Exhibit 10(K)


 


TARGET CORPORATION


DDCP


(2009 PLAN STATEMENT)


 


Effective January 1, 2009


As Amended and Restated


 

















 


TARGET CORPORATION


DDCP


(2009 Plan Statement)


 


TABLE OF CONTENTS


 


	
  SECTION 1 INTRODUCTION; DEFINITIONS

  	
   

  	
  3

  
	
   

  	
  1.1 Name of Plan; History

  	
   

  	
  3

  
	
   

  	
  1.2 Definitions

  	
   

  	
  3

  
	
   

  	
  1.2.1
  Account

  	
   

  	
  3

  
	
   

  	
  1.2.2
  Affiliate

  	
   

  	
  3

  
	
   

  	
  1.2.3
  Beneficiary

  	
   

  	
  3

  
	
   

  	
  1.2.4
  Board

  	
   

  	
  3

  
	
   

  	
  1.2.5
  Change-in-Control

  	
   

  	
  3

  
	
   

  	
  1.2.6
  Code

  	
   

  	
  4

  
	
   

  	
  1.2.7
  Committee

  	
   

  	
  4

  
	
   

  	
  1.2.8
  Company

  	
   

  	
  4

  
	
   

  	
  1.2.9
  Crediting Rate Alternative

  	
   

  	
  5

  
	
   

  	
  1.2.10
  Deferral Credit

  	
   

  	
  5

  
	
   

  	
  1.2.11
  Director

  	
   

  	
  5

  
	
   

  	
  1.2.12
  Earnings Credit

  	
   

  	
  5

  
	
   

  	
  1.2.13
  Effective Date

  	
   

  	
  5

  
	
   

  	
  1.2.14
  Newly Eligible Director

  	
   

  	
  5

  
	
   

  	
  1.2.15
  Participant

  	
   

  	
  5

  
	
   

  	
  1.2.16
  Participating Employer

  	
   

  	
  5

  
	
   

  	
  1.2.17
  Plan

  	
   

  	
  5

  
	
   

  	
  1.2.18
  Plan Administrator

  	
   

  	
  5

  
	
   

  	
  1.2.19
  Plan Rules

  	
   

  	
  5

  
	
   

  	
  1.2.20
  Plan Statement

  	
   

  	
  6

  
	
   

  	
  1.2.21
  Plan Year

  	
   

  	
  6

  
	
   

  	
  1.2.22
  Retainer

  	
   

  	
  6

  
	
   

  	
  1.2.23
  Specified Employee

  	
   

  	
  6

  
	
   

  	
  1.2.24
  Termination of Employment

  	
   

  	
  6

  
	
   

  	
  1.2.25
  Trust

  	
   

  	
  6

  
	
   

  	
  1.2.26
  Unforeseeable Emergency

  	
   

  	
  6

  
	
   

  	
  1.2.27
  Valuation Date

  	
   

  	
  6

  
	
  SECTION 2 PARTICIPATION AND DEFERRAL ELECTIONS

  	
  7

  
	
   

  	
  2.1 Eligibility

  	
   

  	
  7

  
	
   

  	
  2.2 Termination of
  Participation

  	
   

  	
  7

  
	
   

  	
  2.3 No Guarantee of
  Continued Directorship

  	
   

  	
  7

  
	
   

  	
  2.4 Deferral
  Elections

  	
   

  	
  7

  
	
   

  	
  2.5 Deferral of
  Retainers

  	
   

  	
  8

  
	
   

  	
  2.6 Elective
  Deferral Credit

  	
   

  	
  8

  
	
   

  	
  2.7 Cancellation of
  Deferral Elections

  	
   

  	
  8

  
	
  SECTION 3 ADJUSTMENTS OF ACCOUNTS

  	
   

  	
  9

  
	
   

  	
  3.1 Establishment
  of Accounts

  	
   

  	
  9

  
	
   

  	
  3.2 Adjustments of
  Accounts

  	
   

  	
  9

  



 


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  3.3 Investment
  Adjustment

  	
   

  	
  9

  
	
   

  	
  3.4 Account
  Adjustments Upon a Change-in-Control or Plan Termination

  	
  9

  
	
  SECTION 4 VESTING

  	
   

  	
  10

  
	
   

  	
  4.1 Participant
  Accounts

  	
   

  	
  10

  
	
  SECTION 5 DISTRIBUTION

  	
   

  	
  11

  
	
   

  	
  5.1 Distribution
  Elections

  	
   

  	
  11

  
	
   

  	
  5.2 General
  Requirements

  	
   

  	
  11

  
	
   

  	
  5.3 Six-Month
  Suspension for Specified Employees

  	
   

  	
  12

  
	
   

  	
  5.4 Distribution on
  Account of Death

  	
   

  	
  12

  
	
