EXHIBIT (10-10)
The Procter & Gamble Company Executive Deferred Compensation Plan
THE PROCTER & GAMBLE COMPANY
EXECUTIVE DEFERRED COMPENSATION PLAN
(EFFECTIVE JULY 1, 2004)
CONTENTS
Article 1. Purpose, Status, and Effective Date 1
Article 2. Definitions 1
Article 3. Eligibility and Participation 4
Article 4. Contributions and Credits 4
Article 5. Vesting 5
Article 6. Participant Accounts; Investment Options 6
Article 7. Distribution of Benefits 7
Article 8. Claims Procedures 9
Article 9. Plan Administration 10
Article 10. Amendment and Termination 12
Article 11. Additional Provisions 13
THE PROCTER & GAMBLE COMPANY
DEFERRED COMPENSATION PLAN
ARTICLE 1. PURPOSE, STATUS, AND EFFECTIVE DATE
1.1 PURPOSE OF PLAN. The Procter & Gamble Company (the "Company"), an
Ohio corporation, has adopted The Procter & Gamble Company Executive Deferred
Compensation Plan (the "Plan"), as set forth herein, as a means of rewarding and
retaining selected employees and providing such individuals the opportunity for
capital accumulation through elective deferrals of compensation.
1.2 STATUS OF PLAN. The Company has established the Plan as an unfunded
deferred compensation plan for a select group of management and highly
compensated employees within the meaning of Sections 201(2), 301(3), and 401(1)
of the Employee Retirement Income Security Act of 1974, as amended. The Plan
shall at all times be administered and interpreted in a manner that is
consistent with such status.
1.3 EFFECTIVE DATE. The Effective Date of the Plan is July 1, 2004.
ARTICLE 2. DEFINITIONS
Whenever used in this Plan, the following terms shall have the meanings
set forth below and, when the meaning is intended, the initial letter of the
word is capitalized.
(a) "ACCOUNT" shall mean the bookkeeping account for a Participant that
is established and maintained to record the Participant's interest
under the Plan. The balance posted to the record of the Account of a
Participant shall reflect the Participant's Contributions,
distributions, adjustments for income, gain, or loss, and other
charges and credits pursuant to Article 6.
(b) "ADMINISTRATIVE COMMITTEE" shall mean the committee that administers
the Short-Term Achievement Reward incentive plan or such other
administrative committee of the Company appointed by the
Compensation Committee to administer the Plan. Pursuant to Section
9.2, the Administrative Committee has the authority to delegate its
responsibilities. Throughout this plan document, the term
"Administrative Committee" shall also include any individual to whom
the Administrative Committee has delegated its responsibilities
pursuant to Section 9.2.
(c) "BENEFICIARY" shall mean the person or persons or entity designated
by the Participant to receive the balance of the Participant's
Account in the event of the Participant's death. The designation may
be in favor of one or more Beneficiaries, may include contingent as
well as primary designations and named or unnamed trustees under any
will or trust agreement and may apportion the benefits payable in
any manner among the Beneficiaries. A Participant's designation of
one or more Beneficiaries shall be made in writing in a manner
designated by the Administrative Committee and shall not be
effective until received by the Administrative Committee. If a
Participant fails to properly designate a Beneficiary or if the
designated beneficiaries of such Participant shall have predeceased
the Participant, the Participant's estate shall be the Beneficiary.
A Participant may change his or her Beneficiary without the consent
of any Beneficiary by similar instrument in accordance with rules
and procedures established by the Administrative Committee. The
beneficiary designation form received and acknowledged most recently
by the Administrative Committee shall control as of any date. If
concurrent Beneficiaries are named without specifying the proportion
of benefits due each, distribution shall be made in equal shares to
those Beneficiaries.
(d) "CLAIMANT" shall mean the Participant or Beneficiary or his or her
representative submitting a claim for benefits under the Plan.
(e) "CODE" shall mean the Internal Revenue Code of 1986, as amended, or
as it may be amended from time to time. Furthermore, the phrase "to
the extent permitted under the Code" means to the extent the action
described does not cause taxation of a Participant's Account prior
to distribution of all or a portion of the Participant's Account.
(f) "COMPANY" shall mean The Procter & Gamble Company, an Ohio
corporation, and any successor thereto which continues the Plan.
