Account).                                                                                            |
|-----------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|      |   |                                                                                                                                                                                                                                                                                 |
| Option 2. | o      | Total taxable salary and commissions of the  Participant paid or accrued by the Employer, but not including the value of  any bonuses, stock options, stock appreciation rights (determined without  regard to any amounts in the Participant’s Deferred Compensation Account). |
|      |   |                                                                                                                                                                                                                                                                                 |
| Option 3. | o      | Other                                                                                                                                                                                                                                                                                |

 

1.5. Deferred Compensation Account. “DeferredCompensation Account” means the book-keeping account maintained under the Planin the Participant’s name to reflect amounts deferred under the Plan pursuantto Section 3 (as adjusted under Section 4) and (if elected by theCompany) any Employer Discretionary Contributions made on behalf of theParticipant (as adjusted under Section 4).

 

1.6. Deferral Election. “Deferral Election” meansa written notice filed by the Participant with the Employer specifying theCompensation or bonus to be deferred by the Participant.

 

1.7. Distribution Date. “Distribution Date” meansthe date a Participant terminates employment or association with the Employersfor whatever reason, unless such termination of employment is for Good Cause.

 

1.8. Early Retirement Date. “Early RetirementDate” means *(select one option):*

 
|   | o The date the  Participant attains                       years of age. |
|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                        |
|   | þ The date the Participant attains 55 years of age and has been  employed by the Company or its Affiliates for at least 10 years.                            |

 

1.9. Effective Date. “Effective Date” meansJuly 20, 2001.

 

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1.10. Employee. “Employee” means an employee ofan Employer who meets the eligibility criteria set forth in Subsection 3.1 ofthe Plan and who is a member of a select group of management or highlycompensated employees as defined under ERISA or the regulations thereunder.

 

1.11. Employer. “Employer” means, individually,the Company and each Affiliate of the Company that adopts the Plan inaccordance with Subsection 7.1. The Company and any Affiliates that adopt thePlan are sometimes collectively referred to herein as the “Employers.”

 

1.12. ERISA. “ERISA” means the EmployeeRetirement Income Security Act of 1974, as amended from time to time. Anyreference to a section of ERISA includes any comparable section or sections ofany future legislation that amends, supplements or supersedes that section.

 

1.13. Excess Contributions. “Excess Contributions”means contributions determined to be excess contributions or excess deferrals(as such terms are defined in the regulations under Section 401(k) of the Code)for the Plan Year under a plan maintained by an Employer that is qualifiedunder Sections 401(a) and 401(k) of the Code.

 

1.14. Independent Contractor. “IndependentContractor” means an individual who is not a common-law employee of an Employerbut who receives payments from the Employer for services rendered.

 

1.15. Normal Retirement Date. “Normal RetirementDate” means *(select one option):*

 
|   | o The date the  Participant attains                       years of age. |
|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                        |
|   | þ The date the Participant attains 65 years of age and has been  employed by the Company or its Affiliates for at least 10 years.                            |

 

1.16. Participant. “Participant” means anEmployee or Independent Contractor who meets the eligibility criteria set forthin Subsection 3.1 and who has made a Deferral Election in accordance with theterms of the Plan.

 

1.17. Plan. “Plan” means the provisions of thePlan, as set forth herein, including the variable provisions selected andagreed to by the Company.

 

1.18. Plan Administrator. The “Plan Administrator”means *(select one option):*

 
| o      | The Company.                                                                                                                                                                       |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                               |
| o      | A committee of at least                       members appointed by the Company |
|   |                                                                                                                                                                               |
| þ | The C.F.O. *(insert  title)*of the Company.                                                                                                                                        |
|   |                                                                                                                                                                               |
| o      | Other                                                                                                                                                                              |

 

1.19. Plan Year. “Plan Year” means the calendaryear. However, if the Effective Date of the Plan is other than January 1 of ayear, the initial Plan Year shall be a short Plan Year, beginning on theEffective Date and ending on the following December 31.

 

1.20. Unforeseeable Financial Emergency. “UnforeseeableFinancial Emergency” means a severe financial hardship of the Participantresulting from:

 

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|   | (a)    | A sudden and unexpected illness or accident of the  Participant or of a dependent of the Participant;                          |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                           |
|   | (b)    | Loss of the Participant’s principal residence due to  casualty; or                                                        |
|   |   |                                                                                                                           |
|   | (c)    | Such other similar extraordinary and unforeseeable  circumstances resulting from events beyond the control of the Participant. |

 

Whether a Participant has an Unforeseeable FinancialEmergency shall be determined in the sole discretion of the Plan Administrator.

 

1.21. Valuation Date. “Valuation Date” means *(select one option):*

 
|   | þ Any business day.                 |   |
|--------|------------------------------------------|--------|
|   |                                     |   |
|   | o The last day of any  calendar month.   |   |
|   |                                     |   |
|   | o The last day of any  calendar quarter. |   |
|   |                                     |   |
|   | o The last day of the  Plan Year.        |   |
|   |                                     |   |
|   | o                                        | Other  |   |
|        |                                          |        |  |  |

 

1.22. Other Definitions. In addition to the termsdefined in this Section 1, other terms are defined when first used inlater Sections of this Plan.

 

**SECTION 2**

Purpose and Administration

 

2.1. Purpose. The Company has established thePlan primarily for the purpose of providing deferred compensation to a selectgroup of management or highly compensated employees of the Employers. The Planis intended to be a top-hat plan described in Section 201(2) of ERISA. Ifelected by the Company under Subsection 3.1 of the Plan, IndependentContractors also may participate in the Plan. The Company intends that the Plan(and each Trust under the Plan (as described in Subsection 6.1)) shall betreated as unfunded for tax purposes and for purposes of Title I of ERISA. AnEmployer’s obligations hereunder, if any, to a Participant (or to a Participant’sbeneficiary) shall be unsecured and shall be a mere promise by the Employer tomake payments hereunder in the future. A Participant (or the Participant’sbeneficiary) shall be treated as a general unsecured creditor of the Employer.

