1.1

1.2

1.3

2.1

2.2

2.3

2.4

2.5

2.6

2.7

2.8

2.9

2.10

2.11

2.12

2.13

2.14

2.15

2.16

2.17

2.18

2.19

2.20

2.21

2.22

2.23

2.24

2.25

2.26

3.1

3.2

ARTICLE 4 – PARTICIPANT ELECTIONS

4.1

4.2

4.3

4.4

Article 5 – EMPLOYER CONTRIBUTIONS

5.1

5.2

ARTICLE 6 – ACCOUNTS AND CREDITS

6.1

6.2

6.3

ARTICLE 7 – INVESTMENT OF CONTRIBUTIONS

7.1

7.2

ARTICLE 8 – RIGHT TO BENEFITS

8.1

8.2

8.3

ARTICLE 9 – DISTRIBUTION OF BENEFITS

9.1

9.2

9.3

9.4

9.5

9.6

9.7

9.8

9.9

ARTICLE 10 – AMENDMENT AND TERMINATION

10.1

10.2

10.3

10.4

ARTICLE 11 – THE TRUST

11.1

11.2

11.3

ARTICLE 12 – PLAN ADMINISTRATION

12.1

12.2

12.3

ARTICLE 13 – MISCELLANEOUS

13.1

13.2

13.3

13.4

13.5

13.6

13.7

13.8

13.9

13.10

13.11

Plan. The Plan will be referred to by the name specified in the Adoption Agreement.

Effective Dates.

Original Effective Date. The Original Effective Date is the date as of which the Plan was initially adopted.

Amendment Effective Date. The Amendment Effective Date is the date specified in the Adoption Agreement as of which the Plan is amended and restated. Except to the extent otherwise provided herein or in the Adoption Agreement, the Plan shall apply to amounts deferred and benefit payments made on or after the Amendment Effective Date.

Special Effective Date. A Special Effective Date may apply to any given provision if so specified in Appendix A of the Adoption Agreement. A Special Effective Date will control over the Original Effective Date or Amendment Effective Date, whichever is applicable, with respect to such provision of the Plan.

Amounts Not Subject to Code Section 409A. Except as otherwise indicated by the Plan Sponsor in Section 1.01 of the Adoption Agreement, amounts deferred before January 1, 2005 that are earned and vested on December 31, 2004 will be separately accounted for and administered in accordance with the terms of the Plan as in effect immediately prior to this amendment and restatement of the Plan which is effective as of the date set forth in Section 1.01(b) of the Adoption Agreement.

“Account” means an account established for the purpose of recording amounts credited on behalf of a Participant and any income, expenses, gains, losses or distributions included thereon. The Account 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 to the Participant’s Beneficiary pursuant to the Plan.

“Administrator” means the Benefits Administrative Committee appointed by the Board as designated by the Plan Sponsor in Section 1.05 of the Adoption Agreement.

“Adoption Agreement” means the agreement adopted by the Plan Sponsor that establishes the Plan.

“Beneficiary” means the persons, trusts, estates or other entities entitled under Section 8.2 to receive benefits under the Plan upon the death of a Participant.

“Board” or “Board of Directors” means the Board of Directors (or a Board Committee designated by the Board) of the Plan Sponsor.

“Bonus” means an amount of incentive Compensation payable by the Employer to a Participant.

“Change in Control” means the occurrence of an event involving the Plan Sponsor that is described in Section 9.7.

“Code” means the Internal Revenue Code of 1986, as amended.

“Compensation” has the meaning specified in Section 3.01 of the Adoption Agreement.

“Director” means a member of the Board.

“Disabled” means a determination by the Administrator that the Participant is either (a) unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (b) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of

“Eligible Employee” means an employee of the Employer who satisfies the requirements in Section 2.01 of the Adoption Agreement.

“Employer” means the Plan Sponsor and any other entity which is authorized by the Plan Sponsor to participate in and, in fact, does adopt the Plan.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“Identification Date” means the date as of which Specified Employees are determined which is specified in Section 1.06 of the Adoption Agreement.

“Participant” means an Eligible Employee who commences participation in the Plan in accordance with Article 3.

“Plan” means the unfunded plan of deferred compensation set forth herein, including the Adoption Agreement and any trust agreement, as adopted by the Plan Sponsor and as amended from time to time.

“Plan Sponsor” means the entity identified in Section 1.03 of the Adoption Agreement.

“Plan Year” means the period identified in Section 1.02 of the Adoption Agreement.

“Related Employer” means the Employer and (a) any corporation that is a member of a controlled group of corporations as defined in Code Section 414(b) that includes the Employer and (b) any trade or business that is under common control as defined in Code Section 414(c) that includes the Employer, as determined in accordance with Reg. Sec. 1.409A-1(g).

“Retirement” has the meaning specified in 6.01(f) of the Adoption Agreement.

“Separation from Service” means the date that the Participant dies, retires or otherwise has a termination of employment with respect to all entities comprising the Related Employer. A Separation from Service does not occur if the Participant is on military leave, sick leave or other bona fide leave of absence if the period of leave does not exceed 6 months or such longer period during which the Participant’s right to re-employment is provided by statute or contract. A leave of absence constitutes a bona fide leave of absence only if there is a reasonable expectation

“Specified Employee” means an employee who satisfies the conditions set forth in Section 9.6.

“Unforeseeable Emergency” means a severe financial hardship of the Participant resulting from an illness or accident of the Participant, the Participant’s spouse, or the Participant’s dependent (as defined in Code Section 152, without regard to Code Section 152(b)(1), (b)(2) and (d)(1)(B)); loss of the Participant’s property due to casualty; or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant.

“Valuation Date” means each business day of the Plan Year.

“Years of Service” means each one year period for which the Participant receives service credit in accordance with the provisions of Section 7.01(d) of the Adoption Agreement.

Participation. The Participants in the Plan shall be those employees of the Employer who satisfy the requirements of Section 2.01 of the Adoption Agreement.

Termination of Participation. The Administrator may terminate a Participant’s participation in the Plan in a manner consistent with Code Section 409A.

