Exhibit 10.1
LCI Industries
2017 Annual Incentive Program
Establishment and Effective Date
The 2017 Annual Incentive Program (the “
Program
”) is hereby established to provide for the grant of Annual Incentive Awards under the LCI Industries Equity Award and Incentive Plan (as Amended and Restated) (the “
Plan
”). The Program shall be deemed effective as of January 1, 2017. The Program shall operate on the basis of a program year that begins on January 1, 2017 and ends on December 31, 2017 (“
Program Year
”). Payout will be based on Program Year performance results, except as otherwise provided herein.
Purpose
The purpose of the Program is to provide annual incentive compensation to:
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Focus key executives on assisting LCI Industries (“
LCII
”) and its key subsidiaries (collectively referred to as the “
Company
”) in achieving objectives key to their success; and
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Recognize the performance of key employees in achieving the Company’s financial and operating objectives.
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Payouts for Program participants will be determined based on the Program provisions and the results of Company performance measurements, subject to adjustment (to the extent that any such adjustment is consistent with the terms and conditions of the Program and/or the Plan) by the Compensation Committee of LCII’s Board of Directors (the “
Committee
”).
Eligibility
Eligibility for Program participation will be limited to employees who: (1) are employed in executive positions that have ultimate responsibility for the financial and operating performance of the Company, and (2) have been specifically identified by the Company as being eligible for Program participation as likely to be a Covered Employee (as defined in the Plan). However, employees who participate in another short-term Company incentive plan (other than a plan that compensates the employee on a commission basis) are not eligible to participate in this Program with respect to the portion of the Program Year that is also covered under such other plan. Names of approved Program participants and their respective Tier 1 Sharing %, Tier 2 Sharing %, and Tier 3 Sharing %, if applicable, are identified in the Program Appendix.
Any employee who first becomes eligible and is added to the Program after the start of the Program Year will be eligible to participate with respect to that Program Year, but prorated to reflect the period of the Program Year for which the employee was employed in an eligible classification.
Except as provided in the Employment Termination section below, employees must be actively employed through December 31, 2017 to be eligible for a payout under the Program with respect to the Program Year. Except as provided herein, those who are not actively employed through December 31, 2017 for reasons other than disability, approved leave of absence, or death will not be eligible to receive a payout under the Program. An employee does not earn a right to a Program payment (whether on a pro rata basis or otherwise) based upon length of service or mere completion of service during the Program Year. Rather, a payout is earned based upon the achievement by the Company of pre-determined performance goals measured over the course of the entire Program Year as a result of the efforts of eligible employees who contribute toward achievement of such goals. An employee’s participation in the Program, and the opportunity to earn a payout in accordance with the terms and conditions of the Program, does not represent an unequivocal promise on the part of the Company to pay incentive compensation other than to the extent that applicable performance goals have been satisfied, the employee satisfies the eligibility conditions specified herein, and the Committee has authorized a payout to the employee after completion of the Program Year.
Employment Termination
Termination of employment at any time during the Program Year will disqualify the participant from receiving a payout under the Program, except as provided below:
If the participant’s employment is terminated at any time during the Program Year (1) by the Company without cause, or (2) by the participant for good reason, the participant will receive a payout of any award that has otherwise been earned and approved by the Committee, but prorated to reflect the period of the Program Year for which the participant was employed.
Absence from active employment during the Program Year on account of disability or approved unpaid leave of absence will not disqualify the participant from receiving a payout of any award that has otherwise been earned and approved by the Committee.
Similarly, if termination of employment occurs during the Program Year due to death, the participant will receive a payout of any award that has otherwise been earned and approved by the Committee.
The word “
cause
” means participant’s (a) willful and continued failure to follow the Company’s reasonable direction or to perform any duties reasonably required of participant (other than any such failure resulting from his disability or from termination by participant for good reason, if applicable), after written demand for substantial performance is delivered to participant specifying in reasonable detail the manner in which participant has not performed, and participant has not remedied such failure within 30 days after notice thereof, (b) material violation of, or failure to act upon or report known or suspected violations of, the Company’s Guidelines for Business Conduct, as amended from time to time, (c) conviction of, or a plea of nolo contendere with respect to, any felony, (d) commission of any criminal, fraudulent, or dishonest act in connection with participant’s employment, (e) material breach of participant’s employment agreement which, if capable of remedy, continues for a period of 30 days without remedy thereof by participant after notice thereof, or two or more such breaches in any two month period, or (f) one or more instances of willful misconduct or gross negligence that, individually or in the aggregate, is materially detrimental to the Company’s interests.
The word “
good reason
” shall have the meaning set forth in the participant’s employment agreement with Lippert Components, Inc.
The word “
disability
” means the participant’s active service has been terminated as a result of physical or mental disability that renders the participant incapable of performing the essential functions of the participant’s job, with or without reasonable accommodation, and which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, as determined in good faith by the Company.
In all cases, eligibility for any earned payout is based upon the employee’s being employed during the Program Year in an eligible classification.
Any approved Program payout to or on behalf of a participant who was terminated by the Company without cause during the Program Year or who terminated employment during the Program Year for good reason or on account of disability or death, or who is absent from active service on account of disability or an approved unpaid leave of absence, will be paid at the same time as payment is made to active employees whose employment with the Company has continued. In the event of a participant’s death, any approved Program payout will be distributed at such time in a lump sum to the participant’s estate. In order to receive any approved Program payout following termination by the Company without cause or by the participant for good reason, or on account of disability, the participant must timely sign and not revoke a separation agreement and release of claims in a form acceptable to and determined by the Company in its sole discretion.
Program Performance Measures
The Program design includes financial measures that are approved by the Committee, provided that with respect to any Program payout that is intended to constitute performance-based compensation for purposes of Internal Revenue Code Section 162(m), such measures shall be approved in the first ninety (90) days of the Program Year. Measurement performance levels will be monitored throughout the Program Year. Following the end of the Program Year, results will be presented to the Company’s Chief Executive Officer (“
CEO
”) and Committee for approval. The performance
measures can be specific to an individual or apply to a group, and may include operational and/or financial measures as approved by the Committee. Weightings can vary by eligible executive as approved by the Committee.
The following provides a general description of each of the financial performance measures for the Program Year. Measures reflect operations of the Company and will apply to one or more Program participants. The Committee may at any time exercise negative discretion to adjust the performance measures (or any amount payable upon satisfaction of one or more performance measures) to reflect the effects of extraordinary items, non-recurring items, or any other items that the Committee feels should be considered in determining performance results if the result is to reduce the amount payable relative to the performance measures as originally approved.
Financial Measures
Return on Invested Capital
or
“
ROIC
”
shall mean for purposes of the Program: Operating Profit/Average Invested Capital, where
Operating Profit
is the Company’s fiscal year consolidated operating profit, as detailed in the Company’s financial statements filed with the U.S Securities and Exchange Commission (“
SEC
”); and
Average Invested Capital
is the average of the prior year end and current year quarterly (Total Stockholders Equity + Indebtedness) - (Cash, Cash Equivalents and Short-Term Investments), where:
Total Stockholders’ Equity
is the Company’s total stockholders’ equity as of the particular measurement date, as detailed in the Company’s financial statements filed with the SEC;
Indebtedness
is the Company’s indebtedness as of the particular measurement date, as detailed in the Company’s financial statements filed with the SEC; and
Cash, Cash Equivalents and Short-Term Investments
is the sum of the cash, cash equivalents and short-term investments as of the particular measurement date, as detailed in the Company’s financial statements filed with the SEC.
Attrition Reduction
shall mean for purposes of the Program: the decrease, if any, in the Company’s rate of employee attrition for the Program Year compared to the Company’s rate of employee attrition for the immediately preceding fiscal year. Reduction in the rate of employee attrition is a strategic business goal for the Company for fiscal year 2017. As a point of reference, the Company’s rate of employee attrition for the fiscal year ended December 31, 2016 was 63.72%.
Adjustments
Notwithstanding the above definitions, the following adjustments shall be taken into account in the calculation of ROIC for determining final payouts under the Program:
The effects of:
(a)
accretion expense;
(b)
goodwill impairment;
(c)
charges for reorganizing and restructuring;
(d)
charges from asset write-downs;
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(e)
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gains or losses on the disposition of a business or business segment or arising from the sale of assets outside the ordinary course of business;
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(f)
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the cumulative effect of changes in tax or accounting rules, regulations, or laws; and
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(g)
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extraordinary, unusual, transition, one-time and/or non-recurring items of gain or loss determined in accordance with generally accepted accounting principles,
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provided
that, for each of the items (a) through (g), the Company shall have identified that it anticipates it will reflect such adjustments for investors in its audited financial statements (including footnotes), its earnings release, or in its management discussion and analysis section of the Company’s Form 10-K for fiscal year 2017.
Payout Governor
Notwithstanding anything to the contrary, no payout will be made under the Program if the annual LCII ROIC (as defined above) for 2017 does not exceed the threshold requirement established by the Committee. This is referred to as the Overall Threshold Requirement. If the Overall Threshold Requirement is not exceeded, there will be no payout under the Program.
Program Payouts
Following the close of the Program Year and after the audited financial results are available, the Committee will meet and certify the extent to which the performance measures have been satisfied (including application of the payout governor) and will authorize Program payouts. Payouts, less tax withholdings and other required or authorized deductions, will be paid no later than March 15, 2018.
An employee who during the Program Year changes employment status from one eligible status to another eligible status, other than a change that the Company determines to be a short-term or temporary assignment that does not represent a long-term change in the employee’s regular role, will be subject, with respect to employment on or after the date the change in employment status is reflected in the Company’s books and records (“
Change in Status Date
”), to the Program Tier 1 Sharing %, Tier 2 Sharing %, and Tier 3 Sharing % (collectively, “
Sharing Percentages
”) and/or incentive measures applicable to the employment status into which the employee has transferred. Any payout applicable to eligible employment during the Program Year prior to the Change in Status Date will be based upon the employee’s Sharing Percentages and/or incentive measures applicable to the employee prior to the Change in Status Date. Any payment applicable to eligible employment during the Program Year but on or after the Change in Status Date will be based upon the employee’s Sharing Percentages and/or incentive measures applicable to the employee on or after the Change in Status Date. Short-term or temporary assignments (as determined by the Company) will not change the incentive plan or level that an employee is assigned to. The employee will remain in his or her regular role for payout calculation purposes.
Any Program payout is subject to any recoupment or clawback policy that may be adopted by the Company from time to time and to any requirement of applicable law, regulation, or listing standard that requires the Company to recoup or claw back compensation paid pursuant to the Program.
Note
: Internal Revenue Code Section 162(m) limits the tax deduction for compensation paid to a “covered executive” to $1,000,000 unless certain requirements are met. In order for compensation in excess of $1,000,000 to be deductible by the Company, that compensation must satisfy the requirements to be treated as qualified performance-based compensation under Section 162(m). With respect to any payout opportunity that is made to a “covered executive” and that is intended to constitute qualified performance-based compensation for purposes of Section 162(m), those requirements include, without limitation, (1) a requirement that the Program be administered by the Committee which consists entirely of outside directors, (2) a requirement that compensation in excess of $1,000,000 must be based upon the attainment of objective performance goals approved by shareholders, and (3) a requirement that the objective performance goals and measures be established no later than ninety (90) days following the beginning of the performance period, and that such objective formula or standard preclude discretion to increase the amount of compensation due upon attainment of the goal. The Committee may always exercise “negative discretion,” i.e., discretion that reduces or eliminates a payout from the amount that would otherwise be payable in the absence of Committee discretion.
Relationship to Other Company Plans
Employees who participate in another short-term incentive plan (other than a plan that compensates the employee on a commission basis) are not eligible to participate in this Program until the time their participation in the other short-term incentive plan terminates.
Rights of Participants and Forfeiture
Nothing in this Program shall:
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Confer upon any employee any right with respect to continuation of employment with the Company;
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Interfere in any way with the right of the Company to terminate his/her employment at any time; or
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Confer upon any employee or any other person any claim or right to any distribution under the Program except to the extent that a payment has been earned based upon the achievement of the measures applicable to the employee,
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the employee otherwise satisfies the eligibility requirements of the Program, and the Committee has authorized the payment of a payout to the employee.
No right or interest of any employee in the Program shall, prior to actual payment or distribution to the employee, be assignable or transferable in whole or in part, either voluntarily or by operation of law or otherwise, or be subject to payment of debts of any employee by execution, levy, garnishment, attachment, pledge, bankruptcy, or in any other manner.