 

2.2. Administration. The Plan shall beadministered by the Plan Administrator. The Plan Administrator shall serve atthe pleasure of the Company’s Board of Directors and may be removed by suchBoard, with or without cause. The Plan Administrator may resign upon priorwritten notice to the Company’s Board of Directors.

 

The Plan Administrator shall have the powers, rights,and duties set forth in the Plan and shall have the power, in the PlanAdministrator’s sole and absolute discretion, to determine all questionsarising under the Plan, including the determination of the rights of allpersons with respect to the Plan and to interpret the provisions of the Planand remedy any ambiguities, inconsistencies, or omissions Any decisions of thePlan Administrator shall be final and binding on ail persons with respect tothe Plan and the benefits provided under’ the Plan. The Plan Administrator maydelegate the Plan Administrator’s authority under 

 

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the Plan to one or more officers or directors of theCompany; provided, however, that (a) such delegation must be in writing,and (b) the officers or directors of the Company to whom the PlanAdministrator is delegating authority must accept such delegation in writing.

 

If a Participant is serving as the Plan Administrator (eitherindividually or as a member of a committee), the Participant may not decide ordetermine any matter or question concerning such Participant’s benefits underthe Plan that the Participant would not have the right to decide or determineif the Participant were not serving as the Plan Administrator.

 

**SECTION 3**

Eligibility, Participation, Deferral Elections,and Employer Contributions

 

3.1. Eligibility and Participation, Subject tothe conditions and limitations of the Plan, the following persons are eligibleto participate in the Plan *(select andcomplete option(s)):*

 
| þ | All Employees with a rank of Manager (*insert title)*or above and with total  earnings of at least $85,000 per Plan Year |
|--------|--------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                     |
| o      | The following Employees of the Employers:                                                                                |
|   |                                                                                                                     |
|   |                                                                                                                     |
|   |                                                                                                                     |
|   |                                                                                                                     |
|   |                                                                                                                     |
|   |                                                                                                                     |
|   | (Attach a separate sheet if necessary)                                                                                   |
|   |                                                                                                                     |
| o      | The following Independent Contractors:                                                                                   |
|   |                                                                                                                     |
|   |                                                                                                                     |
|   |                                                                                                                     |
|   |                                                                                                                     |
|   |                                                                                                                     |
|   |                                                                                                                     |
|   | (Attach a separate sheet if necessary)                                                                                   |

 

Any individuals specified above by an Employer may bechanged by action of the Employer An Employee or Independent Contractor shallbecome a Participant in the Plan upon the execution and filing with the PlanAdministrator of a written election to defer a portion of the Employee’s orIndependent Contractor’s Compensation. A Participant shall remain a Participantuntil the entire balance of the Participant’s Deferred Compensation Account hasbeen distributed.

 

3.2. Rules for Deferral Elections. Any personidentified in Subsection 3.1 may make a Deferral Election to defer receipt ofCompensation he or she otherwise would be entitled to receive for a Plan Yearin accordance with the rules set forth below:

 
|   | (a) | All Deferral Elections must be made in writing on the  form prescribed by the Plan Administrator and will be effective only when  filed with the Plan Administrator no later than the date specified by the  Plan Administrator. In no event may a Deferral Election be made later than  the last day of the |
|--------|-----|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

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|   |   | Plan Year preceding the Plan Year in which the amount  being deferred would otherwise be made available to the Participant. However,  in the case of a Participant’s initial year of employment or association with  an Employer, the Participant may make a Deferral Election with respect to  compensation for services to be performed subsequent to such Deferral  Election, provided such election is made no later than 30 days after the  date the Participant first becomes eligible for the Plan. Furthermore, in the  case of a short initial Plan Year, each Participant may make a Deferral  Election with respect to compensation for services to be performed subsequent  to such Deferral Election, provided such election is made no later than  30 days after the Effective Date. |
|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |
|   | (b)    | With respect to Plan Years following the Participant’s  initial Plan Year of participation in the Plan, failure to complete a  subsequent Deferral Election shall constitute a waiver of the Participant’s  right to elect a different amount of Compensation to be deferred for each  such Plan Year and shall be considered an affirmation and ratification to  continue the Participant’s existing Deferral Election. However, a Participant  may, prior to the beginning of any Plan Year, elect to increase or decrease  the amount of Compensation to be deferred for the next following Plan Year by  filing another Deferral Election with the Plan Administrator in accordance  with paragraph (a) above.                                                                            |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |
|   | (c)    | A Deferral Election in effect for a Plan Year may not be  modified during the Plan Year, except that a Participant may terminate the  Participant’s Deferral Election during a Plan Year in the event of an  Unforeseeable Financial Emergency.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |

 

3.3. Amounts Deferred. *(select one option):*

 
|   | Option 1. þ Deferral of a Percentage of Compensation plus Bonus.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   | Commencing on the Effective Date, a Participant may  elect to defer (a) up to 100% of the Participant’s Compensation for a  Plan Year and (b) up to 100% of the Participant’s bonus for a Plan Year.  The amount of Compensation and bonus deferred by a Participant shall be  credited to the Participant’s Deferred Compensation Account as of the  Valuation Date coincident with or immediately following the date such  Compensation and bonus would, but for the Participant’s Deferral Election, be  payable to the Participant. |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   | Option 2. o Deferral of Bonus  Only.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   | Commencing on the Effective Date, a Participant may  elect to defer up to *%*of any  bonus awarded to the Participant during a Plan Year. The amount of bonus  deferred by a Participant shall be credited to the Participant’s Deferred  Compensation Account as of the Valuation Date coincident with or immediately  following such the date such bonus would, but for the Participant’s Deferral  Election, be payable to the Participant.                                                                                                              |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   | Option 3. þ Deferral of Excess Contributions                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   | Commencing on the Effective Date, a Participant may  elect to defer an amount equal to the Excess Contributions payable to the  Participant during a Plan Year. Such amount shall be credited to the  Participant’s Deferred Compensation Account as of the Valuation Date  coincident with or immediately following the date such amount would, but for  the Participant’s Deferral Election, be payable to the Participant.                                                                                                                               |

 

3.4 Employer Discretionary Contributions. Ifselected by the Company below, an Employer may, in its sole discretion, creditto the Deferred Compensation Account of any Participant employed by thatEmployer an amount determined by the Employer in its sole discretion (an “EmployerDiscretionary

 

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Contribution”) for a Plan Year. Any EmployerDiscretionary Contribution for a Plan Year will be credited to a Participant’sDeferred Compensation Account as of the Valuation Date specified by theEmployer.