   

  	
  5.5 Distribution on
  Account of Unforeseeable Emergency.

  	
  12

  
	
   

  	
  5.6 Designation of
  Beneficiaries

  	
   

  	
  13

  
	
   

  	
  5.7 Facility of
  Payment

  	
   

  	
  14

  
	
   

  	
  5.8 Tax Withholding

  	
   

  	
  15

  
	
   

  	
  5.9 Application for
  Distribution

  	
   

  	
  15

  
	
   

  	
  5.10 Acceleration
  of Distributions

  	
   

  	
  15

  
	
   

  	
  5.11 Delay of
  Distributions

  	
   

  	
  15

  
	
  SECTION 6 SOURCE OF PAYMENTS; NATURE OF INTEREST

  	
  16

  
	
   

  	
  6.1 Source of
  Payments

  	
   

  	
  16

  
	
   

  	
  6.2 Unfunded
  Obligation

  	
   

  	
  16

  
	
   

  	
  6.3 Establishment
  of Trust

  	
   

  	
  16

  
	
   

  	
  6.4 Spendthrift
  Provision

  	
   

  	
  16

  
	
  SECTION 7 ADOPTION, AMENDMENT AND TERMINATION

  	
  17

  
	
   

  	
  7.1 Adoption

  	
   

  	
  17

  
	
   

  	
  7.2 Amendment

  	
   

  	
  17

  
	
   

  	
  7.3 Termination and
  Liquidation

  	
   

  	
  17

  
	
  SECTION 8 CLAIM PROCEDURES

  	
  19

  
	
   

  	
  8.1 Claim
  Procedures

  	
   

  	
  19

  
	
   

  	
  8.2 Rules and
  Regulations

  	
   

  	
  20

  
	
   

  	
  8.3 Limitations and
  Exhaustion

  	
   

  	
  21

  
	
  SECTION 9 PLAN ADMINISTRATION

  	
   

  	
  23

  
	
   

  	
  9.1 Plan
  Administration

  	
   

  	
  23

  
	
   

  	
  9.2 Conflict of
  Interest

  	
   

  	
  23

  
	
   

  	
  9.3 Committee
  Membership and Authority

  	
   

  	
  24

  
	
   

  	
  9.4 Service of
  Process

  	
   

  	
  24

  
	
   

  	
  9.5 Choice of Law

  	
   

  	
  24

  
	
   

  	
  9.6 Responsibility
  for Delegate

  	
   

  	
  24

  
	
   

  	
  9.7 Expenses

  	
   

  	
  24

  
	
   

  	
  9.8 Errors in
  Computations

  	
   

  	
  24

  
	
   

  	
  9.9 Indemnification

  	
   

  	
  24

  
	
   

  	
  9.10 Notice

  	
   

  	
  25

  
	
  SECTION 10 CONSTRUCTION

  	
   

  	
  26

  
	
   

  	
  10.1 IRC Status

  	
   

  	
  26

  
	
   

  	
  10.2 Rules of
  Document Construction

  	
   

  	
  26

  
	
   

  	
  10.3 References to
  Laws

  	
   

  	
  26

  



 


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SECTION 1

INTRODUCTION; DEFINITIONS


 


1.1                       Name of Plan; History.  This Plan (formerly known as the Target Corporation Director Deferred
Compensation Plan) is a non-qualified, unfunded plan established for the
purpose of allowing directors of the Company to defer the receipt of
income.  This Plan was originally adopted
effective as of January 1, 1997 and was amended at various times
thereafter.  Effective January 1,
2005 (and other effective dates as specifically provided), this Plan was
operated in compliance with Code section 409A. 
Effective January 29, 2006, members of the Board ceased to be
eligible to receive enhanced earnings on their account balances.  This Plan Statement, which is intended to
comply with Code section 409A, is effective January 1, 2009.


 


1.2                       Definitions.  When the following terms are used herein with initial capital letters,
they shall have the following meanings:


 


1.2.1                     Account.  “Account” means the separate bookkeeping
account representing the separate unfunded and unsecured general obligation of
the Participating Employers established with respect to each person who is a
Participant in this Plan.  Within each
Participant’s Account, separate subaccounts shall be maintained to the extent
the Plan Administrator determines it to be necessary or desirable for the
administration of this Plan.


 


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.  “Beneficiary” means an individual (human
being), a trust that is a United Sates person within the meaning of the Code, a
person that has been recognized as a charitable organization under Code section
170(b), or the Participant’s estate designated in accordance with Section 5.6
to receive all or a part of the Participant’s Account in the event of the
Participant’s death prior to full distribution thereof.  A person so designated shall not be
considered a Beneficiary until the death of the Participant.


 


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 hereunder).


 


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.


