Amgen Nonqualified Deferred Compensation Plan

EX-10.3 4 dex103.htm AMGEN NONQUALIFIED DEFERRED COMPENSATION PLAN Amgen Nonqualified Deferred Compensation Plan

Exhibit 10.3

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Plan Document

Amgen Nonqualified Deferred Compensation Plan

As Amended and Restated Effective January 1, 2005

By Clark/Bardes Consulting — Compensation Resource Group

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Purpose		1

ARTICLE 1	Definitions	1

ARTICLE 2	Selection/Enrollment/Eligibility	5

2.1	Selection by Committee	5
2.2	Enrollment Requirements	5
2.3	Eligibility/Commencement of Participation	6
2.4	Termination of Participation and/or Deferrals	6

ARTICLE 3	Deferral Commitments/Company Matching/Crediting/Taxes	6

3.1	Minimum Deferrals	6
3.2	Maximum Deferrals	7
3.3	Election to Defer/Effect of Election Form	7
3.4	401(k) Plan/1165(e) Plan Make Whole Elections	7
3.5	Withholding of Annual Deferral Amounts	8
3.6	Annual Company Contribution Amount	8
3.7	Vesting	8
3.8	Crediting/Debiting of Account Balances	9
3.9	FICA and Other Taxes	11
3.10	Distributions	11

ARTICLE 4	Short-Term Payout/Unforeseeable Financial Emergencies	11

4.1	Short-Term Payout	11
4.2	Other Benefits Take Precedence Over Short-Term Payout	11
4.3	Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies	11

ARTICLE 5	Distribution of Benefits	12

5.1	Distributions	12
5.2.	Installment Payments	12

ARTICLE 6	Survivor Benefits	13

6.1	Survivor Benefits	13
6.2	Death Before Commencement of Benefits	13
6.3	Death After Commencement of Benefits	13

ARTICLE 7	Disability Waiver and Benefit	13

7.1	Disability Waiver	13
7.2.	Continued Eligibility/Disability Benefit	14

ARTICLE 8	Beneficiary Designation	14

8.1	Beneficiary	14
8.2	Beneficiary Designation Change/Spousal Consent	14
8.3	Acknowledgment	14
8.4	No Beneficiary Designation	15
8.5	Doubt as to Beneficiary	15

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8.6	Discharge of Obligations	15

ARTICLE 9	Leave of Absence	15

9.1	Paid Leave of Absence	15
9.2	Unpaid Leave of Absence	15

ARTICLE 10	Termination/Amendment or Modification	15

10.1	Termination	15
10.2	Amendment	16
10.3	Plan Agreement	16
10.4	Effect of Payment	16

ARTICLE 11	Administration	17

11.1	Committee Duties	17
11.2	Administration Upon Change In Control	17
11.3	Agents	17
11.4	Binding Effect of Decisions	18
11.5	Indemnity of Committee	18
11.6	Employer Information	18

ARTICLE 12	Other Benefits and Agreements	18

12.1	Coordination with Other Benefits	18

ARTICLE 13	Claims Procedures	18

13.1	Presentation of Claim	18
13.2	Notification of Decision	19
13.3	Review of a Denied Claim	19
13.4	Decision on Review	19
13.5	Legal Action	19

ARTICLE 14	Trust	20

14.1	Establishment of the Trust	20
14.2	Interrelationship of the Plan and the Trust	20
14.3	Distributions From the Trust	20
14.4	Investment of Trust Assets	20

ARTICLE 15	Miscellaneous	20

15.1	Status of Plan	20
15.2	Unsecured General Creditor	21
15.3	Employer’s Liability	21
15.4	Nonassignability	21
15.5	Not a Contract of Employment	21
15.6	Furnishing Information	22
15.7	Terms	22
15.8	Captions	22
15.9	Governing Law	22
15.10	Notice	22
15.11	Successors	22

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15.12	Spouse’s Interest	22
15.13	Validity	23
15.14	Incompetent	23
15.15	Court Order	23
15.16	Distribution in the Event of Taxation	23
15.17	Insurance	24
15.18	Legal Fees To Enforce Rights After Change in Control	24

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Amgen Nonqualified Deferred Compensation Plan

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AMGEN NONQUALIFIED DEFERRED COMPENSATION PLAN

As Amended and Restated Effective January 1, 2005

Purpose

The purpose of this Plan is to provide specified benefits to a select group of management or highly compensated Employees who contribute materially to the continued growth, development and future business success of Amgen Inc., a Delaware corporation, and its subsidiaries, if any, that sponsor this Plan. This Plan shall be unfunded for tax purposes and for purposes of Title I of ERISA.