*(select one of the following options)*

 
|   | o No Employer Discretionary  Contributions will be made under the Plan.                                                                        |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                           |
|   | þ Employer Discretionary Contributions may be made under the Plan for a  Plan Year as determined by each Employer in its sole discretion. |

 

**SECTION 4**

Deferred Compensation Accounts

 

4.1. Deferred Compensation Accounts. All amountsdeferred pursuant to one or more Deferral Elections under the Plan and anyEmployer Discretionary Contributions shall be credited to a Participant’sDeferred Compensation Account and shall be adjusted under Subsection 4.2

 

4.2. Deferral Account Adjustments and InvestmentOptions. As of each Valuation Date, the Plan Administrator shall adjustamounts in a Participant’s Deferred Compensation Account to reflect earnings(or losses) in the Investment Options (as defined in Subsection 4.4)attributable to the Participant’s Deferred Compensation Account Earnings (orlosses) on amounts in a Participant’s Deferred Compensation Account shallaccrue commencing on the date the Deferred Compensation Account first has apositive balance and shall continue to accrue until the entire balance in theParticipant’s Deferred Compensation Account has been distributed. Earnings (orlosses) shall be credited to a Participant’s Deferred Compensation Accountbased on the realized rate of return (net of any expenses and taxes paid fromthe Trust) on the Investment Options attributable to the Participant’s DeferredCompensation Account.

 

4.3. Vesting. A Participant shall be fully vestedin the amounts in the Participant’s Deferred Compensation Account attributableto the Participant’s Deferral Elections. If Employer DiscretionaryContributions are made under the Plan, a Participant shall be vested in theamount in the Participant’s Deferred Compensation Account attributable toEmployer Discretionary Contributions in accordance with the following *(select Options 1, 2, or 3 and, if desired, Option 4.and/or Option 5):*

 

Option 1. þ Five Year Vesting Schedule

 

Vesting for Participants will be determined by *(select one):*

 
|   | þ Years of Service with the Employer. |
|--------|--------------------------------------------|
|   |                                       |
|   | o Years of  Participation in this Plan.    |

 

Nonforfeitable Percentage

 
| Less than 5 years |   | 0   | % |
|------------------------|--------|-----|---|
| 5 or more years        |   | 100 | % |

 

Option 2 o Seven Year Graded VestingSchedule

 

Vesting for Participants will be determined by *(select one):*

 
|   | o Years of Service  with the Employer.  |
|--------|-----------------------------------------|
|   |                                    |
|   | o Years of  Participation in this Plan. |

 

Nonforfeitable Percentage

 
| Less than 3 years |   | 0   | % |
|------------------------|--------|-----|---|
| 3 years           |   | 20  | % |
| 4 years           |   | 40  | % |
| 5 years           |   | 60  | % |
| 6 years           |   | 80  | % |
| 7 years           |   | 100 | % |

 

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| Option 3.   | o      | Other vesting schedule as described below:                                                                                                                                                                                                                                                      |
|-------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|        |   |                                                                                                                                                                                                                                                                                            |
|        |   |                                                                                                                                                                                                                                                                                            |
|        |   |                                                                                                                                                                                                                                                                                            |
|        |   |                                                                                                                                                                                                                                                                                            |
|        |   |                                                                                                                                                                                                                                                                                            |
|        |   |                                                                                                                                                                                                                                                                                            |
|        |   |                                                                                                                                                                                                                                                                                            |
|        |   |                                                                                                                                                                                                                                                                                            |
| Option 4*.* | o      | Notwithstanding the foregoing vesting schedule, the  balance in a Participant’s Deferred Compensation Account attributable to  Employer Discretionary Contributions will be forfeited if the Participant’s  employment or association with the Employer is terminated for Good Cause. |
|        |   |                                                                                                                                                                                                                                                                                            |
| Option 5    | o      | Notwithstanding the foregoing vesting schedule, the  entire balance in a Participant’s Deferred Compensation Account attributable  to Employer Discretionary Contributions will be fully vested upon the  Participant’s Early Retirement Date.                                        |

 

For the purpose of determining a Participant’s vestedbenefit with respect to Employer Discretionary Contributions, a “Year ofService” means each twelve-month period of employment or association with theCompany and the Affiliates, and a “Year of Participation” means eachtwelve-month period of active participation in the Plan. Notwithstanding theforegoing, a Participant shall be fully vested in the entire balance in theParticipant’s Deferred Compensation Account upon the Participant’s NormalRetirement Date, death or becoming disabled (as provided in Subsection 5.2below), provided the date on which the Participant dies or becomes disabledoccurs while the Participant is actively employed by or associated with theEmployers. The portion of a Participant’s Deferred Compensation Account inwhich the Participant is not fully vested shall be forfeited to the Employer bythe Participant.

