exv10w3





 Exhibit
10.3

AMENDED AND RESTATED

WRIGHT EXPRESS CORPORATION EXECUTIVE

DEFERRED COMPENSATION PLAN




ARTICLE 1-INTRODUCTION




1.1 Purpose of Plan




Wright Express Corporation has adopted the Plan set forth herein to provide a means by which
certain employees designated by Wright Express Corporation for participation may elect to defer
receipt of designated percentages or amounts of their Compensation and to provide a means for
certain other deferrals of Compensation.



1.2 Status of Plan




The Plan is intended to be “a plan which is unfunded and is maintained by an employer primarily
for the purpose of providing deferred compensation for a select group of management or highly
compensated employees” within the meaning of Sections 201(2) and 301(a)(3) of the Employee
Retirement Income Security Act of 1974 (“ERISA”), and shall be interpreted and administered in a
manner consistent with such intent. With respect to Compensation deferred on or after January 1,
2005, the Plan shall be administered in a manner consistent with the applicable requirements of
Code Section 409A and the guidance published thereunder by the U.S. Department of Treasury.



ARTICLE 2-DEFINITIONS




Wherever used herein, the following terms have the meanings set forth below, unless a different
meaning is clearly required by the context:



2.1 Account means, for each Participant, the account established for his or her benefit under
Section 5.1.



2.2 Adoption Agreement means the agreement between Wright Express Corporation and Merrill Lynch
(or other service provider) containing certain terms of the Plan and entered into as of the
Effective Date, as the same may be amended from time to time. The Adoption Agreement shall be
considered part of the Plan document.



2.3 Change of Control Transaction means any transaction or series of transactions that
constitutes a “Change in Control” as defined in Section 2(g) of the 2005 Equity and Incentive
Plan.



2.4 Code means the Internal Revenue Code of 1986, as amended from time to time. Reference to
any section or subsection of the Code includes reference to any comparable or succeeding
provisions of any legislation which amends, supplements or replaces such section or subsection.



2.5 Compensation has the meaning set forth in the Adoption Agreement.



2.6 Effective Date means January 1, 2009, for this amendment and restatement of the Plan, and
February 22, 2005, the date on which the Plan first becomes became effective, for the Plan as originally adopted.



2.7 Election Form means the participation election form as approved and prescribed by the Plan
Administrator.



 









 





2.8 Elective Deferral means the portion of Compensation which is deferred by a
Participant under Section 4.1.



2.9
Eligible Employee has the
meaningmeans each employee of the Employer who satisfies the criteria
set forth in the Adoption
Agreement.



2.10 Employer means Wright Express Corporation or any successor to all or a major portion of the
Employer’s assets or business which assumes the obligations of the Employer, and each other entity
that is affiliated with Wright Express Corporation which adopts the Plan with the consent of the
Employer.



2.11 ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to
time. Reference to any section or subsection of ERISA includes reference to any comparable or
succeeding provisions of any legislation which amends, supplements or replaces such section or
subsection.



2.12 Incentive Deferral means a discretionary additional deferral of Compensation made by the
Employer for the benefit of a Participant as described in Section 4.3.



2.13 Insolvent means either (i) the Employer is unable to pay its debts as they become due, or
(ii) the Employer is subject to a pending proceeding as a debtor under the United States Bankruptcy
Code.



2.14 Matching Deferral means a deferral for the benefit of a Participant as described in Section
4.2.



2.15 Participant means any individual who participates in the Plan in accordance with Article 3.



2.16 Plan means this Wright Express Corporation Executive Deferred Compensation Plan, as amended
from time to time, including the provisions of any the Adoption Agreement, which are incorporated therein.



2.17 Plan Administrator means the person, persons or entity designated by Wright Express
Corporation in the Adoption Agreement or in another instrument to administer the Plan and to serve as the agent for Wright
Express Corporation with respect to the Plan and Trust as contemplated by the agreement
establishing the Trust. If no such person or entity is so serving at any time, the Employer shall
be the Plan Administrator.



2.18 Plan Year means a calendar yearthe 12-month period set forth in the Adoption Agreement.



2.19 Total and Permanent Disability means the inability of a Participant to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months, and the permanence and degree of which shall be
supported by medical evidence satisfactory to the Plan Administrator.



2.20 Trust means the trust, if any, established by the Employer that identifies the Plan as a plan
with respect to which assets are to be held by the Trustee.