 


4

















 


1.2.9                     Crediting Rate Alternative.  “Crediting Rate Alternative”
means a hypothetical investment option used for the purpose of measuring
income, gains and losses to the Accounts of Participants (as if the Accounts
had in fact been so invested).  The
Crediting Rate Alternatives shall be designated in writing by the Plan
Administrator.


 


1.2.10              Deferral
Credit.  A “Deferral Credit” is the amount credited to
a Participant’s Account pursuant to Section 2.6.


 


1.2.11              Director.  “Director”
means any person who is a director of the Company or Participating Employer.


 


1.2.12              Earnings
Credit.  “Earnings Credit” means the investment
adjustment credited to a Participant’s Account pursuant to Section 3.3 or Section 3.4
as applicable.


 


1.2.13              Effective
Date.  The “Effective Date” of this Plan Statement is
January 1, 2009, except as otherwise provided.


 


1.2.14              Newly
Eligible Director.  “Newly Eligible Director” means a Director
who either (i) was not previously eligible to participate in this Plan or
any other non-qualified, deferred compensation plans maintained for directors
or independent contractors by a Participating Employer or other Affiliate, (ii) had
been paid all amounts previously deferred under all non-qualified, deferred
compensation plans maintained for directors or independent contractors by a
Participating Employer or other Affiliate and had ceased to be eligible to
continue to participate in such plans on or before the date of payment of all
amounts due under such plans, or (iii) was not eligible to participate in
any non-qualified deferred compensation plans (other than the accrual of
earnings) maintained for directors or independent contractors by a
Participating Employer or other Affiliate at any time during the 24-month
period ending on the date the Director has again become eligible to participate
in the Plan.


 


1.2.15              Participant.  A  “Participant” is a Director who
becomes a Participant in this Plan in accordance with the provisions of Section 2.  A Director who has become a Participant shall
be considered to continue as a Participant in this Plan until the date when the
Participant no longer has any Account under this Plan, or the date of the
Participant’s death, if earlier.


 


1.2.16              Participating
Employer.  “Participating Employer” means the Company
and each other Affiliate that, with the consent of the Company adopts this
Plan.  A Participating Employer shall
cease to be a Participating Employer on the date it ceases to be an Affiliate.


 


1.2.17              Plan.  “Plan” means the nonqualified, unfunded income deferral program
maintained by the Company and established for the benefit of Participants
eligible to participate therein, as set forth in this Plan Statement.  As used herein, “Plan” does not refer to the
documents pursuant to which this Plan is maintained.  That document is referred to herein as the “Plan
Statement”.  The Plan shall be referred
to as the “Target Corporation DDCP” (formerly known as the Target Corporation
Director Deferred Compensation Plan).


 


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


 


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


 


5

















 


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


 


1.2.21              Plan
Year.  “Plan Year” means the period from January 1 through December 31.


 


1.2.22              Retainer.  “Retainer” means the total cash fees paid to Participant for service on
the Board (or any committee there of).


 


1.2.23              Specified
Employee.  For purposes of complying with the
requirements of Code section 409A(a)(2)(B)(i) (relating to the 6 month
suspension of certain benefit distributions), an individual is a “Specified
Employee” if on his or her Termination of Employment, the Company or other
Affiliate has stock that is traded on an established securities market within
the meaning of Code section 409A(a)(2)(B) and such individual is a “key
employee” (defined below).  For this
purpose, an individual is a “key employee” during the 12-month period beginning
on April 1 immediately following the calendar year in which the individual
was employed by the Company and other Affiliates, and satisfied, at any time
within such calendar year, the requirements of Code section 416(i)(1)(A)(i), (ii) or
(iii) (without regard to Code section 416(i)(5)).  An individual will not be treated as a
Specified Employee if the individual is not required to be treated as a
Specified Employee under Treasury Regulations issued under Code section 409A.


 


1.2.24              Termination
of Employment.  “Termination of Employment” means a severance
of a Participant’s directorship, and all independent contractor relationships,
with the Company, each Participating Employer and all Affiliates, for any
reason.  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.


 


1.2.25              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.


 


1.2.26              Unforeseeable
Emergency.  “Unforeseeable Emergency” means a severe
financial hardship to the Participant resulting from an illness or accident of
the Participant, the Participant’s spouse, or a dependent (within the meaning
of Code section 152(a)) of the Participant, loss of the Participant’s property
due to casualty, or other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant, but only
if and to the extent such Unforeseeable Emergency constitutes an “unforeseeable
emergency” under Code section 409A.


 


1.2.27              Valuation
Date.  “Valuation Date” means each business day on which the New York Stock
Exchange is open.


 


6

















 


SECTION 2

PARTICIPATION AND DEFERRAL ELECTIONS


 


2.1                       Eligibility.  A Director is eligible to participate in this Plan in accordance with
and subject to the requirements of this Plan.