 

If elected by the Company under Option 4. above,notwithstanding the vesting schedule selected in Option 1., 2., or 3. above,the balance in a Participant’s Deferred Compensation Account attributable toEmployer Discretionary Contributions will be forfeited (and neither the Participantnor the Participant’s beneficiaries will have any rights thereto) if theParticipant’s employment with the Employer is terminated for Good Cause. “GoodCause” means the Participant’s gross negligence, fraud, dishonesty, or willfulviolation of any law or significant policy of the Employer that is committed inconnection with the Participant’s employment by or association with theEmployer Whether a Participant has been terminated for Good Cause shall bedetermined by the Plan Administrator

 

4.4 Investment Options. The Company shall, fromtime to time and in its sole discretion, select one or more investment vehicles(“Investment Options”) to be made available as the measuring standards forcrediting earnings or losses to each participant’s Deferred CompensationAccount A Participant may select from such Investment Options in a mannerestablished by the Company, the investment vehicle or vehicles to apply to hisor her accounts and may change such selections, all in accordance with suchrules as the Company may establish. Notwithstanding the foregoing, theCommittee may change the method for crediting earnings or losses to eachparticipant’s accounts as described above by written notice to each Participant(including former Participants who then have a Deferred Compensation Accountwhich would

 

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be affected by such change), which notice shall specifythe new method for crediting earnings or losses to be used under this section,the effective date of such change and the Deferred Compensation Accounts towhich such new method shall apply.

 

**SECTION 5**

Payment of Benefits

 

5.1. Time and Method of Payment. Payment of thevested portion of a Participant’s Deferred Compensation Account shall be madeas soon as practicable following the Valuation Date coincident with or nextfollowing the Participant’s Distribution Date; provided, however, that if theCompany has elected a daily Valuation Date, such payment will be made as soonas practicable following the last business day of the month in which theParticipant’s Distribution Date occurs. Payment of the vested portion of aParticipant’s Deferred Compensation Account shall be made as follows *(select one option):*

 
| Option 1*.* | o      | A single, lump sum payment.                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|-------------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|        |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
| Option 2*.* | o      | Substantially equal monthly installment payments for         months.                                                                                                                                                                                                                                                                                                                                                                                    |
|        |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
| Option 3*.* | þ | Substantially equal monthly installment payments for  60 months with a one-time option to receive a lump sum payment. The Participant  may elect to receive a single, lump sum payment in lieu of installment  payments. Such election must be made by filing a written election with the  Plan Administrator at least 30 days prior to the time installment  payments would otherwise begin, and such election is subject to approval by  the Employer of the Participant. |

 

5.2 Payment Upon Disability. In the event aParticipant becomes disabled (as defined below) while the Participant isemployed by or associated with an Employer, payment of the Participant’sDeferred Compensation Account shall be made (or shall commence) as soon aspracticable after the Valuation Date coincident with or next following the dateon which the Plan Administrator determines that the Participant is disabled.For purposes of this Subsection 5.2, a Participant shall be considered disabledif the Participant is unable to engage in any substantially gainful activity byreason of any medically determined physical or mental impairment that can beexpected to result in death or that has lasted or can be expected to last for acontinuous period of not less than twelve months. Whether a Participant isdisabled for purposes of the Plan shall be determined by the PlanAdministrator, and in making such determination, the Plan Administrator mayrely on the opinion of a physician (or physicians) selected by the PlanAdministrator for such purpose.

 

5.3. Payment Upon Death of a Participant. AParticipant’s Deferred Compensation Account shall be paid to the Participant’sbeneficiary (designated in accordance with Subsection 5.4) in a single lump sumas soon as practicable following the Valuation Date coincident with or nextfollowing the Participant’s death.

 

5.4. Beneficiary. If a Participant is married onthe date of the Participant’s death, the Participant’s beneficiary shall be theParticipant’s spouse, unless the Participant names a beneficiary orbeneficiaries (other than the Participant’s spouse) to receive the balance ofthe Participant’s Deferred Compensation Account in the event of the Participant’sdeath prior to the payment of the Participant’s entire Deferred CompensationAccount. To be effective, any beneficiary designation must be filed in writingwith the Plan Administrator in accordance with rules and procedures adopted bythe Plan Administrator for that purpose. A Participant may revoke an existingbeneficiary designation by filing another written beneficiary designation withthe Plan Administrator. The latest beneficiary designation received by the

 

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Plan Administrator shall be controlling. If nobeneficiary is named by a Participant, or if the Participant survives all ofthe Participant’s named beneficiaries and does not designate anotherbeneficiary, the Participant’s Deferred Compensation Account shall be paid inthe following order of precedence:

 
|   | (a)    | The Participant’s spouse;                                                |
|--------|--------|-------------------------------------------------------------------------------|
|   |   |                                                                          |
|   | (b)    | The Participant’s children (including adopted  children) per stripes; or |
|   |   |                                                                          |
|   | (c)    | The Participant’s estate.                                                |

 

5.5. Unforeseeable Financial Emergency. If thePlan Administrator determines that a Participant has incurred an UnforeseeableFinancial Emergency, the Participant may receive in cash the portion of thebalance of the Participant’s Deferred Compensation Account needed to satisfythe Unforeseeable Financial Emergency, but only if the Unforeseeable FinancialEmergency may not be relieved (a) through reimbursement or compensation byinsurance or otherwise or (b) by liquidation of the Participant’s assetsto the extent the liquidation of such assets would not itself cause severefinancial hardship. A payment on account of an Unforeseeable FinancialEmergency shall not be in excess of the amount needed to relieve suchUnforeseeable Financial Emergency and shall be made as soon as practicablefollowing the date on which the Plan Administrator approves such payment.

 

5.6. Withholding of Taxes. In connection with thePlan, the Employers shall withhold any applicable Federal, state or localincome tax and any employment taxes, including Social Security taxes, at suchtime and in such amounts as is necessary to comply with applicable laws andregulations.

 

**SECTION 6**

Miscellaneous

 

6.1. Funding. Each Employer under the Plan shallestablish and maintain one or more trusts (individually, a “Trust”) to holdassets to be used for payment of benefits under the Plan. The assets of theTrust with respect to benefits payable to the Participants employed by orassociated with an Employer shall remain the assets of such Employer subject tothe claims of its general creditors. Any payments by a Trust of benefitsprovided to a Participant under the Plan shall be considered payment by theapplicable Employer and shall discharge such Employer from any furtherliability under the Plan for such payments.

