Exhibit 10.21


 


 


AMERICAN
MULTI-CINEMA, INC.


 


NONQUALIFIED
DEFERRED COMPENSATION PLAN


 


AS
AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2005


 





















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  PURPOSE:

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  DEFINITIONS:

  	
  1

  
	
  2.1

  	
  “Active Participant”

  	
  1

  
	
  2.2

  	
  “Adoption Agreement”

  	
  1

  
	
  2.3

  	
  “Beneficiary”

  	
  2

  
	
  2.4

  	
  “Board”

  	
  2

  
	
  2.5

  	
  “Committee”

  	
  2

  
	
  2.6

  	
  “Compensation”

  	
  2

  
	
  2.7

  	
  “Crediting Date”

  	
  2

  
	
  2.8

  	
  “Deferred Compensation Account” or “Account”

  	
  2

  
	
  2.9

  	
  “Disabled”

  	
  2

  
	
  2.10

  	
  “Education Account”

  	
  3

  
	
  2.11

  	
  “Effective Date”

  	
  3

  
	
  2.12

  	
  “Employee”

  	
  3

  
	
  2.13

  	
  “Employer”

  	
  3

  
	
  2.14

  	
  “Employer Credits”

  	
  4

  
	
  2.15

  	
  “In-Service Account”

  	
  4

  
	
  2.16

  	
  “Normal Retirement Age”

  	
  4

  
	
  2.17

  	
  “Participant”

  	
  4

  
	
  2.18

  	
  “Participant Deferral Agreement”

  	
  4

  
	
  2.19

  	
  “Participant Deferral Credits”

  	
  4

  
	
  2.20

  	
  “Participating Employer”

  	
  4

  
	
  2.21

  	
  “Performance-Based Compensation”

  	
  5

  
	
  2.22

  	
  “Plan”

  	
  5

  
	
  2.23

  	
  “Plan Administrator”

  	
  5

  
	
  2.24

  	
  “Plan Year”

  	
  5

  
	
  2.25

  	
  “Provider”

  	
  5

  
	
  2.26

  	
  “Qualifying Distribution Event”

  	
  5

  
	
  2.27

  	
  “Retirement Account”

  	
  6

  
	
  2.28

  	
  “Service”

  	
  6

  
	
  2.29

  	
  “Specified Employee”

  	
  6

  
	
  2.30

  	
  “Spouse” or “Surviving Spouse”

  	
  6

  
	
  2.31

  	
  “Student”

  	
  6

  
	
  2.32

  	
  “Trust”

  	
  7

  
	
  2.33

  	
  “Trustee”

  	
  7

  
	
  2.34

  	
  “Unforeseeable Emergency”

  	
  7

  
	
  2.35

  	
  “Years of Service”

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  PARTICIPATION:

  	
  7

  



 


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  SECTION 4.

  	
  CREDITS TO DEFERRED COMPENSATION
  ACCOUNT:

  	
  8

  
	
  4.1

  	
  Participant Deferral Credits

  	
  8

  
	
  4.2

  	
  Employer Credits

  	
  10

  
	
  4.3

  	
  Deferred Compensation Account

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  QUALIFYING DISTRIBUTION EVENTS:

  	
  10

  
	
  5.1

  	
  Separation from Service

  	
  10

  
	
  5.2

  	
  Disability

  	
  11

  
	
  5.3

  	
  Death

  	
  11

  
	
  5.4

  	
  In-Service Distributions

  	
  11

  
	
  5.5

  	
  Education Distributions

  	
  11

  
	
  5.6

  	
  Unforeseeable Emergency

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  QUALIFYING DISTRIBUTION EVENTS
  PAYMENT OPTIONS:

  	
  14

  
	
  6.1

  	
  Payment Options

  	
  14

  
	
  6.2

  	
  De Minimis Amounts

  	
  15

  
	
  6.3

  	
  Subsequent Elections

  	
  15

  
	
  6.4

  	
  Acceleration Prohibited

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  VESTING:

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  ACCOUNTS; DEEMED INVESTMENT;
  ADJUSTMENTS TO ACCOUNT:

  	
  16

  
	
  8.1

  	
  Accounts

  	
  16

  
	
  8.2

  	
  Deemed Investments

  	
  17

  
	
  8.3

  	
  Adjustments to Deferred Compensation Account

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  ADMINISTRATION BY COMMITTEE:

  	
  18

  
	
  9.1

  	
  Membership of Committee

  	
  18

  
	
  9.2

  	
  Committee Officers; Subcommittee

  	
  18

  
	
  9.3

  	
  Committee Meetings

  	
  18

  
	
  9.4

  	
  Transaction of Business

  	
  18

  
	
  9.5

  	
  Establishment of Rules

  	
  19

  
	
  9.6

  	
  Conflicts of Interest

  	
  19

  
	
  9.7

  	
  Correction of Errors

  	
  19

  
	
  9.8

  	
  Authority to Interpret Plan

  	
  19

  
	
  9.9

  	
  Third Party Advisors

  	
  20

  
	
  9.10

  	
  Expense Reimbursement

  	
  20

  
	
  9.11

  	
  Indemnification

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  CONTRACTUAL LIABILITY; TRUST:

  	
  20

  
	
  10.1

  	
  Contractual Liability

  	
  20

  
	
  10.2

  	
  Trust

  	
  21

  



 


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  SECTION 11.

  	
  ALLOCATION OF RESPONSIBILITIES:

  	
  21

  
	
  11.1

  	
  Employer

  	
  21

  
	
  11.2

  	
  Committee

  	
  21

  
	
  11.3

  	
  Plan Administrator

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  BENEFITS NOT ASSIGNABLE;
  FACILITY OF PAYMENTS:

  	
  22

  
	
  12.1

  	
  Benefits Not Assignable

  	
  22

  
	
  12.2

  	
  Payments to Minors and Others

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  BENEFICIARY:

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 14.

  	
  AMENDMENT AND TERMINATION OF
  PLAN:

  	
  24

  
	
  14.1

  	
  Termination in the Discretion of the Employer

  	
  24

  
	
  14.2

  	
  No Financial Triggers

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 15.

  	
  COMMUNICATION TO PARTICIPANTS:

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 16.

  	
  CLAIMS PROCEDURE:

  	
  25

  
	
  16.1

  	
  Filing of a Claim for Benefits

  	
  25

  
	
  16.2

  	
  Notification to Claimant of Decision

  	
  25

  
	
  16.3

  	
  Procedure for Review

  	
  26

  
	
  16.4

  	
  Decision on Review

  	
  26

  
	
  16.5

  	
  Action by Authorized Representative of Claimant

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 17.