 


2.1.1                     Eligibility for Newly Eligible Director.  A Newly Eligible Director is eligible to participate in this Plan on
the date that is 30 days after he or she becomes a Director.


 


2.1.2                     Initial Enrollment.  A Director shall, as a condition of
participation in this Plan, complete such forms and make such elections in
accordance with Plan Rules as the Plan Administrator may require for the
effective administration of this Plan.


 


2.2                       Termination of Participation.  Except as otherwise specifically provided in this Plan Statement or by
the Committee, a Director who ceases to be a Director is not eligible to
continue to participate in the Plan, provided, that any deferral elections in
effect, and irrevocable, will continue to apply with respect to any
Retainers.  The Participant’s Account
will continue to be governed by the terms of the Plan until such time as the
Participant’s Account balance is paid in accordance with the terms of the
Plan.  A Participant or Beneficiary will
cease to be such as of the date on which his or her entire Account balance has
been distributed.


 


2.3                       No Guarantee of Continued
Directorship.  Participation in
this Plan does not constitute a guarantee or contract with any Participating Employer guaranteeing that the
Director will continue to be a director. 
Such participation shall in no way interfere with any rights the
shareholders of a Participating Employer would have in the absence of such
participation to determine the duration of the director’s service.


 


2.4                       Deferral Elections.  A
Director who satisfies the eligibility requirements of Section 2 may, at
the time and in the manner provided hereunder, elect to defer the receipt of
his or her Retainer.


 


2.4.1                     General.  Except as otherwise provided in this Plan, an
election shall be made before the beginning of the Plan Year during which the
Participant performs services for which the Retainer is earned.  The election must designate the percentage of
the Retainer which shall be deferred under this Plan.  In accordance with Plan Rules, the Plan
Administrator will determine the manner and timing required to file a deferral
election.  No deferral election shall be
effective unless prior to the deadline for making such election, the
Participant has filed with the Plan Administrator, in accordance with Plan
Rules, an insurance consent form permitting the Participating Employer or
Company to purchase and maintain life insurance coverage on the Director with
the Participating Employer or Company as the beneficiary.  An election to defer the Retainer for the
Plan Year or other period is irrevocable once it has been accepted by the Plan
Administrator and the deadline for making such election has expired, except as
otherwise provided under this Plan.


 


2.4.2                     Newly Eligible Director.  For a Newly Eligible Director, the deferral
election may be made after the first day of a Plan Year provided it is made
within 30 days after becoming eligible to participate in this Plan.  Such a deferral election by a Newly Eligible
Director is irrevocable once it has been received by the Plan Administrator and
the deadline for making such election has expired, except as otherwise provided
under this Plan.  Such election will be 


 


7

















 


effective
with respect to Retainers for services commencing with the next full calendar
quarter after the deferral election becomes irrevocable.


 


2.4.3                     Terminations of Employment.  A Participant who completes a deferral
election in accordance with this Section 2.4, but who has a Termination of
Employment prior to the deadline for making such election has expired, will be
deemed to have made no deferral election for the respective period.


 


2.5                       Deferral of Retainers.   A Participant’s election to defer a
Retainer is subject to the following requirements:


 


2.5.1                     A deferral election will be effective with respect to the first
Retainer paid for services performed during the Plan Year and such election
will remain in effect through the last Retainer paid for services performed
during the Plan Year.


 


2.5.2                     The Retainer deferral percentage may not exceed 100%.


 


2.6                       Elective Deferral Credit.  The
Plan Administrator shall credit to the Account of each Participant the amount,
if any, of the Retainer the Participant elected to defer pursuant to this Section 2.  Such amount shall be credited as nearly as
practicable as of the time or times when the Retainer would have been paid to
the Participant but for the election to defer.


 


2.7                       Cancellation of Deferral
Elections.  Notwithstanding any provisions in the Plan to
the contrary, an election to defer under this Section will be cancelled
for the remaining portion of the Plan Year in the event the Participant has
received a distribution on account of an Unforeseeable Emergency under Section 5.5.  The revocation shall be made at the time and
in the manner specified in Plan Rules and must otherwise comply with the
requirements of Section 5.5.


 


8














 


SECTION 3


ADJUSTMENTS OF ACCOUNTS


 


3.1          Establishment of Accounts. 
There shall be established for each Participant an Account which shall
be adjusted as provided under Section 3.


 


3.2          Adjustments of Accounts.  On each Valuation Date, the Plan Administrator
shall cause the value of the Account (or subaccount) to be increased (or
decreased) for distributions, withdrawals, credits, debits and investment
income, gains or losses charged to the Account.