Deferral Form. If permitted by the Plan Sponsor in accordance with Section 4.01 of the Adoption Agreement, each Eligible Employee may elect to defer his Compensation within the meaning of Section 3.01 of the Adoption Agreement by executing in writing or electronically, a deferral form in accordance with rules and procedures established by the Administrator, the provisions of this Article 4, and Code Section 409A(a)(4)(B) and the final regulations thereunder.

Amount of Deferral. An Eligible Employee may elect to defer Compensation in any amount permitted by Section 4.01(a) of the Adoption Agreement.

Timing of Election to Defer. Each Eligible Employee who desires to defer Compensation otherwise payable during a Plan Year must execute a deferral form within the period preceding the Plan Year specified by the Administrator. Each Eligible Employee who desires to defer Compensation that is a Bonus must execute a deferral form within the period preceding the Plan Year during which the Bonus is earned that is specified by the Administrator, except that if the Bonus qualifies as performance based compensation as described in Code Section 409A(a)(4)(B)(iii), the deferral form may be executed within the period specified by the Administrator, which period, in no event, shall end after the date which is 6 months prior to the end of the performance period during which the Bonus is earned. In addition, if the Compensation qualifies as ‘fiscal year compensation’ within the meaning of Reg. Sec. 1.409A -2(a)(6), the deferral form may be made not later than the end of the Employer’s taxable year immediately preceding the first taxable year of the Employer in which any services are performed for which such Compensation is payable.

Election of Payment Schedule and Form of Payment. All elections of a payment schedule and a form of payment will be made in accordance with rules and procedures established by the Administrator and the provisions of this Section 4.4, as determined in accordance with Reg. Sec. 1.409A-2(a).

If the Plan Sponsor has elected to permit annual distribution elections in accordance with Section 6.01(h) of the Adoption Agreement the following rules apply. At the time an Eligible Employee completes a deferral form, the Eligible Employee must irrevocably elect (i) a distribution event (which includes a specified time) and form of payment for the Compensation subject to the deferral form and for any Employer contributions that may be credited to the Participant’s Account during the Plan Year from among the options the Plan Sponsor has made available for this purpose and which are specified in 6.01(b) of the Adoption Agreement, and (ii) the time of commencement of distributions from the options the Plan Sponsor has made available for this purpose which are specified in 6.01(a) of the Adoption Agreement. If an Eligible Employee fails to elect a distribution event, he shall be deemed to have elected Separation from Service as the distribution event. If an Eligible Employee fails to elect a form of payment, he shall be deemed to have elected a lump sum as the form of payment. If an Eligible Employee fails to elect a time of commencement, he shall be deemed to have elected the last business day of the month in which occurs the 60th day following Separation from Service. Subject to Article 9, distributions shall be made to an Employee upon the earliest to occur of the events specified in 6.01(a) of the Adoption Agreement.

If the Plan Sponsor has elected not to permit annual distribution elections in accordance with Section 6.01(h) of the Adoption Agreement the following rules apply. At the time an Eligible Employee first completes a deferral form, the Eligible Employee must irrevocably elect a distribution event (which includes a specified time) and a form of payment for amounts credited to his Account from among the options the Plan Sponsor has made available for this purpose and which are specified in Section 6.01(b) of the Adoption Agreement. If an Eligible Employee fails to elect a distribution event, he shall be deemed to have elected Separation from Service in the distribution event. If he fails to elect a form of payment, he shall be deemed to have elected a lump sum as the form of payment.

Matching Contributions. If elected by the Plan Sponsor in Section 5.01(a) of the Adoption Agreement, the Employer will credit the Participant’s Account with a matching contribution determined in accordance with the formula specified in Section 5.01(a) of the Adoption Agreement. The matching contribution will be treated as allocated to the Participant’s Account at the time specified in Section 5.01(a)(iii) of the Adoption Agreement.

Other Contributions. If elected by the Plan Sponsor in Section 5.01(b) of the Adoption Agreement, the Employer will credit the Participant’s Account with a contribution determined in accordance with the formula or method specified in Section 5.01(b) of the Adoption Agreement. The contribution will be treated as allocated to the Participant’s Account at the time specified in Section 5.01(b)(iii) of the Adoption Agreement.

Establishment of Account. For accounting and computational purposes only, the Administrator will establish and maintain an Account on behalf of each Participant which will reflect the credits made pursuant to Section 6.2, distributions or withdrawals, along with the earnings, expenses, gains and losses allocated thereto, attributable to the hypothetical investments made with the amounts in the Account as provided in Article 7. The Administrator will establish and maintain such other records and accounts, as it decides in its discretion to be reasonably required or appropriate to discharge its duties under the Plan.

Credits to Account. A Participant’s Account will be credited for each Plan Year with the amount of his elective deferrals under Section 4.1 and the amount of Employer contributions treated as allocated on his behalf under Article 5 at the time the Administrator determines in its absolute discretion.

Sub-Accounts. The Administrator will establish and maintain such other accounts or sub-accounts as the Administrator deems necessary or desirable in order to effectuate the purposes of Sections 6.1 and 6.2 and Articles 7 and 9.

Investment Options. The amount credited to each Account shall be treated as invested in the investment options designated for this purpose by the Administrator.

Adjustment of Accounts. The amount credited to each Account shall be adjusted for hypothetical investment earnings, expenses, gains or losses in an amount equal to the earnings, expenses, gains or losses attributable to the investment options selected by the party designated in Section 9.01 of the Adoption Agreement from among the investment options provided in Section 7.1. If permitted by Section 9.01 of the Adoption Agreement, a Participant (or the Participant’s Beneficiary after the death of the Participant) may, in accordance with rules and procedures established by the Administrator, select the investments from among the options provided in Section 7.1 to be used for the purpose of calculating future hypothetical investment adjustments to the Account or to future credits to the Account under Section 6.2 effective as the Valuation Date coincident with or next following notice to the Administrator. Each Account shall be adjusted as of each Valuation Date to reflect: (a) the hypothetical earnings, expenses, gains and losses described above; (b) amounts credited pursuant to Section 6.2; and (c) distributions or withdrawals. In addition, each Account may be adjusted for its allocable share of the hypothetical costs and expenses associated with the maintenance of the hypothetical investments provided in Section 7.1.