  	
  MISCELLANEOUS PROVISIONS:

  	
  27

  
	
  17.1

  	
  Set off

  	
  27

  
	
  17.2

  	
  Notices

  	
  27

  
	
  17.3

  	
  Lost Distributees

  	
  27

  
	
  17.4

  	
  Reliance on Data

  	
  28

  
	
  17.5

  	
  Receipt and Release for Payments

  	
  28

  
	
  17.6

  	
  Headings

  	
  28

  
	
  17.7

  	
  Continuation of Employment

  	
  28

  
	
  17.8

  	
  Merger or Consolidation; Assumption of Plan

  	
  29

  
	
  17.9

  	
  Construction

  	
  29

  



 





















 


AMERICAN MULTI-CINEMA, INC.

NONQUALIFIED DEFERRED COMPENSATION PLAN


 


Section 1.              Purpose:


 


The Employer has adopted the Plan, originally
effective January 1, 1994, amended and restated as of January 1, 2003, and as
hereby amended and restated effective January 1, 2005, in order to provide a
means by which certain eligible Employees may elect to defer receipt of current
Compensation from the Employer for the purpose of providing retirement and
other benefits on behalf of such Employees. The Plan is intended to be a
nonqualified deferred compensation plan that complies with the provisions of
Section 409A of the Internal Revenue Code (the “Code”) and that is an unfunded
plan maintained primarily for the purpose of providing deferred compensation
benefits for a select group of management or highly compensated employees under
Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income
Security Act of 1974 (“ERISA”).


 


Section 2.              Definitions:


 


As used in the Plan, including this Section 2,
references to one gender shall include the other and, unless otherwise
indicated by the context:


 


2.1          “Active Participant”
means, with respect to any day or date, a Participant who is in Service on such
day or date; provided, that a Participant shall cease to be an Active
Participant immediately upon a determination by the Committee that the
Participant has ceased to be an Employee, or that the Participant no longer
meets the eligibility requirements of the Plan.


 


2.2          “Adoption Agreement”
means the written agreement pursuant to which a Participating Employer may
adopt the Plan with the consent of Employer.


 





















 


2.3          “Beneficiary”
means the person, persons, entity or entities designated or determined pursuant
to the provisions of Section 13 hereof.


 


2.4          “Board”
means the Board of Directors of Employer.


 


2.5          “Committee”
means the Employer, or such person(s) as may be determined by Employer under
Section 9 from time to time.


 


2.6          “Compensation”
means base salary and any bonus (including Performance-Based Compensation) but
excluding commissions, expense reimbursements or allowances, cash and non-cash
fringe benefits and any stock-based incentive compensation.


 


2.7          “Crediting Date”
means any business day on which an amount representing a Participant Deferral
Credit is received by the Provider and on which securities are traded on a
national securities exchange, or the first such day thereafter.


 


2.8          “Deferred
Compensation Account”  or
“Account” means the account maintained
with respect to each Participant under the Plan. The Deferred Compensation
Account shall be credited with Participant Deferral Credits and Employer
Credits, credited or debited for deemed investment gains or losses, and
adjusted for payments in accordance with the rules and elections in effect
under Section 8. The Deferred Compensation Account of a Participant shall
include any In-Service Account or Education Account of the Participant, if
applicable.


 


2.9          “Disabled”
means a Participant who is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected to result in death or can be expected to last for a continuous
period of not less than 12 months, or is, by reason of any medically
determinable physical or mental impairment


 


2





















 


which can be expected to result
in death or can be expected to last for a continuous period of not less than 12
months, receiving income replacement benefits for a period of not less than
three months under an accident and health plan covering Employees of Employer.


 


2.10        “Education Account”
means a separate account to be kept for each Participant who has elected to
take education distributions as described in Section 5.5. The Education Account
shall be adjusted in the same manner and at the same time as the Deferred
Compensation Account under Section 8 and in accordance with the rules and
elections in effect under Section 8.


 


2.11        “Effective Date”
of this amendment and restatement of the Plan shall be January 1, 2005. Any
amounts credited to an Account pursuant to the terms of the Plan which were not
earned and vested before January 1, 2005, shall be subject to the terms of this
Plan.


 


2.12        “Employee”
means an individual employed by Employer who (i) is a highly compensated or
management employee of the Employer and (ii) has Compensation in the
immediately preceding Plan Year in excess of the annual benefit limit
prescribed for defined benefit plans under Section 415(b)(1)(A) of the Code, as
adjusted from time to time ($175,000 in 2006). An individual shall cease to be
an Employee upon the Employee’s termination of Service.


 


2.13        “Employer”
means American Multi-Cinema, Inc. and, where appropriate in the context, any
Participating Employer which adopts this Plan with Employer’s consent. American
Multi-Cinema, Inc. shall have the sole authority to administer, interpret and
amend the Plan, as “Employer”.


 


3





















 


2.14        “Employer Credits”
means the amounts, if any, credited to the Participant’s Deferred Compensation
Account by Employer pursuant to the provisions of Section 4.2.


 


2.15        “In-Service Account”
means a separate account to be kept for each Participant who has elected to
take in-service distributions as described in Section 5.4. The In-Service
Account shall be adjusted in the same manner and at the same time as the
Deferred Compensation Account under Section 8 and in accordance with the rules
and elections in effect under Section 8.


 


2.16        “Normal Retirement Age”
of a Participant means age 65.


 


2.17        “Participant”
means with respect to any Plan Year an Employee who has been designated by the
Committee as a Participant and who has entered the Plan or who has a Deferred
Compensation Account under the Plan. A Participant who has an amount credited
to his Account will remain a Participant even if his Compensation declines
below the minimum annual amount normally required to be deemed “highly
compensated” and, therefore, eligible for the Plan.


 


2.18        “Participant Deferral
Agreement” means a written agreement entered into
between a Participant and the Employer pursuant to the provisions of Section
4.1.


 


2.19        “Participant Deferral
Credits” means the amounts credited to the Participant’s
Deferred Compensation Account by the Employer pursuant to the provisions of
Section 4.1.


 


2.20        “Participating
Employer” means any trade or business (whether or not
incorporated) which adopts this Plan with the consent of the Employer, which as
of the date of this restatement refers to AMC Card Processing Services, Inc.


 


4





















 


2.21        “Performance-Based
Compensation” means compensation where the amount of,
or entitlement to, the compensation is contingent on the satisfaction of
preestablished organizational or individual performance criteria relating to a
performance period of at least twelve months in which the Participant performs
services. Organizational or individual performance criteria are considered
preestablished if established in writing within 90 days after the commencement
of the period of service to which the criteria relates, provided that the
outcome is substantially uncertain at the time the criteria are established. Performance-based
compensation may include payments based upon subjective performance criteria in
accordance as provided in regulations and administrative guidance promulgated
under Section 409A of the Code.