(g) "COMPENSATION" shall mean the definition of compensation for the
Plan Year announced in writing by the Administrative Committee on or
before the due date for the Administrative Committee's receipt of
Participants' Deferral Elections for such Plan Year. Unless and
until superceded, the definition of compensation announced by the
Administrative Committee for a Plan Year shall remain in effect for
subsequent Plan Years.
(h) "COMPENSATION COMMITTEE" shall mean the Compensation Committee of
the Board of Directors, as constituted from time to time, of the
Company. If the Compensation Committee has delegated any of its
authority under the Plan to a committee or to an individual, the
term "Compensation Committee" shall also include such committee or
individual.
(i) "CONTRIBUTIONS" shall mean Deferrals.
(j) "DEFERRAL ELECTION" shall mean the election or elections filed by
the Participant with the Company to defer Compensation under the
Plan.
(k) "DEFERRALS" shall mean the amounts credited to a Participant's
Account as Deferrals pursuant to the Participant's Deferral
Election.
(l) "DISABILITY" shall mean "Permanent Disability" as defined in and as
determined by, the plan administrator of The Procter & Gamble Profit
Sharing Trust and Employee Stock Ownership Plan under The Procter &
Gamble Profit Sharing Trust and Employee Stock Ownership Plan's
procedures for disability claims. In addition, where the context so
requires, "Disability" shall mean a termination of employment by
reason of Disability.
(m) "EFFECTIVE DATE" shall mean the date set forth in Section 1.3.
(n) "ELIGIBLE EMPLOYEE" shall mean an Employee who satisfies one of the
requirements for eligibility under Article 3 of the Plan.
(o) "EMPLOYEE" shall mean any employee of the Company or a subsidiary
who is expressly designated as an Employee. Any person who is not
expressly designated as an Employee by the Company (or by the
subsidiary of the Company for whom the person performs services)
shall not be an Employee for purposes of the Plan, notwithstanding
that such person may be later determined by the Internal Revenue
Service or by a court of competent jurisdiction to be an employee.
(p) "EMPLOYER" shall mean, with respect to any Participant, the Company
or, if applicable, a subsidiary of the Company (that is
participating in the Plan with the consent of the Compensation
Committee) that employs such Participant.
(q) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
(r) "INVESTMENT OPTION" shall mean a security (other than stock of the
Company), mutual fund, common or collective trust, insurance company
pooled separate account, or other benchmark selected by the
Administrative Committee pursuant to Section 6.2 for measuring the
income, gain, or loss, and other charges and credits recorded for a
Participant's Account.
(s) "PARTICIPANT" shall mean an Employee who is eligible to participate
in the Plan: (i) by reason of being selected for participation
pursuant to Section 3.1(a) of the Plan; or (ii) because the Employee
satisfies eligibility criteria established by the Administrative
Committee for participation by a class of employees pursuant to
Section 3.1(b) of the Plan.
(t) "PLAN" shall mean The Procter & Gamble Company Deferred Compensation
Plan, as herein set out or as duly amended.
(u) "PLAN YEAR" for this Plan shall mean the calendar year.
(v) "RETIREMENT" shall have the same meaning as provided under The
Procter & Gamble Profit Sharing Trust and Employee Stock Ownership
Plan.
(w) "SCHEDULED IN-SERVICE WITHDRAWAL" shall mean a distribution of all
or a portion of the Deferrals credited to a Participant's Account in
the Plan Year elected by the Participant for such distribution.
ARTICLE 3. ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY.
(a) Participation in the Plan is limited to the class of
Employees who are expressly selected for Plan participation
by the Compensation Committee.
(b) In lieu of expressly selecting Employees for Plan
participation, the Compensation Committee may establish
eligibility criteria providing for the participation of all
Employees who satisfy such criteria.
(c) The Compensation Committee may adopt, amend, or abolish a
Participant's selection for eligibility or eligibility
criteria under Sections 3.1(a) and 3.1(b) hereof at any
time, and for any reason, by resolution, which resolutions
shall be attached to the copy of the Plan maintained by the
Company and shall be effective as of the date specified
therein, or if later, the date submitted to the Company.