2.21 Trustee means the trustee or trustees under the Trust.



2.22 Year of Service means the computation period and related service requirement set forth in the Adoption Agreement.



 









 





ARTICLE 3-PARTICIPATION




3.1 Commencement of Participation




Any Eligible Employee who elects to defer part of his or her Compensation in accordance with
Section 4.1 shall become a Participant in the Plan as of the date such deferrals commence in
accordance with Section 4.1. Any Eligible Employee who is not already a Participant and whose
Account is credited with an Incentive Deferral shall become a Participant as of the date such
amount is credited.



3.2 Continued Participation




A Participant in the Plan shall continue to be a Participant so long as any amount remains credited
to his or her Account. Notwithstanding the foregoing, Participation in respect of any calendar year
is not a guarantee of participation in respect of any future calendar year.



ARTICLE 4-ELECTIVE, MATCHING AND INCENTIVE DEFERRALS




4.1 Elective Deferrals




An individual who is an Eligible Employee on the Effective Date may, by completing an Election Form
and filing it with the Plan Administrator within 30 days following the Effective Date, elect to
defer a percentage or dollar amount of one or more payments of Compensation, on such terms as the
Plan Administrator may permit, for services to be performedwhich are payable to the Participant after the date on which the individual
files the Election Form. Any individual who becomes an Eligible Employee after the Effective Date
may, by completing an Election Form and filing it with the Plan Administrator within 30 days
following the date on which the Plan Administrator gives such individual written notice that the
individual is an Eligible Employee, elect to defer a percentage or dollar amount of one or more
payments of Compensation, on such terms as the Plan Administrator may permit, for services to be
performedwhich are payable to the Participant after the date on which
the individual files the Election Form. Any Eligible Employee who
has not otherwise initially elected to defer Compensation in accordance with this paragraph 4.1 may
elect to defer a percentage or dollar amount of one or more payments of Compensation, on such terms
as the Plan Administrator may permit, for services to be performedcommencing with Compensation paid in the next succeeding Plan
Year, by completing an Election Form prior to the first day of such succeeding Plan Year. In the
case of commissions, services are deemed performed in the year in which the customer pays the
Employer. In addition, a Participant may defer all or part of the amount of any elective deferral
or matching contribution made on his or her behalf to the Employer’s 401(k) plan for the prior Plan
Year that is treated as an excess deferral, an excess contribution or otherwise limited by the
application of the limitations of sections 401(k), 401(m), 415 or 402(gq) of the Code, so long as
the Participant so indicates on an Election Form. A Participant’s Compensation shall be reduced in
accordance with the Participant’s election hereunder and amounts deferred hereunder shall be paid
by the Employer to the Trust as soon as administratively feasible and credited to the Participant’s
Account as of the date the amounts are received by the Trustee.



An election to defer Compensation for any Plan Year shall be irrevocable for such year and shall
apply for subsequent Plan Years unless changed or revoked. A Participant may change or revoke his
or her deferral election on a prospective basis as of the first day of any Plan Year by giving
written notice to the Plan Administrator before such first day (or by any earlier date as the Plan
Administrator may prescribe).



4.2 Matching Deferrals




At the Employer’s sole discretion, the Employer may make Matching Deferrals at a rate established
by the Employer and set forth in the Adoption Agreement. Each Matching Deferral will be credited,
as of the later of the date it is received by the Trustee or the date the Trustee receives from the
Plan Administrator such instructions as the Trustee may reasonably require to allocate the amount
received among the asset accounts maintained by the Trustee.



 









 





4.3 Incentive Deferrals




In addition to other amounts deferred under the Plan, the Employer may, in its sole discretion,
select one or more Eligible Employees to havereceive an Incentive Deferral allocated to his or her Account
on such terms as the Employer shall specify at the time it defers such amountmakes the contribution. For example, the
Employer may credit an amount to a Participant’s Account and condition the payment of that amount
and accrued earnings thereon upon the Participant remaining employed by the Employer for an
additional specified period of time. If the Employer does not specify a method of distribution, the
Incentive Deferral, to the extent vested, shall be distributed in a manner consistent with the
election last made by the particular Participant under Section 7.1prior to the year in which the Incentive Deferral is made. The Employer, in its discretion, may
permit the Participant to designate a distribution schedule for a particular Incentive Deferral
provided that such designation is made under the timing rules of Section 4.1 as if the Participant were making an Elective Deferralprior to the time that the Employer finally
determines that the Participant will receive the Incentive
Deferral.