 


2.22        “Plan”
means the American Multi-Cinema, Inc. Nonqualified Deferred Compensation Plan,
as herein set out and as amended from time to time.


 


2.23        “Plan Administrator”
means Employer, or its designee.


 


2.24        “Plan Year”
means the twelve-month period ending on the last day of December and each
anniversary thereof.


 


2.25        “Provider”
means a third party providing administrative and other services to Employer in
connection with the Plan, which currently is Principal Financial Group (or its
designated affiliate), but also including any successor entity appointed by
Employer in the future.


 


2.26        “Qualifying
Distribution Event” means (i) the separation from
Service of the Participant, (ii) the date the Participant becomes Disabled,
(iii) the death of the Participant, (iv) the time specified by the Participant
for an in-service or education distribution, or (v) an Unforeseeable Emergency,
each to the extent provided in Section 5.


 


5





















 


2.27        “Retirement Account”
means the portion of the Deferred Compensation Account of a Participant,
excluding any In-Service Account or any Education Account. The Retirement
Account shall be adjusted in the same manner and at the same time as the
Deferred Compensation Account under Section 8 and in accordance with the rules
and regulations in effect under Section 8.


 


2.28        “Service”
means employment by the Employer as an Employee. For purposes of the Plan, the
employment relationship is treated as continuing intact while the Employee is
on military leave, sick leave, or other bona fide leave of absence if the
period of such leave does not exceed six months, or if longer, so long as the
Employee’s right to reemployment is provided either by statue or contract.


 


2.29        “Specified Employee”
means an employee who meets the requirements of Section 416(i)(1)(A)(i), (ii)
or (iii) of the Code (applied in accordance with the regulations thereunder and
without regard to Section 416(i)(5) of the Code) at any time during the
twelve-month period ending on December 31 of each year (the “identification
date”). If the person is a key employee as of any identification date, the
person is treated as a Specified Employee for the twelve-month period beginning
on the first day of the fourth month following the identification date.


 


2.30        “Spouse”
or “Surviving Spouse” means, except as
otherwise provided in the Plan, a person who is the legally married spouse or
surviving spouse of a Participant.


 


2.31        “Student”
means the individual designated by the Participant in the Participant Deferral
Agreement with respect to whom the Participant will create an Education
Account.


 


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2.32        “Trust”
means the “rabbi” trust fund which may be established by Employer from time to
time pursuant to Section 10.2.


 


2.33        “Trustee”
means the trustee named in the agreement establishing the Trust and such
successor or additional trustee(s) as may be named pursuant to the terms of the
agreement establishing the Trust.


 


2.34        “Unforeseeable
Emergency” means a severe financial hardship to the
Participant resulting from (i) an illness or accident of the Participant, the
Participant’s Spouse or a dependent (as defined in Section 152(a) of the Code)
of the Participant, (ii) loss of the Participant’s property due to casualty, or
(iii) other similar extraordinary and unforeseeable circumstances arising as a
result of events beyond the control of the Participant.


 


2.35        “Years of Service”
means each Plan Year of Service completed by the Participant. For vesting
purposes (to the extent any Employer Profit Sharing Credits are made
hereunder), Years of Service shall be calculated from the Crediting Date on
which the Employer Profit Sharing Credit is made to the Participant’s Account.


 


Section 3.              Participation:


 


The Committee in its discretion shall designate each
Employee who is eligible to participate in the Plan. An Employee designated by
the Committee as a Participant who has not otherwise entered the Plan shall
enter the Plan and become a Participant as of the date determined by the
Committee. A Participant who separates from Service with the Employer and who
later returns to Service will not be an Active Participant under the Plan
except upon satisfaction of such terms and conditions as the Committee shall
establish upon the Participant’s


 


7





















 


return to Service, whether or not the Participant
shall have a balance remaining in the Deferred Compensation Account under the
Plan on the date of the return to Service.


 


Section 4.              Credits to Deferred
Compensation Account:


 


4.1          Participant Deferral
Credits. Each Active Participant may elect, by
entering into a Participant Deferral Agreement with the Employer, to defer the
receipt of Compensation from the Employer (i) as a percentage of Compensation
(excluding any bonus) below the applicable Code § 402(g) limit, (ii) as a
percentage of Compensation (excluding any bonus) above the applicable Code §
402(g) limit, and/or (iii) as a percentage of any bonus paid for the year, all
as specified in the Participant Deferral Agreement. The amount of the
Participant Deferral Credit shall be credited by the Employer to the Deferred
Compensation Account maintained for the Participant pursuant to Section 8. The
following special provisions shall apply with respect to the Participant
Deferral Credits of a Participant:


 


4.1.1        The Employer shall
credit to the Participant’s Deferred Compensation Account on each Crediting
Date an amount equal to the total Participant Deferral Credit for the period
ending on such Crediting Date.


 


4.1.2        An election pursuant
to this Section 4.1 shall be made by the Participant by executing and
delivering a Participant Deferral Agreement to the Committee. Except as
otherwise provided in this Section 4.1, the Participant Deferral Agreement
shall become effective with respect to such Participant as of the first day of
January following the date such Participant Deferral Agreement is received by
the Committee. A Participant’s election may be changed at any time prior to the
last permissible date for making the election as permitted in this Section 4.1,
and shall thereafter be irrevocable. The election of a Participant shall
continue in effect for subsequent years until modified by the Participant as
permitted in this Section 4.1, or until the earlier of the date the Participant
separates from Service or ceases to be an Active Participant under the Plan.


 


4.1.3        In the case of the
first year in which the Participant becomes eligible to participate in the
Plan, the Participant may execute and deliver a Participant Deferral Agreement
to the Committee within 30 days after the date the Participant enters the Plan
to be effective as of the first payroll period next following the date the
Participant


 


8





















 


Deferral
Agreement is received by the Committee. For Compensation that is earned based
upon a specified performance period (for example, an annual bonus), where a
deferral election is made in the first year of eligibility but after the
beginning of the service period, the election will be deemed to apply to
Compensation paid for services subsequent to the election if the election
applies to the portion of the Compensation equal to the total amount of the
Compensation for the service period multiplied by the ratio of the number of
days remaining in the performance period after the election over the total
number of days in the performance period.