3.2 PARTICIPATION. A Participant shall continue to participate in the
Plan with respect to amounts credited to his or her Account until: (i) the
Participant ceases to satisfy any of the eligibility criteria for participation
under Section 3.1, and (ii) there has been a complete distribution or forfeiture
of the Participant's Account.
ARTICLE 4. CONTRIBUTIONS AND CREDITS
4.1 DEFERRALS.
(a) A Participant may elect to make Deferrals to his or her
Account for a Plan Year by timely executing and filing a
Deferral Election with the Administrative Committee on or
before the due date established by the Administrative
Committee for the Plan Year for which the Deferral Election is
being made. Except as provided in paragraphs (b) and (c) of
this Section 4.1, such due date shall be prior to January 1 of
the Plan Year for which the Compensation would otherwise be
payable.
(b) The Administrative Committee may provide for separate Deferral
Elections and due dates for the various elements of
Compensation, such as base salary and bonuses. Any Deferral
Election must be made prior to the period for which the
element of Compensation being deferred is earned, as
determined by the Administrative Committee in its sole
discretion, and the Participant's Deferral Election shall only
apply to Compensation earned after the date on which it is
received by the Administrative Committee.
(c) A Participant who first becomes eligible for participation in
the Plan after January 1 of a Plan Year who wishes to make
Deferrals to his or her Account for such Plan Year shall
execute and file with the Administrative Committee a Deferral
Election within thirty (30) days after the date on which such
Participant is notified that he or she has become eligible to
participate in the Plan. For this purpose, the date of the
notice shall be the date of notification, regardless of when
actually received by the Participant.
(d) Only one Deferral Election may be made for each element of
Compensation earned in a single Plan Year (or earned over a
period of more than one Plan Year). Any Participant who fails
to timely execute and file a Deferral Election with the
Administrative Committee for a Plan Year with respect to an
element of Compensation shall not be permitted to make
Deferrals for such element of Compensation for such Plan Year.
(e) A Deferral Election shall direct the Employer to reduce the
Participant's Compensation (or the element thereof) by a whole
percentage specified by the Participant in the Deferral
Election.
(f) The amount specified by the Participant in the Deferral
Election cannot reduce the Participant's current Compensation
for such Plan Year below the amount necessary to satisfy any
applicable taxes and withholdings required by law, as
determined by the Administrative Committee.
(g) A Deferral Election for Compensation shall be effective only
for the Plan Year for which it is made. Once filed with the
Administrative Committee, a Deferral Election shall be
irrevocable.
(h) In making a Deferral Election, a Participant consents to the
Employer's withholding from his or her currently payable
Compensation the amount or amounts elected and the crediting
of such withheld amounts to the Participant's Account, as
provided in the Plan.
4.2 AUTOMATIC CANCELLATION OF DEFERRAL ELECTIONS. Notwithstanding
anything in the Plan to the contrary, in the event the Participant ceases to be
a Participant, all of such Participant's outstanding Deferral Elections shall
immediately be cancelled, and the Participant's right to make future Deferral
Elections shall be suspended until the Participant again becomes a Participant.
ARTICLE 5. VESTING
A Participant shall at all times be one hundred percent (100%) vested in
amounts credited to the Participant's Account.
ARTICLE 6. PARTICIPANT ACCOUNTS; INVESTMENT OPTIONS
6.1 ACCOUNTS. The Administrative Committee shall establish an Account
for each Participant to record the Contributions, distributions, adjustments for
income, gain, or loss, and other charges and credits to the Account under the
Plan.
6.2 INVESTMENT OPTIONS. The Administrative Committee shall designate one
or more Investment Options for measuring the income, gain, or loss, and other
charges and credits recorded for a Participant's Account and may change
Investment Options prospectively at any time provided that any Investment
Options designated must be comparable to an investment option available under a
tax-qualified defined contribution plan of the Company. Notwithstanding anything
in this Plan to the contrary, an Investment Option that provides an above-market
return, as defined by Item 402 of Regulation S-K of the Securities Act of 1933,
may not be designated without the approval of the Compensation Committee.
