Filed by Bowne Pure Compliance



 




Exhibit 10.4


LENNOX INTERNATIONAL INC.

PROFIT
SHARING RESTORATION PLAN

(As Amended and Restated Effective as of
January 1, 2008)


THIS PROFIT SHARING
RESTORATION PLAN, made and executed in Richardson, Texas, by LENNOX
INTERNATIONAL INC., a Delaware corporation (the “Company”),


WITNESSETH THAT:


WHEREAS, the
Company has maintained an unfunded employee benefit plan known as the Lennox
International Inc. Profit Sharing Restoration Plan (the “Plan”) to
supplement the benefits payable under the Lennox International Inc. Profit
Sharing Retirement Plan to or with respect to any participant therein whose
interest thereunder or under the prior Lennox Industries Inc. Profit Sharing
Retirement Plan has been limited because of (a) the maximum annual
addition limitation imposed by Section 415 of the Internal Revenue Code of
1986, as amended (the “Code”), and/or (b) the annual
compensation limitation imposed by Section 401(a)(17) of the Code; and


WHEREAS, the
Company now desires to amend the Plan to update it for tax law compliance and
to make certain other changes;


NOW, THEREFORE,
pursuant to the provisions of Section 5 thereof, the Plan is hereby
amended by restatement in its entirety to read as follows:


Section 1.
Defined Terms. As used herein,


(a) “Employers” means the Company, Lennox
Industries Inc., Heatcraft Inc. and any other trade or business which may adopt
this Plan with the consent of the Chief Executive Officer of the Company.


(b) “Executive” means (i) prior to
January 1, 1998, any employee in the employ of an Employer assigned an
executive labor grade of 8 or above, (ii) during 1998 and 1999, any
employee who was an Executive on December 31, 1997, and any other employee
in the employ of an Employer who was a Vice President-A or who filled a
position after discontinuance of the labor grade system that previously had
been an executive labor grade of 8 or above, and (iii) after
December 31, 1999, any employee who was an Executive on such date and any
other employee in the employ of an Employer (A) in the position of either
Chief Executive Officer or Chief Operating Officer of the Company or
(B) in an Executive Vice President position reporting directly to either
such officer. An employee who satisfies the requirements to become an Executive
shall remain an Executive for purposes of this Plan until his or her benefits
under this Plan have been fully distributed.








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(c) “Profit Sharing Plan” means the Lennox
International Inc. Profit Sharing Retirement Plan, except that for periods of
time prior to January 1, 1991, such term means the Lennox Industries Inc.
Profit Sharing Retirement Plan.


(d) “Separation from Service” means with respect to
an Executive, such Executive’s separation from service (within the
meaning of Section 409A of the Code and the regulations and other guidance
issued thereunder) with the group of employers that includes the Company and
each Affiliated Company. An employee’s Separation from Service shall be
deemed to occur on the date as of which the employee and his or her employer
reasonably anticipate that no further services will be performed after such
date or that the level of bona fide services the employee will perform after
such date (whether as an employee or an independent contractor) will
permanently decrease to no more than 20% of the average level of bona fide
services performed (whether as an employee or an independent contractor) over
the immediately preceding 36-month period (or the full period of services to
the employer if the employee has been providing services to the employer less
than 36 months). For purposes of this definition, “Affiliated
Company” shall mean any incorporated or unincorporated trade or business
or other entity or person, other than the Company, that along with the Company
is considered a single employer under Section 414(b) or Section 414(c)
of the Code.


(e) “Specified Employee” means an Executive who is
a specified employee within the meaning of Section 409A(a)(2) of the Code and
the regulations and other guidance issued thereunder. Specified Employees shall
be identified by the Compensation and Human Resources Committee of the Board of
Directors of the Company.


Unless the context clearly indicates
otherwise, the other words and phrases used in this Plan shall have the
meanings assigned to them under the provisions of the Profit Sharing Plan.


Section 2.
Administration. This Plan shall be administered by the Company in a
manner consistent with the administration of the Profit Sharing Plan, except
that this Plan shall be administered as an unfunded plan which is not intended
to qualify under the provisions of Section 401(a) of the Code. The Company
shall perform and exercise all of the duties and powers granted to it under the
terms of this Plan. The Management Committee, which shall be appointed by and
serve at the pleasure of the Chief Executive Officer of the Company, shall
interpret the provisions of this Plan. The Plan is intended to provide
compensation and benefits that are not subject to the tax imposed under
Section 409A of the Code and shall be interpreted and administered to the
extent possible in accordance with such intent. The Company may adopt such
rules and regulations for the administration of this Plan as are consistent
with the terms hereof and shall keep adequate records of its proceedings and
acts with respect to the Plan. All interpretations and decisions made and other
action taken by the Management Committee shall be conclusive and binding upon
all parties having or claiming to have an interest under this Plan.


