Exhibit 10(G)


 


TARGET CORPORATION


SPP III


(2009 Plan Statement)


 


Effective January 1, 2009


As Amended and Restated


 


1

















 


TARGET CORPORATION


SPP III


(2009 Plan Statement)


 


TABLE OF CONTENTS


 


	
  SECTION 1
  INTRODUCTION; DEFINITIONS

  	
   

  	
  1

  
	
  1.1 History

  	
   

  	
  1

  
	
  1.2 Definitions

  	
   

  	
  1

  
	
  1.2.1
  Actuarial Equivalent

  	
   

  	
  1

  
	
  1.2.2
  Affiliate

  	
   

  	
  1

  
	
  1.2.3
  Beneficiary

  	
   

  	
  1

  
	
  1.2.4 Board

  	
   

  	
  1

  
	
  1.2.5
  Change-in-Control

  	
   

  	
  1

  
	
  1.2.6 Code

  	
   

  	
  2

  
	
  1.2.7
  Committee

  	
   

  	
  2

  
	
  1.2.8 Company

  	
   

  	
  2

  
	
  1.2.9 Officer

  	
   

  	
  3

  
	
  1.2.10 Officer
  EDCP

  	
   

  	
  3

  
	
  1.2.11
  Participant

  	
   

  	
  3

  
	
  1.2.12
  Participating Employer

  	
   

  	
  3

  
	
  1.2.13 Pension
  Plan

  	
   

  	
  3

  
	
  1.2.14 Plan

  	
   

  	
  3

  
	
  1.2.15 Plan
  Administrator

  	
   

  	
  3

  
	
  1.2.16 Plan
  Rules

  	
   

  	
  3

  
	
  1.2.17 Plan
  Statement

  	
   

  	
  3

  
	
  1.2.18
  Termination of Employment

  	
   

  	
  3

  
	
  1.2.19 Trust

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  SECTION 2
  PARTICIPATION

  	
   

  	
  5

  
	
  2.1 Eligibility

  	
   

  	
  5

  
	
  2.2 Termination of
  Participation

  	
   

  	
  5

  
	
  2.3 Rehire

  	
   

  	
  5

  
	
  2.4 Effect on Employment

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  SECTION 3
  BENEFIT – TRADITIONAL FINAL AVERAGE PAY FORMULA

  	
   

  	
  6

  
	
  3.1 Amount of Pension

  	
   

  	
  6

  
	
   

  	
   

  	
   

  
	
  SECTION 4
  VESTING

  	
   

  	
  8

  
	
  4.1 General Rule

  	
   

  	
  8

  
	
  4.2 Transfers to Officer EDCP

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 5
  TRANSFERS

  	
   

  	
  9

  
	
  5.1 Benefit Distributions

  	
   

  	
  9

  
	
  5.2 Transfers to Officer EDCP

  	
   

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 6
  NATURE OF INTEREST

  	
   

  	
  10

  
	
  6.1 Unfunded Obligation

  	
   

  	
  10

  
	
  6.2 Spendthrift Provision

  	
   

  	
  10

  



 


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  SECTION 7
  ADOPTION, AMENDMENT AND TERMINATION

  	
   

  	
  11

  
	
  7.1 Adoption

  	
   

  	
  11

  
	
  7.2 Amendment

  	
   

  	
  11

  
	
  7.3 Termination

  	
   

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 8
  CLAIM PROCEDURES

  	
   

  	
  13

  
	
  8.1 Claim Procedures

  	
   

  	
  13

  
	
  8.2 Rules and Regulations

  	
   

  	
  15

  
	
  8.3 Limitations and Exhaustion

  	
   

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 9
  PLAN ADMINISTRATION

  	
   

  	
  17

  
	
  9.1 Plan Administration

  	
   

  	
  17

  
	
  9.2 Conflict of Interest

  	
   

  	
  17

  
	
  9.3 Committee Membership and
  Authority

  	
   

  	
  18

  
	
  9.4 Service of Process

  	
   

  	
  18

  
	
  9.5 Choice of Law

  	
   

  	
  18

  
	
  9.6 Responsibility for Delegate

  	
   

  	
  18

  
	
  9.7 Expenses

  	
   

  	
  18

  
	
  9.8 Errors in Computations

  	
   

  	
  18

  
	
  9.9 Indemnification

  	
   

  	
  18

  
	
  9.10 Notice

  	
   

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 10
  CONSTRUCTION

  	
   

  	
  20

  
	
  10.1 ERISA Status

  	
   

  	
  20

  
	
  10.2 IRC Status

  	
   

  	
  20

  
	
  10.3 Rules of Document
  Construction

  	
   

  	
  20

  
	
  10.4 References to Laws

  	
   

  	
  20

  
	
  10.5 Appendices

  	
   

  	
  20

  



 


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SECTION 1

INTRODUCTION; DEFINITIONS


 