6.3 PARTICIPANT ALLOCATIONS.
(a) A Participant shall elect on his or her Deferral Election form
or on such other form or by such other means as may be
specified by the Administrative Committee, one or more
Investment Options to which Contributions to be credited to
the Participant's Account shall be allocated. A Participant
may change the allocation of future Contributions among the
Investment Options and may change the allocation of his or her
Account balance among the Investment Options as frequently as
permitted by the Administrative Committee under rules and
procedures applicable to all Participants. The Administrative
Committee shall establish and may prospectively change its
rules regarding the timing and
frequency of Investment Option elections and may establish
minimum amounts or percentages for allocating Contributions
and transferring Account balances among the Investment
Options.
(b) In the event a Participant fails or refuses to make an
election allocating Contributions credited to his or her
Account among the then available Investment Options, the
Administrative Committee shall, in its discretion, either: (i)
reject the Participant's Deferral Election as incomplete, or
(ii) specify the Investment Option or Options to which the
Participant's Account shall be allocated and notify the
Participant of its selection, which notification may be the
Account statements provided to the Participant.
6.4 ADJUSTMENT OF ACCOUNTS. A Participant's Account balance shall be
adjusted daily, based on the performance of the Investment Options selected by
the Participant, as if the portion of the Participant's Account allocated to an
Investment Option were actually invested in such Investment Option and adjusted
for other amounts as if such other amounts were actually charged or credited to
an actual Account balance of the Participant. The Administrative Committee may
also charge as an expense against a Participant's Account: (i) amounts
customarily charged by the sponsor of one or more Investment Options that are
charged on a per-Participant or per-transaction basis and not otherwise charged
as an expense of an Investment Option, and (ii) the Administrative Committee's
and the Employer's own expenses and out-of-pocket fees in administering the
Plan. The Administrative Committee's allocation of charges and expenses among
Participant Accounts shall be final and conclusive against the Participants and
all other parties.
6.5 STATUS OF INVESTMENT OPTIONS. The Investment Options established by
the Administrative Committee from time to time are for the sole purpose of
providing a performance measurement for adjusting Participants' Accounts for
income, gain, or loss, and other charges and credits. Notwithstanding anything
in this Plan to the contrary, neither the Company nor the Administrative
Committee shall be required to actually invest monies in any fund designated as
an Investment Option, any decision to so invest shall remain within the
discretion of the Company (subject to the approval of the Compensation
Committee), and any amounts so invested shall remain the property of the
Company.
ARTICLE 7. DISTRIBUTION OF BENEFITS
7.1 DISTRIBUTION ELECTION.
(a) At the time each Deferral Election is made, the Participant
may elect to receive a distribution of all or a portion of the
related amount deferred (including adjustments thereon
pursuant to Section 6.4) upon the first to occur of the
Participant's Retirement or termination of employment by
reason of Disability.
(b) A Participant may instead elect to receive a Scheduled
In-Service Withdrawal of up to one hundred percent (100%) of
the related amount deferred (including adjustments thereon
pursuant to Section 6.4); provided, however, that any
Scheduled In-Service Withdrawal must occur at least one (1)
year after the end of the Plan Year in which the Deferrals
being distributed were credited to the Participant's Account.
(c) Separate distribution elections may be made for each Plan
Year's credited Contributions. The Participant's distribution
election shall be made in writing as specified by the
Administrative Committee.
7.2 RETIREMENT/DISABILITY DISTRIBUTIONS.
(a) A Participant may elect one or both of the following forms of
distribution for his or her Account distributable by reason of
the Participant's Retirement or Disability: (i) a single sum
distribution, or (ii) a distribution in approximately equal
annual installments payable over a period of two (2) to ten
(10) years. The Account balance of a Participant who fails or
refuses to elect a method of distribution shall be paid in a
single sum.
(b) A distribution payable by reason of the Participant's
Retirement or Disability shall be paid (in the case of a
single sum) or commence to be paid (in the case of annual
payments) as soon as practicable in the calendar year
following the calendar year in which the Participant's
Retirement or Disability occurs.
7.3 DEATH DISTRIBUTIONS. If a Participant dies before a complete
distribution of his or her Account under the Plan has occurred, the
Participant's undistributed Account balance shall commence to be distributed to
his or her Beneficiary under the distribution method (for death) elected by the
Participant as soon as administratively possible following receipt by the
Administrative Committee of satisfactory notice and confirmation of the
Participant's death.