Vesting. Except as otherwise provided in Article 13.1, 13.2 and 13.3, a Participant, at all times, has the 100% nonforfeitable interest in the amounts credited to his Account attributable to his elective deferrals made in accordance with Section 4.1.

Death. The Plan Sponsor may elect to accelerate vesting upon the death of the Participant in accordance with Section 7.01(c) of the Adoption Agreement and/or to permit distributions upon Death in accordance with Section 6.01(b) or Section 6.01(d) of the Adoption Agreement. If the Plan Sponsor does not elect to permit distributions upon death in accordance with Section 6.01(b) or Section 6.01(d) of the Adoption Agreement, the vested amount credited to the Participant’s Account will be paid in accordance with the provisions of Article 9.

Disability. If the Plan Sponsor has elected to accelerate vesting upon the occurrence of a Disability in accordance with Section 7.01(c) of the Adoption Agreement and/or to permit distributions upon Disability in accordance with Section 6.01(b) or Section 6.01(d) of the Adoption Agreement, the determination of whether a Participant has incurred a Disability shall be made by the Administrator in its sole discretion.

Amount of Benefits. The vested amount credited to a Participant’s Account as determined under Articles 6, 7 and 8 shall determine and constitute the basis for the value of benefits payable to the Participant under the Plan.

Method and Timing of Distributions. Except as otherwise provided in this Article 9 and Article 10, distributions under the Plan shall be made in accordance with the elections made or deemed made by the Participant under Article 4. Subject to the provisions of Section 9.6 requiring a 6 month delay for certain distributions to Specified Employees, distributions following a payment event shall commence at the time specified in Section 6.01(a) of the Adoption Agreement. If permitted by Section 6.0l(g) of the Adoption Agreement, a Participant may irrevocably elect to delay a scheduled payment for a minimum period of 60 months from the previously scheduled date of payment (or, in the case of installment payments, 60 months from the previously scheduled date of the first payment), provided that such election takes effect at least 12 months after the date on which the election is made and, in the case of Specified Date distribution (pursuant to Section 6.0l(b)(i) of the Adoption Agreement), such election is made at least 12 months before the previously scheduled date of payment (or, in the case of installment payments, 12 months before the previously scheduled date of the first payment), in accordance with Code Section 409A(a)(4)(C) and the final regulations thereunder. The distribution election change must be made in accordance with procedures and rules established by the Administrator. The Participant may, at the same time the date of payment is deferred, change the form of payment but such change in the form of payment may not effect an acceleration of payment in violation of Code Section 409A(a)(3) or the provisions of Reg. Sec. 1.409A-2(b). For purposes of this Section 9.2, a series of installment payments is always treated as a single payment and not as a series of separate payments.

Unforeseeable Emergency. A Participant may request a distribution due to an Unforeseeable Emergency if the Plan Sponsor has elected to permit Unforeseeable Emergency withdrawals under Section 8.01(a) of the Adoption Agreement. The request must be in writing and must be submitted to the Administrator along with evidence that the circumstances constitute an Unforeseeable Emergency. The Administrator has the discretion to require whatever evidence it deems necessary to determine whether a distribution is warranted. Whether a Participant has incurred an Unforeseeable Emergency will be determined by the Administrator on the basis of the relevant facts and circumstances in its sole discretion, but, in no event, will a distribution on account of an Unforeseeable Emergency be made to the extent the Unforeseeable Emergency is or may be relieved: (a) through reimbursement or compensation by insurance or otherwise, (b) by liquidation of the Participant’s assets to the extent such liquidation would not itself cause severe financial hardship, or (c) by cessation of deferrals under the Plan. A distribution due to an Unforeseeable Emergency must be limited to the amount reasonably necessary to satisfy the emergency need and may include any amounts necessary

Payment Election Overrides. If the Plan Sponsor has elected one or more payment election overrides in accordance with Section 6.01(d) of the Adoption Agreement, the following provisions apply. Upon the occurrence of the first event selected by the Plan Sponsor, the remaining vested amount credited to the Participant’s Account shall be paid in the form designated to the Participant or his Beneficiary regardless of whether the Participant had made different elections of time and/or form of payment or whether the Participant was receiving installment payments at the time of the event.

Cashouts Of Amounts Not Exceeding Stated Limit. If the vested amount credited to the Participant’s Account does not exceed the limit established for this purpose by the Plan Sponsor in Section 6.01(e) of the Adoption Agreement at the time he incurs a Separation from Service for any reason, the Employer shall distribute such amount to the Participant at the time specified in Section 6.01(a)(i)(B) of the Adoption Agreement in a single lump sum cash payment following such Separation from Service regardless of whether the Participant had made different elections of time or form of payment as to the vested amount credited to his Account or whether the Participant was receiving installments at the time of such termination. The cashout of any amounts described in Section 1.3 shall be determined in accordance with Appendix B of the Adoption Agreement.

Required Delay in Payment to Specified Employees. Except as otherwise provided in this Section 9.6, a distribution made on account of Separation from Service (or Retirement, if applicable) to a Participant who is a Specified Employee as of the date of his Separation from Service (or Retirement, if applicable) shall not be made before the date which is 6 months after the date of Separation from Service (or Retirement, if applicable) (the “6 month delay”). If the distribution of any amount is delayed as a result of the previous sentence, then each payment to which the Participant is otherwise entitled upon a Separation from Service shall be delayed by 6 months. Any remaining payments due under the Plan shall be paid as otherwise provided in the Plan.

A Participant is treated as a Specified Employee if (i) he is employed by a Related Employer any of whose stock is publicly traded on an established securities market or otherwise, and (ii) he satisfies the requirements of Code Section 416(i)(1)(A)(i), (ii) or (iii), determined without regard to Code Section 416(i)(5), at any time during the 12-month period ending on the Identification Date, as determined in accordance with Code Section 409A(a)(2)(B)(i) and the final regulations thereunder.

A Participant who meets the requirements of paragraph (a) on an Identification Date shall be treated as a Specified Employee for the 12-month period beginning on the first day of the 4th month following the Identification Date. The Identification Date and the effective date of the delay in distributions shall be determined in accordance with Section 1.06 of the Adoption Agreement.