 


3.3          Investment Adjustment.  The investment income, gains and losses shall
be determined for the Accounts in accordance with the following:


 


3.3.1       Participant Elections.  In accordance with Plan Rules and
procedures established by the Plan Administrator, each Participant shall
prospectively elect, as part of the initial enrollment process, and from time
to time thereafter, one or more Crediting Rate Alternatives that shall be used
to measure income, gains and losses until the next Valuation Date.


 


3.3.2       Default Rate.  If a Participant fails to designate one or
more Crediting Rate Alternatives to be used to measure income, gains and losses
with respect to amounts credited to his or her Account, such amounts will be
deemed to be invested in a default Crediting Rate Alternative designated by the
Plan Administrator in accordance with Plan Rules.


 


3.3.3       Crediting.  As of each Valuation Date, each Participant’s
Account shall be adjusted for income, gains and losses as if the Account had in
fact been invested in the Crediting Rate Alternative(s) so selected.


 


3.3.4       Responsibility for
Investing Adjustments.  The
Plan Administrator will not be responsible in any manner to any Participant,
Beneficiary or other person for any damages, losses or liabilities, costs or
expenses of any kind arising in connection with any designation or elimination
of a Crediting Rate Alternative or a Participant’s election of a Crediting Rate
Alternative.


 


3.4          Account Adjustments Upon a Change-in-Control or Plan
Termination.


 


3.4.1       In the event of
a Plan termination following a Change-in-Control under Section 7.3.2 that
causes a Trust to be established and funded pursuant to Section 6.3 where
distribution of a Participant’s Account may not be made from the Trust within
60 days of the event because of restrictions imposed by Code section 409A, then
the Participant’s Account as of the date of such event will no longer receive
adjustments determined pursuant to Section 3.3.


 


3.4.2       On and after
the date of an event described in Section 3.4.1, the Account will have an
investment adjustment determined at an annual rate equal to the sum of the
10-Year U.S. Treasury Note plus 2%.  The
10-Year U.S. Treasury Note rate will be determined as of the date of the Plan
termination under Section 7.3.2, or if no such rate is available on that
date, the immediately preceding date such rate is available, and reset each
calendar quarter as necessary.


 


9

















 


SECTION 4

VESTING


 


4.1          Participant Accounts.  The Participant
Accounts are fully (100%) vested and non-forfeitable at all times.


 


10

















 


SECTION 5


DISTRIBUTION


 


5.1          Distribution Elections.  Except as
otherwise specifically provided in this Plan, a Participant may irrevocably
elect for each Plan Year the form and time of distribution of the credits made
to his or her Account for such Plan Year.


 


5.2          General Requirements.  A Participant’s
distribution election must be made prior to the date the Participant’s deferral
election becomes irrevocable.  Earnings Credits
will be distributed in the same form and time as in effect for the related
Account credit.  The election shall be
made in the form and manner prescribed by Plan Rules.


 


5.2.1       Form of
Distribution.  The Participant
may elect among the following forms of distribution.


 


(a)                                  Installments.  A series of annual
installments made over either five (5) years or ten (10) years
commencing at a time provided under Section 5.2.2(a) or (b).  For purposes of Code section 409A,
installment payments will be treated as a series of separate payments at all
times.


 


(b)                                 Lump
Sum.  A single lump sum payment.


 


5.2.2       Time of Payment.  The Participant may elect
among the following distribution commencement times:


 


(a)                                  Termination
of Employment.  Within 60 days
following the Participant’s Termination of Employment.


 


(b)                                 One-Year
Anniversary of Termination of Employment. 
Within 60 days following the one-year anniversary of the Participant’s
Termination of Employment.


 


(c)                                  Fixed
Payment Date.  Within 60
days of January 1 of the calendar year elected by the Participant at the
time of deferral.  If a Participant has a
Termination of Employment prior to the fixed payment date, such amount shall be
paid on the earlier of: (i) within 60 days following January 1 in the
tenth year following the year of the Termination of Employment, or (ii) January 1
of the calendar year elected by the Participant at the time of deferral.  The Plan Administrator will establish Plan
Rules, procedures and limitations on establishing the number and times of the
fixed payment dates available for Participants to elect.


 


(d)                                 Payouts
in 2008 and 2009.  During 2007
and 2008, consistent with transition relief available under Code section 409A,
and subject to Plan Rules:


 


(i)                                     Participants
had an opportunity to elect during 2007 to receive a distribution of all or a
portion of their Account valued as of December 31, 2007 to be distributed
in January 2008.


 


(ii)                                  Participants
had an opportunity to elect during 2008 to receive a distribution of all or a
portion of their Account valued as of December 31, 2008 to be distributed
in January 2009.


 


11

















 


5.2.3       Installment
Amounts.  The amount of the annual
installments shall be determined by dividing the amount of the vested portion
of the Account as of the most recent Valuation Date preceding the date the
installment is being paid by the number of remaining installment payments to be
made (including the payment being determined).