7.4 SCHEDULED IN-SERVICE WITHDRAWALS.
(a) A Scheduled In-Service Withdrawal shall be paid in a single
sum as soon as practicable in the January of the payout year
elected by the Participant to receive such Scheduled
In-Service Withdrawal.
(b) If a Participant has elected a Scheduled In-Service Withdrawal
for all or a portion of his or her Account, but terminates
employment with all Employers for any reason other than
Disability or death prior to the year specified by the
Participant for such Scheduled In-Service Withdrawal to be
paid, the Scheduled In-Service Withdrawal shall be paid in the
year following the year employment terminates.
(c) If a Participant terminates employment with all Employers by
reason of Disability or death prior to the year specified by
the Participant for such Scheduled In-Service Withdrawal to be
paid, the Scheduled In-Service Withdrawal distribution shall
be distributed in the manner elected by the Participant for
Disability or death. However, if Disability or death occurs
within a Plan Year during which a Scheduled In-Service
Withdrawal is still to be paid, such withdrawal shall be paid
as scheduled to the Participant (or in the event of death, to
the Participant's estate).
7.5 TERMINATION OF EMPLOYMENT. If a Participant terminates employment
with all Employers prior to his or her Retirement, death, or Disability for any
reason, notwithstanding any distribution election made by the Participant, the
undistributed portion of the Participant's Account
balance shall be payable to the Participant in a single sum in January following
the calendar year in which such termination of employment occurs.
7.6 FORM OF DISTRIBUTIONS. All amounts distributed to a Participant from
his or her Account shall be paid in cash by the Employer or its designee.
7.7 POSTPONEMENT OF DISTRIBUTIONS. The Administrative Committee may
postpone the distribution of all or part of an amount otherwise payable to a
Participant to the extent that the distribution would not be deductible by the
Employer under Section 162(m) of the Code. A conversion or distribution that is
so postponed pursuant to this Section 7.7 shall be converted and/or paid as soon
as it is possible to do so within the deduction limitations of Section 162(m) of
the Code.
7.8 PERMITTED CHANGES IN DISTRIBUTION ELECTIONS. To the extent permitted
under the Code and by the Administrative Committee, a Participant may change his
or her distribution election related to amount(s) distributable by reason of his
or her Disability or death if such change is made in writing at least twelve
(12) months prior to the Participant's Disability or death and only if such
change will not result in taxation of amounts previously deferred. In the event
that the Participant's most recent form of distribution election was made within
twelve (12) months of the Participant's Disability or death, the next most
recent election made by the Participant at least twelve (12) months prior to the
Participant's termination of employment by reason of Disability or death (or if
none, the Participant's initial election) shall be used.
ARTICLE 8. CLAIMS PROCEDURES
8.1 GENERALLY. A distribution request (also referred to herein as a
claim) shall be made by filing a written request with the Administrative
Committee on a form provided by the Administrative Committee, which shall be
delivered to the Administrative Committee. If the claims procedure form made
available by the Administrative Committee does not contain information on where
to file the claim, the claim may be submitted to the human resources office at
the site where the Claimant is employed.
8.2 DENIED CLAIMS. If a claim is denied in whole or in part, the
Claimant shall receive a written or electronic notice explaining the denial of
the claim within ninety (90) days after the Administrative Committee's receipt
of the claim. If the Administrative Committee determines that for reasons beyond
its control, a ninety (90) day extension of time is necessary to process the
claim, the Claimant shall be notified in writing of the extension and reason for
the extension within ninety (90) days after the Administrative Committee's
receipt of the claim. The written extension notification shall also indicate the
date by which the Administrative Committee expects to render a final decision. A
notice of denial of claim shall contain the following: the specific reason or
reasons for the denial; reference to the specific Plan provisions on which the
denial is based; a description of any additional materials or information
necessary for such Claimant to perfect the claim and an explanation of why such
material or information is necessary; and a description of the Plan's review
procedures and the time limits applicable to such procedures, including a
statement of the Claimant's right to bring a civil action under Section 502(c)
of ERISA following an adverse determination on review.