ARTICLE 5-ACCOUNTS




5.1 Accounts




The Plan Administrator shall establish an Account for each Participant reflecting Elective
Deferrals, Matching Deferrals and Incentive Deferrals made for the Participant’s benefit together
with any adjustments for income, gain or loss and any payments from the Account. The Plan
Administrator may cause the Trustee to maintain and invest separate asset accounts corresponding to
each Participant’s Account. The Plan Administrator shall establish sub-accounts for each
Participant that has more than one election in effect under Section 7.1 and such other sub-accounts
as are necessary for the proper administration of the Plan. As of the last business day of each
calendar quarter, the Plan Administrator shall provide the Participant with a statement of his or
her Account reflecting the income, gains and losses (realized and unrealized), amounts of
deferrals, and distributions of such Account since the prior statement.



5.2 Investments




The assets of the Trust shall be invested in such investments as the Trustee shall determine. The
Trustee may (but is not required to) consider the Employer’s or a Participant’s investment
preferences when investing the assets attributable to a Participant’s Account.



ARTICLE 6-VESTING




6.1 General




A Participant shall be immediately vested in, i.e., shall have a nonforfeitable right to,
all Elective Deferrals, and all income and gain attributable thereto, credited to his or her
Account. A Participant shall become vested in the portion of his or her Account attributable to
Matching Deferrals or Incentive Deferrals and income and gain attributable thereto in accordance
with the schedule set forth in the Adoption Agreement, subject to earlier vesting in accordance
with Sections 6.3, 6.4, and 6.5.



6.2 Vesting Service




For purposes of applying anythe vesting schedule in the
Adoption Agreement, a Participant shall be
considered to have completed a
Year
year of Service service for each complete year of
full-time service with the
Employer or an Affiliate, measured from the Participant’s first date of such employment, unless the
Employer also maintains a 401(k) plan that is qualified under section 401(a) of the Internal
Revenue Code in which the Participant participates, in which case anythe rules governing vesting
service under that plan shall also be controlling under this Plan.



 









 






6.3 Change of Control




A Participant shall become fully vested in his or her Account immediately prior to a Change inof
Control of the Employer.



6.4 Death or Disability




A Participant shall become fully vested in his or her Account immediately prior to termination of
the Participant’s employment by reason of the Participant’s death or Total and Permanent
Disability. Whether a Participant’s termination of employment is by reason of the Participant’s
Total and Permanent Disability shall be determined by the Plan Administrator in its sole
discretion.



6.5 Insolvency




A Participant shall become fully vested in his or her Account immediately prior to the Employer
becoming Insolvent, in which case the Participant will have the same rights as a general creditor
of the Employer with respect to his or her Account Balance.



ARTICLE 7-PAYMENTS




7.1 Election as to Time and Form of Payment




A Participant shall elect (on the Election Form used to elect to defer Compensation under Section
4.1) the date at which the Elective Deferrals,
and vested Matching Deferrals, and vested Incentive Deferrals, if any, (including any earnings attributable thereto) will commence to be paid
to the
Participant. The Participant shall also elect thereon for payments to be paid in either:



     (a) a single lump-sum payment; or



     (b) annual installments over a period elected by the Participant up to 10 years, the amount of
each installment to equal the balance of his or her Account immediately prior to the installment
divided by the number of installments remaining to be paid.



Each such election will be effective for the Plan Year for which it is made and succeeding Plan
Years, unless changed by the Participant. Any change will be effective only for Elective Deferrals,and
vested Matching Deferrals and vested Incentive Deferrals, if any, made for the first Plan Year
beginning after the date on which the Election Form containing the change is filed with the Plan
Administrator, unless the following conditions are met: the change (i) is made at least 12 months
before the date payment is to commence (ii) defers the payment date at least 5 years from the
current payment date; and is made at least 12 months after the Participant’s most recent election
of a payment date. Except as otherwise provided in this Article 7 below, payment of a Participant’s
Account shall be made in accordance with the Participant’s elections under this Section 7.1.



7.2 Death




If a Participant dies prior to the complete distribution of his or her Account, the balance of the
Account shall be paid as soon as practicable to the Participant’s designated beneficiary or
beneficiaries, in the form  elected by the Participant under either of the following options:of
(a)a single lump-sum payment.; or



(b)annual installments over a period elected by the Participant up to 10 years, the amount of each installment to equal the balance of the Account
immediately prior to the installment divided by the number of installments remaining to be paid.



Any designation of beneficiary and form of payment to such beneficiary shall be made by the Participant on an Election Form filed with the
Plan



 









 





Administrator and may be changed by the Participant at any time by filing another Election Form
containing the revised instructions. If no beneficiary is designated or no designated beneficiary
survives the Participant, payment shall be made to the Participant’s surviving spouse, or, if none,
payment shall be made in a single lump sum to the Participant’s estate.