 


4.1.4        A Participant may
unilaterally modify a Participant Deferral Agreement (either to terminate,
increase or decrease the portion of his future Compensation which is subject to
deferral) by providing a written modification of the Participant Deferral
Agreement to the Employer. The modification shall become effective as of the
first day of January following the date such written modification is received
by the Committee.


 


4.1.5        If the Participant
performed services continuously from a date no later than the date upon which
the performance criteria are established through a date no earlier than the
date upon which the Participant makes an initial deferral election, a
Participant Deferral Agreement relating to the deferral of Performance-Based
Compensation may be executed and delivered to the Committee no later than the
date which is 6 months prior to the end of the performance period, provided
that in no event may an election to defer Performance-Based Compensation be
made after such Compensation has become both substantially certain to be paid
and readily ascertainable.


 


4.1.6        If the Employer has a
fiscal year other than the calendar year, Compensation relating to service in
the fiscal year of the Employer (such as a bonus based on the fiscal year of
the Employer), of which no amount is paid or payable during the fiscal year,
may be deferred at the Participant’s election only if the election to defer is
made not later than the close of the Employer’s fiscal year next preceding the
first fiscal year in which the Participant performs any services for which such
Compensation is payable.


 


4.1.7        Compensation payable
after the last day of the Participant’s taxable year solely for services
provided during the final payroll period containing the last day of the
Participant’s taxable year (i.e., December 31) is treated for purposes of this
Section 4.1 as Compensation for services performed in the subsequent taxable
year.


 


4.1.8        The Committee may
from time to time establish policies or rules consistent with the requirements
of Section 409A of the Code to govern the manner in which Participant Deferral
Credits may be made.


 


4.1.9        The requirements of
Section 4.1.2 relating to the timing of the Participant Deferral Agreement
shall not apply to any deferral elections made on or before March 15, 2005,
provided that (a) the amounts to which the deferral election relate have not
been


 


9





















 


paid or become
payable at the time of the election, (b) the Plan was in existence on or before
December 31, 2004, (c) the election to defer compensation is made in accordance
with the terms of the Plan as in effect on December 31, 2005 (other than a
requirement to make a deferral election after March 15, 2005), (d) the Plan is
otherwise operated in accordance with the requirements of Section 409A of the
Code, and (e) the Plan is amended to comply with Section 409A in accordance
with Q&A 19 of Notice 2005-1.


 


4.2          Employer Credits.
The Employer may, but need not, cause the Committee to credit to the Deferred
Compensation Account of any Active Participant an Employer Discretionary or
Profit Sharing Credit as determined by the Employer. As of the date of this
restatement of the Plan, no Employer Credits are contemplated.


 


4.3          Deferred Compensation
Account. All Participant Deferral Credits and Employer
Credits shall be credited to the Deferred Compensation Account of the
Participant.


 


Section 5.              Qualifying Distribution Events:


 


5.1          Separation from
Service. If the Participant separates from Service
with the Employer, the vested balance in the Deferred Compensation Account
shall be paid to the Participant by Employer as provided in Section 6. Notwithstanding
the foregoing, no distribution shall be made earlier than six months after the
date of separation from Service (or, if earlier, the date of death) with
respect to a Participant who is a Specified Employee of a corporation the stock
in which is traded on an established securities market or otherwise. Any
payments to which a Specified Employee would be entitled during the first six
months following the date of separation from Service shall be accumulated and
paid on the first day of the seventh month following the date of separation
from service.


 


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5.2          Disability.
If the Participant becomes Disabled while in Service, the balance in the
Deferred Compensation Account shall be paid to the Participant by the Employer
as provided in Section 6.


 


5.3          Death.
If the Participant dies while in Service, the Employer shall pay a benefit to
the Participant’s Beneficiary in an amount equal to the balance in the
Participant’s Deferred Compensation Account as of the date of death. Payment of
such benefit shall be made by the Employer as provided in Section 6. If a
Participant dies following his separation from Service for any reason, and
before all payments under the Plan have been made, the balance in the Deferred
Compensation Account shall be paid by the Employer to the Participant’s
Beneficiary in a single lump sum.


 


5.4          In-Service Distributions.
A Participant may designate in the Participant Deferral Agreement to have a
specified amount credited to the Participant’s In-Service Account for
in-service distribution in a lump sum payment at the date specified by the
Participant. In no event may an in-service distribution be made prior to two
years following the establishment of the In-Service Account of the Participant.
Notwithstanding the foregoing, if a Participant incurs a Qualifying
Distribution Event prior to the date on which the entire balance in the
In-Service Account has been distributed, then the balance in the In-Service
Account on the date of the Qualifying Distribution Event shall be distributed
to the Participant in the same manner and at the same time as the balance in
the Deferred Compensation Account is distributed under Section 6 and in
accordance with the rules and elections in effect under Section 6.


 


5.5          Education
Distributions. A Participant may designate in the
Participant Deferral Agreement to have a specified amount credited to the
Participant’s Education Account for


 


11





















 


education distributions the
date specified by the Participant. If the Participant designates more than one
Student, the Education Account will be divided into a separate Education
Account for each Student, and the Participant may designate in the Participant
Deferral Agreement the percentage or dollar amount to be credited to each
Education Account. In the absence of a clear designation, all credits made to the
Education Account shall be equally allocated to each Education Account. The
Employer shall pay to the Participant the balance in the Education Account with
respect to the Student at the time and in the manner designated by the
Participant in the Participant Deferral Agreement. If the Participant elects to
receive education distributions in annual installment payments (over four to
six years), the payment of each annual installment shall be made on the
anniversary of the date of the first installment payment, and the amount of the
annual installment shall be adjusted on such anniversary for credits or debits
to the Participant’s Education Account pursuant to Section 8 of the Plan. Such
adjustment shall be made by dividing the balance in the Education Account on
such date by the number of annual installments remaining to be paid hereunder;
provided that the last annual installment due under the Plan shall be the
entire amount credited to the Participant’s Education Account on the date of
payment. Notwithstanding the foregoing, if the Participant incurs a Qualifying
Distribution Event prior to the date on which the entire balance of the
Education Account has been distributed, then the balance in the Education
Account on the date of the Qualifying Distribution Event shall be distributed
to the Participant in the same manner and at the same time as the Deferred
Compensation Account is distributed under Section 6 and in accordance with the
rules and elections in effect under Section 6.