The 6 month delay does not apply to payments under the circumstances described in Reg. Sec. 1.409A-3(j)(4)(ii), (j)(4)(iii), or (j)(4)(vi), or to payments that occur after the death of the Participant. If the payment of all or any portion of the Participant’s vested Account is being delayed in accordance with this Section 9.6 at the time he incurs a Disability which would otherwise require a distribution under the terms of the Plan, no amount shall be paid until the expiration of the 6-month period of delay required by this Section 9.6.

Change in Control. If the Plan Sponsor has elected to permit distributions upon a Change in Control, the following provisions shall apply. A distribution made upon a Change in Control will be made at the time specified in Section 6.01(a) of the Adoption Agreement in the form elected by the Participant in accordance with the procedures described in Article 4. Alternatively, if the Plan Sponsor has elected in accordance with Section 11.02 of the Adoption Agreement to require distributions upon a Change in Control, the Participant’s remaining vested Account shall be paid to the Participant or the Participant’s Beneficiary at the time specified in Section 6.01(a) of the Adoption Agreement as a single lump sum payment. A Change in Control, for purposes of the Plan, will occur upon a change in the ownership of the Plan Sponsor, a change in the effective control of the Plan Sponsor or a change in the ownership of a substantial portion of the assets of the Plan Sponsor, as determined in accordance with Code Section 409A(a)(2)(A)(v) and the final regulations thereunder, but only if elected by the Plan Sponsor in Section 11.03 of the Adoption Agreement. The Plan Sponsor, for this purpose, includes any corporation identified in this Section 9.7. All distributions made in accordance with this Section 9.7 are subject to the provisions of Section 9.6.

Relevant Corporations. To constitute a Change in Control for purposes of the Plan, the event must relate to (i) the corporation for whom the Participant is performing services at the time of the Change in Control, (ii) the corporation that is liable for the payment of the Participant’s benefits under the Plan (or all corporations liable if more than one corporation is liable) but only if either the deferred compensation is attributable to the performance of services by the Participant for such corporation (or corporations) or there is a bona fide business purpose for such corporation (or corporations) to be liable for such payment and, in either case, no significant purpose of making such corporation (or corporations) liable for such payment is the avoidance of federal income tax, or (iii) a corporation that is a majority shareholder of a corporation identified in (i) or (ii), or any corporation in a chain of corporations in which each corporation is a majority shareholder of another corporation in the chain, ending in a corporation identified in (i) or (ii). A majority shareholder is defined as a shareholder owning more than 50% of the total fair market value and voting power of such corporation.

Stock Ownership. Code Section 318(a) applies for purposes of determining stock ownership. Stock underlying a vested option is considered owned by the individual who owns the vested option (and the stock underlying an unvested option is not considered owned by the individual who holds the unvested option). If, however, a vested option is exercisable for stock that is not substantially vested (as defined by Treasury Regulation Section 1.83-3(b) and (j)) the stock underlying the option is not treated as owned by the individual who holds the option.

Change in the Ownership of a Corporation. A change in the ownership of a corporation occurs on the date that any one person or more than one person acting as a group, acquires ownership of stock of the corporation that, together with stock held by such person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of such corporation. If any one person or more than one person acting as a group is considered to own more than 50% of the total fair market value or total voting power of the stock of a corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the corporation (or to cause a change in the effective control of the corporation as discussed below in Section 9.7(d)). An increase in the percentage of stock owned by any one person, or persons acting as a group, as a result of a transaction in which the corporation acquires its stock in exchange for property will be treated as an acquisition of stock. Section 9.7(c) applies only when there is a transfer of stock of a corporation (or issuance of stock of a corporation) and stock in such corporation remains outstanding after the transaction. For purposes of this

Change in the effective control of a corporation. A change in the effective control of a corporation occurs on the date that either (i) any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the corporation possessing 30% or more of the total voting power of the stock of such corporation, or (ii) a majority of members of the corporation’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the corporation’s board of directors prior to the date of the appointment or election, provided that for purposes of this paragraph (ii), the term corporation refers solely to the relevant corporation identified in Section 9.7(a) for which no other corporation is a majority shareholder for purposes of Section 9.7(a). In the absence of an event described in Section 9.7(d)(i) or (ii), a change in the effective control of a corporation will not have occurred. A change in effective control may also occur in any transaction in which either of the two corporations involved in the transaction has a change in the ownership of such corporation as described in Section 9.7(c) or a change in the ownership of a substantial portion of the assets of such corporation as described in Section 9.7(e). If any one person, or more than one person acting as a group, is considered to effectively control a corporation within the meaning of this Section 9.7(d), the acquisition of additional control of the corporation by the same person or persons is not considered to cause a change in the effective control of the corporation or to cause a change in the ownership of the corporation within the meaning of Section 9.7(c). For purposes of this Section 9.7(d), persons will or will not be considered to be acting as a group in accordance with rules similar to those set forth in Section 9.7(c).

Change in the ownership of a substantial portion of a corporation’s assets. A change in the ownership of a substantial portion of a corporation’s assets occurs on the date that any one person, or more than one person acting as a group (as determined in accordance with rules similar to those set forth in Section 9.7(d)), acquires (or has acquired during the 12-month period

Permissible Delays in Payment. Distributions may be delayed beyond the date payment would otherwise occur in accordance with the provisions of Articles 8 and 9 in any of the following circumstances as long as the Employer treats all payments to similarly situated Participants on a reasonably consistent basis, as determined in accordance with Reg. Sec. 1.409A-2(b)(7).

The Employer may delay payment if it reasonably anticipates that its deduction with respect to such payment would be limited or eliminated by the application of Code Section 162(m). Payment must be made during the Participant’s first taxable year in which the Employer reasonably anticipates, or should reasonably anticipate, that if the payment is made during such year the deduction of such payment will not be barred by the application of Code Section 162(m) or during the period beginning with the Participant’s Separation from Service and ending on the later of the last day

The Employer may also delay payment if it reasonably anticipates that the making of the payment will violate federal securities laws or other applicable laws provided payment is made at the earliest date on which the Employer reasonably anticipates that the making of the payment will not cause such violation.