ARTICLE 1

Definitions

For purposes of this Plan, unless otherwise clearly apparent from the context, the following phrases or terms shall have the following indicated meanings:

1.1

“Account Balance” shall mean, with respect to a Participant, a credit on the records of the Employer equal to the sum of (i) the Deferral Account balance and (ii) the vested Company Contribution Account balance. The Account Balance, and each other specified account balance, shall be a bookkeeping entry only and shall be utilized solely as a device for the measurement and determination of the amounts to be paid to a Participant, or his or her designated Beneficiary, pursuant to this Plan.

1.2

“Annual Base Salary” shall mean the wages, salaries, fees for professional services, and other amounts received (without regard to whether or not an amount is paid in cash) for personal services actually rendered in the course of employment with any Employer to the extent that the amounts are includable in gross income (including, but not limited to, compensation for services on the basis of a percentage of profits, commissions on reimbursements or other expense allowances under a nonaccountable plan (as described in Treasury Regulation Section 1.62-2(c)), but excluding any “goods and services allowance” provided to certain expatriate staff members. Notwithstanding anything else in the Plan to the contrary, Annual Base Salary shall not include the Annual Bonus. Annual Base Salary shall be computed without regard to any election to reduce or defer salary under the Amgen Retirement and Savings Plan or any cafeteria plan under Section 125 of the Code. Annual Base Salary shall not include: (a) any Company contributions to the Amgen Retirement and Savings Plan or any other employee benefit plan for or on account of the Employee, except as otherwise provided in the preceding sentence or (b) the items described in Treasury Regulation Section 1.415-2(d)(3), which, among other items, would exclude from compensation amounts realized from the exercise of a nonqualified stock option (or when restricted stock (or property) held by an Employee either becomes freely transferable or is no longer subject to a substantial risk of forfeiture under Section 83 of the Code) and amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option.

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1.3

“Annual Bonus” shall mean the wages, salaries, fees for professional services, and other amounts received (without regard to whether or not an amount is paid in cash) for personal services actually rendered in the course of employment with any Employer to the extent that the amounts are commissions paid to salespeople or are paid pursuant to the Amgen Performance Based Management Incentive Plan (MIP), the Amgen Inc. Executive Incentive Plan (EIP) or an equivalent bonus program.

1.4	“Annual Company Contribution Amount” shall mean, for any one Plan Year, the amount determined in accordance with Section 3.6.

1.5	“Annual Deferral Amount” shall mean that portion of a Participant’s Annual Base Salary or Annual Bonus, as applicable, that a Participant elects to have, and is deferred, in accordance with Article 3, for any one Plan Year.

1.6

“Annual Installment Method” shall be an annual installment payment over the number of years selected by the Participant in accordance with this Plan, calculated as follows: The Account Balance of the Participant shall be calculated as of the most recent Valuation Date. The annual installment shall be calculated by multiplying this balance by a fraction, the numerator of which is one, and the denominator of which is the remaining number of annual payments due the Participant. By way of example, if the Participant elects a 10-year Annual Installment Method, the first payment shall be 1/10 of the Account Balance as of the most recent Valuation Date. The following year, the payment shall be 1/9 of the Account Balance as of the most recent Valuation Date. Each annual installment shall be paid on or as soon as practicable after the amount is calculated.

1.7	“Beneficiary” shall mean one or more persons, trusts, estates or other entities, designated in accordance with Article 8, or entitled under Article 8 in the absence of a designation, that are entitled to receive benefits under this Plan upon the death of a Participant.

1.8	“Beneficiary Designation Form” shall mean the form established from time to time by the Committee that a Participant completes, signs and returns to the Committee to designate one or more Beneficiaries.

1.9	“Board” shall mean the board of directors of the Company.

1.10	“Change in Control” shall have the meaning set forth in the Amgen Inc. Change In Control Severance Plan, as it may be amended from time to time.

1.11	“Claimant” shall have the meaning set forth in Section 13.1.