1.1          History.  The Company originally established this Plan
(formerly known as the Target Corporation Supplemental Pension Plan III)
effective as of January 1, 1995. 
The Plan is a non-qualified, unfunded plan intended to provide certain
pension benefits for a select group of management or highly compensated
employees who are officers that cannot be provided under the Pension Plan due
to certain limitations imposed by the Code. 
The Plan is intended to be a “top hat plan” as defined under the
Employee Retirement Income Security Act of 1974, as amended from time to
time.   Effective as of November 8,
2000, no additional Officers could become eligible to participate in this
Plan.  Effective April 30, 2002, for
all Officers who had attained age 55, the Company transferred the present value
of the vested benefit due under this Plan to the Officer EDCP.  After such transfer, no benefits were due or
payable from this Plan. Further, after the transfer, the individuals would no
longer participate in this Plan or be eligible for further accruals under this
Plan.  Effective January 1, 2005
(and other effective dates as specifically provided), this Plan was operated in
compliance with Code section 409A.  This
Plan Statement, which is intended to comply with Code section 409A, is
effective January 1, 2009.


 


1.2          Definitions.  Terms used herein with initial capital
letters will have same meaning as those used in the Pension Plan except as
otherwise defined below or where the context clearly indicates to the contrary.


 


1.2.1       Actuarial
Equivalent.  An “Actuarial
Equivalent” will be determined by using such factors and assumptions as the
Company considers appropriate in its sole and absolute discretion.


 


1.2.2       Affiliate.  An “Affiliate”
is the Company and all persons, with whom the Company would be considered a
single employer under Code section 414(b) or 414(c).


 


1.2.3       Beneficiary.  The “Beneficiary” is the “Beneficiary” as
defined under the Officer EDCP.


 


1.2.4       Board “Board” is the
Board of Directors of the Company, or such committee of the Board of Directors
to which the Board of Directors of the Company has delegated the respective
authority.


 


1.2.5       Change-in-Control.


 


(a)                                  A “Change-in-Control”
shall be deemed to have occurred if:


 


(i)                                     50% or more of
the directors of the Company shall be persons other than persons


 


(A)                              for whose
election proxies shall have been solicited by the Board, or


 


(B)                                who are then
serving as directors appointed by the Board to fill vacancies on the Board
caused by death or resignation (but not by removal) or to fill newly-created
directorships, or


 


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(ii)                                  30% or more of
the outstanding voting power of the Voting Stock of the Company is acquired or
beneficially owned (as defined in Article IV of the Restated Articles of
Incorporation, as amended, of the Company) by any person (as defined in Article IV
of the Restated Articles of Incorporation, as amended, of the Company), other
than an entity resulting from a Business Combination in which clauses (x) and
(y) of subparagraph (iii) apply, or


 


(iii)                               the
consummation of a merger or consolidation of the Company with or into another
entity, a statutory share exchange, a sale or other disposition (in one
transaction or a series of transactions) of all or substantially all of the
Company’s assets or a similar business combination (each, a “Business
Combination”), in each case unless, immediately following such Business
Combination, (x) all or substantially all of the beneficial owners of the
Company’s Voting Stock immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 60% of the voting power of
the then outstanding shares of voting stock (or comparable voting equity
interests) of the surviving or acquiring entity resulting from such Business
Combination (including such beneficial ownership of an entity that, as a result
of such transaction, owns the Company or all or substantially all of the
Company’s assets either directly or through one or more subsidiaries), in
substantially the same proportions (as compared to the other beneficial owners
of the Company’s Voting Stock immediately prior to such Business Combination)
as their beneficial ownership of the Company’s Voting Stock immediately prior
to such Business Combination, and (y) no person (as defined in Article IV
of the Restated Articles of Incorporation, as amended, of the Company)
beneficially owns, directly or indirectly, 30% or more of the voting power of
the outstanding voting stock (or comparable equity interests) of the surviving
or acquiring entity (other than a direct or indirect parent entity of the
surviving or acquiring entity, that, after giving effect to the Business
Combination, beneficially owns, directly or indirectly, 100% of the outstanding
voting stock (or comparable equity interests) of the surviving or acquiring
entity), or


 


(iv)                              approval by the
shareholders of a definitive agreement or plan to liquidate or dissolve the
Company.


 


For
purposes of this 1.2.5, “Voting Stock” has the same meaning as defined in Article IV
of the Restated Articles of Incorporation, as amended, of the Company.


 


1.2.6       Code. “Code” means
the Internal Revenue Code of 1986, as amended (including, when the context
requires, all regulations, interpretations and rulings issued thereunder).


 


1.2.7       Committee. “Committee”
means the administrative committee appointed in accordance with Section 9.3.


 


1.2.8       Company. “Company”
means  Target Corporation, a
Minnesota corporation, or any successor thereto.


 


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1.2.9       Officer.  An “Officer” is a member of the executive
committee and any other Employee who is designated and categorized as an
officer of the Company by the Company’s Chief Executive Officer.