Notwithstanding any provision of this Program to the contrary, no Program payout shall be made to any participant if he or she has engaged in any “detrimental activity” (as hereinafter defined) at any time prior to or during the six months after the Program payout has been delivered to him or her. In such event, the entire Program payout may be rescinded by the Company within one (1) year after the Company becomes aware of such detrimental activity, and the Company shall notify the participant in writing of any such rescission within such one-year period. Within ten (10) days after receiving such notice of rescission, the participant shall pay to the Company the entire amount of the Program payout previously paid to him or her, in such manner and on such terms and conditions as may be required by the Company, including, without limitation, payment in cash and/or by returning to the Company the number of shares of stock that the participant received under the Program.
The word “
detrimental activity
” means (i) the unauthorized rendering of services for any organization or engaging, directly or indirectly, in any business which is competitive with the business of the Company; (ii) the disclosure to any person or entity outside the Company, or use in other than the Company’s business, without prior written authorization from the Company, of any “confidential information,” as hereinafter defined or material relating to the business of the Company; (iii) activity that results in termination of the participant’s employment by the Company for cause; or (iv) any other conduct or act reasonably determined by the Company to be injurious, detrimental or prejudicial to any interest of the Company.
The words “
confidential information
” include any business, financial and other sensitive, confidential, proprietary and trade secret information which is of unique value to the Company. Examples of confidential information include: inventions, improvements and designs; new product or marketing plans; business strategies and plans; merger and acquisition targets; financial and pricing information; computer programs, source codes, models and databases; analytical models; human resources strategies; customer lists and information; and supplier and vendor lists and other information which is not generally available to the public.
Administration
The Committee is responsible for the establishment of the Program, and the Committee (or the LCII Board of Directors) has the right to amend or terminate the Program at any time, as it deems appropriate. Further, the Committee is authorized to: (1) interpret and apply the Program’s terms and conditions; (2) determine who will participate in the Program and the level of participation; (3) approve the performance measures that are applicable to a “covered executive’s” participation; and (4) approve payments for participants covered by the Program. The Committee will report to the Board substantive actions taken.
Any authority granted to the Committee may also be exercised by the Board, except to the extent that the grant or exercise of such authority would cause any payout that is intended to be qualified performance-based compensation for purposes of Internal Revenue Code Section 162(m) to cease to qualify for exemption under such section. To the extent that any permitted action taken by the Board conflicts with any action taken by the Committee, the Board action shall control.
This Program shall not be terminated, voluntarily or involuntarily, by the liquidation or dissolution of LCII or by the merger or consolidation of LCII with or into another corporation. Any successor to LCII will be deemed to be the Company under this Program.
This Program is intended to satisfy the performance-based compensation exception of Section 162(m), and all provisions contained herein shall be construed and interpreted in a manner to so comply. If any provision of this Program, or any portion thereof, shall be held to be illegal, invalid, or unenforceable, the remainder of the Program or such provision shall not thereby be affected and shall be given full force and effect, without regard to the invalid portion.
Program Appendix
ROIC Goals for Program Year (CEO and President)
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ROIC Achieved
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Multiple of Base Salary
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Below Threshold
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<20%
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—
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Overall Threshold
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20%
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0.25x
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0.25
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0.50x
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30%
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1.0x
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0.35
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2.0x
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Maximum
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40%
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3.0x
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To the extent that the Overall Threshold is achieved or exceeded, the “
Bonus Payment
” for the CEO and President shall equal a multiple of base salary for the Program Year, as set forth in the table above. When ROIC performance is between inflection points set forth above, linear interpolation will be used to determine cash bonus payouts. Once the Bonus Payment is determined, if any, the Bonus Payment shall be paid out in cash.
ROIC Goals for Program Year (Other Participants)
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ROIC Achieved
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Sharing %
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Below Threshold
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<15%
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—%
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Overall Threshold
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15%
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0%
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Sharing Tier 1
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>15% and <18%
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Tier 1 Sharing %
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Sharing Tier 2
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>18% and <21%
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Tier 2 Sharing %
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Sharing Tier 3
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>21%
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Tier 3 Sharing %
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To the extent that the Overall Threshold is exceeded, the “
Bonus Payment
” for each eligible Participant shall equal:
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1.
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If ROIC is achieved within the Sharing Tier 1 level, the Participant’s Tier 1 Sharing % multiplied by Operating Profit in excess of 15% ROIC up to 18% ROIC (“
Tier 1 Bonus
”);
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2.
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If ROIC is achieved within the Sharing Tier 2 level, the Participant’s Tier 2 Sharing % multiplied by Operating Profit in excess of 18% ROIC up to 21% ROIC (“
Tier 2 Bonus
”), plus the Tier 1 Bonus calculated assuming an ROIC achieved of 18%; and
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3.
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If ROIC is achieved within the Sharing Tier 3 level, the Participant’s Tier 3 Sharing % multiplied by Operating Profit in excess of 21% ROIC plus the Tier 1 Bonus calculated assuming an ROIC achieved of 18%, plus the Tier 2 Bonus calculated assuming an ROIC achieved of 21%.
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With respect to the Participants listed below, once the Bonus Payment is determined, if any, the Bonus Payment shall be paid out in cash.
Participants and Sharing Percentages
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Executive
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Tier 1 Sharing %
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Tier 2 Sharing %
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Tier 3 Sharing %
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[NAME]
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Attrition Reduction Goals for Program Year (Executive Officers)
With respect to the Participants listed below, once the Bonus Payment is determined, if any, the Bonus Payment shall be paid out in cash;
provided
,
however
, up to 10% of the Bonus Payment shall be subject to the additional performance goal(s) set forth below and shall be paid only if the additional performance goal(s) set forth below is(are) also achieved in 2017:
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Attrition Reduction Achieved
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Bonus Payment % Paid
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<.87%
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90%
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0.87%
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91%
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0.0174
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92%
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2.61%
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93%
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0.0348
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94%
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4.35%
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95%
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0.0522
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96%
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6.09%
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97%
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0.0696
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98%
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7.83%
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99%
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0.087
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100%
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Participants Subject to Attrition Goal
LCI INDUSTRIES
SECOND AMENDED AND RESTATED
EXECUTIVE NONQUALIFIED DEFERRED COMPENSATION PLAN
RECITALS
This
Second Amended
and Restated
Execut
i
ve Nonqualified
D
e
ferred
Compensation
Plan (the
"
Plan") is
adopted
by LCI Industries (the
"Emp
l
oyer"), a corporation organized and existing
under the
la
ws of
the
State
of Delaware.
The Employer
is
amend
i
ng and restating
the Plan to:
(i)
reflect
cer
t
ain
design changes to
th
e
Plan;
(ii) continue
to provide for
th
e
Plan's documentary
compliance
with the
requirements
of U.S. Internal Revenue
Code
Section
409A
("Section 409A"); and
(iii) otherwise
m
eet current
needs. The purpose
of
the
Plan
is to
offer selec
t
ed Eligible Employees an
opportunity to
e
l
ect
to defer
a
portion of
th
eir
Base
Sa
l
ary and/or
Bonus
Compensation on a
t
ax-deferred
basis
.
This Plan
replaces
and
s
uper
sedes
th
e
Executive
Nonqualified Deferred Compensation Plan
agreement
previously
entered into
between the
Employer
and certain
Eligib
l
e Emp
lo
yees
on December 1,
200
6,
as
amended
and restated on December 1, 2008, and
subsequent
l
y amended
on January 2
,
2009 (collectively,
the
"Pr
ior
Plan")
.
Nothing in this amendment
and
restatement should be
co
nstrued
as
changing the time and form of payment of the Prior Plan terms. From and
after
the
Effec
ti
ve
Date
of
this
amendme
nt
and
restatement
,
all entitlement
to benefits und
e
r the Prior Plan
and
this Plan
shall
be determined
sole
l
y
in
accordance
with the terms of
thi
s
Plan
,
as amended from
time
to time in accordance
w
ith
Article 8.
The Employer
intends
this
Plan
sha
ll
at
a
ll time
s
be
administe
r
ed
and interpreted in
such a
manner as to
constitu
t
e
an unfunded nonqualified deferred
co
mp
e
nsa
tion
arrangement, maintained primarily
t
o
provide
supplementa
l
retirement benefits for members of
a select
group of management
or
highly
compensa
t
ed
employees of the
Company, as
provided under
Sect
ion
s
201(2), 301(a)(3)
and
401(a)(l) of the
Emp
lo
yee
Retirement Income Security
Act
of
1974
("ERISA")
,
as
amended.
The Plan is intended to
comply
in form
and
operation
with
all applicable
law
,
including, to the extent applicable, th
e
requirements
of U.S.
Internal Revenue
Code Section 409A
("Section 409A") and will be administered
,
operated
and
construed in accordance
w
ith this
intention.
Accordingly
,
this
amendment and
restatement is
adopted as
of March 15, 2017.
ARTICLE 1
Definitions
The words
and
phrases defined in this Article
shall
have the meaning
set
out
in
the definition, unless the context in
which
th
e word
or phrase
appears reasonably requires a
broader
,
narrower or diff
e
rent meaning.
1.
"Account"
shall
mean
all
bookke
e
ping accounts pertaining to
a
Participant which
are
maintained b
y
the Plan Administrator or Plan recordkeeper to
reflect
the Employer
's
obligation to the Participant under the Plan
,
including
a
Separation from Service Account
and
Scheduled Withdrawal
Accounts.
To the extent that it is
considered
necessary or appropriate to reflect the
entire
interest of the Participant under the Plan, the Plan
Admin
istr
ator
or Plan
recordkeeper shall
maintain additional
subaccounts.
The
Account an
d
any
su
baccount
s
shall be used
so
lel
y as a
device to measure and determine the
a
mount
s,
if any, to be
p
aid
to a Participant
or a
Beneficiary under the Plan.
2.
"Affiliate"
shall
mean
any
business
entity other
than
the Employer that
i
s
a
member
of a
co
ntrolled
group of corporations, within the
meaning
of Section 414(b) of
the
Code, of which such Employer
is
a
m
e
mber
;
any other
trade
or business (whether or not
incorporat
e
d)
under common control, within
th
e
meaning
of Section 414(c) of
the
Code.
3.
"Base
Salary"
shall
mean
a
Participant
's
base
annual
sa
lar
y excl
uding
incentive and
discretionar
y
bonuses and other
non-regular
forms of compensation
,
before
reductions
for contributions
to
or
deferrals und
er
any
p
e
nsion
,
deferr
ed
compensation or
benefit plans
s
ponsored
by
the
Employer.
4.
"Beneficiary" or
"Beneficiaries"
s
hall mean
one or more persons,
trust
s,
estates
or
other entities,
designated b
y
a Participant
in
accordance with
the
Plan,
that are
entitled to receive
ben
e
fits under the Plan upon the
death of a Participant.
5.
"Beneficiary
Designation Form"
shall mean
th
e
form
established
from tim
e
to time by
the Plan Administrator that a Participant
comp
letes
,
signs, and
returns
to the
Plan
Administrator to
designate
one or
mor
e
Beneficiaries.
6.
"Bonus
Compensation"
shall
mean
amounts
paid
to a Participant by the Employer annually in
the
form of discretionary or incentive compensation or any
other
bonus designated
by the
Employer
before
reductions for contributions to or deferrals
under
any pension,
deferred
compensation or benefit
plans
sponsored
by the
Employer.
7.
"Change in Control"
shall
mean
a change
in
ownership or effective control of
the
Employer or a change
in
the ownership of a substantial
portion
of
the
assets of
the
Employer, within
the meaning
of
Internal
Revenue Code Section 409A and
as
described
in
Treasury Regulations §§l.409A-3(i)(5)(v), (vi) and (vii).
8.
"Claimant"
shall
mean
a Participant or a
Beneficiary
who
believ
es
that he
or she
is
entitled
to
a benefit
under this
Plan or
being denied
a
benefit to
which
h
e
or she
is
entitled
hereunder.
9.
"Code"
shall
mean the
U.S.
Int
erna
l
Revenue Code
of 1986
,
as amended, or any successor statue, and
the
Treasury
Regulations
and other authoritative guidance issued
thereunder.
10.
"Deemed
Investment"
shall
mean the
notional conversion of
the balance held in
a Participant's Account(s)
into
shares or
units
of
th
e
Deemed Investm
e
nt
Options
that
are
used
as
measuring devices
for
determining the
value of a
Participant
's
Account(s).
11.