1.12	“Code” shall mean the Internal Revenue Code of 1986, as it may be amended from time to time.

1.13	“Committee” shall mean the committee described in Article 11.

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1.14	“Company” shall mean Amgen Inc., and any successor to all or substantially all of the Company’s assets or business and it shall exclude any disregarded entity pursuant to Treasury Regulations section 301.7701-3, unless such disregarded entity is selected by the Board to participate in the Plan.

1.15

“Company Contribution Account” shall mean (i) the sum of the Participant’s Annual Company Contribution Amounts, plus (ii) amounts credited (net of amounts debited) in accordance with all the applicable crediting provisions of this Plan that relate to the Participant’s Company Contribution Account, less (iii) all distributions made to the Participant or his or her Beneficiary pursuant to this Plan that relate to the Participant’s Company Contribution Account.

1.16

“Deduction Limitation” shall mean the following described limitation on a benefit that may otherwise be distributable pursuant to the provisions of this Plan. Except as otherwise provided, this limitation shall be applied to all distributions that are “subject to the Deduction Limitation” under this Plan. If an Employer determines in good faith prior to a Change in Control that there is a reasonable likelihood that any compensation paid to a Participant for a taxable year of the Employer would not be deductible by the Employer solely by reason of the limitation under Code Section 162(m), then to the extent deemed necessary by the Employer to ensure that the entire amount of any distribution to the Participant pursuant to this Plan prior to the Change in Control is deductible, the Employer may defer all or any portion of a distribution under this Plan. Any amounts deferred pursuant to this limitation shall continue to be credited and debited with additional amounts in accordance with Section 3.14 below, even if such amount is being paid out in installments. The amounts so deferred and amounts credited (net of amounts debited) thereon shall be distributed to the Participant or his or her Beneficiary (in the event of the Participant’s death) at the earliest possible date, as determined by the Employer in good faith, on which the deductibility of compensation paid or payable to the Participant for the taxable year of the Employer during which the distribution is made will not be limited by Section 162(m), or if earlier, the effective date of a Change in Control. Notwithstanding anything to the contrary in this Plan, the Deduction Limitation shall not apply to any distributions made after a Change in Control.

1.17

“Deferral Account” shall mean (i) the sum of all of a Participant’s Annual Deferral Amounts, plus (ii) amounts credited (net of amounts debited) in accordance with all the applicable provisions of this Plan that relate to the Participant’s Deferral Account, less (iii) all distributions made to the Participant or his or her Beneficiary pursuant to this Plan that relate to his or her Deferral Account.

1.18

“Disability” shall mean that the Participant is determined under Title II or XVI of the Social Security Act, to have been disabled. The Participant must submit evidence to the Committee of the Social Security Administration’s determination of disability before a person is to be deemed Disabled under this Plan. Notwithstanding the foregoing, if the Committee, in its discretion, determines that any change in applicable law governing nonqualified deferred compensation plans requires a different definition of Disability, such other definition of Disability shall be substituted for the definition set forth in this Section 1.18.

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1.19	“Disability Benefit” shall mean the benefit set forth in Article 7.

1.20	“Election Form” shall mean the form established from time to time by the Committee that a Participant completes, signs and returns to the Committee to make an election under the Plan.

1.21	“Employee” shall mean a person whom an Employer classifies as an employee.

1.22	“Employer” shall mean the Company or any of its subsidiaries or affiliates (now in existence or hereafter formed or acquired) that have been selected by the Board to participate in the Plan and have adopted the Plan by permitting their Employees to participate in the Plan.

1.23	“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as it may be amended from time to time.

1.24	“401(k) Plan” shall be that certain Amgen Retirement and Savings Plan adopted by the Company, as it may be amended from time to time.

1.25

“Participant” shall mean any Employee (i) who is selected by the Committee from among the highly compensated or management employees of the Employer to participate in the Plan, (ii) who elects to participate in the Plan, (iii) who signs a Plan Agreement, an Election Form and a Beneficiary Designation Form, (iv) whose signed Plan Agreement, Election Form and Beneficiary Designation Form are accepted by the Committee, (v) who commences participation in the Plan, and (vi) whose Plan Agreement has not terminated. A spouse or former spouse of a Participant shall not be treated as a Participant in the Plan or have an account balance under the Plan, even if he or she has an interest in the Participant’s benefits under the Plan as a result of applicable law or property settlements resulting from legal separation or divorce.