 


1.2.10     Officer EDCP.  “Officer EDCP” means the Target Corporation
Officer EDCP.


 


1.2.11     Participant.  A “Participant” is an  Employee who becomes a Participant in this
Plan in accordance with the provisions of Section 2.  An Employee who has become a Participant
shall be considered to continue as a Participant in this Plan until the date of
the Participant’s death or, if earlier, the date when the Participant is no
longer eligible and upon which the Participant no longer has a benefit due
under this Plan (that is, a transfer of the benefit has been made pursuant to Section 6,
or the Participant’s benefit under this Plan wears away, or the Participant’s
benefit under this Plan has been forfeited as hereinafter provided).


 


1.2.12     Participating Employer.  “Participating Employer” means the Company.


 


1.2.13     Pension Plan.  “Pension Plan” means the tax qualified
defined benefit pension plan, established for the benefit of employees eligible
to participate therein, and known as the Target Corporation Pension Plan,
including any predecessor plan(s) or successor plan.


 


1.2.14     Plan.  “Plan” means this Target Corporation SPP III
(formerly known as the Target Corporation Supplemental Pension Plan III).


 


1.2.15     Plan Administrator. “Plan
Administrator” means the Company or, if affirmatively designated by the
Company, some other individual or committee.


 


1.2.16     Plan Rules.  “Plan Rules” are rules, policies, practices or
procedures adopted by the Plan Administrator or its delegate pursuant to Section 9.1.5.


 


1.2.17     Plan Statement.  “Plan Statement” means this document entitled
“Target Corporation SPP III (2009 Plan Statement),” as adopted by the Company,
effective as of January 1, 2009, as the same may be amended from time to
time.


 


1.2.18     Termination of Employment.


 


(a)                                  For purposes of
determining entitlement to or the amount of benefits under the Plan, “Termination
of Employment” means a severance of a Participant’s employment relationship
with each Participating Employer and all Affiliates, for any reason.


 


(b)                                 For purposes of
determining when a distribution will be made under the Plan, a “Termination of
Employment” will be deemed to occur if, based on the relevant facts and
circumstances to the Participant, the Participating Employer, all Affiliates
and Participant reasonably anticipate that the level of bona fide future
services to be performed by the Participant for the Participating Employer and
all Affiliates will permanently decrease to no more than 20% of the average
level of bona fide services performed over the immediately preceding 36-month
period.


 


(c)                                  A bona fide
leave of absence that is six months or less, or during which an individual
retains a reemployment right, will not cause a Termination of Employment.  In the case of a leave of absence without a
right of reemployment 


 


3

















 


that exceeds the time periods described in this paragraph, a
Termination of Employment will be deemed to occur once the leave of absence
exceeds six months.


 


(d)                                 Notwithstanding
the foregoing, a Termination of Employment shall not occur unless such
termination also qualifies as a “separation from service,” as defined under
Code section 409A and related guidance thereunder.


 


1.2.19     Trust.  “Trust” means the Target
Corporation Deferred Compensation Trust Agreement, dated January 1, 2009
by and between the Company and State Street Bank and Trust Company, as it is
amended from time to time, or similar trust agreement.


 


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SECTION 2


PARTICIPATION


 


2.1         Eligibility.  An Employee who is an
Officer previously designated as eligible to participate in this Plan by the
Chief Executive Officer of the Company prior to November 8, 2000 is
eligible to participate in this Plan on and after the date he:


 


(a)                                  is an active
participant in the Pension Plan; and


 


(b)                                 has attained
the age of 55.


 


2.2          Termination of
Participation.  Except as
otherwise specifically provided in this Plan, an Employee who ceases to satisfy
the requirements of Section 2.1 or whose benefit is transferred to the
Officer EDCP pursuant to Section 5.2 is not eligible to continue to
participate in this Plan, and will not accrue any additional benefits under
this Plan.  The Participant’s benefit
under this Plan will continue to be governed by the terms of this Plan until
such time as the Participant’s benefit is transferred, wears away, or is
forfeited in accordance with the terms of this Plan.  A Participant or Beneficiary will cease to be
such as of the date on which his entire benefit under this Plan has been
transferred, wears away, or forfeited.


 


2.3          Rehire.  A Participant under this
Plan who incurs a Termination of Employment and is rehired will not be eligible
to participate in this Plan.


 


2.4                               Effect
on Employment.


 


2.4.1       Not a Term of
Employment.  Neither the
terms of this Plan Statement nor the benefits under this Plan or the
continuance thereof shall be a term of the employment of any Employee.


 


2.4.2       Not an Employment
Contract.  The Plan is
not and shall not be deemed to constitute a contract of employment between any
Participating Employer and any Employee or other person, nor shall anything
herein contained be deemed to give any Employee or other person any right to be
retained in any Participating Employer’s employ or in any way limit or restrict
any Participating Employer’s right or power to discharge any Employee or other
person at any time and to treat him without regard to the effect that such
treatment might have upon him as a Participant in this Plan.