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Section 3.
Deferred Compensation Accounts. Each Employer shall establish and
maintain on its books a deferred compensation account for each Executive in its
employ whose allocable share of Employer contributions and/or forfeitures under
the Profit Sharing Plan has been limited in a Plan Year commencing after
December 31, 1982, by the maximum annual addition limitation imposed by
Section 415 of the Code and/or the annual compensation limitation imposed
by Section 401(a)(17) of the Code. Such account shall be designated by the
name of the Executive for whom established and shall be credited as of the end
of each such Plan Year with an amount equal to the excess of (a) the total
amount of Employer contributions and forfeitures which would have been
allocated to such Executive under the Profit Sharing Plan for such year in the
absence of said maximum annual addition limitation and annual compensation
limitation, over (b) the amount of Employer contributions and forfeitures
actually allocated to such Executive under the Profit Sharing Plan for such
year. In addition, as of the date of each valuation and adjustment of Accounts
under the Profit Sharing Plan (including any such date within a period during
which installment distributions are being made pursuant to Section 4 of this
Plan and any such date within a payment delay prescribed by Section 4(b) of
this Plan), such Executive’s deferred compensation account shall be
adjusted to reflect the same rate of increase or decrease in value as is used
to adjust his or her Employer Account under the Profit Sharing Plan for the
valuation and adjustment period ending as of such date.


Section 4.
Account Payments.


(a) Upon the termination of an Executive’s
employment with an Employer, any portion of the amount credited to such
Executive’s deferred compensation account that is not subject to
Section 409A of the Code shall be paid to such Executive (or, in the event
of his or her death, to the beneficiary or beneficiaries designated by such
Executive for the purposes of the Profit Sharing Plan) in approximately equal
annual installments over a period of ten years; provided, however, that with
the consent of the Company, such Executive (or, in the event of his or her
death, the beneficiary or beneficiaries of such Executive) may elect to receive
such amount either in a single lump sum payment or in approximately equal
annual installments over a period of five years. For the purposes of this Plan,
an Executive’s employment with an Employer shall not be considered to
have terminated so long as such Executive is in the employ of any Employer or
Affiliated Company.


(b) Upon an Executive’s Separation from Service, the
portion of such Executive’s deferred compensation account that is subject
to Section 409A of the Code shall be paid to such Executive (or, in the
event of his or her death, to the beneficiary or beneficiaries designated by
such Executive for the purposes of the Profit Sharing Plan) in a single lump
sum payment on the first day of the month following the Executive’s
Separation from Service unless the Executive made an effective election to have
such portion paid in (i) annual installments over a period of five years
or (ii) annual installments over a period of 10 years, with
installments commencing in either case on the first day of the month following
the Executive’s Separation from Service and continuing on anniversary
dates thereof. The amount of any annual installment shall be determined by
dividing the total undistributed balance remaining to be paid by the


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number of
installments remaining to be paid. The foregoing provisions of this subsection
(b) to the contrary notwithstanding, if any Executive whose Separation
from Service occurs is a Specified Employee as of the date of his or her
Separation from Service, then any payment from such portion that would be made
(without regard to this sentence) prior to the first day of the seventh month
after the date of such Executive’s Separation from Service shall not be
made until the first day of the seventh month after the date of the Separation
from Service of such Executive (or if earlier, the first day of the month after
the death of such Executive). Prior to January 1, 2009, an Executive may
make a new election with respect to the form of payment under this subsection
(b), provided that such election complies with the transition relief
requirements for changing a payment election prescribed by the Internal Revenue
Service in Notice 2007-86 (or in any other applicable guidance issued by the
Internal Revenue Service). After December 31, 2008, any change by an
Executive with respect to the time or form of payment under this subsection
(b) shall become effective (i) not earlier than the date that is
12 months after the filing of such change and (ii) only if the date
for the payment or commencement of payments being elected is at least five
years after the date as of which such benefit otherwise would have been paid or
commenced being paid under this subsection (b) in the absence of such
change, where for this purpose installment payments shall be treated as a
single payment. Any election or change under this subsection (b) shall be
made by an Executive on a form prescribed by and filed with or as directed by
the Management Committee.


(c) Any provision of this Section to the contrary
notwithstanding, if an Executive is not fully vested in the amount credited to
his or her Employer Account under the Profit Sharing Plan at the date of his or
her Separation from Service, then the amount credited to such Executive’s
deferred compensation account under this Plan shall be reduced at the date of
such Separation from Service to an amount equal to (y) the amount then
credited to his or her deferred compensation account under this Plan,
multiplied by (z) the vested percentage applicable to such
Executive’s Employer Account under Section 4.2 of the Profit Sharing
Plan as of the date of such Separation from Service.


Section 5.
Amendment and Termination. The Board of Directors of the Company or the
Compensation and Human Resources Committee of said Board of Directors shall
have the right and power at any time and from time to time to amend this Plan,
in whole or in part, on behalf of all Employers, and at any time to terminate
this Plan or any Employer’s participation hereunder; provided, however,
that no such amendment or termination shall reduce the amount actually credited
to an Executive’s deferred compensation account under this Plan on the
date of such amendment or termination, or further defer the due date for the
payment of such amount, without the consent of the affected Executive.