 

6.2. Rights. Establishment of the Plan shall notbe construed to give any Employee or Independent Contractor the right to beretained by the Employers or to any benefits not specifically provided by thePlan.

 

6.3. Interests Not Transferable. Except as towithholding of any tax under the laws of the United States or any state orlocality and the provisions of Subsection 5.4, no benefit payable at any timeunder the Plan shall be subject in any manner to anticipation, alienation,sale, transfer, assignment, pledge, or any other encumbrance of any kind or toany attachment, garnishment, or other legal process of any kind. Any attempt bya person (including a Participant or a Participant’s beneficiary) toanticipate, alienate, sell, transfer, assign, pledge, or otherwise encumber anybenefits under the Plan, whether currently or thereafter payable, shall bevoid. If any person shall attempt to, or shall alienate, sell, transfer,assign, pledge or otherwise encumber such person’s benefits under the Plan, orif by any reason of such person’s bankruptcy or other event happening at anytime, such benefits would devolve upon any other person or would not be enjoyedby the person entitled thereto under the Plan, then the Plan Administrator, inthe Plan Administrator’s sole discretion, may terminate the interest in anysuch benefits of the person otherwise entitled thereto under the Plan and mayhold or apply such benefits in such manner as the Plan Administrator may deemproper.

 

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6.4. Forfeitures and Unclaimed Amounts. Unclaimedamounts shall consist of the amounts in the Deferred Compensation Account of aParticipant that cannot be distributed because of the Plan Administrator’sinability, after a reasonable search, to locate a Participant or theParticipant’s beneficiary, as applicable, within a period of two years afterthe Distribution Date upon which the payment of benefits became due. Unclaimedamounts shall be forfeited at the end of such two-year period. Theseforfeitures will reduce the obligations of the Employers, if any, under thePlan. After an unclaimed amount has been forfeited, the Participant orbeneficiary, as applicable, shall have no further right to amounts in theParticipant’s Deferred Compensation Account.

 

6.5. Controlling Law. The law of the state NewHampshire shall be controlling in all matters relating to the Plan to theextent not preempted by Federal law.

 

6.6. Number. Words in the plural shall includethe singular, and the singular shall include the plural.

 

6.7. Action by the Employers. Except as otherwisespecifically provided herein, any action required of or permitted to be takenby an Employer under the Plan shall be by resolution of its Board of Directorsor by resolution of a duly authorized committee of its Board of Directors or byaction of a person or persons authorized by resolution of such Board ofDirectors or such committee.

 

6.8. Offset for Obligations to Employer. If, atsuch time as a Participant or a Participant’s beneficiary becomes entitled tobenefit payments hereunder, the Participant has any debt, obligation or otherliability representing an amount owing to an Employer or an Affiliate of theEmployer, and if such debt, obligation, or other liability is due and owing atthe time benefit payments are payable hereunder, the Employer may offset theamount owing it or an Affiliate against the amount of benefits otherwisedistributable hereunder.

 

6.9. No Fiduciary Relationship. Nothing containedin this Plan, and no action taken pursuant to its provisions by either theEmployers or the Participants shall create, or be construed to create afiduciary relationship between the Employer and the Participant, a designatedbeneficiary, other beneficiaries of the Participant, or any other person.

 

6.10. Claims Procedures. Any person (hereinafterreferred to as a “Claimant”) who believes that he or she is being denied abenefit to which he or she may be entitled under the Plan may file a writtenrequest for such benefit with the Plan Administrator. Such written request mustset forth the Claimant’s claim and must be addressed to the Plan Administrator,at the Company’s principal place of business. Upon receipt of a claim, the PlanAdministrator shall advise the Claimant that a reply will be forthcoming withinninety days and shall deliver a reply within ninety days. The PlanAdministrator may, however, extend the reply period for an additional ninetydays for reasonable cause. If the claim is denied in whole or in part, the PlanAdministrator shall issue a written determination, using language calculated tobe understood by the Claimant, setting forth:

 
|   | (a)    | The specific reason or reasons for such denial;                                                                                                                                                      |
|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                 |
|   | (b)    | The specific reference to pertinent provisions of the  Plan upon which such denial is based;                                                                                                         |
|   |   |                                                                                                                                                                                                 |
|   | (c)    | A description of any additional material or  information necessary for the Claimant to perfect the Claimant’s claim and an  explanation why such material or such information is necessary; and |
|   |   |                                                                                                                                                                                                 |
|   | (d)    | Appropriate information as to the steps to be taken if  the Claimant wishes to submit the claim for review, and the time limits for  requesting such a review.                                       |

 

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Within sixty days after’ the receipt by the Claimant ofthe written determination described above, the Claimant may request in writing,that the Plan Administrator review the Plan Administrator’s determination. Therequest must be addressed to the Plan Administrator, at the Company’s principalplace of business. The Claimant or the Claimant’s duly authorizedrepresentative may, but need not, review the pertinent documents and submitissues and comments in writing for consideration by the Plan Administrator. Ifthe Claimant does not request a review of the Plan Administrator’s determinationwithin such sixty day-period, the Claimant shall be barred and estopped fromchallenging the Plan Administrator’s determination. “Within sixty days afterthe Plan Administrator’s receipt of a request for review, the PlanAdministrator will review the determination. After considering all materialspresented by the Claimant, the Plan Administrator will render a writtendetermination, written in a manner calculated to be understood by the Claimantsetting forth the specific reasons for the decision and containing specificreferences to the pertinent provisions of the Plan on which the decision isbased. If special circumstances require that the sixty day time period beextended, the Plan Administrator will so notify the Claimant and will renderthe decision as soon as practicable, but no later than one hundred twenty daysafter receipt of the request for review.