1.26	“Plan” shall mean the AMGEN NONQUALIFIED DEFERRED COMPENSATION PLAN, as amended and restated effective January 1, 2005, which shall be evidenced by this instrument and by each Plan Agreement, as they may be amended from time to time.

1.27

“Plan Agreement” shall mean a written agreement, as may be amended from time to time, which is entered into by and between an Employer and a Participant. Each Plan Agreement executed by a Participant and the Participant’s Employer shall provide for the entire benefit to which such Participant is entitled under the Plan; should there be more than one Plan Agreement, the Plan Agreement bearing the latest date of acceptance by the Employer shall supersede all previous Plan Agreements in their entirety and shall govern such entitlement. The terms of any Plan Agreement may be different for any Participant, and any Plan Agreement may provide additional benefits not set forth in the Plan or limit the benefits otherwise provided under the Plan; provided, however, that any such additional benefits or benefit limitations must be agreed to by both the Employer and the Participant.

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1.28	“Plan Year” shall mean a period beginning on January 1 of each calendar year and continuing through December 31 of such calendar year.

1.29	“Short-Term Payout” shall mean the payout set forth in Section 4.1.

1.30

“Termination of Employment” shall mean the severing of employment with all Employers, voluntarily or involuntarily, for any reason. Termination of Employment shall not be deemed to occur, however, upon the transfer of a Participant from the employ of the Company or another Employer to the employ of any subsidiary or affiliate, regardless of whether that subsidiary or affiliate is an Employer under the Plan.

1.31	“Trust” shall mean one or more trusts established pursuant to that certain Trust Agreement, dated as of January 1, 2002 between the Company and the trustee named therein, as amended from time to time.

1.32

“Unforeseeable Financial Emergency” shall mean an unanticipated emergency that is caused by an event beyond the control of the Participant that would result in severe financial hardship to the Participant resulting from (i) a sudden and unexpected illness or accident of the Participant or a dependent of the Participant, (ii) a loss of the Participant’s property due to casualty, or (iii) another extraordinary and unforeseeable circumstance arising as a result of events beyond the control of the Participant, all as determined in the sole discretion of the Committee. The Committee shall determine whether a Participant has Unforeseeable Financial Emergency consistent with any applicable laws or guidance in effect at the time such determination is made.

1.33	“Valuation Date” shall mean the last day of each Plan Year or any other date as of which the Committee, in its sole discretion, designates as a Valuation Date.

1.34	“Years of Service” shall mean each Plan Year or portion thereof during which an Employee is credited with at least 1000 hours of service.

ARTICLE 2

Selection/Enrollment/Eligibility

2.1

Selection by Committee. Participation in the Plan shall be limited to a select group of Employees of the Employers, each of whom is a member of management or is highly compensated and to members of the Board. From the group of Employees who are management or highly compensated, the Committee shall select, in its sole discretion, Employees to participate in the Plan.

2.2

Enrollment Requirements. As a condition to participation, each selected Employee shall complete, execute and return to the Committee a Plan Agreement, an Election Form and a Beneficiary Designation Form, all within the number of days specified by the Committee after he or she is selected to participate in the Plan. In addition, the Committee may establish from time to time such other enrollment requirements as it determines in its sole discretion are necessary.

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2.3

Eligibility/Commencement of Participation. Provided an Employee selected to participate in the Plan has met all enrollment requirements set forth in this Plan and required by the Committee, including returning all required documents to the Committee within the specified time period, that Employee shall commence participation in the Plan on the first day of the month following the month in which the Employee completes all enrollment requirements or such other date specified by the Committee.

2.4

Termination of Participation and/or Deferrals. If the Committee determines in good faith that a Participant no longer qualifies as a member of a select group of management or highly compensated employees, as membership in such group is determined in accordance with Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, the Committee shall have the right, in its sole discretion, to (i) terminate any deferral election the Participant has made for the remainder of the Plan Year in which the Participant’s membership status changes, and (ii) prevent the Participant from making future deferral elections or, in the Committee’s discretion, may also (iii) immediately distribute the Participant’s then Account Balance in a lump sum and terminate the Participant’s participation in the Plan.