 


5














 


SECTION 3


BENEFIT — TRADITIONAL FINAL AVERAGE PAY FORMULA


 


3.1                               Amount
of Pension.


 


3.1.1                     General Rule.                    A Participant
of this Plan shall be entitled to a pension benefit under this Plan that is the
Actuarial Equivalent of  the excess, if
any, of:


 


(a)                                  The
pension benefit of the Participant as determined under Article VI of the
Pension Plan applied:


 


(i)                                     without
regard to the maximum benefit limits imposed by Code section 415,


 


(ii)                                  without
regard to the maximum compensation limits imposed by Code section 401(a)(17),


 


(iii)                               without
regard to the alternative benefit formula of Sections 4.6(a)(3) and 4.6(b)(2) of
the Pension Plan,


 


(iv)                              as
if the definition of “certified earnings” for a plan year included compensation
that would have been paid in the plan year in the absence of the Participant’s
election to defer payment of the compensation to a later date pursuant to the
provisions of a deferred compensation, and


 


(v)                                 for
purposes of the early reduction factors used under the Pension Plan, as if the
Participant was five years older than his actual age (but in no case shall  the Participant’s age be deemed to be greater
than age 65).


 


Over


 


(b)                                 The
pension benefit of the Participant as determined under Article VI of the
Pension Plan applied:


 


(i)                                   without
regard to the maximum benefit limits imposed by Code section 415,


 


(ii)                                without
regard to the maximum compensation limits imposed by Code section 401(a)(17),


 


(iii)                             without
regard to the alternative benefit formula of Sections 4.6(a)(3) and 4.6(b)(2) of
the Pension Plan, and


 


(iv)                             as if
the definition of “certified earnings” for a plan year included compensation
that would have been paid in the plan year in the absence of the Participant’s
election to defer payment of the compensation to a later date pursuant to the
provisions of a deferred compensation.


 


Such benefit will be determined as of the date of transfer as provided
in Section 5.


 


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3.1.2                     Death
Benefit.  Subject to the vesting
requirements of Section 4, if a Participant dies prior to a transfer of
his benefit under this Section 3, the death benefit to be transferred
pursuant to Section 5 will be calculated in the same manner as the
Participant’s benefit under this Section 3, and for purposes of Section 3.1.1,
as if the Participant were alive and entitled to a benefit under the Pension
Plan and the Officer EDCP as of his date of death.


 


7

















 


SECTION 4

VESTING


 


4.1                               General
Rule.  A Participant will be vested
in his benefit under this Plan, unless:


 


(a)                                  The
Participant incurs a Termination of Employment as defined in Section 1.2.18(a) 
prior to attaining age 55, or


 


(b)                                 The
Participant is entitled to payments under an income continuation plan or policy
of an Affiliate.


 


4.2                               Transfers
to Officer EDCP.  A Participant whose
benefit under this Plan is transferred to the Officer EDCP pursuant to Section 5
will no longer have any rights under this Plan effective as of the date of such
transfer.


 


8

















 


SECTION 5

TRANSFERS


 


5.1                               Benefit
Distributions.


 


5.1.1                     Benefit
Transfer to Officer EDCP.  No
benefits accrued under this Plan will be paid directly to Participants or
Beneficiaries.  All vested benefits due
under this Plan, as determined under Section 3, will be transferred to the
Officer EDCP, and paid to the Participant or Beneficiary pursuant to the terms
of the Officer EDCP.


 


5.1.2                     Form and
Timing of Benefit Distribution.  Benefits
earned under this Plan will be paid in the form of twenty-four (24) monthly
installment payments commencing within 60 days following the date that the
Participant incurs a Termination of Employment. 
Any benefits earned under this Plan will be  transferred to the Officer EDCP and subject
to the distribution terms of the Officer EDCP, including any provisions
regarding the acceleration or delay of distribution (to the extent allowed
under Code section 409A).


 


5.2                               Transfers
to Officer EDCP.   A Participant’s
vested benefit under this Plan will be transferred to the Officer EDCP as
provided below:


 


5.2.1                     Timing of
Benefit Transfer.


 


(a)                                  On
or about the last business day prior to
the end of the Company’s fiscal year immediately following the calendar
year in which a Participant is first eligible for a benefit under this Plan, a
Participant will have his or her benefit determined under this Plan and
transferred to the Officer EDCP.  The
transfer will be an amount equal to the
actuarial lump sum present value of the Participant’s benefit accrued under
this Plan.


 


(b)                                 Notwithstanding the foregoing, in the case of
a Termination of Employment as defined under Section 1.2.18(a) or a
Plan termination on account of a Change-in-Control under Section 7.3.2
prior to the date in Section 5.2.1(a), the transfer will be made within 60
days following such event.


 


5.2.2                     Benefit to Be
Transferred.  The benefit transferred
to the Officer EDCP is the vested benefit accrued under this Plan and
determined at the time of transfer to the Officer EDCP provided in Section 5.2.1.  The transfer to the Officer EDCP will not
change the payment form, payment timing, or vested status of the benefit
determined under this Plan.  After the
transfer to the Officer EDCP, the benefit will thereafter be subject to the
terms of the Officer EDCP, including the acceleration or delay of distributions
permitted thereunder.