 


5.2.4       Small Benefit.  Subject to Section 5.3,  in the event that the vested Account balance of a
Participant who has died or experienced a Termination of Employment under the
Plan is less than the applicable dollar amount under Code section 402(g)(1)(B) for
that Plan Year as of the date on which the Company makes such determinations,
the Company reserves the right to have the Participant’s entire Account paid in
the form of a single lump sum payment, provided the Company’s exercise of
discretion complies with the requirements of Treas. Reg. Sec. 1.409A-3(j)(4)(v).


 


5.2.5       Default.  If for any reason a
Participant shall have failed to make a timely designation of the form or time
of distribution with respect to credits for a Plan Year (including reasons
entirely beyond the control of the Participant), except as provided in Section 5.3,
the distribution shall be made as a single lump sum payment within 60 days
following the Participant’s Termination of Employment.


 


5.2.6       No Spousal Rights.  No spouse, former spouse, Beneficiary or
other person shall have any right to participate in the Participant’s
designation of a form or time of payment.


 


5.3          Six-Month Suspension for Specified Employees.  Notwithstanding any other
provision in this Section 5, if a Participant is a Specified Employee at
Termination of Employment, then any distributions arising on account of the
Participant’s Termination of Employment (other than on account of death) shall
be suspended and not be made until (6) months have elapsed since such
Participant’s Termination of Employment (or, if earlier, upon the date of the
Participant’s death).  Any payments that
were otherwise payable during the six-month suspension period referred to in
the preceding sentence, will be paid within 60 days after the end of such
six-month suspension period.


 


5.4          Distribution on Account of Death.  Upon the death of a
Participant, the Participant’s Account balance will be paid to the Participant’s
Beneficiary in a single lump sum within 90 days following the Participant’s
death.


 


5.5          Distribution on Account of Unforeseeable Emergency.


 


5.5.1       When Available.  A Participant may receive a
distribution from the vested portion of his or her Account (which shall be
deemed to include the deferrals that would have been made but for the
cancellation under Section 5.5.3) if the Plan Administrator determines
that such distribution is on account of an Unforeseeable Emergency and the
conditions in Section 5.5.2 have been fulfilled.  To receive such a distribution, the
Participant must request a distribution by filing an application with the Plan
Administrator and furnish such supporting documentation as the Plan
Administrator may require.  In the
application, the Participant shall specify the basis for the distribution and
the dollar amount to be distributed.  If
such request is approved by the Plan Administrator, distribution shall be made
in a lump sum payment within 60 days following the approval by the Plan
Administrator of the completed application.


 


5.5.2       Limitations.  The amount that may be distributed with
respect to a Participant’s Unforeseeable Emergency shall not exceed the amounts
necessary to satisfy the emergency plus 


 


12

















 


amounts
necessary to pay taxes reasonably anticipated as a result of the distribution,
after taking into account the extent to which such Unforeseeable Emergency is
or may be relieved through reimbursement or compensation by insurance or
otherwise by liquidation of the Participant’s assets (to the extent the
liquidation of such assets would not itself cause severe financial hardship),
and/or cancellation of deferrals pursuant to Section 5.5.3, provided the
determination of such limitation is consistent with the requirements of Code
section 409A(a)(2)(B)(ii).


 


5.5.3       Cancellation of
Deferral Elections.  As provided by Section 2.7,
in the event of a distribution under Section 5.5.1 the Plan Administrator
will cancel the Participant’s deferral elections for the balance of the
applicable Plan Year.


 


5.6          Designation of Beneficiaries.


 


5.6.1       Right to Designate or
Revoke.


 


(a)                                  Each
Participant may designate one or more primary Beneficiaries or secondary
Beneficiaries to receive all or a specified part of such Participant’s vested
Account in the event of such Participant’s death.  If fewer than all designated primary or
secondary Beneficiaries predecease the Participant, then the amount of such
predeceased Beneficiary’s portion shall be allocated to the remaining primary
or secondary Beneficiaries, as the case may be.


 


(b)                                 The Participant
may change or revoke any such designation from time to time without notice to
or consent from any spouse, any person named as Beneficiary or any other
person.


 


(c)                                  No such
designation, change or revocation shall be effective unless completed and filed
with the Plan Administrator in accordance with Plan Rules during the
Participant’s lifetime.


 


5.6.2       Failure of Designation.  If a Participant:


 


(a)                                  fails to
designate a Beneficiary,


 


(b)                                 designates a
Beneficiary and thereafter revokes such designation without naming another Beneficiary,
or


 


(c)                                  designates one
or more Beneficiaries and all such Beneficiaries so designated fail to survive
the Participant, such Participant’s vested Account, shall be payable to the
first class of the following classes of automatic Beneficiaries:


 


Participant’s surviving spouse


Representative of Participant’s estate


 


5.6.3       Disclaimers by
Beneficiaries.  A
Beneficiary entitled to a distribution of all or a portion of a deceased
Participant’s vested Account may disclaim an interest therein subject to the
Plan Rules.