"Deemed
Investment Options"
shall
mean the hypothetical
securities or other
investments described unde
r
Section 5.1 from which the Plan Administrator
may
select to be
u
se
d
as
measuring devices to
determine the
D
ee
med Investment
gains or losses of
the
Participant' s Account(s). A
Participant
s
hall have
no
r
eal
or beneficial ownership in
the
security or other
investm
ent
represented
b
y
the
Deemed
Inve
s
tment
Options.
12.
"Deferral
Amount"
shall
mean that portion
of a
Participant's Base
Salary and/or Bonus Compensation
that
a Participant elects
to defer
for any Plan Year or Performance
Period.
13.
"Deferral
Election"
shall
mean
an election
by
an Eligible Employee on a Election Form approved by
the
Plan Administrator (in a paper or electronic format)
to
defer a
portion
of
his
or
h
er
Base Salary and/or
Bonus
Compensation
in
accordance with
the
provisions of Article 3.
14.
"Disability"
or
"Disabled"
shall
be
defined as a condition of a Participant whereby he
or
she either: (i)
is
unable
to
engage
in
any substantial gainful activity
b
y
r
easo
n
of any
medically
determinable
ph
ysica
l
or mental impairment
that
can
be
expected
to result in de
a
th
or can
b
e
expected to
last for
a
co
ntinuou
s
period of not less
than
twelve (12) months;
or
(ii)
is,
by reason of any medically determinable
ph
ysica
l
or
mental impairment
that
can
be
expected
to
result
in
death
or can
be expected
to l
ast for a co
nt
i
nuou
s
period of not
l
ess
than
twe
l
ve
(12) months, receiving
in
come
replacement benefits
fo
r
a
period
of
n
o
t l
ess
than three (3) months
und
er
an accident
a
nd h
ea
lth
p
l
an covering employees
of the
E
mplo
yer. A Participa
nt
s
h
a
ll b
e dee
m
e
d
Disab
l
ed if
th
e Socia
l
Securi
t
y Administ
r
a
tion h
as dete
rmin
ed
him
or
her to
b
e
tot
ally
disabled. Additionally,
a
Participant
wi
ll
be deemed
Disa
bl
ed
if determined
t
o
be disabled in accordance
wit
h
a d
i
sa
bilit
y
insurance program,
provid
ed
that th
e
definition
of
disability
applie
d
under
suc
h p
rogra
m
co
mpli
es w
ith
Code
Section
409A.
Upon
th
e
request
of
the Plan Administrator, the Participant must
submi
t
proof to the Plan Administrator
of
th
e
Social
Sec
urity
Administration's or provider's determination.
15.
"Effective Date"
sha
ll
mean
J
a
nua
ry
1, 2017
for
thi
s ame
ndm
en
t
an
d
restatement,
but
s
hall
mean
December 1
,
2006 fo
r th
e
commencement of the Plan.
16.
"Election Form"
sha
ll
mean
th
e
form
or
forms
es
t
ablished
from
tim
e
t
o
tim
e
by the Plan
Admin
i
s
tr
a
t
or
(in a paper
or elec
troni
c
format)
on w
hi
ch
the Participant makes
ce
rt
ain
designations as required under the
t
erms
of this Plan.
17.
"Eli
gibility
Date"
sha
ll
mean the
date
designated
b
y
the Plan
Ad
mini
stra
t
or
on
w
hich
an E
li
g
ibl
e Emp
l
oyee s
h
a
ll b
ecome
eligible to participate in
th
e
Plan.
18.
"E
ligible
Employee"
s
h
a
ll
mean an
E
mplo
yee who
is
se
l
ec
ted
by
the
Employer
to
participate
in
the Plan. Participation in
th
e
Plan is limited to
a se
l
ect gro
up
o
f the
Emp
lo
yer'
s k
ey
management
or
highly
com
p
e
n
sa
t
ed employees.
19.
"Employee"
sha
ll me
an
an
individu
a
l
who provides
serv
i
ces
to th
e
Employer in
th
e capacity
of
a common
l
aw Employee
of
th
e Compa
n
y
.
20.
"Employer"
s
hall m
ean
LCI Industries
, a
nd it
s s
u
ccessors
and
as
signs,
unle
ss otherwise
provided
in thi
s
Plan, or any other
co
r
po
ration
or business organization
w
hi
c
h
,
with
the
consent
of
LCI Industries
, or
it
s s
u
ccesso
r
s
or
ass
i
gns,
assumes
th
e Emp
lo
yer's
obligations
und
er
th
is
Plan,
or
any Affiliate which
agrees, wi
th
the conse
nt
of
LCI Industries
, or
its
s
ucc
essors
or assigns,
to be
co
m
e
a
party
to the Plan.
|
|
21.
|
"ERISA"
s
hall
mean the
Emp
lo
yee
Retirement Income Security Act of 1974,
as
amended from
tim
e
|
t
o
t
ime.
22.
"Participant"
s
hall m
ean eac
h
Eligible
Emp
lo
yee
who has met the requirements
of
participation under
Ar
ticl
e 2 and w
h
o
participates
in th
e
Plan
i
n accordance
with
th
e
t
e
rms
and
conditions
of
t
h
e P
l
a
n.
23.
"Participation Agreement"
sha
ll mean th
e
LCI Industries
Execu
t
ive No
nqu
a
lified
Deferred
Co
mp
ensa
tion
Plan Participation
Agreement
bet
ween
th
e Eligib
l
e E
mpl
oyee
and
Emp
lo
yer w
hich
sets
forth
th
e
t
er
m
s and cond
ition
s of
participation
in
the Plan
a
nd th
e
p
ar
ti
cu
l
ars of
th
e
Participant's
benefits
to which
a
Participant
or
Participant's Beneficiary become
ent
itl
ed
under
th
e Plan
.
24.
"Perfo
rmance-Based
Compensation"
shall
m
ean
that portion
of a
Participant' s Bonus
Compe
n
sation,
the
a
m
ount
of
w
hich
or the
e
ntitl
e
m
ent
to
w
hi
c
h
,
i
s con
tin
gent
on
the
sa
tis
faction of
p
re
-e
s
tabli
s
h
ed
organizational or individual performance
cri
t
eria re
latin
g
to
a
Performance Period of at
l
eas
t twel
ve
(12)
co
n
sec
uti
ve
months
an
d
which
qualifies
as "
p
erformance
-ba
se
d
co
mp
ensa
tion
"
und
er Sec
tion
409A. Performance
cr
it
er
i
a s
hall
be
es
t
a
blish
ed in w
r
i
tin
g
n
ot
later th
a
n
ninety
(90)
d
ays after t
h
e co
mm
ence
m
ent
of
th
e perio
d
of service
to
w
hich
the
c
riteri
a
relate; provided
th
at
the
outcome is
s
ub
s
tanti
a
ll
y
un
cer
t
a
in
at
th
e
time
the
criteria a
r
e es
tablish
ed
.
Performance-Based Compensation does
not includ
e any amount
or portion of any amount
th
a
t
will
b
e
paid
regardless
of performance or
i
s
based upon
a
l
evel of pe
rfo
rma
nc
e
th
a
t
is
substa
nti
a
ll
y ce
rt
ai
n
to be met
at
the time
the
crite
ri
a are es
t
a
bli
shed.
25.
"Performance Period"
shall
mean, with respect to
any
Bonus
Compensation,
the period of
time over which such
Bonus
Compensation
is
earned.
26.
"Plan"
shall
mean this
Second
Amended
and Restated Executive Nonqualified
Deferred
Compensation
Plan,
as evidenced
by this instrument
,
Participation
Agreements, Election Forms, and any other
applicable
forms, as amended
from time to time.
For
purposes of
Section 409A,
this
Plan shall
be
considered an elective account
balance plan
as
defined in
Treasury
Regulation
§l.409A-l(c)(2)(i)(A), or as otherwise
provided by the
Code.
27.
"Plan Administrator"
shall
mean be a
group consisting
of the
CEO, CFO and
the
Chief Legal Officer
of the
Employer and
their designees.
A
Participant in the Plan may not
serve as a singular
Plan Administrator. If
a
Participant is part
of
a
group
of persons designated as
a committee or
Plan Administrator, then the Participant may not participate in any
activity or
decision
relating solely
to his or her individual benefits under this
Plan.
Matters
solely affecting
the
applicable
Participant
will
be
resolved
by the remaining Plan Administrator members.
|
|
28.
|
"Plan Year"
shall
mean the
calendar year.
|
29.
"Scheduled Withdrawal Account"
shall
mean for
each
Plan Year:
(i)
the
sum of a
Participant's Deferral
Amounts
for
any Plan Year or
Performance Period that may
be allocated,
in
whole
or in part, by the Participant pursuant to his
or
her Deferral
Election
to
a Scheduled
Withdrawal Account, plus (ii) Deemed Investment
gains
or losses thereon less
(iii) all
distributions made to the Participant or his or her
Beneficiary, and
tax
withholding amounts which
may have been deducted
(if any)
from the Participant's
Scheduled
Withdrawal
Account.
30.
"Section 409A"
shall
mean Internal Revenue
Code Section
409A
and
the
Treasury
Regulations
or other authoritative guidance
issued thereunder.
31.
"Separation
from Service" or "Separates from Service"
shall mean
a
Participant's termination
of active employment, whether voluntary
or involuntary
(other
than by death or Disability),
with
the
Employer
and
any Affiliate, within
the meaning
of
Treasury Regulation
§l.409A-l(h). The Plan Administrator will
determine
whether
the Participant has terminated
active employment
(and incurred a
Separation
From
Service)
based upon
facts
and
circumstances as described in
Treasury
Regulation
§1.409A-l(h)(l)(ii). A
Participant incurs
a
Separation From
Service
if the
Employer and the
Participant reasonably anticipate the Participant
will
not perform any
additional
services
after a certain
date or that the level
of
bona fide
services (as
an
Employee
or independent
contractor) will
permanently decrease to no more than twenty
(20%)
percent of the average level of bona fide
services
performed over the immediately preceding
36-month
period.
A
Participant
does
not incur
a
Separation From
Service while on a
bona fide leave of
absence
of not more than
six (6)
months
or if
longer,
so
long
as the Participant
has
a
legal right to
re-employment,
as described in
Treasury
Regulation
§l.409A-l(h)(l)(i).
32.
"Separation from Service Account"
shall
mean for
each
Plan
Year: (i)
the
sum of
a Participant' s Deferral
Amount
that
shall
be
allocated, in whole or
in part, by the Participant, in
accordance with
h
i
s
or her Deferral Elect
i
on, to the
Separation
from
Service
Account,
plus (ii)
Deemed Investment
gains
or losses thereon, less
(iii)
all distributions made to the
Participant or
his or her Beneficiary,
and tax withholding amounts
deducted
(if any)
from the
Participant's Separation
from
Service
Account.
33.
"Specified Employee"
shall
mean
a
Participant meets the definition
of
a
"key employee" as such
term
is defined in Code Section
416(i)(l)(A)(i), (ii) or (iii) (without regard
to
the
Treasury
Regulations thereunder
and Section
416(i)(5))
.
However, a Participant is not
a Specified Employee
unless any
stock
of the
Employer
is publicly traded
on an established securities
market
or
otherwise,
as
defined in
Treasury
Regulation §1.897-l(m). If the
Participant is a
key
employee at any
time
during
the twelve
(12)
months
ending
on December
31,
the identification date, the Participant is
a Specified Employee
for
the
twelve (12) month period
ending
on the first day
4
of the fourth
month
following the identification
dat
e.
The
d
eterm
ination
of a
Participant
as a
Specified Employee
sha
ll
be
made by the
P
l
a
n
Administrator
in
accordance
wit
h
Code Sec
tion
416(i)
and
th
e "specifie
d
employee" requirements of
Section
409A.
34.
"Specified
Time"
s
hall
mean,
w
ith
respect
to
a
Schedu
l
e
d Withdr
awa
l
Account,
the
date
on w
h
ic
h th
e Sc
h
e
dul
ed
Withdrawal
Acco
unt
s
h
a
ll
be paid to
th
e
Participant.
35.
"Treasury Regulation"
or
"Tr
easury
Regulations"
s
hall m
ea
n
regu
l
a
tion
s
p
rom
ul
gated
by
th
e
Int
ernal
Revenue
Serv
i
ce
for
th
e
U.S. Department
o
f th
e Treasury, as
they
m
ay
b
e ame
nded
from time
to tim
e.
|
|
36.
|
"Trust
"
s
hall
mean one
or
more trusts that may be
esta
bli
s
h
ed in
accordance
wi
th th
e
t
er
m
s
of
thi
s
|
P
l
an.
37.