ARTICLE 3

Deferral Commitments/Company Matching/Crediting/Taxes

3.1	Minimum Deferrals.

(a)

Annual Base Salary and Annual Bonus. For each Plan Year, a Participant may elect to defer, as his or her Annual Deferral Amount, Annual Base Salary or Annual Bonus, or both, in the following minimum amounts for each deferral elected:


Deferral	Minimum Amount
Annual Base Salary and/or Annual Bonus	$	5,000

If an election is made for less than stated minimum amounts, or if no election is made, the amount deferred shall be zero.

(b)

Short Plan Year. Notwithstanding the foregoing, if a Participant first becomes a Participant after the first day of a Plan Year, the minimum Annual Base Salary deferral shall be an amount equal to the minimum set forth above, multiplied by a fraction, the numerator of which is the number of complete months remaining in the Plan Year and the denominator of which is 12.

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3.2	Maximum Deferrals.

(a)

Annual Base Salary and Annual Bonus. For each Plan Year, a Participant may elect to defer, as his or her Annual Deferral Amount, Annual Base Salary or Annual Bonus up to the following maximum percentages for each deferral elected as determined by the Committee for each Plan Year:


Deferral	Maximum Percentage
Annual Base Salary	50	%
Annual Bonus	100	%

(b)

Notwithstanding the foregoing, if a Participant first becomes a Participant after the first day of a Plan Year, the maximum Annual Deferral Amount, with respect to Annual Base Salary and Annual Bonus shall be based on the amount of compensation not yet earned by the Participant as of the date the Participant submits a Plan Agreement and an Election Form to the Committee for acceptance.

3.3	Election to Defer/Effect of Election Form.

(a)

First Plan Year. Within thirty (30) days after being designated by the Committee for participation in the Plan, the Participant shall make an irrevocable deferral election for the Plan Year in which the Participant commences participation, along with such other elections as the Committee deems necessary or desirable under the Plan. For these elections to be valid, the Election Form must be completed and signed by the Participant, timely delivered to the Committee (in accordance with Section 2.2 above) and accepted by the Committee.

(b)

Subsequent Plan Years. For each succeeding Plan Year, an irrevocable deferral election for that Plan Year, and such other elections as the Committee deems necessary or desirable under the Plan, shall be made by timely delivering to the Committee, in accordance with its rules and procedures, before the end of the Plan Year preceding the Plan Year for which the election is made, a new Election Form. If no such Election Form is timely delivered for a Plan Year, the Annual Deferral Amount shall be zero for that Plan Year.

3.4

401(k) Plan/1165(e) Plan Make Whole Elections. In addition to the deferral elections of Annual Base Salary and Annual Bonus described above, a Participant may elect to have his or her Annual Base Salary or Annual Bonus deferred under the Plan after the Participant has made the maximum deferrals to the 401(k) Plan permitted under Code Section 402(g) and/or Code Section 401(a)(17) for a Plan Year or, with respect to Participants in the Retirement and Savings Plan of Amgen Manufacturing, Limited (the “1165(e) Plan”), after such Participant has made the maximum deferrals to the 1165(e) Plan permitted under the Puerto Rico Internal Revenue Code of 1994 (the “Puerto Rico Tax Code”). If so elected by the Participant, then as soon as administratively practicable after (but no earlier than the next pay check) the

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Participant’s deferrals under the 401(k) Plan or 1165(e) Plan have been limited due to Code Section 402(g) and/or Code Section 401(a)(17) or the Puerto Rico Tax Code for the Plan Year, as applicable, deferrals of Annual Base Salary and Annual Bonus, if any, shall be made to this Plan in accordance with the Participant’s make whole deferral election for the remainder of the Plan Year. Elections under this Section 3.4 shall be made on an Election Form in accordance with such rules and procedures the Committee shall establish, no later than the last day of the Plan Year preceding the Plan Year for which such election is made. Such deferrals shall be credited to a Participant’s Deferral Account as an Annual Deferral Amount for the Plan Year in which the deferral is made.

3.5

Withholding of Annual Deferral Amounts. For each Plan Year, for each Participant, the Annual Base Salary portion of the Annual Deferral Amount shall be withheld from each regularly scheduled Annual Base Salary payroll. The Annual Bonus portion of the Annual Deferral Amount shall be withheld at the time the Annual Bonus is or otherwise would be paid to the Participant, whether or not this occurs during the Plan Year itself.