The Employer reserves the right to amend the Plan to provide for a delay in payment upon such other events and conditions as the Secretary of the Treasury may prescribe in generally applicable guidance published in the Internal Revenue Bulletin.

Overpayments. In the event of a payment in excess of the amount due under the terms of the Plan (“overpayment”), the overpayment must be returned to the Plan by the recipient. Furthermore, the Plan and its agents are authorized to (a) recoup overpayments plus any earnings or interest, and (b) if necessary, offset any overpayments that are not returned against other Plan benefits to which the recipient is or becomes entitled.

Amendment by Plan Sponsor. The Plan Sponsor reserves the right to amend the Plan (for itself and each Employer). The Plan Sponsor’s Benefits Administrative Committee may adopt amendments to the Plan that result in an increase or decrease in the then current annual cost of the Plan by 50% or less. The Plan Sponsor’s Chief Executive Officer, Chief Financial Officer and Chief Operations Officer (the “Specified Executives”) may jointly adopt amendments to the Plan that increase the then current annual cost of the Plan by up to 100%. The Plan Sponsor’s Human Resources Committee may adopt amendments to the Plan that decrease the annual cost of the Plan by more than 50% or increase the annual cost of the Plan by more than 100%. Such amendments shall be as set forth in an instrument in writing executed as follows. Amendments adopted by the Plan Sponsor’s Benefits Administrative Committee shall be executed by a member of such Committee. Amendments adopted by the Specified Executives shall be executed by the Specified Executives. Amendments adopted by the Plan Sponsor’s Human Resources Committee shall be executed by a member of such Committee. No amendment can directly or indirectly deprive any current or former Participant or Beneficiary of all or any portion of his Account which had accrued prior to the amendment.

Plan Termination Following Change in Control or Corporate Dissolution.

The Related Employer reserves the right to terminate the Plan in accordance with Reg. Sec. 1.409A-3(j)(4)(ix)(B), pursuant to the Related Employer’s termination and liquidation of the Plan pursuant to irrevocable action taken by the Related Employer within the 30 days preceding or the 12 months following a Change in Control. This Section 10.2(a) will only apply to a payment under a plan if all agreements, methods, programs and other arrangements sponsored by the Related Employer immediately after the Change in Control with respect to which deferrals of compensation are treated as having been deferred under a single plan under Reg. Sec. 1.409A-1(c)(2) are terminated and liquidated with respect to each participant that experienced the Change in Control, so that under the terms of the termination and liquidation all such participants are required to receive all amounts of compensation deferred under the terminated agreements, methods, programs, and other arrangements within 12 months of the date the Related Employer irrevocably takes all necessary action to terminate and liquidate the agreements, methods, programs, and other arrangements. Solely for purposes of this Section 10.2(a), where the Change in Control results from an asset purchase transaction, the applicable Related Employer with the discretion to liquidate and terminate the agreements, methods, programs, and other arrangements is the Related Employer that is primarily liable immediately after the transaction for the payment of the deferred compensation.

In addition, the Related Employer reserves the right to terminate the Plan, in accordance with Reg. Sec. 1.409A-3(j)(4)(ix)(A), pursuant to the Related Employer’s termination and liquidation of the Plan within 12 months of a corporate dissolution taxed under Code Section 331 or with the approval of a bankruptcy court pursuant to 11 U. S. C. Section 503(b)(1)(A), provided that amounts deferred under the Plan are included in the gross incomes of Participants in the latest of (a) the calendar year in which the Plan termination and liquidation occurs, (b) the first calendar year in which the amount is no longer subject to a substantial risk of forfeiture, or (c) the first calendar year in which payment is administratively practicable (or, if earlier, the taxable year in which the amount is actually or constructively received).

Other Plan Terminations. The Related Employer retains the discretion to terminate the Plan, in accordance with Reg. Sec. 1.409A-3(j)(4)(ix)(C), pursuant to the Related Employer’s termination and liquidation of the Plan if (a) the Related Employer terminates and liquidates all agreements, methods, programs, and other arrangements sponsored by the Related Employer that would be aggregated with any terminated and liquidated agreements, methods, programs, and other arrangements under Reg. Sec. 1.409A-1(c) if the same Related Employer had deferrals of compensation under all of the agreements, methods, programs, and other arrangements that are terminated and liquidated, (b) no payments in liquidation of the Plan are made within 12 months of the date the Related Employer takes all necessary action to irrevocably terminate and liquidate the Plan other than payments that would be payable under the terms of the Plan if the action to terminate and liquidate the Plan had not occurred, (c) all payments are made within 24 months of the date the Related Employer takes all necessary action to irrevocably terminate and liquidate the Plan, (d) the Related Employer does not adopt a new plan that would be aggregated with any terminated and liquidated plan under Reg. Sec. 1.409A-1(c) if the same participant participated in both plans, at any time within the 3-year period following the date the Related Employer takes all necessary action to irrevocably terminate and liquidated the Plan, and (e) the termination and liquidation does not occur proximate to a downturn in the financial health of the Related Employer. The Plan Sponsor also reserves the right to amend the Plan to provide that termination of the Plan will occur under such conditions and events as may be prescribed by the Secretary of the Treasury in generally applicable guidance published in the Internal Revenue Bulletin.

Code Section 409A Limitation. Notwithstanding any provision of the Plan to the contrary, in no event shall any amendment or termination of the Plan be effective unless one of the following is true: (i) the amendment or termination does not cause an acceleration or impermissible delay in payment of benefits under Code Section 409A, (ii) any acceleration or delay in payment is covered by an exception to the prohibition on accelerations or delays under Code Section 409A, or (iii) the Plan

Establishment of Trust. The Plan Sponsor may but is not required to establish a trust to hold amounts which the Plan Sponsor may contribute from time to time to correspond to some or all amounts credited to Participants under Section 6.2. If the Plan Sponsor elects to establish a trust in accordance with Section 10.01 of the Adoption Agreement, the provisions of Sections 11.2 and 11.3 shall become operative.

Grantor Trust. Any trust established by the Plan Sponsor shall be between the Plan Sponsor and a trustee pursuant to a separate written agreement under which assets are held, administered and managed, subject to the claims of the Plan Sponsor’s creditors in the event of the Plan Sponsor’s insolvency. The trust is intended to be treated as a grantor trust under the Code, and the establishment of the trust shall not cause the Participant to realize current income on amounts contributed thereto. The Plan Sponsor must notify the trustee in the event of a bankruptcy or insolvency.