"Unfo
r
eseeable
Emergency"
s
h
a
ll m
ean: (i)
a
severe
financial
hard
s
hip
to
a Par
ticipant
resulting
fro
m
an
illness or accident of
th
e
Participant
,
th
e
Participant's
spouse,
th
e
Participant' s Beneficiary, or
th
e
Participant's
d
epe
nd
en
ts
(as
defined
in Co
d
e
Section
152 (w
ithout
regard to Code
Sec
ti
ons
152(b)(l), (b)(2), and (d)(l)(B)); (ii)
lo
ss
of the Participant's
prop
er
t
y
du
e
to
cas
u
a
lt
y; or
(iii) other similar extraordinary and
unfo
reseea
bl
e c
ir
cu
m
s
tanc
es ar
i
s
in
g as
a
res
ult
of
even
t
s
beyond the control of
th
e
Participant. The
Plan
A
dm
i
ni
stra
tor
will determine whether a Participant
in
c
u
rs
an Unforeseeable
Eme
r
gency
b
ase
d
on the
r
e
l
eva
nt fa
c
t
s a
nd
circumstances and
in
accordance
wi
th
Treasury Regulations §1.409A-3(i)(3).
38.
"Valuation
Date"
shall
m
ea
n
the date
the
Acco
unt
is
to
be
va
lu
e
d
for purposes of
providin
g
benefits
und
er
th
e
t
e
rms
of the Plan. The
Valuation
Date
s
h
a
ll
be
the
eve
nt dat
e
trigg
eri
ng
payment of the Account under
the
terms of the Plan. The
Va
luation Date
shall
b
e
int
e
rp
reted
as
eac
h d
ay a
t the
close of
bu
si
ne
ss
of
th
e New York S
t
ock Exc
han
ge (curre
ntl
y
4:00 p.m
.
Eastern
T
im
e),
on days
that the
New York
Stock Exc
h
a
ng
e
is open for
tr
ad
in
g
or any other
d
ay
on which
th
e
r
e
is
s
uffi
cien
t
tra
din
g
in
securit
i
es
of the applicable
fund to
materially
affec
t
the
unit
value of
th
e fu
nd
and
th
e corres
p
o
nding unit
value of
th
e
Participant's Deemed Investment Option(s).
ARTICLE 2
E
ligibility
and Participation
1.
Requirements
for
Participation
.
Every Eligible
E
mplo
yee se
le
c
t
e
d b
y
the
E
mploy
e
r
on the
Effec
ti
ve
Date
s
h
a
ll b
e
eligible
to b
ecome a
Participant on
th
e Effect
i
ve
Date. Before
th
e
beginning of
eac
h
Plan
Year, or s
u
c
h
other
time
s as
determined
b
y
the
E
mplo
yer,
the
E
mplo
yer s
h
a
ll
se
l
ect
those
E
mplo
yees
who
s
h
a
ll be
Eligible Employees for
s
u
c
h
Plan Year.
2.
Election
to
Participate;
Benefits
of
Participation.
Eac
h
Eligible
Em
pl
oyee
may
b
ecome
a Participant in
th
e
Plan
b
y exec
utin
g
and
s
ubmittin
g
to the Plan Administrator,
a
Participation Agreement, Deferral
E
l
ect
ion
, a
Beneficiary
D
esigna
tion
Form,
an
d
a
n
y
other
Elect
ion
Form
wi
thin
the time period
s
pe
cified
b
y
the
Plan
Adm
ini
stra
t
o
r
and Sect
i
o
n
409A.
If
an
E
li
g
ible
E
mpl
oyee fa
ils
to meet
all require
m
e
nt
s co
nt
a
in
ed
in
this Section 2.2
wi
thin th
e
period required, that Eligible
Emp
lo
yee s
hall
not
be
entitled
to
participate
in
th
e P
lan during
such Plan
Ye
ar.
In
addi
ti
o
n
,
the Plan Administrator may
es
t
a
bli
s
h
from time
to
time
s
u
c
h
other
enro
llm
en
t
requirements as
it
de
t
e
rmin
es
in
its
sole
discretion are
nec
essary
or
d
es
ir
a
bl
e
.
3.
Re-employment.
The re-employment
o
f a
form
er Part
i
ci
p
an
t b
y
the
E
mplo
yer s
hall
not
e
ntitl
e
such
individ
u
al
t
o
become
a
Participant h
ere
und
er.
Such individual
sha
ll n
o
t b
eco
m
e
a Participant until
the indi
v
idu
a
l
is
again
d
esig
n
ated as a
n
E
li
gi
ble
Employee
in
acco
rd
ance
with Section
2
.1.
If
a
Participant
who
has
exper
ienc
ed
a Separation
fr
o
m
Se
r
vice
pursuant
t
o
Section
7.2(
b
)
i
s
receiving installment
distributi
ons
and
i
s
re-employed
b
y
th
e
Employer, distributions
du
e
t
o
the Participant
s
hall not b
e
suspended.
Ceasing
to be an
Eligible Employee.
The
Pl
an A
dministrator ma
y
rem
ove
an
E
li
gi
bl
e
Employee from further
acti
ve
participation in the Plan
a
t its dis
cretion.
If
th
is
o
cc
ur
s,
the
Participant
s
h
a
ll
be
prevente
d
from making
Participant Deferral Elections for subsequent
Plan
Years or Performance Periods. Any existing
Deferral
Election shall continue in effect for
the
remainder of
the
Plan Year or Performance Period and
may
only be cancelled in accordance with Section 3.S(b)
hereof.
4.
Termination of Participation.
A
Participant will cease
to be
a Participant as of
the date on
which
his
or
her
entire Account balance
has been distributed
or forfeited.
ARTICLE 3
Participant
Elective
Deferrals
1.
Establishment
and
Maintenance
of Participant Account(s).
The
Plan Administrator shall establish and maintain a Deferral Account and a separate Scheduled
Withdrawal
Account for each Plan Year (if applicable)
i n
the name of
eac
h
Participant.
2.
Minimum
and Maximum Deferral Limits.
For each Plan Year and/or Performance Period (as applicable), a Participant may
make
an election
to defer
receipt of
his
or
her
Base Salary and/or
Bonus
Compensation and shall specify
the percentage
of
Base
Salary and/or
Bonus
Compensation
to be deferred
subject
to
the
minimums
or
maximums
(if any) established by
the Plan
Administrator and communicated
to the Participant
on
the Participant
Election Form.
|
|
3.
|
Deferral Elections
-
First
Year
of Eligibility.
|
(a)
Application.
This Section 3.3 applies
to
each Eligible Employee who first
becomes
eligible
to participate
in
the
Plan. The Plan Administrator shall determine (in accordance with Treasury Regulation
§1.409A-2(a)(7)(ii))
the date
upon which a Participant who ceased being eligible
to
participate in
the
Plan, can again
become
eligible
to participate in the Plan.
(b)
Deferral
Election.
An Eligible Employee described
in
Section 3.3(a)
may
elect
to defer
receipt of Base Salary earned during such Plan Year or
his
or
her
Bonus Compensation earned
during
a Performance
Period
that commences
in
s
uch
Plan Year
by filing
a Deferral Election with the Plan Administrator
in
accordance with
the
following
rules:
(i)
Timing;
Irrevocability.
The Deferral Election must be filed with
the Plan
Administrator
by
,
and shall
become irrevocabl
e
as of,
the thirtieth
(30
1")
day
following
the
Participant's Eligibility
Date
(or such earlier
date
as specified
by the Plan
Administrator).
(ii)
Base Salary.
The Deferral Election shall only apply to Base Salary earned
during
such calendar year
beginning
with
the
first payroll period
that begins
immediately after
the date the
Deferral Election
becomes
irrevocable. Base Salary
payable
after
the last
day of a calendar year solely for services performed
during the
final
payroll period
,
described
in
Section 3401(b) of
the
Code, containing December 31 of such
year
shall be
treated
as earned during
the
subsequent calendar
year.
(iii)
Bonus Compensation.
Where a Deferral Election
is filed in the first
year of eligibility
but
after
the
commencement of
the
Performance Period, then, except as
otherwise
provided
in
Section 3.4
below,
the Deferral Election shall only apply to
that portion
of
Bonus
Compensation earned for such
Performan
ce
P
eriod e
qual to the total
amount of
the Bonus
Compensation earned during such
Performance
Period
multiplied
by a fraction,
the numerator
of which
is
the number of
days beginning
on
the day
immediately after the
date that the Deferral
E
l
ec
tion becomes irrevocable
and ending on the last
da
y
of
the Performan
ce
Period, and the
denominator of
which is
the total
number of
da
ys
in the
Performance
Period.
4.
Annual
Deferral
Elections.
Unless Section
3
.
3 applies, each Eligible Employee
may
e
l
ect
to defer
receipt of Base Salary for a Plan Year or
his
or
her
Bonus Compensation for a
Performance
Period,
by
filing a Deferra
l
Election with
the
Plan Administrator
in
accordance with
the
following rules:
(a)
Base
Salary.
The
Deferral
Election with
re
spect
to Base
Salary
must be filed
with
the Plan
Administrator
by
,
and shall
become
irrevocable following, December 31(or such earlier date as specified
by the Plan
Administrator on
the
Deferral Election ) of
the
calendar
year
next
preceding the calendar year for which such amounts would otherwise
be
earned.
(b)
Bonus Compensation.
The Deferral Election with respect
to
Bonus Compensation
must be
filed with the Plan Administrator
by
,
and
s
hall becom
e
irrevocable following, December 31 (or such earlier
date
as specified
by the Plan
Administrator on
the Deferral
E
l
ection) of the calendar year
next preceding
the
first
day of
the
Performance Period for which such
Bonus
Compensation would otherwise
be
earned.
If the
Employer
has
a fiscal year other than
the
ca
l
endar
year,
Bonus Compensation re
l
ating
to
services
in the fiscal
year of
the
Employer, of which
no
amount is paid or
payabl
e
during the fiscal
year,
may be
deferred at
th
e
Participant's election if
th
e
Deferral
Election
i
s
made
not
later than the
close of
the
Employer's
fiscal
year next
pr
ece
ding
the
first
fiscal
year
in which
the
Participant
p
e
rforms
any services for which
s
uch
Bonus Compensation is payable.
|
|
(c)
|
Bonus Compensation Qualifying as
Performance
-Ba
sed
Compensation.
|
(i)
Notwithstanding anything
co
ntained
in
this Section to
the contrary, and only to
the
extent
permitted by the
Plan Administrator,
the Deferral
Election with
respect to Bonus
Compensation
that
constitutes
P
erfo
rmance-Based
Compensation,
must be filed with the
Plan Administrator
by
,
and shall
become
irrevocable as
of
,
the
date
that is
six (6)
months before the
end of
the
applicable
Performance Period
(or such earlier
date
as
s
pecified
by
the
Plan Administrator on
the Deferral
Election),
provided that
in no event
may
such Deferra
l
Election
be filed
after
such
Bonus Compensation has
become
"readily ascertainable" within
the m
eaning
of Section 409A.
(ii)
In order
to
make a Performance-Based Compensation Deferral Election,
the
Participant must
pe
rform
services continuously from
the later
of
the beginning
of
the
Performance Period or
the date
the
p
e
rformance
criteria are
es
tablished through the date
a Deferral Election
becom
es
irr
evoca
ble.
(iii)
A Performance-Based Compensat
i
on
D
e
fe
rra
l
Election shall
not
apply
to
any portion of the Performance-Based Compensation
that is
actually
earned
by
a Participant regardless of satisfaction of
the performance
criteria.
(iv)
To the extent
permitt
e
d
by the Plan Administrator, a newly Eligible Employee
in
his or her first
year
of eligibi
l
ity shall
be p
erm
itted to make
a Performance-Based Compensation Deferral Election provided
that th
e
Eligible Employee satisfies all
of the
other requirements of
thi
s
Section.
|
|
1.
|
Duration and Cancellation of Deferral Elections.
|
(a)
Duration.
Once
irrevocable
,
a
Deferral
Election
s
hall
only be effective for
the Plan
Year or Performance Period with respect
to
which such election was
timely filed
with the Plan Administrator. Except as
provided
in Section 3.S(b), a Deferral Election, once
irrevocable,
cannot be cancelled or altered during a Plan Year or Performance Period.
(i)
The
Plan
Administrator
may cancel
a Participant
'
s
Deferral
Election where such cancellation occurs
by the later
of:
(a) the
end of the
Participant's
taxable year, or (b)
the fifteenth
(15
1
h
)
day of
the third
(3
'd
)
month
following
the date the
Participant
incurs
a "disability,"
in
accordance with Treasury
Regulation
§1.409A-3G)(4)(xii). For
purposes
of this Section 3.S(b)(i), a
disability
refers
to
any
medically
determinable physical or
mental impairment
resulting
in the Participant's inability to perform
duties of
his
or
her position
or any substantially similar
position, wher
e
such impairment
can be
expected to
result in death
or can
be
expected
to last for
a continuous period of
not less than
six (6) months, in accordance with Treasury
Regulation
§l.409A- 3(i)(3).