7.3 Unforeseeable Emergency




A Participant may elect payment on account of a severe financial hardship resulting from illness or
accident of the Participant or the Participant’s spouse, beneficiary or dependent (as defined in
Code Section 152 without regard to subsections (b)(1), (b)(2) and (d)(1)(B) of that section); loss
of the Participant’s property due to casualty; or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the Participant’s control, all as determined by
the Plan Administrator in compliance with Code Section 409A and applicable regulations. Payment
may not be made under this section to the extent the emergency is or may be relieved through
insurance or other assets available to the Participant without causing severe financial hardship;
shall not exceed the amount reasonably necessary to satisfy the emergency need (which may include
amounts necessary to pay income or penalty taxes reasonably anticipated to result from the
payment); and shall be made only to the extent permitted under Code Section 409A and applicable
regulations.



7.3 Forfeiture of Non-Vested Amounts




To the extent that any amounts credited to a Participant’s Account are not vested at the time such
amounts are otherwise payable under Section 7.1, such amounts shall be forfeited and shall be used
to satisfy the Employer’s obligation to make contributions to any Trust under the Plan.



7.4 Taxes




All federal, state or local taxes that the Plan Administrator determines are required to be
withheld from any payments made pursuant to this Article 7 shall be withheld.



ARTICLE 8-PLAN ADMINISTRATOR




8.1 Plan Administration and Interpretation




The Plan Administrator shall oversee the administration of the Plan. The Plan Administrator shall
have complete control and authority to determine the rights and benefits and all claims, demands
and actions arising out of the provisions of the Plan of any Participant, beneficiary, deceased
Participant, or other person having or claiming to have any interest under the Plan. The Plan
Administrator shall have complete discretion to interpret the Plan and to decide all matters under
the Plan. Such interpretation and decision shall be final, conclusive and binding on all
Participants and any person claiming under or through any Participant, in the absence of clear and
convincing evidence that the Plan Administrator acted arbitrarily and capriciously. Any
individual(s) serving as Plan Administrator who is a Participant shall not vote or act on any
matter relating solely to himself or herself. When making a determination or calculation, the Plan
Administrator shall be entitled to rely on information furnished by a Participant, a beneficiary,
the Employer or the Trustee. The Plan Administrator shall have the responsibility for complying
with any reporting and disclosure requirements or ERISA.



8.2 Powers, Duties, Procedures, Etc.




The Plan Administrator shall have such powers and duties as are described herein and in ERISA, and
may adopt such policies and procedures, may act in accordance with such policies and procedures,
may appoint such officers or agents, may delegate such powers and duties, may receive such
reimbursements and compensation, and shall follow such claims and appeal procedures with respect
to the Plan as it may establish, consistent with its duties under the Plan and ERISA.



 









 





8.3 Information




To enable the Plan Administrator to perform its functions, the Employer shall supply full and
timely information to the Plan Administrator on all matters relating to the compensation of
Participants, their employment, retirement, death, termination of employment, and such other
pertinent facts as the Plan Administrator may require.



8.4 Indemnification of Plan Administrator




The Employer agrees to indemnify and to defend to the fullest extent permitted by law any
officer(s) or employee(s) who serve as Plan Administrator (including any such individual who
formerly served as Plan Administrator) against all liabilities, damages, costs and expenses
(including attorneys’ fees and amounts paid in settlement of any claims approved by the Employer)
occasioned by any act or omission to act in connection with the Plan, if such act or omission is
in good faith.



ARTICLE 9-AMENDMENT AND TERMINATION




9.1 Amendments




Board of Directors of Wright Express Corporation shall have the right to amend the Plan from time
to time, subject to Section 9.3, by an instrument in writing which has been executed on behalf of
Wright Express Corporation by its duly authorized officer.