3.6

Annual Company Contribution Amount. For each Plan Year, an Employer, in its sole discretion, may, but is not required to, credit any amount it desires to any Participant’s Company Contribution Account under this Plan, which amount shall be for that Participant the Annual Company Contribution Amount for that Plan Year. The amount so credited to a Participant may be smaller or larger than the amount credited to any other Participant, and the amount credited to any Participant for a Plan Year may be zero, even though one or more other Participants receive an Annual Company Contribution Amount for that Plan Year. The Annual Company Contribution Amount, if any, shall be credited as of the date determined by the Committee in its sole discretion. If a Participant is not employed by an Employer as of the last day of a Plan Year for a reason other than his or her Retirement or death while employed, the Annual Company Contribution Amount for that Plan Year shall be zero.

3.7	Vesting.

(a)

A Participant shall at all times be 100% vested in his or her Deferral Account.

(b)

A Participant shall be vested in his or her Company Contribution Account in accordance with the vesting schedules established by the Committee, in its sole and absolute discretion, for each Annual Company Contribution Amount (and amounts credited or debited thereon) at the time each such Annual Company Contribution Amount is first credited to the Participant’s Account Balance under the Plan. The vesting schedules established by the Committee for each Annual Company Contribution Amount may be different for different Participants.

(c)

Notwithstanding anything in this Section to the contrary, except as provided in subsection (d) below, in the event of a Change in Control, a Participant’s Company Contribution Account shall immediately become 100% vested (without regard to whether it is already vested in accordance with the above vesting schedules).

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(d)

Except as otherwise provided by written agreement between a Participant and his/her Employer, notwithstanding anything in this Section or the Plan to the contrary, the vesting schedule for a Participant’s Company Contribution Account shall not be accelerated to the extent that the Committee determines that such acceleration would cause the deduction limitations of Section 280G of the Code to become effective. In the event that any portion of a Participant’s Company Contribution Account is not vested pursuant to such a determination, the Participant may request independent verification of the Committee’s calculations with respect to the application of Section 280G. In such case, the Committee must provide to the Participant within 15 business days of such a request an opinion from a nationally recognized accounting firm selected by the Participant (the “Accounting Firm”), to the effect that, in the Accounting Firm’s opinion that any limitation in the vested percentage hereunder is necessary to avoid the limits of Section 280G, and containing supporting calculations, or, in the absence of such an opinion, shall cause the relevant portion of the Participant’s Company Contribution Account to become vested. The cost of such opinion shall be paid for by the Company.

3.8	Crediting/Debiting of Account Balances. In accordance with, and subject to, the rules and procedures that are established from time to time by the Committee, in its sole discretion, amounts shall be credited or debited to a Participant’s Account Balance in accordance with the following rules:

(a)

Election of Measurement Funds. A Participant, in connection with his or her initial deferral election in accordance with Section 3.3(a) above, shall elect, on the Election Form, one or more Measurement Fund(s) to be used to determine the additional amounts to be credited to his or her Account Balance for the first business day in which the Participant commences participation in the Plan and continuing thereafter for each subsequent day in which the Participant participates in the Plan, unless changed in accordance with the next sentence. Commencing with the first business day that follows the Participant’s commencement of participation in the Plan and continuing thereafter for each subsequent day in which the Participant participates in the Plan, the Participant may (but is not required to) elect, by submitting an Election Form to the Committee that is accepted by the Committee, to add or delete one or more Measurement Fund(s) to be used to determine the additional amounts to be credited to his or her Account Balance, or to change the portion of his or her Account Balance allocated to each previously or newly elected Measurement Fund. If an election is made in accordance with the previous sentence, it shall apply to the next business day and continue thereafter for each subsequent day in which the Participant participates in the Plan, unless changed in accordance with the previous sentence.

(b)

Proportionate Allocation. In making any election described in Section 3.8(a) above, the Participant shall specify on the Election Form, in increments of five percentage points (5%), the percentage of his or her Account Balance to have gains and losses measured by a Measurement Fund.