 

6.11. Notice. Any notice required or permitted tobe given under the provisions of the Plan shall be in writing, and shall besigned by the party giving or making the same. If such notice, consent ordemand is mailed to a party hereto, it shall be sent by United States certifiedmail, postage prepaid, addressed to such party’s last known address as shown onthe records of the Employers. Notices to the Plan Administrator should be sentin care of the Company at the Company’s principal place of business. The dateof such mailing shall be deemed the date of notice. Either party may change theaddress to which notice is to be sent by giving notice of the change of addressin the manner set forth above.

 

**SECTION 7**

Employer Participation

 

7.1. Adoption of Plan. Any Affiliate of theCompany may, with the approval of the Company, adopt the Plan by filing withthe Company a resolution of its Board of Directors to that effect.

 

7.2. Withdrawal from the Plan by Employer. AnyEmployer shall have the right, at any time, upon the approval of, and undersuch conditions as may be provided by the Plan Administrator, to withdraw fromthe Plan by delivering to the Plan Administrator written notice of its electionso to withdraw. Upon receipt of such notice by the Plan Administrator, theportion of the Deferred Compensation Account of Participants and beneficiariesattributable to amounts deferred while the Participants were employed by orassociated with such withdrawing Employer shall be distributed from the Trustat the direction of the Plan Administrator in cash at such time or times as thePlan Administrator in the Plan Administrator’s sole discretion, may deem to bein the best interest of such Participants and their beneficiaries. To theextent the amounts held in the Trust for the benefit of such Participants andbeneficiaries are not sufficient to satisfy the Employer’s obligation to suchParticipants and their beneficiaries accrued on account of their employmentwith the Employer, the remaining amount necessary to satisfy such obligationshall be an obligation of the Employer, and the other Employers shall have nofurther obligation to such Participants and beneficiaries with respect to suchamounts.

 

**SECTION 8**

Amendment and Termination

 

The Company intends the Plan to be permanent, butreserves the right at any time to modify, amend or terminate the Plan; providedhowever, that except as provided below, any amendment or termination of thePlan shall not reduce or eliminate any balance in a Participant’s DeferredCompensation Account

 

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accrued through the date of such amendment ortermination. Upon termination of the Plan, the Company may provide thatnotwithstanding the Participant’s Distribution Date, all Deferred CompensationAccount balances will be distributed on a date selected by the Company.

 

**SECTION 9**

Change of Control

 

9.1. Overriding Provisions Applicable During aRestricted Period. The following provisions of this Section 9 willbecome effective on a Restricted Date as the result of a Change of Control andwill remain in effect during the Restricted Period beginning on that date untilthe following related Unrestricted Date, and during the Restricted Period, willsupersede any other provisions of the Plan to the extent necessary to eliminateany inconsistencies between the provisions of this Section 9 and any otherprovisions of the Plan, including any supplements thereto.

 

9.2. Suspension of Part or All of the OverridingProvisions. If a majority of the members of the Entire Board are ContinuingDirectors (provided such majority is equal to the same number as constituted amajority of the Entire Board immediately prior to the Change of Control), bythe affirmative vote of a majority of the Entire Board and a majority of thosemembers of the Entire Board who are Continuing Directors, all or a designatedportion or portions of the following provisions of this Section 9 may bedeclared not applicable as to the specified transaction or event. No portion ofthe provisions of this Section 9 will apply to any transaction or event tothe extent such portion is inconsistent with the requirements of applicablelaw.

 

9.3. Definitions. For purposes of thisSection 9, the definitions set forth in Paragraphs (a) through(k) below will apply. Definitions set forth elsewhere in the Plan alsowill apply to the provisions set forth in this Section 9, except thatwhere a definition set forth elsewhere in the Plan and a definition set forthin this Subsection conflict, the definition set forth in this Subsection willgovern.

 
|   | (a)    | “Acquiring Person” will mean any Person, who or which,  together with all Affiliates and Associates of such Person, is the Beneficial  Owner of shares of common stock of the Company constituting more than  20 percent of the common stock then outstanding.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|   | (b)    | “Affiliate” and “Associate” will have the meaning  ascribed to such terms in Rule 12b-2 of the General Rules and  Regulations under the Securities Exchange Act of 1934 (the “Act”).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|   | (c)    | “Beneficial Owner” will have the meaning ascribed to  such term in Rule 13d-3 of the Act.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|   | (d)    | “Board of Directors” will mean the Board of Directors  of the Company.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|   | (e)    | A “Change of Control” will be deemed to occur  (i) upon any Person becoming an Acquiring Person if the Board of  Directors has not recommended that stockholders of the Company tender or  otherwise sell their common stock to such Acquiring Person; (ii) upon  the approval by the stockholders of the Company of a reorganization, merger  or consolidation, in each case, with respect to which persons who were  stockholders of the Company immediately prior to such reorganization, merger  or consolidation, do not, immediately thereafter, own more than  50 percent of the combined voting power entitled to vote generally in  the election of directors of the reorganized, consolidated or merged  Company’s then outstanding securities; or (iii) upon a liquidation or dissolution  of the Company or the sale of all or substantially all of the Company’s  assets. |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|   | (f)    | “Continuing Director” will mean:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|   |   | (i)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | any member of the Board of Directors immediately prior  to a Change of Control, or |

 