9.2 Termination of Plan




This Plan is strictly a voluntary undertaking on the part of the Employer and shall not be deemed
to constitute a contract between the Employer and any Employee or a consideration for, or an
inducement or condition of employment for, the performance of the services by any Employee. Board
of Directors of Wright Express Corporation reserves the right to terminate the Plan at any time,
subject to Section 9.3, by an instrument in writing which has been executed on behalf of Wright
Express Corporation by its duly authorized officer. Upon termination, the Employer may (a) elect to
continue to maintain any Trust to pay benefits hereunder as they become due as if the Plan had not
terminated or (b) direct the Trustee to pay promptly to Participants (or their beneficiaries) the
vested balance of their Accounts. For purposes of the preceding sentence, in the event the Employer
chooses to implement clause (b), the Account balances of all Participants who are in the employ of
the Employer at the time the Trustee is directed to pay such balances shall become fully vested and
nonforfeitable; and all Account balances shall be paid as soon as practicable in compliance with
Code Section 409A and related regulations. After Participants and their beneficiaries are paid all
Plan benefits to which they are entitled, all remaining assets of the Trust attributable to
Participants who terminated employment with the Employer prior to termination of the Plan and who
were not fully vested in their Accounts under Article 6 at that time shall be returned to the
Employer.



9.3 Existing Rights




No amendment or termination of the Plan shall adversely affect the rights of any Participant with
respect to amounts that have been credited to his or her Account prior to the date of such
amendment or termination without the consent of such Participant.



 









 





ARTICLE 10-CLAIMS PROCEDURE




If an application for a benefit (“claim”) is denied by the Plan Administrator, the Plan
Administrator shall give written notice of such denial to the applicant, by certified or registered mail, within 60 days
after the claim was filed with the Plan Administrator; provided, however, that such 60-day period
may be extended to 120 days by the Plan Administrator if it determines that special circumstances
exist which require an extension of the time required for processing the claim. Such denial shall
set forth:



     (a) the specific reason or reasons for the denial;



     (b) the specific Plan provisions on which the denial is based;



     (c) any additional material or information necessary for the applicant to perfect the claim
and an explanation of why such material or information is necessary; and



     (d) an explanation of the Plan’s claim review procedure.



Following receipt of such denial, the applicant or his or her duly authorized
representative may:



     (a) request a review of the denial by filing written application for review with the Plan
Administrator within 60 days after receipt by the applicant of such denial;



     (b) review documents pertinent to the claim at such reasonable time and location as shall be
mutually agreeable to the applicant and the Plan Administrator; and



     (c) submit issues and comments in writing to the Plan Administrator relating to its review of
the claim.



     The Plan Administrator shall, after consideration of the application for review, render a
decision and shall give written notice thereof to the applicant, by certified or registered mail,
within 60 days after receipt by the Plan Administrator of the application for review; provided,
however, that such 60-day period may be extended to 120 days by the Plan Administrator if it
determines that special circumstances exist which require an extension of the time required for
processing the application for review. Such notice shall include specific reasons for the decision
and specific references to the pertinent Plan provisions on which the decision is based.



ARTICLE 11-MISCELLANEOUS




11.1 No Funding




The Plan constitutes a mere promise by the Employer to make payments in accordance with the terms
of the Plan and Participants and beneficiaries shall have the status of general unsecured
creditors of the Employer. Nothing in the Plan will be construed to give any employee or any other
person rights to any specific assets of the Employer or of any other person. In all events, it is
the intent of the Employer that the Plan be treated as unfunded for tax purposed and for purposes
of Title I of ERISA.



11.2 Non-assignability




None of the benefits, payments, proceeds or claims of any Participant or beneficiary shall be
subject to any claim of any creditor of any Participant or beneficiary and, in particular, the
same shall not be subject to attachment or garnishment or other legal process by any creditor of
such Participant or beneficiary, nor shall any Participant or beneficiary have any right to
alienate, anticipate, commute, pledge, encumber or assign any of the benefits or payments or
proceeds which he or she may expect to receive, contingently or otherwise, under the Plan.



 









 





11.3 Limitation of Participants’ Rights




Nothing contained in the Plan shall confer upon any person a right to be employed or to continue
in the employ of the Employer, or interfere in any way with the right of the Employer to terminate
the employment of a Participant in the Plan at any time, with or without cause.



11.4 Participants Bound




Any action with respect to the Plan taken by the Plan Administrator or the Employer or the Trustee
or any action authorized by or taken at the direction of the Plan Administrator, the Employer or
the Trustee shall be conclusive upon all Participants and beneficiaries entitled to benefits under
the Plan.



11.5 Receipt and Release




Any payment to any Participant or beneficiary in accordance with the provisions of the Plan shall,
to the extent thereof, be in full satisfaction of all claims against the Employer, the Plan
Administrator and the Trustee under the Plan, and the Plan Administrator may require such
Participant or beneficiary, as a condition precedent to such payment, to execute a receipt and
release to such effect; provided, however, that the timing of such release shall be in compliance
with Code Section 409A and shall not cause an impermissible delay of payment. If any Participant
or beneficiary is determined by the Plan Administrator to be incompetent by reason of physical or
mental disability (including minority) to give a valid receipt and release, the Plan Administrator
may cause the payment or payments becoming due to such person to be made to another person for his
or her benefit without responsibility on the part of the Plan Administrator, the Employer or the
Trustee to follow the application of such funds.