 


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5.6          Unforeseeable
Emergency. A distribution from the Deferred
Compensation Account may be made to a Participant in the event of an
Unforeseeable Emergency, subject to the following provisions:


 


5.6.1        A Participant may, at
any time prior to his separation from Service for any reason, make application
to the Committee to receive a distribution in a lump sum of all or a portion of
the vested balance in the Deferred Compensation Account (determined as of the
date the distribution, if any, is made under this Section 5.6) because of an
Unforeseeable Emergency. A distribution because of an Unforeseeable Emergency
shall not exceed the amount required to satisfy the Unforeseeable Emergency
plus amounts necessary to pay taxes reasonably anticipated as a result of such
distribution, after taking into account the extent to which the Unforeseeable
Emergency may be relieved through reimbursement or compensation by insurance or
otherwise or by liquidation of the Participant’s assets (to the extent the
liquidation of such assets would not itself cause severe financial hardship).


 


5.6.2        The Participant’s
request for a distribution on account of Unforeseeable Emergency must be made
in writing to the Committee. The request must specify the nature of the
financial hardship, the total amount requested to be distributed from the
Deferred Compensation Account, and the total amount of the actual expense
incurred or to be incurred on account of the Unforeseeable Emergency.


 


5.6.3        If a distribution
under this Section 5.6 is approved by the Committee, such distribution will be
made as soon as practicable following the date it is approved. The processing
of the request shall be completed as soon as practicable from the date on which
the Committee receives the properly completed written request for a
distribution on account of an Unforeseeable Emergency. A distribution due to
Unforeseeable Emergency shall not affect any deferral election previously made
by the Participant. If a Participant’s separation from Service occurs after a
request is approved in accordance with this Section 5.6.3, but prior to
distribution of the full amount approved, the approval of the request shall be
automatically null and void and the benefits which the Participant is entitled
to receive under the Plan shall be distributed in accordance with the
applicable distribution provisions of the Plan.


 


5.6.4        The Committee may
from time to time adopt additional policies or rules consistent with the
requirements of Section 409A of the Code to govern the manner in which such
distributions may be made so that the Plan may be conveniently administered.


 


13





















 


Section 6.              Qualifying Distribution Events
Payment Options:


 


6.1          Payment Options.
The Participant shall elect in the Participant Deferral Agreement the method
under which the vested balance in the Deferred Compensation Account will be
distributed, either in a lump sum payment or in equal annual installments over
a term not to exceed ten (10) years. Payment shall be made in the manner
elected by the Participant and shall commence upon the date of the Qualifying
Distribution Event. A payment shall be treated as made upon the date of the
Qualifying Distribution Event if it is made on such date or a later date within
the same calendar year or, if later, by the 15th day of the third calendar
month following the Qualifying Distribution Event. A payment may be further
delayed to the extent permitted in accordance with regulations and guidance
under Section 409A of the Code. The Participant may elect a different method of
payment for each Qualifying Distribution Event. If the Participant elects the
installment payment option, the payment of each annual installment shall be
made on the anniversary of the date of the first installment payment, and the
amount of the annual installment shall be adjusted on such anniversary for
credits or debits to the Participant’s account pursuant to Section 8 of the
Plan. Such adjustment shall be made by dividing the balance in the Deferred
Compensation Account on such date by the number of annual installments
remaining to be paid hereunder; provided that the last annual installment due
under the Plan shall be the entire amount credited to the Participant’s account
on the date of payment. In the event the Participant fails to make a valid
election of the payment method, the distribution will be made in a single lump
sum payment upon the Qualifying Distribution Event.


 


14





















 


6.2          De Minimis Amounts.
Notwithstanding any payment election made by the Participant, the vested
balance in the Deferred Compensation Account of the Participant will be
distributed in a single lump sum payment if the payment accompanies the
termination of the Participant’s entire interest in the Plan and the amount of
such payment does not exceed $10,000. Such payment shall be made on or before
the later of (i) December 31 of the calendar year in which the Participant
separates from Service from the Employer, or (ii) the date that is 2-1/2 months
after the Participant separates from Service from the Employer.


 


6.3          Subsequent Elections.
With the consent of the Committee, a Participant may delay or change the method
of payment of the Deferred Compensation Account subject to the following
requirements:


 


6.3.1        The new election may
not take effect until at least 12 months after the date on which the new
election is made.


 


6.3.2        If the new election
relates to a payment for a Qualifying Distribution Event other than the death
of the Participant, the Participant becoming Disabled, or an Unforeseeable
Emergency, the new election must provide for the deferral of the first payment
for a period of at least five years from the date such payment would otherwise
have been made.


 


6.3.3        If the new election
relates to a payment from the In-Service Account or Education Account, the new
election must be made at least 12 months prior to the date of the first
scheduled payment from such account.


 


For purposes of this Section 6.3 and Section 6.4, a
payment is each separately identified amount to which the Participant is
entitled under the Plan; provided, that entitlement to a series of installment
payments is treated as the entitlement to a single payment.


 


15





















 


6.4          Acceleration
Prohibited. The acceleration of the time or schedule
of any payment due under the Plan is prohibited except as provided in
regulations and administrative guidance promulgated under Section 409A of the
Code. It is not an acceleration of the time or schedule of payment if the
Employer waives or accelerates the vesting requirements applicable to a benefit
under the Plan.


 


Section 7.              Vesting:


 


A Participant shall be fully vested in the portion of
his Deferred Compensation Account attributable to Participant Deferral Credits,
and all income, gains and losses attributable thereto. A Participant shall
become fully vested in the portion of his Deferred Compensation Account
attributable to Employer Credits, if any, and any income, gains and losses
attributable thereto, at the rate of 20% after one Year of Service, 40% after
two Years of Service, 60% after three Years of Service, 80% after four Years of
Service and 100% after five Years of Service, measured from the Crediting Date
on which the Employer Credit is made. Notwithstanding the foregoing, a
Participant shall be fully vested in his Account balance upon the earlier of
(i) attainment of Normal Retirement Age while an Employee, (ii) death, or (iii)
becoming Disabled. If a Participant’s Deferred Compensation Account is not
fully vested upon separation from Service, the portion of the Deferred
Compensation Account that is not fully vested shall thereupon be forfeited.


 


Section 8.              Accounts; Deemed Investment;
Adjustments to Account:


 


8.1          Accounts.
The Committee shall establish a book reserve account, entitled the “Deferred
Compensation Account,” on behalf of each Participant. The Committee shall also
establish an In-Service Account and Education Account as a part of the Deferred
Compensation


 


16





















 


Account of each Participant, if
applicable. The amount credited to the Deferred Compensation Account shall be
adjusted pursuant to the provisions of Section 8.3.