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|   |   | (ii)                                                                                                                                                                                                                                                                                                                                                                                     | any successor of a Continuing Director who is  recommended or elected to succeed such Continuing Director by a majority of  the Continuing Directors then in office and is neither an Acquiring Person,  an Affiliate of an Acquiring Person, nor a representative or nominee of an  Acquiring Person or of any such Affiliate while such person is a member of  the Board of Directors. |
|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                                                     |                                                                                                                                                                                                                                                                                                                                                                                     |
|   |   | Notwithstanding the foregoing, a successor will not be  deemed to be a Continuing Director unless, immediately prior to his or her  appointment or election, a majority of the members of the Entire Board were  Continuing Directors (and unless such majority is equal to the same number as  constituted a majority of the Entire Board immediately prior to the Change of  Control). |
|   |   |
|   | (g)    | “Person” will mean any individual, firm, corporation  or other entity, and will include any “group” as that term is used in  Rule 13d-5(b) of the Act.                                                                                                                                                                                                     |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                     |
|   | (h)    | “Restricted Date” will mean the date on which a Change  of Control occurs.                                                                                                                                                                                                                                                                                                     |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                     |
|   | (i)    | “Restricted Period” will mean the period beginning on  a Restricted Date and ending on the fifth anniversary of such Restricted  Date.                                                                                                                                                                                                                                         |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                     |
|   | (j)    | “Unrestricted Date” will mean the last day of a  Restricted Period.                                                                                                                                                                                                                                                                                                            |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                     |
|   | (k)    | “Entire Board” will mean the total number of members  of the Board of Directors that there would be if there were no vacancies on  such Board.                                                                                                                                                                                                                                 |

 

9.4. Benefits Vested on Restricted Date.Effective on a Restricted Date, the balances in the Deferred CompensationAccounts (including any contributions and investment earnings after that date)of each Participant who is a Participant in the Plan on that date will becomefully vested and nonforfeitable.

 

9.5. Prohibition Against Amendment. During theRestricted Period, the provisions of this Section 9 may not be amended ordeleted and may not be superseded by any other provision of the Plan (includingthe provisions of any exhibit or supplement thereto).

 

IN WITNESS WHEREOF, the Company has caused this Plan tobe executed by its duly authorized officers on this 23 day of July, 2001.

 

 
|    | Viewpoint International, Inc. |   |
|---------|------------------------------------|--------|
|    | (Name of Company)                  |   |
|    |                               |   |
|    | By:                                |   |
|    |                               |   |
|    | Its:                               |   |
| ATTEST: |                               |   |
| Its:    |                               |   |
|         |                                    |        |  |

 

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AMENDMENTTO THEVIEWPOINT INTERNATIONAL, INC.NONQUALIFIED DEFERRED COMPENSATION PLAN

 

THIS AMENDMENT to the Viewpoint International, Inc.Nonqualified Deferred Compensation Plan is adopted by Viewpoint International, Inc.(the “Company”), effective as of the date set forth herein.

 

**W I T N E S S E T H:**

 

**WHEREAS**, theCompany maintains the Viewpoint International, Inc. Nonqualified DeferredCompensation Plan (the “Plan”), and such Plan is currently in effect; and

 

**WHEREAS**, theCompany wishes to amend the Plan as permitted by Section 8 of the Plan.

 

**NOW, THEREFORE**, the Company hereby amends the Plan as follows:

 

1.               Appendix A shall be added to the Plan in the form attached hereto.

 

2.               This amendment shall be effective immediately upon execution.

 

IN WITNESS WHEREOF, the undersigned has adopted thisAmendment effective as of the dates indicated above.

 
|   |   |   | **VIEWPOINT INTERNATIONAL, INC.** |
|--------|--------|--------|----------------------------------------|
|   |   |   |                                   |   |
| Date:  |   |   | By                                     |   |
|   |   |   |                                   |   |
|   |   |   | Name                                   |   |
|   |   |   |                                   |   |
|   |   |   | Title                                  |   |

 

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X.15.a.1.1

 

**APPENDIX A**

**SPECIAL RULES APPLICABLE TO 2003SPECIAL CLOSING BONUSES**

 

A1. Exclusion of Certain Bonuses. Notwithstandingany other provision of the plan to the contrary, Compensation as defined inSection 1.4 of the Plan shall not include any bonus (a “Closing Bonus”)payable to a Participant contingent on the consummation of the sale of theCompany pursuant to that certain Stock Purchase Agreement dated as ofApril 26, 2003 by and among the Oxford Industries, Inc., the Company,and the stockholders of the Company (the “sale”) and so no deferral will beeffective with respect to any such bonus except as otherwise expressly providedin this Appendix A.

 

A2. Special Deferral Election. Participants whoare notified that they may become entitled to receive a Closing Bonus equal toor exceeding $250,000 (an “Eligible Bonus”) may make a special DeferralElection (a “Special Election”) with respect to any such Eligible Bonus inaccordance with the rules set forth below:

 
|   | (a)    | The Special Election must be made in writing on the  form prescribed by the Plan Administrator for the purpose of such Special  Election and must be delivered to the Plan Administrator prior to the  consummation of the Sale.          |
|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                      |
|   | (b)    | The Special Election is subject to the consummation of  the Sale and the payment of an Eligible Bonus.                                                                                                                                    |
|   |   |                                                                                                                                                                                                                                      |
|   | (c)    | The Special Election shall not be valid if the actual  Closing Bonus paid to the participant is than $250,000.                                                                                                                            |
|   |   |                                                                                                                                                                                                                                      |
|   | (d)    | The Special Election is applicable solely to an  Eligible Bonus and does not revoke or modify any Deferral Election otherwise  in effect under the Plan with respect to a participant’s Compensation  (including any other bonuses). |
|   |   |                                                                                                                                                                                                                                      |
|   | (e)    | The Special Election is irrevocable.                                                                                                                                                                                                      |

 

A3. Special Deferral Amount. A Participant mayelect to defer all or any portion (in a whole percentage or dollar amount ) ofan Eligible Bonus. The amount deferred by a Participant shall be credited tothe Participant’s Deferred Compensation Account at the same time and shall beadjusted under Section 4.2 in the same manner as any other bonus under thePlan but shall be accounted for separately from all other amounts credited tosuch Participant’s Account.

 

A4. Vesting in Special Deferral Amount. AParticipant shall be fully vested in the Participant’s Deferred CompensationAccount attributable to the Participant’s Special Election Pursuant to thisAppendix A.