Investment of Trust Funds. Any amounts contributed to the trust by the Plan Sponsor shall be invested by the trustee in accordance with the provisions of the trust and the instructions of the Administrator. Trust investments need not reflect the hypothetical investments selected by Participants under Section 7.1 for the purpose of adjusting Accounts and the earnings or investment results of the trust need not affect the hypothetical investment adjustments to Participant Accounts under the Plan.

Discretionary Powers and Responsibilities of the Administrator. The Administrator has the full discretionary power and the full responsibility to administer the Plan in all of its details, subject, however, to the applicable requirements of ERISA. The Administrator’s discretionary powers and responsibilities include, but are not limited to, the following:

To make and enforce such rules and procedures as it deems necessary or proper for the efficient administration of the Plan;

To interpret the Plan, its interpretation thereof to be final, except as provided in Section 12.2, on all persons claiming benefits under the Plan;

To decide all questions concerning the Plan and the eligibility of any person to participate in the Plan;

To administer the claims and review procedures specified in Section 12.2;

To compute the amount of benefits which will be payable to any Participant, former Participant or Beneficiary in accordance with the provisions of the Plan;

To determine the person or persons to whom such benefits will be paid;

To authorize the payment of benefits;

To comply with the reporting and disclosure requirements of Part 1 of Subtitle B of Title I of ERISA;

To appoint such agents (which may include officers and/or employees of the Plan Sponsor), counsel, accountants, and consultants as may be required to assist in administering the Plan; or

By written instrument, to allocate and delegate its responsibilities, including the formation of an Administrative Committee to administer the Plan. Such responsibilities have been delegated to the Plan Sponsor’s Benefits Administrative Committee. The authority to appoint new members of the Plan Sponsor’s Benefits Administrative Committee has been delegated to the Plan Sponsor’s Executive Vice President of Human Resources (or its equivalent if job titles are modified).

Claims and Review Procedures.

Claims Procedure. If any person believes he is being denied any rights or benefits under the Plan, such person may file a claim in writing with the Administrator. If any such claim is wholly or partially denied, the Administrator will notify such person of its decision in writing. Such notification will contain (i) specific reasons for the denial, (ii) specific reference to pertinent Plan provisions, (iii) a description of any additional material or information necessary for such person to perfect such claim and an explanation of why such material or information is necessary, and (iv) a description of the Plan’s review procedures and the time limits applicable to such procedures, including a statement of the person’s right to bring a civil action following an adverse decision on review. Such notification will be given within 90 days (45 days in the case of a claim regarding Disability) after the claim is received by the Administrator. The Administrator may extend the period for providing the notification by 90 days (30 days in the case of a claim regarding Disability) if special circumstances require an extension of time for processing the claim and if written notice of such extension and circumstance is given to such person within the initial 90 day period (45 day period in the case of a claim regarding Disability). If such notification is not given within such period, the claim will be considered denied as of the last day of such period and such person may request a review of his claim.

Review Procedure. Within 60 days (180 days in the case of a claim regarding Disability) after the date on which a person receives a written notification of denial of claim (or, if written notification is not provided, within 60 days (180 days in the case of a claim regarding Disability) of the date denial is considered to have occurred), such person (or his duly authorized representative) may (i) file a written request with the Administrator for a review of his denied claim and of pertinent documents and (ii) submit written issues and comments to the Administrator. The Administrator will notify such person of its decision in writing. Such notification will be written in a manner calculated to be understood by such person and will contain specific reasons for the decision as well as specific references to pertinent Plan provisions. The notification will explain that the person is entitled to receive, upon request and free of charge, reasonable access to and copies of all pertinent documents and has the right to bring a civil action following an adverse decision on review. The decision on review will be made within 60 days (45 days in the case of a claim regarding Disability). The Administrator may extend the period for making the decision on review by 60 days (45 days in the case of a claim regarding Disability) if special circumstances require an extension of time for processing the request such as an election by the Administrator to hold a hearing, and if written notice of such extension and circumstances is given to such person within the initial 60-day period (45 days in the case of a claim regarding Disability). If the decision on review is not made within such period, the claim will be considered denied.

Exhaustion of Administrative Remedies/Limitations on Actions. The claims and review procedures set forth in this Section 12.2 shall be strictly adhered to by each person claiming benefits under this Plan and no judicial proceedings with respect to any claim for Plan benefits hereunder shall be commenced by any such person until the proceedings set forth herein have been exhausted in full. No action (whether at law, in equity or otherwise), including, but not limited to, a civil action under Section 502(a) of ERISA, shall be brought by or on behalf of any person for or with respect to benefits due under this Plan unless the person bringing such action has timely exhausted the Plan’s claims and review procedures. Any action (whether at law, in equity or otherwise) must be filed and litigated in the U.S. District Court with jurisdiction over the claim, and must be commenced within one year. This one-year period shall be computed from the earliest of (a) the date a final determination denying such benefit, in whole or in part, is issued under the Plan’s claims and review procedures, (b) one year after a claim for Plan benefits was initially filed, and (c) the date such person’s cause of action first accrued. If a person does not bring such an action within such one-year period, the person will be barred from bringing such action. In the event a judicial proceeding is timely filed, the evidence presented by the person claiming Plan benefits shall be limited to the evidence presented by such person during the administrative claims and review process described herein. The claimant shall be prohibited from presenting in any legal action any evidence that was not timely presented to the Administrator as part of the Plan’s administrative claims and review process.

Plan Administrative Costs. All reasonable costs and expenses (including legal, accounting, and employee communication fees) incurred by the Employer for the administration, management or operation of the Plan may be deducted from the Accounts of the Participants as determined by the Administrator.

Unsecured General Creditor of the Employer. Participants and their Beneficiaries, heirs, successors and assigns shall have no legal or equitable rights, interests or claims in any property or assets of the Employer. For purposes of the payment of benefits under the Plan, any and all of the Employer’s assets shall be, and shall remain, the general, unpledged, unrestricted assets of the Employer. Each Employer’s obligation under the Plan shall be merely that of an unfunded and unsecured promise to pay money in the future.