 


8.2          Deemed Investments.
The Deferred Compensation Account of a Participant shall be credited with an
investment return determined as if the Account were invested in one or more
investment funds made available by the Committee. The Participant shall elect
the investment funds in which his Deferred Compensation Account shall be deemed
to be invested. Such election shall be made in the manner prescribed by the
Committee and shall take effect upon the entry of the Participant into the Plan.
The investment election of the Participant shall remain in effect until a new
election is made by the Participant. In the event the Participant fails for any
reason to make an effective election of the investment return to be credited to
his account, the investment return shall be determined by the Committee.


 


8.3          Adjustments to
Deferred Compensation Account. With respect to each
Participant who has a Deferred Compensation Account under the Plan, the amount
credited to such account shall be adjusted by the following debits and credits,
at the times and in the order stated:


 


8.3.1        The Deferred
Compensation Account shall be debited each business day with the total amount
of any payments made from such account since the last preceding business day to
him or for his benefit.


 


8.3.2        The Deferred
Compensation Account shall be credited on each Crediting Date with the total
amount of any Participant Deferral Credits and Employer Credits to such account
since the last preceding Crediting Date.


 


8.3.3        The Deferred
Compensation Account shall be credited or debited on each day securities are
traded on a national stock exchange with the amount of deemed investment gain
or loss resulting from the performance of the investment funds elected by the
Participant in accordance with Section 8.2. The amount of such deemed
investment


 


17





















 


gain or loss
shall be determined by the Committee and such determination shall be final and
conclusive upon all concerned.


 


Section 9.              Administration by Committee:


 


9.1          Membership of
Committee. A Committee may be designated by Employer,
consisting of at least three individuals appointed by Employer to serve at its
pleasure, but unless Employer determines otherwise, Employer’s existing “Investment
Committee”, which monitors the investments of Employer’s qualified retirement
plans, will serve as the Committee hereunder. The Committee shall be
responsible for the general administration and interpretation of the Plan and
for carrying out its provisions, except to the extent all or any of such
obligations are specifically imposed on the Board.


 


9.2          Committee Officers;
Subcommittee. The Committee (if not the Investment
Committee) may elect a Chairman and may elect an acting Chairman. The Committee
may also elect a Secretary, and an acting Secretary, either of whom may be but
need not be a member of the Committee. The Committee may appoint from its
membership such subcommittees with such powers as the Committee shall
determine, and may authorize one or more of its members or any agent to execute
or deliver any instruments or to make any payment on behalf of the Committee.


 


9.3          Committee Meetings.
The Committee may hold such meetings at such places and at such intervals as it
may from time to time determine.


 


9.4          Transaction of
Business. All resolutions or other actions taken by
the Committee at any meeting shall be by vote of a majority of those present at
any such meeting


 


18





















 


and entitled to vote. Resolutions
may be adopted or other action taken without a meeting upon written consent
thereto signed by all of the members of the Committee.


 


9.5          Establishment of
Rules. Subject to the limitations of the Plan, the
Committee may from time to time establish rules or by-laws for the
administration of the Plan and the transaction of its business.


 


9.6          Conflicts of Interest.
No individual member of the Committee shall have any right to vote or decide
upon any matter relating solely to himself or to any of his rights or
benefits under the Plan (except that such member may sign unanimous written consent
to resolutions adopted or other action taken without a meeting), except
relating to the terms of his Participant Deferral Agreement.


 


9.7          Correction of Errors.
The Committee may correct errors and, so far as practicable, may adjust any
benefit or credit or payment accordingly. The Committee may in its discretion
waive any notice requirements in the Plan; provided, that a waiver of notice in
one or more cases shall not be deemed to constitute a waiver of notice in any
other case.


 


9.8          Authority to
Interpret Plan. Subject to the claims procedure set
forth in Section 16, the Plan Administrator and the Committee shall have the
duty and discretionary authority to interpret and construe the provisions of
the Plan and to decide any dispute which may arise regarding the rights of
Participants hereunder, including the discretionary authority to construe the
Plan and to make determinations as to eligibility and benefits under the Plan. Determinations
by the Plan Administrator and/or the Committee shall be binding and conclusive
upon all interested persons.


 


19





















 


9.9          Third Party Advisors.
The Committee may engage an attorney, accountant, actuary or any other
technical advisor on matters regarding the operation of the Plan and to perform
such other duties as shall be required in connection therewith, and may employ
such clerical and related personnel as the Committee shall deem requisite or
desirable in carrying out the provisions of the Plan.


 


9.10        Expense Reimbursement.
The Committee shall be entitled to reimbursement by Employer for its reasonable
expenses properly and actually incurred in the performance of its duties in the
administration of the Plan.


 


9.11        Indemnification.
No member of the Committee shall be personally liable by reason of any contract
or other instrument executed by him or on his behalf as a member of the
Committee nor for any mistake of judgment made in good faith, and the Employer
shall indemnify and hold harmless, directly from its own assets (including the
proceeds of any insurance policy the premiums for which are paid from the
Employer’s assets), each member of the Committee and each other officer,
employee, or director of the Employer to whom any duty or power relating to the
administration or interpretation of the Plan may be delegated or allocated,
against any unreimbursed or uninsured cost or expense (including any sum paid
in settlement of a claim with the prior written approval of the Board) arising
out of any act, or omission to act, in connection with the Plan unless arising
out of such person’s own fraud, bad faith, willful misconduct or gross
negligence.


 


Section 10.            Contractual Liability; Trust:


 


10.1        Contractual Liability.
The obligation of the Employer to make payments hereunder shall constitute a
contractual liability of the Employer to the Participant. Such


 


20





















 


payments shall be made from the
general funds of the Employer, and the Employer shall not be required to
establish or maintain any special or separate fund, or otherwise to segregate
assets to assure that such payments shall be made, and the Participant shall
not have any interest in any particular assets of the Employer by reason of its
obligations hereunder. To the extent that any person acquires a right to
receive payment from the Employer, such right shall be no greater than the
right of an unsecured creditor of the Employer.


 


10.2        Trust.
The Employer may establish a Trust with the Trustee, pursuant to such terms and
conditions as are set forth in the Trust Agreement. The Trust, if and when
established, is intended to be treated as a grantor trust for purposes of the
Code and all assets of the Trust shall be held in the United States. The
establishment of the Trust is not intended to cause Participants to realize
current income on amounts contributed thereto, and the Trust shall be so
interpreted and administered.


 


Section 11.            Allocation of Responsibilities:


 


The persons responsible for the Plan and the duties
and responsibilities allocated to each are as follows:


 


11.1        Employer
(by action of the Board, the Employer’s Chief Executive Officer, or by the
designee of either).


 


(i)            To amend the Plan;


 


(ii)           To appoint and remove members of the
Committee; and


 


(iii)          To terminate the Plan as permitted in
Section 14.