 


5.6.4       Special Rules.  Unless the Participant has
otherwise specified in the Participant’s Beneficiary designation, the following
rules shall apply:


 


13

















 


(a)                                  If there is not
sufficient evidence that a person designated as a Beneficiary was living at the
time of the death of the Participant, it shall be deemed that the Beneficiary
was not living at the time of the death of the Participant.


 


(b)                                 The automatic
Beneficiaries specified in Section 5.6.2 and the Beneficiaries designated
by the Participant shall become fixed at the time of the Participant’s death
(subject to Section 5.6.3) so that, if a Beneficiary survives the
Participant but dies before the receipt of all payments due such Beneficiary
hereunder, such remaining payments shall be payable to the representative of
such Beneficiary’s estate.


 


(c)                                  If the
Participant designates as a Beneficiary the person who is the Participant’s
spouse on the date of the designation, either by name or by relationship, or
both, the dissolution, annulment or other legal termination of the marriage
between the Participant and such person shall automatically revoke such
designation.  The foregoing shall not
prevent the Participant from designating a former spouse as a beneficiary on a
form that is both executed by the Participant and received by the Plan
Administrator (i) after the date of the legal termination of the marriage
between the Participant and such former spouse and (ii) during the
Participant’s lifetime.


 


(d)                                 A finalized
marriage (other than a common law marriage) of a Participant subsequent to the
date of filing of a Beneficiary designation shall revoke such designation
unless the Participant’s new spouse had previously been designated as the
Beneficiary.


 


(e)                                  Any designation
of a nonspouse Beneficiary by name that is accompanied by a description of
relationship to the Participant shall be given effect without regard to whether
the relationship to the Participant exists either then or at the Participant’s
death.


 


(f)                                    Any designation
of a Beneficiary only by statement of relationship to the Participant shall be
effective only to designate the person or persons standing in such relationship
to the Participant at the Participant’s death.


 


5.7          Facility of Payment.


 


5.7.1       Legal Disability.  In case of the legal
disability, including minority, of an individual entitled to receive any
payment under this Plan, payment shall be made, if the Plan Administrator shall
be advised of the existence of such condition:


 


(a)                                  to the duly
appointed guardian, conservator or other legal representative of such
individual, or


 


(b)                                 to a person or
institution entrusted with the care or maintenance of the incompetent or
disable Participant or Beneficiary, provided such person or institution has
satisfied the Plan Administrator that the payment will be used for the best
interest and assist in the care of such individual, and provided further, that
no prior claim for said payment has been made by a duly appointed guardian,
conservator or other legal representative of such individual.


 


14

















 


5.7.2       Discharge of
Liability.  Any payment
made in accordance with the foregoing provisions of this Section 5.7 shall
constitute a complete discharge of any liability or obligation of the
Participating Employers under this Plan.


 


5.8          Tax Withholding.  The
Participating Employer (or any other person legally obligated to do so) shall
withhold the amount of any federal, state or local income tax, payroll tax or
other tax that the payer reasonably determines is required to be withheld under
applicable law with respect to any amount payable under this Plan.  All benefits otherwise due hereunder shall be
reduced by the amount to be withheld.


 


5.9          Application for Distribution. 
A Participant may be required to make application to receive payment
and to complete other forms and furnish other documentation required by the
Plan Administrator.  Distribution shall
not be made to any Beneficiary until such Beneficiary shall have filed an
application for benefits in a form acceptable to the Plan Administrator and
such application shall have been approved by the Plan Administrator and the
Plan Administrator has determined that the applicant is entitled to payment.


 


5.10        Acceleration of Distributions. 
The Plan Administrator in its sole discretion may exercise discretion
to accelerate the distribution of any payment under this Plan to the extent
allowed under Code section 409A.


 


5.11        Delay of Distributions.  The Plan
Administrator in its sole discretion may exercise discretion to delay the
distribution of any payment under this Plan to the extent allowed under Code
section 409A, including, but not limited to, as necessary to maximize the
Company’s tax deduction as allowed pursuant to Code section 162(m) or to
avoid violation of securities law or other applicable law.


 


15

















 


SECTION 6


SOURCE OF PAYMENTS; NATURE OF INTEREST


 


6.1          Source of Payments.


 


6.1.1       General Assets.  Each Participating Employer
will pay, from its general assets, the distribution of the Participant’s
Account under Section 5, and all costs, charges and expenses relating
thereto.