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(c)

Measurement Funds. From time to time, the Committee in its sole discretion shall select and announce to Participants its selection of mutual funds, insurance company separate accounts, indexed rates or other methods (each, a “Measurement Fund”), for the purpose of providing the basis on which gains and losses shall be attributed to Account Balances under the Plan. The Committee may, in its sole discretion, discontinue, substitute or add a Measurement Fund at any time. Each such action shall take effect after a reasonable period of time following the day on which Participants are given written notice of such change.

(d)

Crediting or Debiting Method. The performance of each elected Measurement Fund (either positive or negative) will be determined by the Committee, in its reasonable discretion, based on available reports of the performance of the Measurement Funds. A Participant’s Account Balance shall be credited or debited on a daily basis based on the performance of each Measurement Fund selected by the Participant, as determined by the Committee in its sole discretion, as though (i) a Participant’s Account Balance were invested in the Measurement Fund(s) selected by the Participant, in the percentages applicable to such day, as of the close of business on such day, at the closing price on such date; (ii) the portion of the Annual Deferral Amount that was actually deferred during any day were invested in the Measurement Fund(s) selected by the Participant, in the percentages applicable to such day, no later than the close of business on the first business day after the day on which such amounts are actually deferred from the Participant’s Annual Base Salary through reductions in his or her payroll and from the Participant’s Annual Bonus, at the closing price on such date; and (iii) any distribution made to a Participant that decreases such Participant’s Account Balance ceased being invested in the Measurement Fund(s), in the percentages applicable to such day, no later than one business day prior to the distribution, at the closing price on such date.

(e)

No Actual Investment. Notwithstanding any other provision of this Plan that may be interpreted to the contrary, the Measurement Funds are to be used for measurement purposes only, and a Participant’s election of any such Measurement Fund, the allocation to his or her Account Balance thereto, the calculation of additional amounts and the crediting or debiting of such amounts to a Participant’s Account Balance shall not be considered or construed in any manner as an actual investment of his or her Account Balance in any such Measurement Fund. In the event that the Company or the Trustee (as that term is defined in the Trust), in its own discretion, decides to invest funds in any or all of the Measurement Funds, no Participant shall have any rights in or to such investments themselves. Without limiting the foregoing, a Participant’s Account Balance shall at all times be a bookkeeping entry only and shall not represent any investment made on his or her behalf by the Company or the Trust; the Participant shall at all times remain an unsecured creditor of the Company.

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3.9

FICA and Other Taxes. For each Plan Year in which an Annual Deferral Amount is being withheld from a Participant or a portion or all of Annual Company Contribution Amount becomes Vested, the Participant’s Employer(s) shall withhold from that portion of the Participant’s Annual Base Salary or Annual Bonus that is not being deferred, in a manner determined by the Employer(s), the Participant’s share of FICA, other employment taxes and other employee contributions on such Annual Deferral Amount. If necessary, the Committee may reduce the Annual Deferral Amount or Annual Company Contribution Amount in order to comply with this Section.

3.10

Distributions. The Participant’s Employer(s), or the trustee of the Trust, shall withhold from any payments made to a Participant under this Plan all federal, state and local income, employment and other taxes required to be withheld by the Employer(s), or the trustee of the Trust, in connection with such payments, in amounts and in a manner to be determined in the sole discretion of the Employer(s) and the trustee of the Trust, respectively (whichever is making the payment). The Participant’s Employer, or the trustee of the Trust, shall withhold from any payments made to a Participant under this Plan any garnishment of wages in amounts and in a manner to be determined by the sole discretion of the Employer(s) and the trustee of the Trust, respectively (whichever is making the payment).

ARTICLE 4

Short-Term Payout/Unforeseeable Financial Emergencies

4.1

Short-Term Payout. In connection with each election to defer an Annual Deferral Amount, a Participant may irrevocably elect to receive a future “Short-Term Payout” from the Plan with respect to such Annual Deferral Amount. Subject to the Deduction Limitation, the Short-Term Payout shall be a lump sum payment in an amount that is equal to the Annual Deferral plus amounts credited or debited in the manner provided in Section 3.7 above on that amount, determined at the time that the Short-Term Payout becomes payable (rather than the date of a Termination of Employment). Subject to the Deduction Limitation and the other terms and conditions of the Plan, each Short-Term Payout elected shall be paid out as soon as administratively practicable after the last day of any Plan Year designated by the Participant that is at least three Plan Years after the Plan Year in which the Annual Deferral Amount is actually deferred.