 


11.2        Committee.


 


(i)            To designate Participants;


 


21





















 


(ii)           To interpret the
provisions of the Plan and to determine the rights of the Participants under
the Plan, except to the extent otherwise provided in Section 16 relating to
claims procedure;


 


(iii)          To administer the
Plan in accordance with its terms, except to the extent powers to administer
the Plan are specifically delegated to another person or persons as provided in
the Plan;


 


(iv)          To account for the
amount credited to the Deferred Compensation Account of a Participant; and


 


(v)           To direct the
Employer in the payment of benefits.


 


11.3        Plan Administrator.


 


(i)            To file such
reports as may be required with the United States Department of Labor, the
Internal Revenue Service and any other government agency to which reports may
be required to be submitted from time to time; and


 


(ii)           To administer the
claims procedure to the extent provided in Section 16.


 


Section 12.            Benefits Not Assignable; Facility
of Payments:


 


12.1        Benefits Not
Assignable. No portion of any benefit credited or paid
under the Plan with respect to any Participant shall be subject in any manner
to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge, and any attempt so to anticipate, alienate, sell, transfer, assign,
pledge, encumber or charge the same shall be void, nor shall any portion of
such benefit be in any manner payable to any assignee, receiver or any one
trustee, or be liable for his debts, contracts, liabilities, engagements or
torts.


 


12.2        Payments to Minors and
Others. If any individual entitled to receive a
payment under the Plan shall be physically, mentally or legally incapable of
receiving or acknowledging receipt of such payment, the Committee, upon the
receipt of satisfactory evidence of his incapacity and satisfactory evidence
that another person or institution is maintaining him and that


 


22





















 


no guardian or committee has
been appointed for him, may cause any payment otherwise payable to him to be
made to such person or institution so maintaining him. Payment to such person
or institution shall be in full satisfaction of all claims by or through the
Participant to the extent of the amount thereof.


 


Section 13.            Beneficiary:


 


The Participant’s beneficiary shall be the person or
persons designated by the Participant on the beneficiary designation form
provided by and filed with the Committee or its designee. If the Participant
does not designate a beneficiary, the beneficiary shall be his Surviving Spouse.
If the Participant does not designate a beneficiary and has no Surviving
Spouse, the beneficiary shall be the Participant’s estate. The designation of a
beneficiary may be changed or revoked only by filing a new beneficiary
designation form with the Committee or its designee. If a beneficiary (the “primary
beneficiary”) is receiving or is entitled to receive payments under the Plan
and dies before receiving all of the payments due him, the balance to which he
is entitled shall be paid to the contingent beneficiary, if any, named in the
Participant’s current beneficiary designation form. If there is no contingent
beneficiary, the balance shall be paid to the estate of the primary beneficiary.
Any beneficiary may disclaim all or any part of any benefit to which such
beneficiary shall be entitled hereunder by filing a written disclaimer with the
Committee before payment of such benefit is to be made. Such a disclaimer shall
be made in a form satisfactory to the Committee and shall be irrevocable when
filed. Any benefit disclaimed shall be payable from the Plan in the same manner
as if the beneficiary who filed the disclaimer had predeceased the Participant.


 


23





















 


Section 14.            Amendment and Termination of
Plan:


 


Employer may amend any provision of the Plan or
terminate the Plan at any time; provided, that in no event shall such amendment
or termination reduce the balance in any Participant’s Deferred Compensation
Account as of the date of such amendment or termination, nor shall any such
amendment affect the terms of the Plan relating to the payment of such Deferred
Compensation Account. Notwithstanding the foregoing, the following special
provisions shall apply:


 


14.1        Termination in the
Discretion of the Employer. Except as otherwise
provided in Sections 14.2, Employer in its discretion may terminate the Plan
and distribute benefits to Participants subject to the following requirements:


 


14.1.1      All arrangements
sponsored by Employer that would be aggregated with the Plan under Section
1.409A-1(c) of the Treasury Regulations are terminated.


 


14.1.2      No payments other than
payments that would be payable under the terms of the Plan if the termination
had not occurred are made within 12 months of the termination date.


 


14.1.3      All benefits under the
Plan are paid within 24 months of the termination date.


 


14.1.4      Employer does not
adopt a new arrangement that would be aggregated with the Plan under Section
1.409A-1(c) of the Treasury Regulations providing for the deferral of
compensation at any time within five years following the date of termination of
the Plan.


 


14.2        No Financial Triggers.
Employer may not terminate the Plan and make distributions to a Participant due
solely to a change in the financial health of Employer.


 


Section 15.            Communication to Participants:


 


Employer shall make a copy of the Plan available for
inspection by Participants and their beneficiaries upon written request during
reasonable hours at the principal office of Employer.


 


24





















 


Section 16.            Claims Procedure:


 


The following claims procedure shall apply with
respect to the Plan:


 


16.1        Filing of a Claim for
Benefits. If a Participant or beneficiary (the “claimant”)
believes that he is entitled to benefits under the Plan which are not being
paid to him or which are not being credited for his benefit, he shall file a
written claim therefore with the Plan Administrator.


 


16.2        Notification to
Claimant of Decision. Within 90 days after receipt of
a claim by the Plan Administrator (or within 180 days if special circumstances
require an extension of time), the Plan Administrator will notify the claimant
of the decision with regard to the claim. In the event of such special
circumstances requiring an extension of time, there will be furnished to the
claimant prior to expiration of the initial 90-day period written notice of the
extension, which notice will set forth the special circumstances and the date
by which the decision will be furnished. If such claim is wholly or partially
denied, notice thereof will be in writing and worded in a manner calculated to
be understood by the claimant, and will set forth: (i) the specific reason or
reasons for the denial; (ii) specific reference to pertinent provisions of the
Plan on which the denial is based; (iii) a description of any additional
material or information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary; and (iv) an
explanation of the procedure for review of the denial and the time limits
applicable to such procedures, including a statement of the claimant’s right to
bring a civil action under ERISA following an adverse benefit determination on
review. Notwithstanding the forgoing, if the claim relates to a Participant who
is Disabled, the Plan


 


25





















 


Administrator will notify the
claimant of the decision within 45 days (which may be extended for an
additional 30 days if required by special circumstances).


 


16.3        Procedure for Review.
Within 60 days following receipt by the claimant of notice denying his claim,
in whole or in part, or, if such notice shall not be given, within 60 days
following the latest date on which such notice could have been timely given,
the claimant may appeal denial of the claim by filing a written application for
review with the Committee. Following such request for review, the Committee
will fully and fairly review the decision denying the claim. Prior to the
decision of the Committee, the claimant shall be given an opportunity to review
pertinent documents and to submit issues and comments in writing.