(ii)
If
a Participant receives a payment
due
to an Unforeseeable Emergency or a
hardship distribution pursuant
to Treasury
Regulation
§l.401(k)-l(d)(3), the Plan Administrator shall cancel a
Participant's
Deferral Election for
that
Plan Year.
(iii)
If
a Participant' s
Deferral Election is
cancelled with respect
to
a
particular
calendar year or Performance
Period, he
or she
may
complete a
new Deferral
Election for a subsequent Plan Year or
Performance
Period
,
only in accordance with Section 3.4.
3.6 Withholding
and Crediting of Deferral Amounts.
For each
Plan
Year,
the
Base Salary
portion
of the
Deferral
Amount shall be withheld
from
eac
h
regularly scheduled
payroll
in approximately equal amounts, (or as
otherwise
specified by
the
Plan Administrator), as adjusted
from time to time
for
increases
and decreases
in Base
Salary (if
the
Participant Deferral with
respect to Base
Salary is expressed as a
percentage).
The Bonus Compensation
portion
of
the Deferral
Amount shall
be
withheld as soon as administratively
feasible following the time the Bonus
Compensation otherwise would
be paid
to
the Participant,
whether or
not this
occurs during the Plan Year or
Performance
Period as
the
case
may be. Participant
Deferral Amounts shal
l
be
credited to
the Participant Separation
from Service
Account
and/or to a Scheduled
Withdrawal Account
as soon as administratively
feasible
following
the time
such amo
unt
s would otherwise
have been paid to
a Participant.
ARTICLE 4
Deemed Investment Gains or
Losses
1.
Deemed Investment Options.
The Employer
may
invest all or a portion of any amounts credited to
the
Account(s) in
mutual funds,
stocks,
bonds,
securities,
life
insurance
policy or policies on the life
of
the
Participant, or any other asset
that may be
se
l
ected
by the
Employer,
the
"Deemed Investment Option(s)." Any such Deemed
Investment
Option shall
be treated
as an investment credited
to the Participant's
Account(s) and shall
be
adjusted to reflect charges and expenses, as
determined by the
Employer
in its
discretion that would
have been
incurred if
the
Account(s)
had been
invested in
the
Deemed
Investment Option(s).
Without
limiting the foregoing,
a
Participant's
Account(s) shall at all
times
be a
bookkeeping entry
only and shall
not represent
any investment
made
on
his
or
her
behalf
by the
Plan Administrator or
the
Trust (if any).
The Participant
(or Beneficiary) shall at all times remain an
unsecured creditor
of
the
Employer. Any
liability
or obligation of the Employer
to
any Participant, former
Participant,
or
Beneficiary
with
respect to
a right
to payment
shall
be based
solely
upon
contractual
obligations
created
by this Plan.
2.
Participant's Allocation of Deemed Investment Options.
Each Participant shall
have the right
to
direct the Plan
Administrator as
to how the Participant' s
Deferral Amounts shall
be deemed to be invested
among
the Deemed Investment
Options offered
under the Plan
,
subject to any operating rules and procedures
imposed by the
Plan Administrator. As of each Valuation Date
,
the Participant's
Account(s) will
be
credited or
debited
to
reflect the
performance of
the Deemed Investment
Options elected
by the
Participant.
If
a
Deemed Investment
Option selected by a
Participant
sustains a
loss, the Participant's
Account(s) shall
be
reduced
to
reflect such
loss.
If
the
Participant
fails to
elect a Deemed Investment Option
the Deemed Investment
shall
be
based on an
investment
alternative selected for
this
purpose
by th
e
Administrator.
During
payout,
the Participant's
Account(s) shall
continue
to be
credited with
Deemed
Investment gains or
losses based
on
the Deem
e
d Investm
e
nt
Options selected by the Participant and
made
available
b
y
the
Plan
Administrator for such
pu
r
po
se
.
3.
Valuation
of Account(s).
Each Participant's Account(s) as of each Valuation Date
s
hall
consist of
the balance
of
th
e
Participant' s
Account(s) as of
the immediately preceding Valuation Date
,
plus the
Participant' s
Deferral
Amounts
that have be
e
n
credited, plus
D
eeme
d Investment
gains
or
losses,
minus
the amount
of an
y
distributions made
and any applicable
tax
withheld since
the
immediately preceding Va
lu
ation
Date
.
4.
No Required Investment of Employer Assets.
Notwithstanding anything contained herein
to the
contrary,
the
Employer reserves
the right
to
in
ves
t it
s
assets,
including
any assets
that
may
have been
set aside for the
purpose
of funding the
benefits to
be
provided under the Plan
,
at
its
own discretion, and
such
assets sha
ll
remain
the
property
of
the
Employer,
or may be held in
a Trust, as
the
case
may be,
subject
to the claims
of
the
general creditors of
the
Employer, and
no Participant
shall have any right to any portion of such assets other
than
as
an uns
ecure
d
general creditor of
the
Employer.
ARTICLE
5
Vesting /
Taxes
1.
Vesting.
A Participant shall at all
times be one hundred percent (100
%)
vested
in
his
or
her
Separation from Service Account(s), Scheduled Wi
th
drawal Account(s), and Deemed
Investment
gains or
losses
credited or
debited th
ereo
n.
2.
Taxes
and Withholding.
Deferral
Amounts and
Deemed Investment
earnings
thereon
are subject
to
Federal
Insuran
ce
Contribution Act (FICA) and Federal Unemployment
Tax Act
(FUTA)
to the
extent
provided under
applicable Code
provisions,
and
benefits payable under the Plan
are subject
to all
applicable
federal,
state, city,
income,
employment or other
taxes
as
may be required to be withheld
or
paid.
A Participant,
however,
shall
be
solely
responsible
for the paymen
t
of
all
tax liabilities
relating
to
any such benefits.
ARTICLE 6
Payment of
Benefits
1.
Payments in General.
(a)
Payment
Events
.
A
Participant
(or,
in the
event of
the death
of
the
Participant, the Participant's
designated Beneficiar
y)
shall be
e
ntitled to
a
benefit
eq
ual to
the Participant's
vested interest in
the Account(s)
upon
the earliest
to
occur of
the
following events: (i )
the
Participant' s Separation
from
Service; (ii) the
Participant's Disability;
(iii)
th
e
Participant's
death;
or (iv) a Change
in
Control; and
upon a
Specified Time,
to the
extent
the distribution
event
is applicable
to
the
Account. A
Participant may
also
be
paid for
an
Unforeseeable Emergency.
(b)
Source of Payments.
The Emp
l
oyer will
pay,
from
its
general assets,
the portion
of
any benefit payable pursuant to this
Article 6
that is
attributable
to
a
Participant's
Account, and all costs, charges and expenses
relating thereto.
(c)
Calculation of Installment Payments.
In
the
eve
nt that benefits
are
to be paid
i
n
installments
,
the Account shall
be
calcu
l
ated
as
of
the
Valuation
Date
of
the
said event. Installment
payments made
af ter the
first installment
shall be
paid
on each
applicable
anniversary of the
first installment until
all
required installments have
been paid. The amount of each
payment
shall
be determined by
d
i
v
idin
g
the
value of a
Participant's
Account(s) immediately
prior to
such
payment by the number of
payments remaining
to
be
paid.
Any
unpaid
Account
balance
shall continue
to
be
deemed to be
invested pursuant
to
Article 4,
in
which case any
deemed
income, gains,
los
ses,
or expenses shall
b
e
reflected in
th
e
actual payments. The final installment
s
hall
be
equa
l
to
the
balance of the Account(s), calculated as of
the
app
li
cab
l
e ann
i
versary
.
(d)
Lump Sum Minimum Threshold.
Notwithstanding any
provision hereof to the contrary, if the
Account
balance
at
the due date of the first
ins
t
allment
i
s
fift
y
thousand
dollars ($50
,
000)
or
less, payment
of
th
e
Account(s)
s
h
a
ll
be made instead in
a si
n
g
l
e
lum
p sum
and no installment
payments shall
be
avai
l
able. Note:
This minimum threshold shall
not
apply to
Schedu
l
ed
Withdrawal
Account
distributions.
(e)
Subsequent Deferral
E
lections
.
If permitted by the
Emp
l
oyer,
a Participant may delay the time
of
a payment or
c
h
ange
the form of
a payment
as
expressly
provided under this
Sec
ti
on 6.l(e) a
nd
Sec
tion
409A
(hereinaf
t
er,
a
"S
ub
seque
nt
Deferral
E
l
ection")
.
No
t
withs
t
a
nding
the foregoing,
a
Subsequent Deferral Election
cannot accelerate any
payment.
A Subsequen
t
Deferral
Electio
n
which delays payment or
c
han
ges
the form
of
payment
i
s
permitted only if all of
th
e
following requirements are met:
(i)
The S
ubs
e
qu
ent
Deferral Election does not take effect until at
l
east
twelve (12) months
after
the date
on
which the Subsequent Deferral
Election
is made and approved by the Plan Administrator;
(i)
If
the
Subseq
u
e
nt
Deferral
Elect
i
on
relates
to
a payment
ba
se
d
on
Separa
tion
from
Service
or
at a
Specified Time
,
th
e Subsequent
Deferral
Elect
io
n
must result in
p
ayme
nt
being deferred
for
a period of
not
less than five
(5)
years from the date the first
amo
un
t
was
sc
h
edu
l
ed to
be paid;
(ii)
If
th
e Su
b
seque
nt
Deferral Election relates
t
o a
payment
a
t
a Specified
Time,
the
Participant must make the
Subsequent
Deferral
E
l
ec
tion
not
l
ess
than twelve (12)
m
ont
h
s
befo
re
the date the first
amount
was scheduled
to
be paid.
For purposes of
app
l
y
in
g
the
S
ub
sequent
Deferral Election requirements,
ins
t
allme
nt
payments
s
h
all
be treated
as a series
of
"se
p
ara
t
e
payments."
Any election
made pursuant to this
Sec
ti
on sha
ll
be made
on s
u
c
h
Election Forms
or
electro
nic
media
as
i
s
required by
the
Plan
Adm
ini
s
t
ra
t
or,
in
accordance
w
ith
the rules
estab
li
shed
by the Plan Administrator and
sha
ll
comp
l
y
with
a
ll
requirements of Section 409A.
No
t
withstanding
anything in this Section
6.l(e)
or
in
this Plan to
the
contrary,
the Plan
shall
recognize
any
permissible Participant
elec
tion
s
m
ade
on
or
before December
31,
2008,
includin
g c
h
anges
to
such
elections
with
respect
to th
e
tim
e
or
form
of
payment
of a pre-2009 Plan
Year
annual Deferral
Amou
nt,
provided such
e
l
ect
ion
s
or changes
were
made in
accordance
with
Notice
2007-86 or other
app
li
cab
l
e g
uid
ance
.
|
|
2.
|
Elections as to Time and Form of Payment.
|
(a)
Account
Allo
cation.
Concurrent w
ith
any
Deferral
Election, a
Participant may make an irrevocable
elec
ti
on
to
a
ll
ocate a
ll
or
a
portion
of
his or her
e
l
ected
Deferral
Amount
to the Separation from
Service
Account and
/
or a Plan
Year Sched
uled
Withdrawal
Account.
To the
extent
th
a
t
a Participant does not designate the
Account
t
o
which
Deferra
l
Amounts
will be
allocated,
such amounts
shall
be allocate
d
and credited
to
the Participant' s Separation from
Service Account.
(b)
Scheduled Withdrawal Accounts.
A
Participant may
designate, on
any Deferral
Elect
i
on
that
he or
she
d
e
livers
t
o
the
Plan Administrator
in
which
deferrals
of
Base
Salary
and
/
or Bonus
Compensa
ti
on are
allocated to
a
Scheduled Withdrawal
Account,
the
year
in
w
hich
payments
will commence
to be paid
fro
m
that Scheduled Withdrawal
Accoun
t
(t
h
e "Specified
Time"). The Participant
m
ay elect
to receive payment
of a
Scheduled Withdrawal
Acco
unt
no
earlier
than the January of the
second (2nd)
Plan
Year following
the Plan Year
of
the deferral.