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Section 6.
Nature of Plan and Rights. This Plan is unfunded and maintained by the
Employers primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees of the Employers.
The deferred compensation accounts established and maintained under this Plan
by an Employer are for accounting purposes only and shall not be deemed or
construed to create a trust fund of any kind or to grant a property interest of
any kind to any Executive or his or her beneficiaries. The amounts credited by
an Employer to said accounts are and for all purposes shall continue to be a
part of the general assets of such Employer and, to the extent that an
Executive or beneficiary acquires a right to receive payments from such
Employer pursuant to this Plan, such right shall be no greater than the right
of any unsecured general creditor of such Employer. This Section shall be
subject to the terms of the Grantor Trust Agreement dated November 16,
2000, by and between the Company and Wachovia Bank N.A., as from time to time
in effect, but such terms shall not apply to the extent they would cause any
benefits under the Plan to be subject to the tax imposed under
Section 409A of the Code.


Section 7.
Spendthrift Provision. No account balance or other right or interest of
an Executive or beneficiary under this Plan may be assigned, transferred or
alienated, in whole or in part, either directly or by operation of law (except
pursuant to a qualified domestic relations order within the meaning of Section
414(p) of the Code), and no such balance, right or interest shall be liable for
or subject to any debt, obligation or liability of such Executive or
beneficiary.


Section 8.
Employment Noncontractual. The establishment of this Plan shall not
enlarge or otherwise affect the terms of any Executive’s employment with
his or her Employer, and such Employer may terminate the employment of such
Executive as freely and with the same effect as if this Plan had not been
established.


Section 9.
Adoption of Other Employers. This Plan may be adopted by any Employer
participating under the Profit Sharing Plan, such adoption to be effective as
of the date specified by such Employer at the time of adoption.


Section 10.
Applicable Law. This Plan shall be governed by and construed in
accordance with the internal laws (and not the principles relating to conflicts
of laws) of the State of Texas, except where superseded by federal law.


Section 11.
Change of Control. Any provision of this Plan to the contrary
notwithstanding, during the 90-day period following the occurrence of a Change
of Control (as defined in the Lennox International Inc. Grantor Trust
Agreement), each Executive may elect irrevocably that any amount of his or her
deferred compensation account that is not subject to Section 409A of the
Code and that is payable upon his or her subsequent termination of employment
be paid either in a single lump sum payment or in approximately equal annual
installments over a period of five years, whichever form the Executive elects,
and the consent of the Company shall not be required for such election. The
benefits provided under this Plan to any Executive who has entered into a
Change of Control Employment Agreement with his or her Employer shall be
adjusted in accordance with the terms of that Agreement, except to the extent
that any such adjustment would cause any benefits under the Plan to be subject
to the tax imposed under Section 409A of the Code
        .


 


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Section 12.
Claims Procedure. If any person (hereinafter called the
“Claimant”) feels that he or she is being denied a benefit to which
he or she is entitled under this Plan, such Claimant may file a written claim
for said benefit with the Management Committee. Within 60 days of the
receipt of such claim (or within 120 days of the receipt of such claim if
special circumstances require an extension of the time for processing the
claim, in which event the Management Committee or its designated representative
will furnish the Claimant with a written notice indicating the special
circumstances and the time by which a determination with respect to the claim
will be made), the Management Committee or its designated representative shall
determine and notify the Claimant as to whether he or she is entitled to such
benefit. Such notification shall be in writing and, if denying the claim for
benefit, shall set forth the specific reason or reasons for the denial, make
specific reference to the pertinent provisions of this Plan, and advise the
Claimant that he or she may, within 60 days of the receipt of such notice,
in writing request the Management Committee to review such denial. In
connection with such request for review, the Claimant and/or his or her duly
authorized representative may examine copies of any relevant documents and
submit information and comments in writing to support the granting of the
benefit being claimed. The final decision of the Management Committee with
respect to the claim being reviewed shall be made within 60 days following
the receipt of the Claimant’s request for review unless special
circumstances require an extension of time for reviewing the claim, in which
event (i) the Management Committee or its designated representative will
furnish a written notice of such extension to the Claimant, and (ii) the
final decision of the Management Committee shall be made as soon as possible
but in no event later than 120 days after the receipt of the
Claimant’s request for review. The Management Committee shall in writing
notify the Claimant of its final decision, again specifying the reasons
therefor and the pertinent provisions of this Plan upon which such decision is
based. The final decision of the Management Committee with respect to a claim
shall be conclusive and binding upon the Claimant and all other parties having
or claiming to have an interest in such claim.


IN WITNESS WHEREOF,
this amended and restated Plan has been executed this
     day of
               , 2007, to be effective as of
January 1, 2008.


LENNOX
INTERNATIONAL INC.


By:
                                                    

Title:




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