 


6.1.2       Trust.  Upon a Change-in-Control
that causes the Plan to be terminated under Section 7.3.2, the trustee of
the Trust will make distributions to Participants and Beneficiaries from the
Trust in satisfaction of a Participating Employer’s obligations to make
distributions under this Plan in accordance with and subject to the terms of
the Trust to the extent such payments are not otherwise made directly by the
Participating Employer.


 


6.2          Unfunded Obligation.  The obligation
of the Participating Employers to make payments under this Plan constitutes
only the unsecured (but legally enforceable) promise of the Participating
Employers to make such payments. 
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.


 


6.3          Establishment of Trust.  The
Participating Employers shall have no obligation to establish or maintain any
fund, trust or account (other than a bookkeeping account or reserve) for the
purpose of funding or paying the benefits promised under this Plan except as
provided in the Trust.  The Participating
Employers may from time to time transfer to the Trust cash, or other marketable
securities or other property acceptable to the trustee in accordance with the
terms of the Trust.  If the Participating
Employers have deposited funds in the Trust, such funds shall remain the sole
and exclusive property of the Participating Employer that deposited such funds.


 


6.4          Spendthrift Provision.  Except as
otherwise provided in this Section 6.4, no Participant or Beneficiary
shall have any interest in any Account 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.


 


6.4.1       Right to Designate
Beneficiary.  The power to
designate Beneficiaries to receive the Account of a Participant in the event of
such Participant’s death shall not permit or be construed to permit such power
or right to be exercised by the Participant  so as thereby
to anticipate, pledge, mortgage or encumber such Participant’s Account or any
part thereof, and any attempt of a Participant so to exercise said power in
violation of this provision shall be of no force and effect and shall be
disregarded by the Participating Employers.


 


6.4.2       Plan Administrator’s
Right to Exercise Discretion.  This Section 6.4
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.


 


16

















 


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 this 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 for future deferrals; 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. 
Notwithstanding the above, the Board authorizes the Committee to amend
this Plan to make changes to the Crediting Rate Alternatives by either adding
any new or deleting any existing Crediting Rate Alternatives and to impose
limitations on selection of or deferral into any Crediting Rate Alternative.  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       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 and Liquidation.


 


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 and liquidate this Plan, provided such termination and
liquidation 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 and liquidate this Plan,  in
whole or in part, as it relates to the impacted Participant.


 


7.3.2       Plan Termination and
Liquidation on Account of a Change-in-Control.  Upon a Change-in-Control the Plan will
terminate and payment 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 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 


 


17

















 


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, payment of all amounts under the Plan will be accelerated and
made in a lump sum as soon a administratively practicable but not more than 90
days following the Plan termination effective date, provided the requirements
of Treasury Regulation Section 1.409A-3(j)(4)(ix)(B) have been
satisfied.


 


(ii)                                  If the Change-in-Control
does not qualify as a “change in control event” for purposes of Code section
409A, payment of all amounts under the Plan will be accelerated and made in a
lump sum as soon as administratively practicable but not more than 60 days
following the 12 month anniversary of the Plan termination effective date,
provided the requirements of Treasury Regulation Section 1.409A-3(j)(4)(ix)(C) have
been satisfied.


 


18














 


SECTION 8

CLAIM PROCEDURES




8.1          Claims Procedure.  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 this 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 this 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 determinations,


 


(b)                                 references to
the specific provisions of this 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.


 


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.


 


(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 


 


19

















 


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 this 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


 


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 8 to the Plan Administrator shall be treated as
references to the Plan Administrator’s delegate.


 


20

















 


(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
necessary to make a benefit determination accompanies the filing.


 


(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 to 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
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:


 


21

















 


(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.


 


22

















 


SECTION 9


PLAN ADMINISTRATION


 


9.1          Plan Administration


 


9.1.1       Administrator.  The Company is the “administrator”
of the Plan.  Except as expressly
otherwise provided herein, the Company shall control and manage the operation
and administration of this Plan and make all decisions and determinations.


 


9.1.2       Authority and
Delegation.  Except in cases
where this 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       Determination.  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 this 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 or her 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.


 


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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 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 


 


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such
person’s services as an administrator in connection with this 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.


 


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SECTION 10


CONSTRUCTION


 


10.1        IRC Status.  This 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
this Plan will be construed and administered in a manner that is consistent
with and gives effect to such intention.


 


10.2        Rules of Document Construction.  In the event any provision of this Plan
Statement is held invalid, void or unenforceable, the same shall not affect, in
any respect whatsoever, the validity of any other provision of this Plan.  The titles given to the various Sections of
this Plan Statement are inserted for convenience of reference only and are not
part of this Plan Statement, and they shall not be considered in determining
the scope, purpose, meaning or intent of any provision hereof.  The provisions of this 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.


 


10.3        References to Laws.  Any reference
in this 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.


 


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