8.3 REVIEW OF DENIED CLAIMS. A Claimant may file a written request for a
review of the denial of a claim within sixty (60) days after receiving written
notice of the denial. The Claimant may submit written comments, documents,
records, and other relevant information in support of the
claim. A Claimant shall be provided, upon request and without charge, reasonable
access to, and copies of, all documents, records, and other information relevant
to the Claimant's claim. A document, record, or other information shall be
considered relevant if it: (a) was relied upon in denying the claim; (b) was
submitted, considered or generated in the course of processing the claim,
regardless of whether it was relied upon; (c) demonstrates compliance with the
claims procedures process; or (d) constitutes a statement of Plan policy or
guidance concerning the denied claim.
8.4 DECISIONS ON REVIEWED CLAIMS. The Administrative Committee shall
notify the Claimant in writing of its decision on the appeal. Such notification
shall be in a form designed to be understood by the Claimant. If the claim is
denied in whole or in part on appeal, the notification shall also contain: the
specific reason or reasons for the denial; reference to the specific Plan
provisions on which the determination is based; a statement that the Claimant is
entitled to receive, upon request and free of charge, reasonable access to, and
copies of, all documents, records, and other information relevant to the
Claimant's claim for benefits; and a statement that the Claimant has a right to
bring an action under Section 502(a) of ERISA. A document, record, or other
information shall be considered relevant if it: (a) was relied upon in denying
the claim; (b) was submitted, considered, or generated in the course of
processing the claim, regardless of whether it was relied upon; (c) demonstrates
compliance with the claims procedures process; or (d) constitutes a statement of
Plan policy or guidance concerning the denied claim. Such notification shall be
given by the Administrative Committee within sixty (60) days after the complete
appeal is received by the Administrative Committee (or within one hundred twenty
(120) days if the Administrative Committee determines special circumstances
require an extension of time for considering the appeal, and if written notice
of such extension and circumstances is given to the Claimant within the initial
sixty (60) day period). Such written extension notice shall also indicate the
date by which the Administrative Committee expects to render a decision.
8.5 REVIEW PROCEDURES. In reviewing a denied claim, the reviewer shall
take into consideration all comments, documents, records, and other information
submitted by the Claimant in support of the claim, without regard to whether
such information was submitted or considered in the initial determination.
ARTICLE 9. PLAN ADMINISTRATION
9.1 ESTABLISHMENT OF THE ADMINISTRATIVE COMMITTEE. The Administrative
Committee shall have the sole responsibility for the administration of the Plan.
The Administrative Committee shall consist of at least three (3) members who
shall be appointed by the Compensation Committee and who may also be officers,
directors, or employees of the Company or an Employer. An Administrative
Committee member may resign by written notice to, or may be removed by, the
Company, which shall appoint a successor to fill any vacancy on the
Administrative Committee, howsoever caused. An Employee's membership on the
Administrative Committee shall automatically terminate upon such Employee's
termination of employment with all Employers.
9.2 APPOINTMENT AND DUTIES OF THE ADMINISTRATIVE COMMITTEE.
(a) The Administrative Committee may delegate its responsibilities
hereunder to one or more persons, to serve at the
Administrative Committee's discretion. The Administrative
Committee or its delegatee(s) shall have such powers as may be
necessary to discharge its duties hereunder, including, but
not by way of limitation, the following:
(i) To administer and enforce the Plan, including the
discretionary and exclusive authority to interpret
the Plan, to make all factual determinations under
the Plan, and to resolve questions between the
Company and Participants or Beneficiaries, including
questions which relate to eligibility and
distributions from the Plan, to remedy possible
ambiguities, inconsistencies, or omissions, and
decisions on claims which shall, subject to the
claims procedures under the Plan, be conclusive and
binding upon all persons hereunder, including,
without limitation, Participants, other Employees of
the Company, Beneficiaries, and former Participants,
and their executors, administrators, conservators, or
heirs;
(ii) To prescribe procedures to be followed by
Participants or Beneficiaries filing applications for
benefits;
(iii) To prepare and distribute, in such manner as the
Administrative Committee determines to be
appropriate, information explaining the Plan;
(iv) To receive from the Employer and from Participants
such information as shall be necessary for the proper
administration of the Plan;
(v) To furnish the Employer, upon request, such reports
with respect to the administration of the Plan as are
reasonable and appropriate;
(vi) To receive, review, and keep on file (as it deems
convenient or proper) reports of the receipts and
disbursements under the Plan;
(vii) To appoint or employ individuals to assist in the
administration of the Plan and any other agents it
deems advisable, including legal counsel, and such
clerical, medical, accounting, auditing, actuarial,
and other services as it may require in carrying out
the provisions of the Plan or in connection with any
legal claim or proceeding involving the Plan, to
settle, compromise, contest, prosecute, or abandon
claims in favor of or against the Plan; and
(viii) To discharge all other duties set forth herein.