 


16.4        Decision on Review.
The decision on review of a claim denied in whole or in part by the Plan
Administrator will be made in the following manner:


 


16.4.1      Within 60 days
following receipt by the Committee of the request for review (or within 120
days if special circumstances require an extension of time), the Committee will
notify the claimant in writing of its decision with regard to the claim. In the
event of such special circumstances requiring an extension of time, written
notice of the extension will be furnished to the claimant prior to the commencement
of the extension. Notwithstanding the forgoing, if the claim relates to a
Participant who is Disabled, the Committee will notify the claimant of the
decision within 45 days (which may be extended for an additional 45 days if
required by special circumstances).


 


16.4.2      With respect to a
claim that is denied in whole or in part, the decision on review will set forth
specific reasons for the decision, will be written in a manner calculated to be
understood by the claimant, and will cite specific references to the pertinent
Plan provisions on which the decision is based.


 


16.4.3      All decisions of the
Committee are final and conclusive.


 


16.5        Action by Authorized
Representative of Claimant. All actions set forth in
this Section 16 to be taken by the claimant may likewise be taken by a
representative of the claimant duly authorized by him to act in his behalf on
such matters. The Plan Administrator and the


 


26





















 


Committee may require such
evidence as either may reasonably deem necessary or advisable of the authority
to act of any such representative.


 


Section 17.            Miscellaneous Provisions:


 


17.1        Set off.
Notwithstanding any other provision of this Plan, Employer may reduce the
amount of any payment otherwise payable to or on behalf of a Participant
hereunder (net of any required withholdings) by the amount of any loan, cash
advance, extension of credit or other obligation of the Participant to the
Employer that is then due and payable, and the Participant shall be deemed to
have consented to such reduction.


 


17.2        Notices.
Each Participant who is not in Service and each Beneficiary shall be
responsible for furnishing the Committee or its designee with his current
address for the mailing of notices and benefit payments. Any notice required or
permitted to be given to such Participant or Beneficiary shall be deemed given
if directed to such address and mailed by regular United States mail, first
class, postage prepaid. If any check mailed to such address is returned as
undeliverable to the addressee, mailing of checks will be suspended until the
Participant or Beneficiary furnishes the proper address. This provision shall
not be construed as requiring the mailing of any notice or notification
otherwise permitted to be given by posting or by other publication.


 


17.3        Lost Distributees.
A benefit shall be deemed forfeited if the Plan Administrator is unable to
locate the Participant or Beneficiary to whom payment is due on or before the
fifth anniversary of the date payment is to be made or commence; provided, that
the deemed investment rate of return pursuant to Section 8.2 shall cease to be
applied to the Participant’s account following the first anniversary of such
date; provided further, however, that such benefit


 


27





















 


shall be reinstated if a valid
claim is made by or on behalf of the Participant or Beneficiary for all or part
of the forfeited benefit.


 


17.4        Reliance on Data.
The Employer, the Committee and the Plan Administrator shall have the right to
rely on any data provided by the Participant or by any Beneficiary. Representations
of such data shall be binding upon any party seeking to claim a benefit through
a Participant, and the Employer, the Committee and the Plan Administrator shall
have no obligation to inquire into the accuracy of any representation made at
any time by a Participant or Beneficiary.


 


17.5        Receipt and Release
for Payments. Subject to the provisions of Section
17.1, any payment made from the Plan to or with respect to any Participant or
Beneficiary, or pursuant to a disclaimer by a Beneficiary, shall, to the extent
thereof, be in full satisfaction of all claims hereunder against the Plan and
the Employer with respect to the Plan. The recipient of any payment from the
Plan may be required by the Committee, as a condition precedent to such
payment, to execute a receipt and release with respect thereto in such form as
shall be acceptable to the Committee.


 


17.6        Headings.
The headings and subheadings of the Plan have been inserted for convenience of
reference and are to be ignored in any construction of the provisions hereof.


 


17.7        Continuation of
Employment. The establishment of the Plan shall not be
construed as conferring any legal or other rights upon any Employee or any
persons for continuation of employment, nor shall it interfere with the right
of the Employer to discharge any Employee or to deal with him without regard to
the effect thereof under the Plan.


 


28





















 


17.8        Merger or
Consolidation; Assumption of Plan. In the event
Employer consolidates or merges into or with another corporation or entity, or
transfers all or substantially all of its assets to another corporation,
partnership, trust or other entity (a “Successor Entity”), such Successor
Entity may assume the rights, obligations and liabilities of the Employer under
the Plan and upon such assumption, the Successor Entity shall become obligated
to perform the terms and conditions of the Plan.


 


17.9        Construction.
The provisions of the Plan shall be construed and enforced in accordance with
the laws of the State of Missouri, except to the extent that such laws are
superseded by ERISA and the applicable requirements of the Code.


 


29





















 


IN WITNESS
WHEREOF, this Agreement has been executed as of the 20th day of December, 2006.


 


 


	
   

  	
  American Multi-Cinema, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Keith P.
  Wiedenkeller

  	
   

  
	
   

  	
   

  	
  Keith P.
  Wiedenkeller

  
	
   

  	
   

  	
  SVP of Human
  Resources

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMC Card
  Processing Services, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin M.
  Conner

  	
   

  
	
   

  	
   

  	
  Kevin M.
  Conner

  
	
   

  	
   

  	
  Senior Vice
  President

  
					



 





















 


ADDENDUM NO. 1


 


AMERICAN MULTI-CINEMA, INC. 401(K)
SAVINGS PLAN


 


The following benefits, rights and features were
included in the Loews Cineplex Salaried Employees’ Profit Sharing and 401(k)
Plan (the “Loews Plan”) but are being eliminated prospectively, as of January
1, 2007, as a result of the merger of the Loews Plan into this Plan. Pursuant
to Code Section 411(d)(6), protected benefits, rights and features listed below
shall apply only to account balances accrued under the Loews Plan prior to
January 1, 2007.


 


	
  Protected
  Benefit

  	
   

  	
  Prior
  Plan

  Effective Date

  	
   

  	
  Amendment/Restatement

  Effective Date

  
	
  Right to Withdraw from Pre-1991 Matching Contribution
  Account

  	
   

  	
  01/01/2002

  	
   

  	
  01/01/2007

  
	
  Age 59 1 /2 In-Service Withdrawals

  	
   

  	
  01 /01 /2002

  	
   

  	
  01/01/2007

  
	
  Normal Retirement Date

  	
   

  	
  01/01/2002

  	
   

  	
  01/01/2007