BE NECESSARY TO ENSURE
THAT THE PLAN (A) IS AND REMAINS AT ALL TIMES AN UNFUNDED DEFERRED COMPENSATION
ARRANGEMENT FOR A SELECT GROUP OF MANAGEMENT OR HIGHLY COMPENSATED EMPLOYEES,
WITHIN THE MEANING OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED FROM TIME TO TIME AND (B) SATISFIES THE REQUIREMENTS OF SECTION 409A OF
THE CODE FOR EXCLUSION FROM GROSS INCOME OF AMOUNTS DEFERRED UNDER THE PLAN.
3.4
NOTWITHSTANDING ANYTHING IN THE PLAN TO THE CONTRARY, NO DEFERRAL
AMOUNT MAY BE ELECTED BY ANY ELIGIBLE DIRECTOR OR ELIGIBLE EMPLOYEE IF SUCH
DEFERRAL AMOUNT WOULD BE SUBJECT TO CURRENT INCOME TAXES IN ANY NON-U.S.
JURISDICTION NOTWITHSTANDING ANY DEFERRAL OF SUCH COMPENSATION UNDER THE PLAN.
TO THE EXTENT THAT, DUE TO A CHANGE IN LAW OR ADMINISTRATIVE OVERSIGHT, A
DEFERRAL AMOUNT IS CREDITED AND WOULD BE SUBJECT TO TAXES AS AFORESAID, THE
COMPANY SHALL DISTRIBUTE SUCH COMPENSATION, ADJUSTED FOR GAINS OR LOSSES IN
ACCORDANCE WITH ARTICLE V OF THE PLAN, TO THE PARTICIPANT IN THE FORM OF A LUMP
SUM DISTRIBUTION PROMPTLY FOLLOWING CONFIRMATION BY THE COMMITTEE OF SUCH CHANGE
IN LAW OR ADMINISTRATIVE OVERSIGHT; PROVIDED, HOWEVER, THAT SUCH DISTRIBUTION
SHALL BE MADE ONLY TO THE EXTENT PERMITTED BY SECTION 409A OF THE CODE FOR
EXCLUSION FROM GROSS INCOME OF AMOUNTS DEFERRED UNDER THE PLAN.
ARTICLE IV
DEFERRAL ELECTIONS
4.1
IN DECEMBER OF EACH YEAR, EACH ELIGIBLE DIRECTOR THEN SERVING AND
EACH ELIGIBLE EMPLOYEE THEN EMPLOYED AT A PARTICIPATING COMPANY SHALL HAVE THE
RIGHT TO DETERMINE HIS OR HER DEFERRAL AMOUNT FOR THE NEXT YEAR, SUBJECT TO THE
LIMITATIONS SET FORTH IN THIS ARTICLE IV.
ANY SUCH DEFERRAL AMOUNT MAY BE
COMPRISED OF SALARY AND/OR CASH BONUS PAYABLE IN RESPECT OF SUCH NEXT YEAR
AND/OR AMOUNTS PAYABLE IN RESPECT TO "PERFORMANCE SHARES" AWARDED PURSUANT TO
THE
8
EQUITY PARTICIPATION PLAN THAT HAVE "PERFORMANCE CYCLES" SCHEDULED TO END AT
DECEMBER 31 OF SUCH NEXT YEAR AND ARE PERFORMANCE-BASED COMPENSATION WITHIN THE
MEANING OF SECTION 409A OF THE CODE; PROVIDED THAT DEFERRALS OF SALARY MAY ONLY
BE MADE WITH THE APPROVAL THE COMMITTEE (OR THE CHIEF EXECUTIVE IN RESPECT OF
ALL PARTICIPANTS).
AN ELIGIBLE EMPLOYEE MAY DEFER AN AMOUNT PAYABLE IN RESPECT
TO A PERFORMANCE SHARE UNDER THE PLAN ONLY IF (I) THE PERFORMANCE OBJECTIVES
WITH RESPECT TO SUCH PERFORMANCE SHARE ARE ESTABLISHED IN WRITING NO LATER THAN
90 DAYS AFTER THE COMMENCEMENT OF THE PERFORMANCE CYCLE TO WHICH THEY RELATE;
(II) SATISFACTION OF THE PERFORMANCE OBJECTIVES IS SUBSTANTIALLY UNCERTAIN AT
THE TIME THE PERFORMANCE OBJECTIVES ARE ESTABLISHED; (III) THE ELIGIBLE EMPLOYEE
HAS PERFORMED SERVICES CONTINUOUSLY FROM THE LATER OF THE BEGINNING OF THE
PERFORMANCE PERIOD OR THE DATE THE PERFORMANCE OBJECTIVES ARE ESTABLISHED
THROUGH THE DATE THAT THE ELIGIBLE EMPLOYEE HAS MADE AN ELECTION TO DEFER SUCH
PERFORMANCE SHARE UNDER THE PLAN; AND (IV) THE AMOUNT PAYABLE IN RESPECT TO THE
PERFORMANCE SHARE IS NOT CALCULABLE AND SUBSTANTIALLY CERTAIN TO BE PAID UNDER
THE EQUITY PARTICIPATION PLAN AT THE TIME THE DEFERRAL ELECTION IS MADE UNDER
THE PLAN.
WITH RESPECT