(For example:
If
a
Participant
e
l
ects
to
a
lloc
ate
2017
Deferral Amounts into
a Scheduled
Withdrawal
Account,
the
earliest
date
the Account could
be
distributed would
be
in
January
2019). The Participant must also elect
the
form of
payment
for
the
applicable Plan Year Scheduled Withdrawal Account in a single
lump
sum, or in a
number
of annual
installments
over a
period
of
three
(3),
five
(5) or
ten
(10) years. To
the
extent
that
a Participant
does not
designate
the form
of payment or such
designation is
ambiguous or does
not
comply with
the terms
of
the
Plan
,
the
Plan Year Scheduled Withdrawal Account shall
be
paid in a single
lump
sum.
(c)
Event
Based Accounts.
A Participant shall
make
an election as
to the
form of
payment
for
payment
events
detailed in
Section 7.3 concurrent with
his
or her acceptance
to
participate in the
Plan
and before
the
beginning of
the
period for which
the right
to the deferred compensation arises. To
the
extent
that
a Participant
does
not
designate the
form of
payment
or such
designation
does
not
comply with
the terms
of the Plan,
the
Accounts shall
be
paid
in
a single
lump
sum.
(i)
For
Plan Years 2006 through 2016.
For events
detailed in
Article 6, a
Participant's
Separation from Service Account(s)
in
Plan Years 2006 through 2016 will be paid in accordance with
Participants
'
already
filed Deferral
Election Forms.
(ii)
For Plan
Years
2017 and Beyond.
For events
detailed in
Article 6
,
a
Participant's Deferral Amounts
contributed
in Plan
Year 2017, and for all subsequent
Plan Years,
concurrent with each annual Deferral Election, a
Participant
shall elect the form of
payment for the
applicable Plan Year Separation
from
Service Account
in
a single
lump
sum, or in a number of annual
installments over
a
period
of
three
(3),
five (5)
or
ten
(10) years. To
the
extent that a
Participant does not
designate
the
form
of
payment
or
such
designation is ambiguous
or
does not
comply with the
terms
of
the
Plan,
the Plan
Year Separation from Service Account shall
be paid in
a single
lump
sum.
3.
Separation from
Service
Benefit.
In the
event
that
a
Participant
Separates
from
Service (other
than
for
death), the
Employer shall pay
the
Participant's
Account balance
,
calculated as
of the
Valuation
Date, in the
form elected pursuant
to his
or
he
r
Deferral Election and Section 6.2.
Payment
shall
be made
or commence on
the ninetieth
(90
t
h)
day following the
Participant's Separation
from
Service.
4.
Disability Benefit.
In the
event
that
a
Participant
is
determined to
be Disabled,
the
Employer shall
pa
y
the
Participant's Account
balance,
as of the Valuation
Date
,
in the
form elected
pursuant to his
or
her
Deferral
Election and
Section 6.2.
Payment
shall
be made
or commence on the
ninetieth
(90t
h
)
day
following
the
Participant's
Disability
determination.
5.
Change in Control Benefit.
In the
event
of
a Change
in
Control,
the
Employer shall pay
the Participant's
Account
balance
,
as of
the
Valuation
Date, in the
form elected
pursuant to his or her Deferral
Election and Section 6.2
.
Payment shall
be
made or commence
on the ninetieth
(90
t
h)
day
following the date
of
the
Change in Control.
(a)
Death While
Employed.
In
the
event of a
Participant's
death while actively employed with
the
Employer, the Employer shall pay
the Participant's
Account balance, calculated as
of the
Valuation Date
,
to the
Participant's
designated
Beneficiary
in the
form elected
pursuant to his or her Deferral
Election and
Section
6.2.
Payment
shall
be made
or commence on
the
ninetieth
(90t
h
)
day following the Participant's
Disability
determination.
(b)
Death During Installments.
In the
event of a
Participant's death
at
any time
after installment payments (if any)
have
commenced
under this Plan, the
Employer shall
pay
any remaining
installments
to the Participant's Beneficia
r
y in a single
lump
sum on
the
ninetieth (90t
h
) day following
the
Participant's
date
of death.
7.
Payment
at
a
Specified Time.
A Participant shall be paid
the
vested balance of a Scheduled Withdrawal Account(s) on the sixti
e
th
(60t
h
)
day
following the Specified Time and
in
the form of pa
y
ment
elected b
y
the
Participant
pursuant
to
his
or
her
Deferral Election.
8.
Payment Due
to
an Unforeseeable Emergency.
A Parti
c
ipant shall
have the
right
to
request, on a form provided
b
y
the
Plan Admini
s
trator, a
payment
of all or a portion of his or
her
Account balance in a
lump
sum payment due
to
an Unforeseeable Emergency. The Plan Administrator shall
have
the sole
discretion to
determine,
in
accordance with
the
standards
under
Section 409A
,
whether to grant such a request and
the
amount
to be paid
pursuant
to
such request.
(a)
Determination
of Unforeseeable Emergency
.
Whether a Parti
c
ipant
is faced
with an Unforeseeable Em
e
rgency
permitting a
lump
sum
payment is to be
determined based on
the
relevant facts and circumstances of each case, but,
in
any case, a
payment
on account of an Unforeseeable Emergency
may
not be made to
the
extent
that
such emergenc
y
is
or may
be
relieved
through reimbursement
or compensation
from
insurance or otherwi
s
e
,
by liquidation
of
the
Participant's assets,
to the
e
x
tent the liquidation
of such assets would not cause severe financial
hardship
,
or by
cessation of
deferrals under the Plan.
Payments because of an Unforeseeable Emergency must
be limited
to
th
e
amount reasonably
necessary to
satisfy
the
emergency
need
(which ma
y
include amounts
n
e
cessary to
pay
any Federal, state
,
local,
or foreign
income taxes
or penalties reasonably anticipated
to
result from
the
payment).
(b)
Payment of Account.
Payment shall
be made
within
thirty
(30)
days
following
the
determination
by the
Plan Administrator
that
a payment will
be permitted und
e
r
this
Section 6.8.
9.
Acceleration of Payments.
Except as specifically
permitted herein or
in other Sections of this
Plan, no
acceleration of
the time or
schedule of any
payment
may
be made hereunder.
Notwithstanding
the foregoing,
payments
may be
accelerated
hereunder by the
Employer,
in its
s
ole discretion (without any
direct
or
indirect
election on
the part
of any
Participant), in
accordance with
the
provisions of Treasury
Regulation
§l.409A-3U)(4) and any subsequent guidance issued
by the
United States
Treasury Department.
10.
Restrictions on
Time
of Payment.
Solely
to the
extent
necessary to
avoid penalties under
Section
409A
,
if, pursuant to
Section 409A
,
a Participant
is
considered a Specified Employ
e
e
,
any
payments
to be made
for
the first
six (6)
months
following
the
Participant's Sepa
r
ation
from
Servic
e
(other than for
death) under this
Article 6 shall be withheld and shall be paid instead
on the
first
day
of
the
seventh
month
following Separation from Service. Deemed
Investment
gains or
losses
will be applied to any withheld payment and shall
be
paid at
the time that the
withheld payments are
paid.
With
respect to installment payments, all remaining
payments shall
be paid
as originall
y
scheduled.
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11.
|
Rights
of
Participant and
Beneficiary.
|
(a)
Creditor
Status
of Participant and Beneficiary.
The
Plan
constitutes
the unfunded,
unsecured
promise
of
the
Employer
to
make
pa
y
ments to
a Participant or B
e
neficiar
y
in the futur
e
and shall be a liability solely against
the
general assets of the Employer. The Employer shall
not be required to
segregate, set aside or escrow any amounts for the
benefit
of a Participant or Beneficiary
.
A Participant
and Beneficiary
shall
have
the status of a general
un
s
ecured creditor of
the
Employer and
may look
on
l
y
to the
Employer and
its
general assets for payment of
benefits
under the Plan.
(b)
Rights with Respect to a Trust.
Any trust and any assets
he
l
d thereby to
assist
the
Employer
in
meeting their
obligations
under the
Plan
shall
in
no way be deemed to controvert
the
provisions of this
Section.
(c)
Investments.
In
its sole
discretion
,
the
Employer may acquire insurance
polici
es,
annuities or other
financial
vehicles for
th
e
purpose of providing future assets of
the
Employer
to
meet
its
anticipated
liabilitie
s
under the Plan. Such
policie
s,
annuities or other investments shall at all
times b
e
and remain unrestricted general
propert
y
and assets of the Employer. A
Participant
and
his
designated Beneficiary shall
have no
rights, other than as general creditors, with respect
to
suc
h
policies, annuities or other acquired assets. In
the
event
that
the Employer purchases an
in
s
urance
po
li
cy or
policies
insuring
the
life
of
a Participant or employee,
to
allow
the
Employer
to
recover or
m
eet
the
cost of
providing
benefits,
in
whole or in part,
hereunder, no Participant
or Beneficiary shall
have
any rights whatsoever in said
polic
y
or
the
proceeds
therefrom.
The Employer shall
be the
primary owner and
b
eneficiary
of any such
insurance
policy or property and shall
posse
ss
and
ma
y exercise
all incidents of ownership
therein.
No
insurance
policy with
regard to
any director,
"
highl
y
compensated employee," or
"
highly
co
mpensated individual
,"
as defined
in
Code
Section
lOl(j) shall be acquired before satisfying
the
Code Section lOl(j)
"No
tice
and Consent" requirements.
12.
Facility
of Payment.
If a distribution
i
s
to be
mad
e
to
a minor, or
to
a
person
who
is
otherwise incompetent, then
th
e
Plan Administrator may make such distribution: (i)
to the legal
guardian, or
i
f
non
e
, to
a parent of a minor payee with whom the payee
maintain
s
his
or
her resid
e
nce;
or
(ii)
to the
conservator or administrator or, if
none
,
to
th
e
person having
custody of an incompetent payee. Any such
distribution
shall fully discharge
th
e
Employer and
the
Plan Administrator from further
liability
on account
thereof.
13.
Discharge of Obligations.
The payment
to
a Participant or
his
or
her Beneficiary
of
the
Account
balance
in a single
lump
sum shall
discharge
all obligations of the Employer
to
such Participant or
Beneficiar
y
under th
e
Plan.
14.
Effect
of
Other
Permissible
Payment Events.
In
the
event a
Participant
is
receiving distributions under this Plan
as a
result
of
the
occurrence of Separation
from
Service or Specified Time, and an event occurs
under
Section 6.3, 6.4, 6.5 or 6.6, any Account balances
then being distributed to the Participant
shall
be instead be paid
in accordance with
the
provisions of
the
event that has
inter
vened
in
the
initia
l
distribution
,
but
only
in
accordance with Treasury
R
egula
tion
§l.409A-3(j)(l). Notwithstanding
the
foregoing, in
the
eve
nt
of
the death
of a Participant after installments
have
commenced as a result of
the
occurrence
of
any other permissib
l
e payment event, the
remaining balance in
all of
hi
s
or
her
Accounts will
be
paid
in
a
lump
sum to
the
Beneficiary in accordance with Section 6.6.
ARTICLE 7
Beneficiary
Designation
1.
Designation of Beneficiaries.
(a)
Each Participant may designate any
p
erso
n
or
p
erso
ns
(who may be named contingently or successively) to
receive
any
benefits payable under
the Plan
upon the
Participant's
death,
and
the
designation may
be
changed from
time
to time
by
the Participant
b
y
filing a
new
designation. Each
designation
will revoke all prior
designations b
y
th
e
same Participant, shall
be in the
form
prescribed by the
Emp
l
oyer, and shall
be
effective only when signed
b
y
the Pa
r
ticipant
and filed with
the
Employer during
the
Participant's
lifetime.
(b)
In
the
absence of a valid Beneficiary
designation,
or
if
,
at
the
time any benefit
payment
is
due to
a Beneficiary,
there is no living
Beneficiary validly
named by the
Participant, the Employer shall
pay the benefit
payment
to
the Participant's spouse,
if
then
living
,
and
if
the spouse
is not
then
li
ving to
the
Participant's then
living
descendants,
if
any,
per
stirpes,
and if
there
are no
living descendants
,
to the
Participant's
es
tate.
In determining
the
existence or identity of anyone entitled to a
benefit
payment,
the
Employer
may rel
y
conclusively
upon info
r
mation
supplied by
th
e
Participant' s p
er
sonal representative,
exe
cu
t
or, o
ad
\
(c)
If a question
arises as
to th
e
existence or
identity
of anyone entitled
to receive
a
death b
e
n
e
fit pa
y
m
e
nt und
er
th
e
Plan, or if a dispute arises
with
respect to any death benefit pa
y
m
e
nt under the Plan
,
the
Employer
ma
y
distribute the pa
y
ment to th
e
Participant's estate without
liability for any ta
x
or
other consequences,
or may take
any
other a
c
tion whi
c
h the
Employer
de
e
ms to b
e
appropriate.