Employer’s Liability. Each Employer’s liability for the payment of benefits under the Plan shall be defined only by the Plan and by the deferral forms entered into between a Participant and the Employer. An Employer shall have no obligation or liability to a Participant under the Plan except as provided by the Plan and a deferral form or forms. An Employer shall have no liability to Participants employed by other Employers.

Limitation of Rights. Neither the establishment of the Plan, nor any amendment thereof, nor the creation of any fund or account, nor the payment of any benefits, will be construed as giving to the Participant or any other person any legal or equitable right against the Employer, the Plan or the Administrator, except as provided herein; and in no event will the terms of employment or service of the Participant be modified or in any way affected hereby.

Anti-Assignment. Except as may be necessary to fulfill a qualified domestic relations order within the meaning of ERISA Section 206(d)(3)(B)(i), none of the benefits or rights of a Participant or any Beneficiary of a Participant shall be subject to the claim of any creditor. In particular, to the fullest extent permitted by law, all such benefits and rights shall be free from attachment, garnishment, or any other legal or equitable process available to any creditor of the Participant and his Beneficiary. Neither the Participant nor his Beneficiary shall have the right to alienate, anticipate, commute, pledge, encumber, or assign any of the payments which he may expect to receive, contingently or otherwise, under the Plan, except the right to designate a Beneficiary to receive death benefits provided hereunder. Notwithstanding the preceding, the benefit payable from a Participant’s Account may be reduced, at the discretion of the administrator, to satisfy any debt or liability to the Employer; provided that such reduction does not result in a prohibited acceleration of payments under Reg. Sec. 1.409A-3(j). A domestic relations order shall not be treated as a qualified domestic relations order for purposes of this Plan, unless the following conditions are satisfied:

Payments to the alternate payee must commence on either (i) the last business day of the month in which occurs the 60th day following the date the domestic relations order is furnished to the Plan Sponsor, or (ii) the last business day of January beginning in the calendar year following the date the domestic relations order is furnished to the Plan Sponsor.

Payments to the alternate payee must be in the form of a lump sum distribution or an annual installment payment method available to Participants in the Plan.

If the domestic relations order provides the alternate payee with an election with respect to the time of payment, but the alternate payee does not elect a time of payment using procedures established by the Plan prior to the last business day of the month in which occurs the 60th day following the date the domestic relations order is furnished to the Plan Sponsor, payment to the alternate payee shall be made or commence on the last business day of the month in which occurs the 60th day following the date the domestic relations order is furnished to the Plan Sponsor.

If the domestic relations order provides the alternate payee with an election with respect to the form of payment, but the alternate payee does not elect a form of payment using procedures established by the Plan prior to the last business day of the month in which occurs the 60th day following the date the domestic relations order is furnished to the Plan Sponsor, payment to the alternate payee shall be in a lump sum distribution.

Facility of Payment. If the Administrator determines, on the basis of medical reports or other evidence satisfactory to the Administrator, that the recipient of any benefit payments under the Plan is incapable of handling his affairs by reason of minority, illness, infirmity or other incapacity, the Administrator may direct the Employer to disburse such payments to a person or institution designated by a court which has jurisdiction over such recipient or a person or institution otherwise having the legal authority under State law for the care and control of such recipient. The receipt by such person or institution of any such payments therefore, and any such payment to the extent thereof, shall discharge the liability of the Employer, the Plan and the Administrator for the payment of benefits hereunder to such recipient.

Notices. Any notice or other communication to the Employer or Administrator in connection with the Plan shall be deemed delivered in writing if addressed to the Plan Sponsor at the address specified in Section 1.03 of the Adoption Agreement and if either actually delivered at said address or, in the case of a letter, 5 business days shall have elapsed after the same shall have been deposited in the United States mails, first-class postage prepaid and registered or certified.

Tax Withholding. The Employer may withhold any Tax with respect to any deferral, contribution, allocation, earnings, or payment hereunder from any such amount or from any payment due the Participant or other recipient at any time permitted by law, or may otherwise make appropriate arrangements with the Participant or other recipient, or the trustee of the grantor trust referenced in Section 10.01 of the Adoption Agreement, for satisfaction of such obligation at any time permitted by law. For purposes of this Section 13.7, Tax means any federal, state, local, or other governmental income tax, employment or payroll tax, excise tax, or any other tax or assessment owing with respect to any deferral, contribution, allocation, earnings, vesting event, or payment hereunder. As of December 4, 2017, the Trustee of the grantor trust is responsible for withholding, reporting, and paying over federal and state income taxes due on account of payments made from the grantor trust.

Indemnification. Each Employer shall indemnify and hold harmless each employee, officer, or director of an Employer to whom is delegated duties, responsibilities, and authority with respect to the Plan against all claims, liabilities, fines and penalties, and all expenses reasonably incurred by or imposed upon him (including but not limited to reasonable attorney fees) which arise as a result of his actions or failure to act in connection with the operation and administration of the Plan to the extent lawfully allowable and to the extent that such claim, liability, fine, penalty, or expense is not paid for by liability insurance purchased or paid for by an Employer. Notwithstanding the foregoing, an Employer shall not indemnify any person for any such amount incurred through any settlement or compromise of any action unless the Employer consents in writing to such settlement or compromise. Indemnification under this Section 13.8 shall not be applicable to any person if the cost, loss, liability, or expense is due to the person’s gross negligence, fraud or willful misconduct or if the person refuses to assist in the defense of the claim against him.

Permitted Acceleration of Payment. The Plan may permit acceleration of the time or schedule of any payment or amount scheduled to be paid pursuant to a payment under the Plan provided such acceleration would be permitted by the provisions of Reg. Sec. 1.409A-3(j)(4).

Governing Law. The Plan will be construed, administered and enforced according to the laws of the State specified by the Plan Sponsor in Section 12.01 of the Adoption Agreement except to the extent governed by the laws of the United States.