 


9

















 


SECTION 6

NATURE OF INTEREST


 


6.1                               Unfunded Obligation.  The obligation of the Participating Employers
to provide benefits pursuant to this Plan constitutes only the unsecured (but
legally enforceable) promise of the Participating Employers to provide such
benefits.  Participants and their
Beneficiaries, heirs, successors and assigns shall have no legal or equitable
rights, claims or interests in any specific property or assets of the Company
or a Participating Employer, nor shall they be beneficiaries of, or have any
rights, claims or interests in any life insurance policies, annuity contracts
or the proceeds therefrom owned or which may be acquired by the Company.


 


6.2                               Spendthrift Provision.  Except as otherwise provided in this Section 6.2,
no Participant or Beneficiary shall have any interest in any benefit which can
be transferred nor shall any Participant or Beneficiary have any power to
anticipate, alienate, dispose of, pledge or encumber the same while in the
possession or control of the Participating Employers.  The Plan Administrator shall not recognize
any such effort to convey any interest under this Plan.  No benefit payable under this Plan shall be
subject to attachment, garnishment, or execution following judgment or other
legal process before actual payment to such person.  This Section 6.2 shall not prevent the
Plan Administrator from exercising, in its discretion, any of the applicable
powers and options granted to it under any applicable provision hereof.


 


10

















 


SECTION 7


ADOPTION, AMENDMENT AND TERMINATION


 


7.1                               Adoption. 
With the prior approval of the Plan Administrator, an Affiliate
may adopt the Plan and become a Participating Employer by furnishing to the
Plan Administrator a certified copy of a resolution of its board of directors
adopting the Plan.


 


7.2                               Amendment.


 


7.2.1                     General Rule.  The Board may at any time amend this Plan, in whole or in part, for any
reason, including but not limited to tax, accounting or insurance changes, a
result of which may be to terminate this Plan; provided, unless such amendment
is necessary or reasonable to comply with any changes in law, no amendment
shall be effective to decrease the benefits, nature or timing thereof payable
under this Plan to any Participant with respect to deferrals made (and benefits
thereafter accruing) prior to the date of such amendment.  The Committee is authorized to make any
amendments to this Plan Statement deemed necessary or desirable by the
Committee for the operation and administration of this Plan provided such
amendment does not have a material financial impact on the Company.  Such changes will be considered an Amendment
to this Plan and shall be effective without further action by the Board.  Written notice of any amendment shall be
given to each Participant then participating in this Plan.


 


7.2.2                     Amendment to Benefit of Executive
Officer.  Any amendment to the benefit of an executive
officer under this Plan, to the extent approval of such amendment by the board
of directors would be required by the Securities and Exchange Commission and
its regulations or the rules of any applicable securities exchange, will require
the approval of the Board.


 


7.2.3                     No Oral Amendments.  No modification of the terms of this Plan Statement shall be effective
unless it is in writing.  No oral
representation concerning the interpretation or effect of this Plan Statement
shall be effective to amend this Plan Statement.


 


7.3                               Termination.


 


7.3.1                     General Rule.


 


(a)                                To the extent necessary or reasonable to
comply with any changes in law, the Board may at any time terminate this Plan,
provided such termination satisfies the requirements of Code section 409A.


 


(b)                               To the extent that a Participant’s benefit
under the Plan will be immediately included in the income of the Participant,
as determined by a court of competent jurisdiction or the Internal Revenue
Service, to the extent permitted under Code section 409A, the Board may
terminate this Plan,  in whole or in
part, as it relates to the impacted Participant.


 


7.3.2                     Plan Termination on Account of a
Change-in-Control.  Upon a Change-in-Control the Plan will
terminate and the transfer of all amounts under the Plan will be accelerated if
and to the extent provided in this Section 7.3.2.


 


(a)                                The Plan will be terminated effective as of
the first date on which there has occurred both (i) a Change-in-Control
under Section 1.2.5(a), and (ii) a funding 


 


11

















 


of the Trust on account of such Change-in-Control (referred to herein
as the “Plan termination effective date”) unless, prior to such Plan
termination effective date, the Board affirmatively determines that the Plan
will not be terminated as of such effective date. The Board will be deemed to
have taken action to irrevocably terminate the Plan as of the Plan termination
effective date by its failure to affirmatively determine that the Plan will not
terminate as of such date.


 


(b)                                 The determination by the Board under
paragraph (a) constitutes a determination that such termination will
satisfy the requirements of Code section 409A, including an agreement by the
Company that it will take such additional action or refrain from taking such
action as may be necessary to satisfy the requirements necessary to terminate
and liquidate the Plan under paragraph (c) below.


 


(c)                                  In the event the Board does not affirmatively
determine not to terminate the Plan as provided in paragraph (a), such
termination shall be subject to either (i) or (ii), as follows:


 


(i)                                    If the Change-in-Control qualifies as a “change
in control event” for purposes of Code section 409A, transfer of all amounts
under the Plan will be accelerated and distributed under the Officer EDCP.