2.
Information to be Furnished by Participants and Beneficiaries; Inability to Locate Participants or Beneficiaries.
Any communication, statement or
notice
addressed
to a P
a
rti
c
ipant or to
a
Beneficiary
at
hi
s
or
h
er
la
s
t po
s
t office addre
ss
as shown
on the Employer
's
re
co
rds
s
hall be binding on the Participant
or
Beneficiar
y
for all
purposes
of the Plan.
The Employer shall
not b
e
obliged
to
s
earch
for any
Participant
or
Beneficiary beyond th
e
sending of a registered
letter to
such
last known
address
.
ARTICLE S
Plan Amendment
1.
Right to Amend.
Subje
c
t to Section
409A,
the
Employer sha
ll
have th
e
right
to unilaterally amend the Plan
,
at any
time
and with
respect
to
any
provisions hereof
,
and all
parties hereto or
claim
in
g any
interest h
ere
under
s
hall be bound by
s
uch
amendment;
provid
e
d, ho
weve
r
,
that no
such amendment sha
ll
d
e
prive
a
Participant or
a
Beneficiary of a benefit amount de
sc
ribed hereunder prior to th
e
dat
e
of the amendment without
written consent
from th
e
Participant or
B
e
nefi
c
iary.
2.
Amendment to Insure Proper Characterization of the Plan.
Notwithstanding
the provisions of
Section 8.1,
the Plan may be amended by the
Employer at any
time,
retroactively if
required, if found n
ece
ssary
,
in th
e
opinion
of
the Employer
,
in order
to
ensure
that the Plan is
character
i
zed
as
"top-hat" p
lan
of deferred
compensation
maintained for
a select group of
management
or
highly
co
mpensated employees as described under
ERISA sections 201(2),
3
01(a)(3)
,
and
401
(
a)(l), to conform the Plan to the provisions
of
Section
409A
and to
conform
th
e
Plan to the
requiremen
t
s
of
any
other
applicable
l
aw
(including ERISA and
the
Code). No
such
amendment shall
be
considered
prejudicial to
any interest of
a Participant or
a
Ben
e
ficiary hereunder.
ARTICLE 9
Plan Termination
1.
Employer's
Right to Suspend Plan.
The
Employer
res
e
r
ves
the right to
s
uspend the operation of the
Plan for
a fi
xe
d or
indeterminate
period of tim
e,
in
it
s sole
disc
re
tion. In the e
ve
nt of
a suspe
n
sion of
the Plan
,
during the p
e
riod of the
suspension,
th
e
Employer shall
discontinue
all aspects of
the Plan,
and
Deferral
Amounts shall
b
e
suspended effective wi
th th
e
first day of the Plan Year following th
e
date
th
e
Plan is
suspended.
Payments
of
di
s
tributions
will continue
to be made during the p
e
riod of the
suspension
in
accordance
with Article 6.
2.
Termination and Liquidation of Plan.
The
Employer
may terminate
and
liquid
a
t
e
the Plan in
connection with a
cor
porat
e
dissolution or
a
pproval by
a
bankruptc
y co
urt
or
the termination
and
liquidation of
all
plans
of the Emp
l
oyer
or
Affiliate
that
are
requi
re
d to b
e
aggregated, as
described under
Treasury
Regulat
io
n
§1.409A-30)(4)(ix)
.
Upon
the
date of
t
e
rmination
,
the
va
lue of the
vested Account
balanc
e
of
all affected Participants and
Beneficiaries
shall
b
e
determined. After
deduc
tion
of estimated
e
x
penses in liquidating and pa
y
ing
Plan
benefit
s,
the
ves
t
ed Account
balanc
e
shall
be paid to Participant
s
and
Beneficiaries in
a
lump
sum
distribution in
accordance with
Treasury
Regulation §1.409A-30)(4)(ix).
ARTICLE 10
Plan
Administration
1.
Plan Administrative Authority.
The Plan
Administrator shall have
the
sole responsibility
for
and
th
e
sole control of
the
operation and administration of
the Plan
,
and shall
have
the
pow
e
r
and authority
to tak
e
all
action and to make
all decisions and interpretations
which
may be ne
cessary
or appropriate in order
to
administer and
operat
e
the
Plan
,
including,
without
limiting the
ge
n
e
rality of the
foregoing,
the po
we
r, dut
y
and responsibility
to:
(a)
R
es
olve
and
d
e
termine
all
disput
es o
r question
s
arising
under
the
Plan
,
and
to
remedy any
ambi
g
uities
,
incon
s
i
s
tencies
or
omissions in the Plan.
(b)
Adopt
s
uch rul
es
of
procedure
and
regulations
as in
it
s
opinion
ma
y
be ne
cessa
ry for the
proper and efficient administration of
the
Plan
and
as are consistent with
the Plan.
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(c)
|
Implement the Plan
in accordance with its
term
s
and
the rules and
reg
ulations
adopted as
|
above.
(d)
Make
determinations
with respect
to the
e
ligibility of
any Eligible Employee as a Participant and
make determinations
concerning
the
crediting of
Plan
Accounts.
(e)
Appoint any
person
s
or firms, or otherwise
act
to
secure specialized advice
or
assistance, as it
deem
s
necessary
or
desirable in
connection with
th
e
admini
s
tration
and operation
of the Plan,
and
the
Employer shall
b
e
entitled
to
rely conclusively
upon
,
and shall be f u lly
prot
ec
t
ed
in
any
ac
tion
or omission
taken b
y
it
in
good faith
reliance upon
,
th
e
advice
or opinion
of
s
uch firms
or
persons.
The
Plan
Administrator shall
have the power
and authority to
d
e
legate from ti me to time by
written
instrument
all or any
part
of its
duties, powers or respon
si
bilities
under
the
Plan,
both minist
e
rial and discr
e
tionary
,
as
it
deems appropriate,
to
any
per
so
n
or committee, and
in the
sa
me mann
er
to
revok
e
any
s
uch del
ega
tion
of duties,
power
s
or
re
sp
onsibilities.
Any action of such
person
or committee
in the
exercise
of
such
delegated duti
es,
power
s
or responsibilities
s
hall have the sam
e
force and
effec
t for all purposes under thi
s
Plan as if such
action
had been
taken
by the
Plan Administrator.
F
urther
,
the Plan
Administrator
may
authorize
one or more persons to
execute any certificate or
document
on
behalf of the Plan
A
dmini
stra
tor
,
in which
event any
per
so
n notified
by
th
e
Plan Administrator
of
such authorization shall
be
entitled
to
accept
and
co
nclusivel
y
rely
upon
any such certificate
or
document executed
by
s
uch person
as
representing
action
by
the
Plan
Administrator
until
such notified
p
e
rson
shall
have been notified
of
th
e
revocation
of such authority.
2.
Litigation.
Except as may
be
otherwise required
by law, in
any action
o
r judicial proceeding
affecting
the
Plan,
no Parti
c
ipant
or
B
e
n
e
ficiar
y s
hall be
entitled
to
any
notic
e
or service of
process
,
and any final
judgment
entered
in
such action shall
be binding
on all
person
s
int
e
re
s
ted in
,
or
claimin
g
under
,
the Plan
.
3.
Payment of
Administrative
Expenses.
All expenses
in
c
urred
in
the
administration and operation
of
th
e
Plan shall
be
paid
b
y
the
Employer.
4.
Periodic Statements.
Under procedures established
b
y
th
e
Plan Administrator,
Participants
shall be provided a statement of
th
eir
Account on
an
annual
ba
s
is
(or
mor
e
frequently
as the
Plan Administrator shall
d
e
termine)
.
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5.
|
Compliance with Section 409A.
|
(a)
No
twithstanding
anything contained
herein to the
contrary,
the interpretation
and distribution of Participants'
b
e
nefits under the Plan
s
hall be mad
e
in
a
manner and
at such
times
as
to
comply with all applicable
pro
v
i
s
ions
of Section
409A
and
the
reg
ulation
s
and guidance promulgated
th
e
r
e
under
,
or
an excep
tion or
exclusion
ther
efrom
to
avoid
th
e
imposition
of any accelerated or
a
ddit
io
nal
taxes. Any defined terms shall
be
construed consistent with Section 409A and any
terms not
specifically
defined
shall
have
the meaning set forth in Section 409A.
(b)
The
intent
of this Section
is to
ensure
that
a Participant
is
not subject
to
any
tax liability
or
interest penalty, by reason of the
application of Code Section 409A(a)(l) as
a
result of any failure
to
comply with all
the
requirements of Section 409A, and
this
Section shall be
interpreted
in
light
of, and consistent with, such
requirements.
This Section shall apply to distributions
under the
Plan, but only
to
the extent required
in
order
to
avoid taxation to or
interest penalties
on, a Participant
under
Section 409A. These rules shall also
be
deemed
modified or
supplemented by such other
rules
as
may
be
necessary,
from
time
to time,
to
comply with Section 409A.
ARTICLE 11
Claims Procedures
1.
Claims
Procedure.
This Article
is based
on
Department
of
Labor
Regulation Section 2560.503-1.
If
any
provision
of
this
Article conflicts with
the
requirements of
those
regulations,
the
requirements of
those regulations
will prevail. A Claimant who
has not
received
benefits under
the
Plan
that
he
or she
believes
should
be
paid shall make a
claim
for such benefits as
follows:
(a)
Initiation
-
Written Claim.
The Claimant initiates a claim by submitting a written request for the
benefits
to the Plan Administrator. The P
l
an Administrator wilt
upon
written request of a Claimant,
make
available copies of all forms and
instructions necessary to file
a claim for
benefits
or advise the Claimant where such forms and
instructions
may
be
obtained. If
the
claim relates
to Disability
benefits,
then
the
Plan
Administrator shall
designate
a sub-committee to conduct
the initial review
of
the claim
(and applicable references
below to the
Plan Administrator shall mean such sub-committee).
(b)
Timing of
Employer
Response.
The
Plan Administrator shall
respond to
such Claimant within
ninety
(90)
days
after receiving
the
claim.
If
the
Plan
Administrator
determines that
special circumstances require additional
time for
processing
the
claim,
the
Plan Administrator can extend
the
response
period by
an additional
ninety
(90)
days by
notifying the Claimant in writing
prior to the
end
of the initial
90-day period that an addi
t
ional
period
is required. In
the
event
that the claim
for benef
i
ts pertains to Disability, the Plan Administrator shall provide written response within forty
-fiv
e (45) days,
but
can extend
this
response period by an additional
thirty
(30) days,
if necessary,
due
to
circumstances
beyond the
Plan Administrator's control. Any
notice
of extension must set forth
the
special
circumstances
requiring an extension of time and
the date by
which the Plan Adm
i
nistrator expects
to
render its
decision
.
(c)
Notice of Decision.
If
the Plan Administrator
denies the
claim,
in
who
l
e or
in
part,
the
Plan Administrator shall notify the Claimant in writing of such
denial.
The Plan Administrator shall write
the notification in
a manner calculated to
be
understood
by the
Claimant. The
notification
shall set forth:
|
|
(i)
|
The specific
reasons
for the
denial;
|
|
|
(ii)
|
A reference
to
the specific provisions of
the
Plan on which the denial
is based;
|
|
|
(iii)
|
A description of any additional information or material necessary
for the
Claimant to
perfect the
claim
and
an explanation of why
it
is needed;
|
|
|
(iv)
|
An explanation of
the Plan
'
s review procedures and the
time
limits applicable
to
|
such
procedures;
and
|
|
(v)
|
A statement of
the
Claimant's
right
to
bring
a civil action
under
ERISA Section 502(a) following an adverse
benefit determination
on review.
|
2.
Review Procedure.
If the
Plan Administrator denies the claim,
in
whole or in
part,
the Claimant shall
have
the opportunity for a full and fair review by
the Plan
Administrator of the denial as follows:
(a)
Initiation
-
Written Request.
To
initiate
th
e review,
the Claimant,
withi
n
six
t
y
(60) days after receiving the Plan Administrator's notice of denial, must file
with
the Plan
Adminis
trator
a
written request
for
review.
(b)
Review
of
a Disability Benefit Claim.
If the
C
laim
ant's
initial claim is for Disability benefits,
any review
of
a
denied claim
sha
ll
be made by members
of
the Plan
Administrator
other than the
or
i
gi
nal
decision
m
aker(s)
and
such
person(s)
shall
not be
a
subordinate
of
the original decision maker(s).
