IN THE NATURE OF OR IN RELATION TO, BENEFITS OF THE FOLLOWING TYPES:
SHORT-TERM DISABILITY (OTHER THAN SALARY CONTINUATION PAYMENTS), LONG-TERM
DISABILITY, MEDICAL AND OTHER WELFARE BENEFITS;
(III)
WHICH ARE SEPARATION, SEVERANCE OR SUPPLEMENTAL UNEMPLOYMENT
BENEFITS;
(IV)
WHICH ARE REIMBURSEMENTS OR EXPENSE ALLOWANCES (INCLUDING MOVING
EXPENSES, HOUSING ALLOWANCES), AND
(V)
THAT ARE PAYMENTS THAT ARE NONREOCCURRING IN NATURE.
NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, REMUNERATION IN EXCESS OF
$210,000 (OR SUCH OTHER AMOUNT PROVIDED PURSUANT TO SECTION 401(A)(17) OF THE
CODE) SHALL BE DISREGARDED.
IF A DETERMINATION PERIOD CONSISTS OF FEWER THAN
TWELVE (12) MONTHS, SUCH ANNUAL COMPENSATION LIMIT WILL BE MULTIPLIED BY A
FRACTION, THE NUMERATOR OF WHICH IS THE NUMBER OF MONTHS IN THE DETERMINATION
PERIOD, AND THE DENOMINATOR OF WHICH IS TWELVE (12).
2.21
ESOP PARTICIPANT.
AN ASSOCIATE WHO HAS SATISFIED THE REQUIREMENTS
OF SECTION 3.1(B).
2.22
ESOP SUSPENSE ACCOUNT.
THE ACCOUNT TO WHICH SHARES OF NBTY STOCK
PLEDGED AS COLLATERAL FOR A LOAN TO THE TRUST ARE ALLOCATED PURSUANT TO
SECTION 8.6(E).
2.23
FISCAL YEAR.
THE TWELVE-MONTH PERIOD ENDING SEPTEMBER 30.
2.24
HIGHLY COMPENSATED EMPLOYEE.
FOR ANY PLAN YEAR, ANY ASSOCIATE WHO
(I) IS A 5%-OWNER (AS DETERMINED UNDER SECTION 416(I)(1) OF THE CODE) AT ANY
TIME DURING SUCH PLAN YEAR OR THE IMMEDIATELY PRECEDING PLAN YEAR OR (II) FOR
THE IMMEDIATELY PRECEDING PLAN YEAR, WAS PAID COMPENSATION IN EXCESS OF $95,000
(AS ADJUSTED IN ACCORDANCE WITH SECTION 414(Q)(1)(B) OF THE CODE) FROM AN
EMPLOYER OR AFFILIATE AND WAS A MEMBER OF THE "TOP-PAID GROUP" (AS DEFINED IN
SECTION 414(Q)(3) OF THE CODE).
5
2.25
HOUR OF SERVICE.
(1)
EACH HOUR FOR WHICH AN ASSOCIATE IS DIRECTLY
OR INDIRECTLY COMPENSATED OR ENTITLED TO COMPENSATION BY AN EMPLOYER FOR THE
PERFORMANCE OF DUTIES DURING THE APPLICABLE COMPUTATION PERIOD; (2) EACH HOUR
FOR WHICH AN ASSOCIATE IS DIRECTLY OR INDIRECTLY COMPENSATED OR ENTITLED TO
COMPENSATION BY AN EMPLOYER (IRRESPECTIVE OF WHETHER THE EMPLOYMENT RELATIONSHIP
HAS TERMINATED) FOR REASONS OTHER THAN PERFORMANCE OF DUTIES (SUCH AS VACATION,
HOLIDAYS, SICKNESS, INCAPACITY (INCLUDING DISABILITY), JURY DUTY, LAY-OFF,
MILITARY DUTY OR LEAVE OF ABSENCE) DURING THE APPLICABLE COMPUTATION PERIOD
(CALCULATED AND CREDITED PURSUANT TO DEPARTMENT OF LABOR REGULATION
§ 2530.200B-2(B) AND (C) WHICH IS INCORPORATED HEREIN BY REFERENCE); (3) EACH
HOUR FOR WHICH BACK PAY IS AWARDED OR AGREED TO BY AN EMPLOYER WITHOUT REGARD TO
MITIGATION OF DAMAGES (CREDITED TO THE ASSOCIATE FOR THE COMPUTATION PERIOD OR
PERIODS TO WHICH THE AWARD OR AGREEMENT PERTAINS RATHER THAN THE COMPUTATION
PERIOD IN WHICH THE AWARD, AGREEMENT OR PAYMENT IS MADE).
THE SAME HOURS OF
SERVICE SHALL NOT BE CREDITED BOTH UNDER (1) OR (2), AS THE CASE MAY BE, AND
UNDER (3).
Notwithstanding (2) above, (i) no more than 501 Hours of Service are required to
be credited to an Associate on account of any single continuous period during
which the Associate performs no duties (whether or not such period occurs in a
single computation period); (ii) an hour for which an Associate is directly or
indirectly paid, or entitled