 


(ii)                                 If the Change-in-Control does not  qualify as a “change in control event” for purposes of Code
section 409A, transfer of all amounts under the Plan will be accelerated and
distributed under the Officer EDCP.


 


12














 


SECTION 8

CLAIM PROCEDURES


 


8.1                               Claim Procedures.  Until
modified by the Plan Administrator, the claim and review procedures set forth
in this Section shall be the mandatory claim and review procedures for the
resolution of disputes and disposition of claims filed under the Plan.  An application for a distribution or
withdrawal shall be considered as a claim for the purposes of this Section.


 


8.1.1                     Initial Claim.  An individual
may, subject to any applicable deadline, file with the Plan Administrator a  written claim for benefits under  the Plan in a  form and manner prescribed by the Plan Administrator.


 


(a)                                  If the claim is
denied in whole or in part, the Plan Administrator shall notify the claimant of
the adverse benefit determination within ninety (90) days after receipt of the
claim.


 


(b)                                 The ninety (90)
day period for making the claim determination may be extended for ninety (90)
days if the Plan Administrator determines that special circumstances require an
extension of time for determination of the claim, provided that the Plan
Administrator notifies the claimant, prior to the expiration of the initial
ninety (90) day period, of the special circumstances requiring an extension and
the date by which a claim determination is expected to be made.


 


8.1.2       Notice of Initial Adverse Determination.  A notice of an adverse determination shall
set forth in a manner calculated to be understood by the claimant:


 


(a)                                  the specific
reasons for the adverse determination,


 


(b)                                 references to
the specific provisions of the Plan Statement (or other applicable Plan
document) on which the adverse determination is based,


 


(c)                                  a description
of any additional material or information necessary to perfect the claim and an
explanation of why such material or information is necessary, and


 


(d)                                 a description
of the claim and review procedures, including the time limits applicable to
such procedure, and a statement of the claimant’s right to bring a civil action
under ERISA section 502(a) following an adverse determination on review.


 


8.1.3       Request for Review.  Within  sixty (60) days after receipt of an
initial adverse benefit determination notice, the claimant may file with the
Plan Administrator a written request for a review of the adverse determination
and may, in connection therewith submit written comments, documents, records
and other information relating to the claim benefits.  Any request for review of the initial adverse
determination not filed within sixty (60) days after receipt of the initial
adverse determination notice shall be untimely.


 


8.1.4       Claim on Review.  If the claim,
upon review, is denied in whole or in part, the Plan Administrator shall notify
the claimant of the adverse benefit determination within sixty (60) days after
receipt of such a request for review.


 


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(a)                                  The sixty (60)
day period for deciding the claim on review may be extended for sixty (60) days
if the Plan Administrator determines that special circumstances require an
extension of time for determination of the claim, provided that the Plan
Administrator notifies the claimant, prior to the expiration of the initial
sixty (60) day period, of the special circumstances requiring an extension and
the date by which a claim determination is expected to be made.


 


(b)                                 In the event
that the time period is extended due to a claimant’s failure to submit
information necessary to decide a claim on review, the claimant shall have
sixty (60) days within which to provide the necessary information and the
period for making the claim determination on review shall be tolled from the
date on which the notification of the extension is sent to the claimant until
the date on which the claimant responds to the request for additional
information or, if earlier, the expiration of sixty (60) days.


 


(c)                                  The Plan
Administrator’s review of a denied claim shall take into account all comments,
documents, records, and other information submitted by the claimant relating to
the claim, without regard to whether such information was submitted or
considered in the initial benefit determination.


 


8.1.5       Notice of Adverse Determination for Claim on Review.  A  notice of an adverse determination for a claim on review
shall set forth in a manner calculated to be understood by the claimant.


 


(a)                                  the specific
reasons for the denial,


 


(b)                                 references to
the specific provisions of the Plan Statement (or other applicable Plan
document) on which the adverse determination is based,


 


(c)                                  a statement
that the claimant is entitled to receive, upon request and free of charge,
reasonable access to, and copies of, all documents, records, and other
information relevant to the claimant’s claim for benefits,


 


(d)                                 a statement
describing any voluntary appeal procedures offered by the Plan and the claimant’s
right to obtain information about such procedures, and


 


(e)                                  a statement of
the claimant’s right to bring an action under ERISA section 502(a).


 


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8.2                               Rules and Regulations.


 


8.2.1                     Adoption of Rules.  Any rule not
in conflict or at variance with the provisions hereof may be adopted by the
Plan Administrator.


 


8.2.2                     Specific Rules.


 


(a)                                  No inquiry or
question shall be deemed to be a claim or a request for a review of a denied
claim unless made in accordance with the established claim procedures.  The Plan Administrator may require that any
claim for benefits and any request for a review of a denied claim be filed on
forms to be furnished by the Plan Administrator upon request.


 


(b)                                 All decisions
on claims and on requests for a review of denied claims shall be made by the
Plan Administrator unless delegated as provided for in the Plan, in which case
references in this Section 9 to the Plan Administrator shall be treated as
references to the Plan Administrator’s delegate.