(c)
Additional Submissions
-
Information Access.
The Cla
im
ant
shall then have the opportunity to
submit
written
comments,
documents, records
and other
information
re
l
ating
to
the
claim.
The
Plan
Administrator shall also
provide
th
e Claimant,
upon
request and
free of
charge, reasonable
access to, and
copies of, a
ll
documents,
records and
other information
relevant (as
defined in applicable ERISA regulations) to the
C
l
aimant's
claim for benefits.
(d)
Considerations on Review.
In
considering
the
review,
th
e
Plan Administrator
shall
take into
account all
comments, documents, records and other information
submi
tted
by the
C
laimant
relating to the claim,
without
regard to
whether such
information was
submitted or considered
in the initial benefit determination.
Additional
considerations
sha
ll
be required in the
case
of a claim
for
Disability benefits.
For example,
the claim
will
be reviewed
w
ithout
deference to the
initial
adverse benefits determination and,
if
the initial
adverse
benefit determination
was
based in
whole or
in part on
a
medical judgment, the Plan
Administrator will consult
with
a
health
care
professional
with appropriate
training and
experience
in the field
of
medicine involving
th
e
medical judgment. The health
care
professional who is
consulted on appeal
will not be the same individual who
was consulted
during the initial determination or
th
e subordinate
of
such
individual. If the Plan
Adminis
t
rator obtained
the advice of medical or vocational
experts
in
making the
initial adverse
benefits determination (regardless
of whether
the advice was relied upon), the Plan Administrator
will
identify
s
u
ch exper
t
s.
(e)
Timing of Employer Response. The Plan
Administrator shall
respond in writing to
such C
l
aimant with
in
sixty (60) days
after
receiving the request
for
review. If the Plan Administrator determines
that
special circums
t
ances
require
additional
time
for
processing the claim, the Plan
Administrator
can extend the response period by an additional
sixty
(60)
days
by notifying the
Claimant in writing,
prior to the
end
of the
initial 60-day
period that
an addi
ti
onal
period
is
required. The notice of
extension
must
set
forth the special circumstances and
the date by
which t
h
e
Plan Administrator
expects
to render its decision.
(a)
Notice of Decision.
The Plan
Adminis
t
ra
t
or shall
notify the
Claimant
in writing of its decision
on
review.
The
Plan
Administ
rat
or shall write
the notification in
a
manner
calculated
to be understood by the
Claiman
t.
The notification
shall set
forth:
|
|
(i)
|
The
specific reasons
for
the denial;
|
|
|
(ii)
|
A reference
to
th
e specific
provisions
of
the Plan
on which
the denial
is
based;
|
|
|
(iii)
|
A statement that the
C
l
aimant is entit
l
ed
to
receive,
upon
request and
free
of charge,
reasonable
access
to, and
copies of, all
documents, records
and
other information
relevant (as
defined in
applicable ERISA
regulations) to the Claimant's
claim for
benefits;
and
|
|
|
(iv)
|
A
statement of
the
Claimant's
right to bring
a
civil
action
under
ERISA
Section
502(a)
.
|
3.
Exhaustion of Remedies.
A Claimant must
fo
ll
ow
the claims review procedures under this Plan and
exhaust
his
or
her administrative remedies before taking
any
further
action with respect
to
a claim for
benefits.
4.
Arbitration
.
All
claims
or controversies arising
out
of or in connection
with this Plan
shall, subject
to
the initial review provided for
in th
e
foregoing provision
s
of
thi
s
Article,
b
e
resolved
through
arbitration as
provid
ed
in
this
Paragraph
11.
4. Exce
pt
as otherwise agreed
mutuall
y
by
the
parties
,
any
arbitration shall
be
administered
und
er
and
by th
e
Judicial
Arbitration
&
Mediation Services, Inc.
("JAMS"),
in accordance
with
the
JAMS
procedure then in
effect.
The
arbitration shall
b
e
held in the JAMS
off ice
nearest to
where
th
e
Claimant
is or
was
la
s
t emplo
ye
d b
y
the
Employer or at a
mutually a
greeab
l
e
location. Th
e
p
reva
iling party in the
arbitration
s
hall ha
ve
th
e
right to recov
e
r its r
easo
nabl
e
attorney1s fees,
di
s
bursem
e
nts
and
cost
s
of
th
e
arbitration (including
enforcement of the arbitration
decision),
subject
to
any contrary
det
erm
inati
on
b
y
the arbitrator.
ARTICLE 12
The Trust
1.
Establishment
of Trust.
Each Employer
may
establish
for its
e
lf
a grantor
trust
,
of
which
th
e
Employer
i
s
the
g
rantor,
within
the meaning
of subpart E,
part I,
subchapter
J,
s
ubtitl
e
A
of th
e
Code,
to pa
y
b
e
n
efits
und
e
r thi
s
Plan (the "Trust").
If the
Employer establishes the Trust, all
b
e
nefits payable under this
Plan
to
a
Participant
s
hall
be paid directly
b
y
th
e
Employer
from the
Trust. To
th
e exten
t
s
uch benefit
s
a
re
not paid from the
Trust,
the benefit
s s
hall b
e
paid from the
ge
neral a
sse
t
s
of
the
Employer. The Trust, if any, shall
be
an
irr
e
vocable
grantor
trust
which
co
nfo
r
m
s
to
the terms of
the
model trust
as
de
sc
ribed in IRS
Revenue
Procedure
92-64, I.R.B.
1992-33,
as
sa
me may be
amended
or modified from time to time. If the
Employer establishes a Trust,
th
e
assets of
the
Trust will
be
subject
to the claims
of
the
Employer's creditors
in the
e
vent of
its
insolv
e
ncy as
se
t
forth in applicable
Revenu
e
Procedures. Except as
may
otherwise
b
e
provided under the
Trust,
the
Employer shall
not
be obligated
to
set aside, earmark or escrow
an
y
funds or
other assets
to
sa
tisf
y
its
obligations
under this Plan,
and
the Participant and
/
or his
or
h
e
r designated Beneficiaries
shall
not hav
e
an
y
property
interest in
any
s
p
e
cific
assets of
th
e
Employer other
th
a
n the uns
ec
ured right to
receive payments from
the
Employer, as
provided in this Plan.
2.
Interrelationship of the Plan and the
Trust.
The
provisions
of
this Plan
s
hall
govern
th
e
right
s
of a
Participant to
receive
distributions pursuant to thi
s
Plan. The
provisions
of
th
e
Trust (if
es
tabli
s
h
e
d)
s
hall
govern
the
rights
of the
Participant and
th
e
creditors of
the
Employer
to
the
as
se
t
s
transferred to the
Trust. The Employer and
eac
h Pa
r
ticipant
s
hall
at all
time
s
remain liabl
e
to
carry
out
its
obligations und
e
r this Plan. The
Employer's obligations
under this Plan ma
y
b
e
satisfied
with Trust
assets
distributed pursuant to the t
e
rms of the
Trust.
3.
Contribution to the Trust.
Amount
s
may be
co
ntributed by the
Employer
to
the
Trust
at the sole
di
sc
r
e
tion
of the Employer.
ARTICLE
13
Miscellaneous
1.
Validity.
In ca
se
any
provision
of
thi
s
P
la
n
shall
be illegal
or
in
va
lid
for any
r
eas
on, said illegalit
y
or
invalidit
y s
hall not
affect
the r
e
maining
parts
hereof
,
but this Plan
shall
be
construed and
e
nforced
as
if
s
uch illegal
o
r invalid
provision
had never been
inserted
herein.
2.
Nonassignability.
Neither
any Parti
c
ipant nor an
y
other
pe
r
son
shall
have
any right
to
commute, sell, assign,
transfer
,
pledge
,
anticipate,
mortga
g
e
,
or otherwise encumber,
tran
sfe
r
,
hypothecate
,
alienate, or
co
n
vey
in
advance of actual
r
ece
ipt, the
amounts,
if
any,
pa
ya
ble h
ere
und
er,
or any
part h
e
r
eo
f
,
which are, and all
rights to
which are expressly
declared to b
e,
unassignable
and non-transferable.
No
part of
the
amounts
payable
s
hall
,
prior to
actual
pa
y
ment
,
be
su
bject to
seizure, attachment, garnishment
or
sequestration
for the payment of
any
debt
s,
judgments
,
alimon
y,
or
se
parate maint
e
nan
ce
owed
by
a
Participant or
any other
person
,
be transferable by
operation of
l
aw
in the
event of
a Participant
's
or any
oth
er
person'
s
bankruptcy o
r
insolven
cy,
or
be transferable to
a spouse
as
a result of a
prop
er
t
y
settlement or otherwise.
If any Participant, Beneficiary,
or successor
in
interest
is
adjudicated
bankrupt
or
purports to
commute, sell, assign,
transfer,
pledge, anticipate,
mortgag
e
or
otherwi
se
encumber
transfer
,
h
y
pothecate,
alienate, or convey
in
advance of actual receipt,
the
amou
nt
,
if any, payable hereunder, or any part thereof, the Plan
Ad
mini
s
t
rator,
in its discretion, may
cancel suc
h
distribution or payment (or
any
part thereof) to
o
r
for the benefit
of suc
h
Participant, Beneficiary,
o
r
successor
in interest in
such
manner
as
the Plan
Adm
ini
strator shall
direct.
3.
Not a Contract of Employment.
The terms
and cond
ition
s
of this Plan shall not be deemed
to constitute a contract of employment
between
th
e Employer and
the
Employee. Not
hing
in
thi
s
Plan
shall
be deemed to
give
the
Employee
the
right
to be retained in the
serv
i
ce
of the Employer
as
an
Employee
or otherwise
or
to
interfere with
th
e r
i
ght of
the
E
mplo
yer
to discipline or
discharge
the
Emp
lo
yee at any
time. The
Employee confirms
his/her understanding that Participant's
employment w
i
th Employer
is
and sha
ll
continue
to be on
an 'At
Will' basis,
such that
Participant is
free
to resign
at any
time
and
that
Emp
lo
yer
i
s
free to terminate
or
modify Participant's
employment
relationship
at
any time (including the right to demote,
t
o
reduce compensation
and
other benefits and to transfer Participant), with
or w
ithout
cause (as defined
in
thi
s
Plan as well as any other
cause)
or
advance
notice.
4.
Governing Law.
The Plan
sha
ll
be
administered, construed and governed
i n all respects under and
by
the laws of
State of
Delaware,
w
ithout
reference to the principles
of conflic
t
s
of
l
aw (except
and
to
the
extent
preempted by
applicable
federal law).
5.
Notice.
Any notice,
consent
or demand required or permitted to be
give
n
under the provisions of
thi
s
Plan
shall
be in writing and
shall
be
signed
by the party
giving or
making the
same.
If
such
noti
ce, consen
t
or
demand is mailed
,
it
sha
ll
be
sent
by
United States certified
mail, postage prepaid,
addressed
to
the addressee's last known
address as shown on
the records
of
the
Employer.
The date
of such
mailing
sha
ll b
e
deemed
th
e date
of notice
consent or
demand.
Any
person may
change
the
address
to
whic
h
notice is to be
sent
b
y giving
notice of the
change of
address
in
the manner
aforesaid
.
6.
Other Benefits.
The benefits provided
for
a Participant or
a
Participant's Beneficiary under this Plan
are
in
addit
ion
to
any
other benefits available
t
o
such Participant
und
er any other
plan
or
program for
employees
of
th
e Employer.
This Plan
shall supplement and
shall not
supersede,
modify
,
or amend any o
ther
suc
h
plan
or
program except as may otherwise
b
e expressly
provided herein
.
7.
Plan Aggregation.
If the
Emp
lo
yer
offers
other elec
ti
ve account
balance deferred
compensation
plans in
add
ition
to
this
Plan,
thos
e p
l
ans
t
ogether with
this Plan
shall
be treated
as a
single
plan
to the
extent
required under
Sec
ti
on
409A.
8.
Merger or Consolidation.
This Plan
ma
y
be merged or
consolidated wit
h
,
and
in
connection
therewith Account may be received
from or
tran
s
ferred
t
o, any other sim
il
ar or substantially
identical
exec
uti
ve
nonqualified
deferred compensation
plan
sponsored
by an
Aff
ili
a
t
e,
provided that the
value
of the benefits provided
to
a
Participant
immediately after s
uch m
erger, consolidat
ion
or
transfer shall be
equal
to the value of the benefits such Participant
would
have
been entit
l
ed
to
imm
e
diately before
such
merger,
conso
lid
at
i
on or
transfer.