Code Section 409A. The benefits payable to Participants under the Plan are intended to comply with the requirements of Code Section 409A. To the extent applicable, the Plan shall be interpreted, construed and administered in accordance with Code Section 409A and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of the Plan to the contrary, the Plan Sponsor may in its sole discretion adopt such amendments to the Plan or take any other actions that the Plan Sponsor determines are necessary or appropriate to (i) exempt the payments and benefits payable under the Plan from Code Section 409A and/or preserve the intended tax treatment of such payments or benefits, or (ii) comply with the requirements of Code Section 409A and related Department of Treasury guidance and thereby avoid the application of income taxes under Code Section 409A; provided, however, that this Section 13.11 shall not create any obligation on the part of the Plan Sponsor to adopt any such amendment, policy or procedure or take any such other action.

Original Effective Date: The Plan was originally effective November 6, 1996 (and formerly known as the Ingram Micro Inc. Supplemental Executive Deferred Compensation Plan) and was subsequently amended and restated effective January 1, 1999 (and re-named the Ingram Micro Inc. Supplemental Investment Savings Plan).

Pre-409A Grandfathering: ☒ Yes (See Appendix B) ☐ No

EMPLOYER

Entity

Yes

No

ADMINISTRATOR

SPECIFIED EMPLOYEE DETERMINATION DATES

BONUSES

PARTICIPANT CONTRIBUTIONS

Amount of Deferrals

Compensation Other than Bonuses [do not complete if you complete (iii)]

Type of Remuneration

(a)

(b)

(c)

Bonuses [do not complete if you complete (iii)]

Compensation [do not complete if you completed (i) and (ii)]

Dollar Amount

% Amount

Min

Max

Min

Max

(c)   No Revocation of Deferral Agreement

Upon a hardship distribution of elective deferrals from a qualified cash or deferred arrangement maintained by the Employer, a Participant’s deferral agreement will not be cancelled for the remainder of the Plan Year that includes the date of such withdrawal, and for the entire Plan Year next following the date of such withdrawal if the last day of the six month period immediately following such date of withdrawal occurs in such Plan Year (if applicable). If cancellation occurs, the Participant may resume participation in accordance with Article 4 of the Plan.

(d)  No Participant Contributions

☐   Participant contributions are not permitted under the Plan.

EMPLOYER CONTRIBUTIONS

(a)   Matching Contributions

(i)  Amount

For each Plan Year, the Employer shall make a Matching Contribution on behalf of each Participant who defers Compensation for the Plan Year and satisfies the requirements of Section 5.01(a)(ii) of the Adoption Agreement equal to [complete the ones that are applicable]:

(A)  ☐   [insert percentage] of the Compensation the Participant has elected to defer for the Plan Year

(B)  ☐ An amount determined by the Employer in its sole discretion

(C)  ☐ Matching Contributions for each Participant shall be limited to $   and/or  % of Compensation.

(D)  ☒ Other:

See Attachment to Section 5.01(a)

(E)  ☐ Not Applicable [Proceed to Section 5.01(b)]

(ii)  Eligibility for Matching Contribution

A Participant who defers Compensation for the Plan Year may receive an allocation of Matching Contributions determined in accordance with Section 5.01(a)(i) provided he is employed by the Employer on the last day of such Plan Year.

DISTRIBUTIONS

Specified Date and Specified Age elections may not extend beyond age Not Applicable [insert age or “Not Applicable” if no maximum age applies].

Payment Election Override

Involuntary Cashouts

If the Participant’s vested Account at the time of his Separation from Service does not exceed $25,000 (insert dollar amount) distribution of the vested Account shall automatically be made in the form of a single lump sum in accordance with Section 9.5 of the Plan. Such distribution shall occur in accordance with Section 6.01(a)(i)(B) of the Plan.

    If the Participant’s vested Account at the time of his Separation from Service exceeds $25,000 (insert dollar amount) and the Participant has not made an election under Section 6.01(b), then distribution of the vested Account shall automatically be made in the form of a single Jump sum. Such distribution shall occur in accordance with Section 6.01(a)(i)(B) of the Plan.

☐   There are no involuntary cashouts.

(f)   Retirement

☒   Retirement shall be defined as a Separation from Service that occurs on or after the Participant has

    attained ‘Normal Retirement Age’ as defined in Section 1.37 of the Ingram Micro 401(k) Investment Savings Plan.

☐   No special definition of Retirement applies.

(g)   Distribution Election Change

A Participant

☒   Shall

☐   Shall Not

be permitted to modify a payment option in accordance with Section 9.2 of the Plan.

A Participant shall generally be permitted to elect such modification an unlimited number of times.

Administratively, allowable distribution events will be modified to reflect all options necessary to fulfill the distribution change election provision.

(h)  Frequency of Elections

The Plan Sponsor

☒   Has

☐   Has Not

elected to permit annual elections of a time and form of payment for amounts deferred under the Plan.

VESTING

(a)   Matching Contributions

The Participant’s vested interest in the amount credited to his Account attributable to Matching Contributions shall be as follows:

(1)   A Participant who is an employee of the Employer on April 1, 2015 shall be 100% vested in his Account attributable to Matching Contributions.

(2)   A Participant who is hired or rehired by the Employer after April 1, 2015 shall be 100% vested in his Account which is attributable to Matching Contributions made on or after such date of hire or rehire.

(3)   An individual who was a Participant prior to April 1, 2015, but is not an employee of the Employer on April 1, 2015, shall have a vested interest in the portion of his Account which is attributable to Matching Contributions made before April 1, 2015 in accordance with the following schedule:

Years of Service

Less than 1 year

1 year but less than 2

2 years but less than 3

3 years but less than 4

4 years but less than 5

5 or more years

(b)  Other Employer Contributions

The Participant’s vested interest in the amount credited to his Account attributable to Employer contributions other than Matching Contributions shall be based on the following schedule:

FORFEITURES

UNFORESEEABLE EMERGENCY

INVESTMENT DECISIONS

GRANTOR TRUST

PLAN EXPENSES

TERMINATION UPON CHANGE IN CONTROL

Reserves

Does Not Reserve

AUTOMATIC DISTRIBUTION UPON CHANGE IN CONTROL

Shall

Shall Not

CHANGE IN CONTROL

GOVERNING STATE LAW

SPECIAL DEFERRAL ARRANGEMENTS