 


(c)                                  Claimants may
be represented by a lawyer or other representative at their own expense, but
the Plan Administrator reserves the right to require the claimant to furnish
written authorization and establish reasonable procedures for determining
whether an individual has been authorized to act on behalf of a claimant.  A claimant’s representative shall be entitled
to copies of all notices given to the claimant.


 


(d)                                 The decision of
the Plan Administrator on a claim and on a request for a review of a denied claim
may be provided to the claimant in electronic form instead of in writing at the
discretion of the Plan Administrator.


 


(e)                                  In connection
with the review of a denied claim, the claimant or the claimant’s
representative shall be provided, upon request and free of charge, reasonable
access to, and copies of, all documents, records, and other information
relevant to the claimant’s claim for benefits.


 


(f)                                    The time period
within which a benefit determination will be made shall begin to run at the
time a claim or request for review is filed in accordance with the claims
procedures, without regard to whether all the information necessary to make a
benefit determination accompanies the filing.


 


(g)                                 The claims and
review procedures shall be administered with appropriate safeguards so that
benefit claim determinations are made in accordance with governing plan
documents and, where appropriate, the plan provisions have been applied
consistently with respect to similarly situated claimants.


 


(h)                                 The Plan
Administrator may, in its discretion, rely on any applicable statute of
limitation or deadline as a basis for denial of any claim.


 


8.3                               Limitations and Exhaustion.


 


8.3.1                     Claims.  No claim shall be considered under these
administrative procedures unless it is filed with the Plan Administrator within
two (2) years after the Participant knew (or 


 


15

















 


reasonably should have known) of the general nature
of the dispute giving rise to the claim. 
Every untimely claim shall be denied by the Plan Administrator without
regard to the merits of the claim.


 


8.3.2                     Lawsuits.  No suit may be brought by or on behalf of any
Participant or Beneficiary on any matter pertaining to this Plan unless the
action is commenced in the proper forum within two (2) years from the
earlier of:


 


(a)                                  the date the
Participant knew (or reasonably should have known) of the general nature of the
dispute giving rise to the action, or


 


(b)                                 the date the
claim was denied.


 


8.3.3                     Exhaustion of Remedies.  These administrative procedures are the
exclusive means for resolving any dispute arising under this Plan.  As to such matters:


 


(a)                                  no Participant
or Beneficiary shall be permitted to litigate any such matter unless a timely
claim has been filed under these administrative procedures and these
administrative procedures have been exhausted, and


 


(b)                                 determinations
by the Plan Administrator (including determinations as to whether the claim was
timely filed) shall be afforded the maximum deference permitted by law.


 


8.3.4                     Imputed Knowledge.  For the purpose of applying the deadlines to
file a claim or a legal action, knowledge of all facts that a Participant knew
or reasonably should have known shall be imputed to every claimant who is or
claims to be a Beneficiary of the Participant or otherwise claims to derive an
entitlement by reference to the Participant for the purpose of applying the
previously specified periods.


 


16

















 


SECTION 9

PLAN ADMINISTRATION


 


9.1                               Plan
Administration.


 


9.1.1                     Administrator.  The Company
is the “administrator” of the Plan for purposes of 3(16)(A) of ERISA.  Except as expressly otherwise provided
herein, the Company shall control and manage the operation and administration
of the Plan and make all decisions and determinations.


 


9.1.2                     Authority and Delegation.  Except in cases where the Plan expressly
requires action on behalf of the Company to be taken by the Board, action on
behalf of the Company may be taken by any of the following:


 


(a)                                  The Board.


 


(b)                                 The Chief
Executive Officer of the Company.


 


(c)                                  The senior Vice
President of Human Resources of the Company.


 


(d)                                 Any person or
persons, natural or otherwise, or committee, to whom responsibilities for the
operation and administration of the Plan are delegated by the Company, by
resolution of the Board or by written instrument executed by the Chief
Executive Officer or the senior Vice President of Human Resources of the
Company and filed with its permanent records, provided action of such person or
persons or committee shall be within the scope of said delegation.


 


9.1.3                     Determinations.  The Plan
Administrator shall make such determinations as may be required from time to
time in the administration of this Plan. 
The Plan Administrator shall have the discretionary authority and
responsibility to interpret and construe the Plan Statement and to determine
all factual and legal questions under this Plan, including but not limited to
the entitlement of Participants and Beneficiaries, and the amounts of their
respective interests.


 


9.1.4                     Reliance.  The Plan
Administrator may act and rely upon all information reported to it hereunder
and need not inquire into the accuracy thereof, nor be charged with any notice
to the contrary.


 


9.1.5                     Rules and Regulations.  Any rule, regulation, policy, practice or
procedure not in conflict or at variance with the provisions hereof may be
adopted by the Plan Administrator.