4.2

Other Benefits Take Precedence Over Short-Term Payout. Should an event occur that triggers a benefit under Article 5 or 6, any Annual Deferral Amount, plus amounts credited or debited thereon, that is subject to a Short-Term Payout election under Section 4.1 shall not be paid in accordance with Section 4.1 but shall be paid in accordance with the other applicable Article.

4.3

Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies. If the Participant or a Beneficiary experiences an Unforeseeable Financial Emergency, the Participant or Beneficiary may petition the Committee to (i) suspend any deferrals required to be made by a Participant or (ii) receive a partial or full payout from the Plan. The payout shall not exceed the

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lesser of the Participant’s then vested Account Balance or the amount reasonably needed to satisfy the Unforeseeable Financial Emergency. If, subject to the sole discretion of the Committee, the petition for a suspension and/or payout is approved, suspension shall take effect upon the date of approval and any payout shall be made within 60 days of the date of approval. The payment of any amount under this Section 4.3 shall not be subject to the Deduction Limitation.

ARTICLE 5

Distribution of Benefits

5.1

Distributions. Subject to the Deduction Limitation, a Participant shall be entitled to a distribution of the vested interest of his or her Account Balance following Termination of Employment. Such amount will be paid in a lump sum cash payment as soon as administratively practicable after the first day of the Plan Year following the Plan Year in which such Termination of Employment occurs (or such later date as may be required under applicable law), unless installment payments have been elected under Section 5.2.

5.2.

Installment Payments. A Participant, in connection with his or her commencement of participation in the Plan (or, if later, during the period specified by the Committee with respect to Participants in the Plan prior to January 1, 2005), may elect on an Election Form to have the vested portion of his or her Account Balance paid under the Annual Installment Method following Termination of Employment. Such Election Form shall specify the number of annual installments to be made. Such installments shall commence as soon as administratively practicable after the end of the Plan Year in which the Participant’s Termination of Employment occurs (or such later date as may be required under applicable law). Subject to the Deduction Limitation, the Participant’s vested Account Balance shall be paid pursuant to the Participant’s elected Annual Installment Method in the number of annual installments elected by the Participant; provided, however, the annual installments shall not exceed the lesser of the Participant’s Years of Service or ten (10) years; provided, further, that if the value of the Participant’s vested Account Balance on his or her Termination of Employment is $50,000 or less, the Participant’s election of the Annual Installment Method shall be disregarded and such Account Balance shall be paid in lump sum under Section 5.1.

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ARTICLE 6

Survivor Benefits

6.1

Survivor Benefits. Subject to the Deduction Limitation, if a Participant dies before his or her Account Balance has been distributed in full, the Participant’s Beneficiary shall receive a survivor benefit equal to the Participant’s Account Balance, payable in accordance with the following provisions of this Article 6.

6.2

Death Before Commencement of Benefits. Subject to Section 6.3, a Participant, in connection with his or her commencement of participation in the Plan, shall elect on an Election Form, whether any amounts payable to a Beneficiary under the Plan shall be received by his or her Beneficiary in a lump sum or pursuant to an Annual Installment Method of up to ten (10) years. The Participant may annually change this election to an allowable alternative payout period by submitting a new Election Form to the Committee, which form may be accepted by the Committee in its sole discretion. The Election Form most recently accepted by the Committee prior to the Participant’s death shall govern the payout of the Account Balance to the Beneficiary. If a Participant does not make any election with respect to the payment of his or her Account Balance, then such Account Balance shall be paid to the Beneficiary in a lump sum. Notwithstanding the foregoing, if the Participant’s Account Balance at the time of his or her death is less than $25,000, payment of the Account Balance may be made to the Beneficiary, in the sole discretion of the Committee, in a lump sum or pursuant to an Annual Installment Method of not more than 5 years. The lump sum payment shall be made, or installment payments shall commence, no later than 60 days after the Committee is provided with proof that is satisfactory to the Committee of the Participant’s death.

6.3

Death After Commencement of Benefits. If a Participant dies after installment payments have commenced, but before his or her Account Balance is paid in full, the Participant’s remaining installment payments shall continue and shall be paid to the Participant’s Beneficiary over the remaining number of years and in the same amounts as payments would have been made to the Participant had the Participant survived.

ARTICLE 7

Disability Waiver and Benefit

7.1