 

A5. Time and Method of Payment. Payment of aParticipant’s Deferred Compensation Account attributable to the Participant’sSpecial Election shall be made in accordance with one of the following optionselected by the Participant on the special election form provided to theParticipant pursuant to Section A2 above:

 
|   | (a)    | A single lump sum payment made no sooner than  January 1, 2005 and no later than May 3l, 2007.                                         |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                             |
|   | (b)    | Substantially equal annual installment payments  commencing on any date elected by the Participant and ceasing no later than  May 31, 2007. |

 

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Such election is irrevocable and may not be modified atany time for any reason.

 

A6. Other Plan Provisions Apply. The provisionsof this Appendix A shall supercede all inconsistent provisions of thePlan, provided that all other provisions of the Plan shall apply with respectto a Participant and the Deferred Compensation Account attributable to theParticipant’s Special Election made in accordance with this Appendix A tothe extent not inconsistent with the provisions of this Appendix A asdetermined by the Plan Administrator in its sole and absolute discretion.

 

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AMENDMENTTO THEVIEWPOINT INTERNATIONAL, INC.NONQUALIFIED DEFERRED COMPENSATION PLAN

 

Pursuant to § 8 of the Viewpoint International, Inc.Executive Deferred Compensation plan (the “PLAN”), Viewpoint International, Inc.(the “Company”) hereby amends the Plan as follows:

 

**1.**

 

Effective as of January 1, 2005, Section 1.18of the Plan shall be amended to read as follows:

 

“The Plan Administrator means a committee of at leastthree (3) persons appointed by the Company.”

 

**2.**

 

Effective as of January 1, 2005, Section 3.1 ofthe Plan shall be amended to read as follows:

 

“3.1 Eligibility and Participation. Subject tothe conditions and limitations of the Plan, the following persons are eligibleto participate in the Plan: Any Employee who is Employed by the Employer andwho is determined by the Employer, in its sole discretion, to be both(i) a member of a select group of management or highly compensatedemployees and (ii) eligible to participate in the Plan. Any individualsspecified by the Employer may be changed by action of the Employer. An Employeeshall become a Participant in the Plan upon the execution and filing with theplan Administrator of a written election to defer a portion of the Employee’sCompensation. A participant shall remain a Participant until the entire balanceof the Participant’s Deferred Compensation Account has been distributed.”

 

**3.**

 

Except as specifically set forth herein, the terms ofthe plan shall remain in full force and effect.

 

IN WITNESS WHEREOF, the Company has caused thisAmendment to be executed on the date set forth below.

 
|   | VIEWPOINT INTERNATIONAL, INC. |
|--------|------------------------------------|
|   |                               |   |
|   | By:                                |   |
|   | Title:                             |   |
|   | Date:                              |   |

 

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** **

**EXHIBIT D**

 

**TOMMY BAHAMA PLAN**

 

**SPECIAL RULES APPLICABLE TO 2005COMPENSATION**

 

Notwithstanding any other provision of the Tommy BahamaPlan to the contrary, the provisions of this Exhibit D shall supersede allinconsistent provisions of the Tommy Bahama Plan with respect to amountsdeferred in taxable years beginning after December 31, 2004 and before January 1,2006 (and earnings on such amounts) and earnings in 2005 on deferrals made intaxable years before January 1, 2005. All other provisions of the Tommy Bahama Plan shall apply with respectto such deferrals to the extent not inconsistent with the provisions of this Exhibit Dor Section 409A of the Code, as determined by the Committee in its soleand absolute discretion.  This Exhibit Dis intended to (a) satisfy the requirements of Section 409A(a)(2), (3) and(4) of the Code for deferrals made after December 31, 2004 and beforeJanuary 1, 2006 and (b) not constitute a material modification of theTommy Bahama Plan with respect to amounts deferred before January 1, 2005.

 

1.                                       Account(s).  A separate bookkeeping accountshall be established to account for deferrals made in taxable years beginningafter December 31, 2004 and before January 1, 2006 (and any earningson such deferrals) and earnings in 2005 on deferrals made in taxable yearsbefore January 1, 2005.  The portionof any Deferred Compensation Account that was not fully vested on December 31,2004 shall be treated as a deferral made in taxable years beginning after December 31,2004.

 

2.                                       DeferralElections.  In no event may a Deferral Election be madelater than the last day of the Plan Year preceding the Plan Year in which theamount being deferred is earned by the Participant, except that a DeferralElection with respect to Excess Contributions payable to the Participant in2005 may be made on or before December 31, 2004 in accordance with Q&A21 of IRS Notice 2005-1.

 

3.                                       Timeand Method of Payment.  In order for a termination of employment orassociation with the employers to qualify as a Distribution Event, thetermination of employment or association must qualify as a “separation fromservice” within the meaning of Section 409A of the Code and theregulations thereunder.  Section 5.1of the Tommy Bahama Plan is amended to provide that distributions shall be madein a single, lump sum payment and will commence in the first calendar monththat is 6 months from the Participant’s Distribution Date.

 

4.                                       Disabilityor Death.  If distribution is made as a result of theParticipant’s disability or death under Sections 5.2 or 5.3 of the Tommy BahamaPlan, distribution will commence in the first month of the calendar quarterimmediately following the quarter in which his or her disability or deathoccurred.  A Participant shall beconsidered disabled if the Participant is unable to engage in any substantiallygainful activity by reason of any medically determined physical or mentalimpairment that can be expected to result in death or that can be expected tolast from a continuous period of not less than twelve months.

 

5.                                       UnforeseeableFinancial Emergency.  The provisions of Sections 1.20, 3.2(c) and5.5 of the Tommy Bahama Plan shall not apply, and Section 7.2(d) ofthe Plan shall apply as if incorporated in the Tommy Bahama Plan.

 

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6.                                       Delayof Payments Under Certain Circumstances.  Section 7.2(e) of the Plan shallapply as if incorporated in the Tommy Bahama Plan.

 

7.                                       Amendmentand Termination.  The provisions of Section 8 of the TommyBahama Plan shall not apply, and Section 10.12 of the Plan shall apply asif incorporated in the Tommy Bahama Plan.

 

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