 


9.2                               Conflict of Interest.  If any
individual to whom authority has been delegated or redelegated hereunder shall
also be a Participant in this Plan, such Participant shall have no authority
with respect to any matter specially affecting such Participant’s individual
interest hereunder or the interest of a person superior to him in the
organization (as distinguished from the interests of all Participants and
Beneficiaries or a broad class of Participants and Beneficiaries), all such
authority being reserved exclusively to other individuals as the case may be,
to the exclusion of such Participant, and such Participant shall act only in
such Participant’s individual capacity in connection with any such matter.


 


17

















 


9.3                               Committee Membership and Authority.


 


9.3.1                     Appointment.  The Company
may, in its discretion, appoint a committee to act as agent of the Company in
performing the duties of the Plan Administrator.


 


9.3.2                     Membership and Authority.  The committee
will consist of three or more persons appointed by the Board and shall be
subject to the following:


 


(a)                                  The committee
shall act by a majority of its then members by meeting or by writing filed
without meeting.


 


(b)                                 A committee
member may resign at any time by giving ten days’ advance written notice to the
Company and the other committee members. 
The Board may remove a committee member by giving advance written notice
to him or her and the other committee members.


 


(c)                                  The Board may
fill any vacancy in the membership of the committee and shall give prompt
written notice thereof to the other committee members.  While there is a vacancy in the membership of
the committee, the remaining committee members shall have the same powers as
the full committee until the vacancy is filled.


 


(d)                                 A certificate
of either the secretary to the
committee or a majority of the members of the committee that the committee has
taken or authorized any action will be conclusive in favor of any person
relying on the certificate.


 


9.4                               Service of Process.  In
the absence of any designation to the contrary by the Plan Administrator, the
General Counsel of the Plan Administrator is designated as the appropriate and
exclusive agent for the receipt of service of process directed to this Plan in
any legal proceeding, including arbitration, involving this Plan.


 


9.5                               Choice of Law.  Except to the
extent that federal law is controlling, this Plan Statement will be construed
and enforced in accordance with the laws of the State of Minnesota.


 


9.6                               Responsibility for Delegate.  No person shall be liable for an act or
omission of another person with regard to a responsibility that has been
allocated to or delegated to such other person pursuant to the terms of the
Plan Statement or pursuant to procedures set forth in the Plan Statement.


 


9.7                               Expenses.  All expenses of
administering the benefits due under this Plan shall be borne by the
Participating Employers.


 


9.8                               Errors in Computations.  It is recognized that in the operation and
administration of the Plan certain mathematical and accounting errors may be
made or mistakes may arise by reason of factual errors in information supplied
to the Company or trustee.  The Company
shall have power to cause such equitable adjustments to be made to correct for
such errors as the Company, in its sole discretion, considers appropriate.  Such adjustments shall be final and binding
on all persons.


 


9.9                               Indemnification.  In addition to any other
applicable provisions for indemnification, the Participating Employers jointly
and severally agree to indemnify and hold harmless, to the extent permitted by
law, each director, officer and Employee of the Participating Employers against
any 


 


18

















 


and
all liabilities, losses, costs or expenses (including legal fees) of whatsoever
kind and nature which may be imposed on, incurred by or asserted against such
person at any time by reason of such person’s services as an administrator in
connection with the Plan, but only if such person did not act dishonestly, or
in bad faith, or in willful violation of the law or regulations under which such
liability, loss, cost or expense arises.


 


9.10        Notice.  Any notice
required under this Plan Statement may be waived by the person entitled
thereto.


 


19

















 


SECTION 10


CONSTRUCTION


 


10.1        ERISA Status.  The Plan was
adopted and is maintained with the understanding that it is an unfunded plan
maintained primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees as provided in
section 201(2), section 301(a)(3) and section 401(a)(1) of
ERISA.  The Plan shall be interpreted and
administered accordingly.


 


10.2        IRC Status.  The Plan is
intended to be a nonqualified deferred compensation arrangement that will
comply in form and operation with the requirements of Code section 409A and the
Plan will be construed and administered in a manner that is consistent with and
gives effect to such intention.


 


10.3        Rules of Document Construction. 
In the event any provision of the Plan Statement is held invalid, void or
unenforceable, the same shall not affect, in any respect whatsoever, the
validity of any other provision of the Plan. 
The titles given to the various Sections of the Plan Statement are
inserted for convenience of reference only and are not part of the Plan
Statement, and they shall not be considered in determining the scope, purpose,
meaning or intent of any provision hereof. 
The provisions of the Plan Statement shall be construed as a whole in
such manner as to carry out the provisions thereof and shall not be construed
separately without relation to the context.


 


10.4        References  to Laws.  Any reference in the Plan
Statement to a statute or regulation shall be considered also to mean and refer
to any subsequent amendment or replacement of that statute or regulation
unless, under the circumstances, it would be inappropriate to do so.


 


10.5        Appendices.  Plan
provisions that have application to a limited number of Participants or that
otherwise do not apply equally to all Participants may be described in an
appendix to the Plan Statement.  In the
event of a conflict between the terms of a Plan Statement appendix and the
terms of the remainder of the Plan Statement, the terms of the Plan Statement
appendix control.


 


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