11.6 Governing Law




The Plan shall be construed, administered, and governed in all respects under and by the laws of
the state of Delaware, without effect to conflicts of laws provisions thereof. If any provision
shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.



11.7 Headings and Subheadings




Headings and subheadings in this Plan are inserted for convenience only and are not to be
considered in the construction of the provisions hereof.



11.8 409A Compliance.




     (a) The terms of the Plan shall be interpreted and applied in a manner consistent
with the requirements of Section 409A of the Code and the Treasury Regulations thereunder, and the
Company shall have no right to make any payment under the Plan, except in compliance with Section
409A of the Code.



      (b) It is intended that payments made under the Plan on or before the 15th day of
the third month following the end of the Participant’s first taxable year in which the right to the
payment is no longer subject to a substantial risk of forfeiture shall be exempt from compliance
with Section 409A of the Code pursuant to the exception for short-term deferrals set forth in
Section 1.409A-1(b)(4) of the Treasury Regulations.



     (c) The Company shall have no obligation to reimburse a Participant for any tax penalty or
interest payable, or provide a gross-up payment in connection with any tax
liability of a Participant under Section 409A of the Code. The preceding sentence
shall not apply in the event of the Company’s negligence or willful disregard in interpreting the
application of Section 409A of the Code to the Plan, which negligence or willful disregard causes
the Participant to become subject to a tax penalty or interest



 









 





payable under Section 409A of the Code. In such case the Company will reimburse the
Participant on an after-tax basis for any such tax penalty or interest not later than the last day
of the Participant’s taxable year next following the Participant’s taxable year in which the
Participant remits the applicable taxes and interest.



     (d) The Committee shall have no authority to accelerate payments in excess of the
authority permitted under Section 1.409A-3(j) of the Treasury Regulations.



     (e) Any payment triggered by a Participant’s termination of employment
shall be made only if such termination
constitutes, as determined by the Committee, a “separation
of service” under Treasury Regulation 1.409A-1(h) and shall be delayed for six months following the
date of such termination if such Participant is a Specified Employee on such date.
In the event of any such delay in the distribution date, payment will be made at the beginning of
the seventh month following the Participant’s termination. In the event of the
Participant’s death during such six-month period, payment will be made in the
payroll period next following the payroll period in which the Participant’s death
occurs. A Participant is a “Specified Employee” if he or she is an employee of the
Company who satisfies the requirements for being designated a “key employee” under Section
416(i)(1)(A)(i), (ii) or (iii) of the Code without regard to Section 416(i)(5) of the Code at any
time during a calendar year, in which case such employee shall be considered a Specified Employee
for the twelve-month period beginning on the first day of the fourth month immediately following
the end of such calendar year. Notwithstanding the foregoing, all employees who are nonresident
aliens during an entire calendar year are excluded for purposes of determining which employees meet
the requirements of Section 416(i)(1)(A)(i), (ii) or (iii) of the Code without regard to Section
416(i)(5) of the Code for such calendar year. The term “nonresident alien” as used herein shall
have the meaning set forth in Regulations Section 1.409A-1(j). In the event of any corporate
spinoff or merger, the determination of which employees meet the requirements of Section
416(i)(1)(A)(i), (ii) or (iii) of the Code without regard to Section 416(i)(5) of the Code for any
calendar year shall be determined in accordance with Regulations Section 1.409A-1(i)(6).



     (f) Payment may be delayed to a date after the payment date designated in the Plan if
the Company’s deduction with respect to such payment otherwise would be limited or eliminated by
the application of Section 162(m) of the Code, in which case the payment shall be made upon the
earliest date at which the Committee reasonably anticipates that the deduction of the payment of
the amount will not be limited or eliminated by the application of Section 162(m) of the Code. Any
such delay shall apply to all scheduled payments to such Participant.



(g)
For purposes of Section 11.8, any reference to a term or event (including any
authority or right of the Company or a Participant) being “permitted” under or
being in “compliance” with Section 409A and the Treasury Regulations thereunder means that the term
or event will not cause the Participant to be deemed to be in constructive receipt
of compensation prior to the payment date or to be liable for payment of interest or a penalty tax
under Section 409A.