(b) The Administrative Committee shall have no power to add to,
subtract from, or modify any of the terms of the Plan, or to
change or add to any benefits provided by the Plan, or to
waive or fail to apply any requirements of eligibility under
the Plan. No member of the Administrative Committee shall
participate in any action on any matters involving solely his
or her own rights or benefits as a Participant under the Plan,
and any such matters shall be determined by the Compensation
Committee.
9.3 ACTIONS BY THE ADMINISTRATIVE COMMITTEE. The Administrative
Committee may act at a meeting or by writing without a meeting, by the vote or
assent of a majority of its members. The Administrative Committee may adopt such
bylaws and regulations as it deems desirable for the conduct of its affairs and
the administration of the Plan. A dissenting Administrative Committee member
who, within a reasonable time after he or she has knowledge of any action or
failure to act
by the majority, registers his or her dissent in writing delivered to the other
Administrative Committee members shall not be responsible for any such action or
failure to act.
9.4 EXPENSES OF THE ADMINISTRATIVE COMMITTEE. Members of the
Administrative Committee shall not receive compensation from the Plan for those
services they perform as the Administrative Committee members while employed by
an Employer. Any and all necessary expenses related to Plan administration shall
be paid by the Company but may be charged against Plan Accounts.
9.5 RECORDS OF THE ADMINISTRATIVE COMMITTEE. The Administrative
Committee shall keep a record of all of its meetings and shall keep all such
books of account, records, and other data as may be necessary or desirable in
its judgment for the administration of the Plan.
9.6 INFORMATION FROM PARTICIPANT. The Administrative Committee may
require a Participant to complete and file with the Administrative Committee
forms approved by the Administrative Committee, and to furnish all pertinent
information requested by such Administrative Committee. The Administrative
Committee may rely upon all such information so furnished, including the
Participant's current mailing address.
9.7 NOTIFICATION OF PARTICIPANT'S ADDRESS. Each Participant, retired
Participant, and Beneficiary entitled to benefits under the Plan must file with
the Administrative Committee or such other person designated by the
Administrative Committee, in writing, his or her post office address and each
change of post office address. Any communication, statement, or notice addressed
to such a person at this latest post office address as filed with the
Administrative Committee shall, on deposit in the United States mail with
postage prepaid, be binding upon such person for all purposes of the Plan, and
the Administrative Committee shall not be obliged to search for, or ascertain
the whereabouts of, any such person.
9.8 INDEMNIFICATION. Notwithstanding any provision herein to the
contrary, no member of the Administrative Committee nor any individual to whom
the Administrative Committee has delegated duties under this Plan shall be
liable to any Participant, former Participant, designated Beneficiary, or any
other person for any claim, loss, liability, or expense incurred in connection
with the Plan, unless attributable to fraud or willful misconduct on the part of
such member or individual. Furthermore, members of the Administrative Committee
and all individuals to whom the Administrative Committee has delegated duties
under this Plan shall be indemnified by the Company against any and all
liabilities arising by reason of any act or failure to act made in good faith
pursuant to the provisions of the Plan, including expenses reasonably incurred
in the defense of any claim relating thereto.
ARTICLE 10. AMENDMENT AND TERMINATION
The Company hereby reserves the right, by written resolution of the
Compensation Committee, to amend or terminate the Plan at any time, and for any
reason, without the consent of any Participant. No amendment shall impair or
curtail the Employer's contractual obligations to a Participant for the vested
portion of the Participant's Account prior to the date of any such amendment or
termination of the Plan.
ARTICLE 11. ADDITIONAL PROVISIONS
11.1 NO CONTRACT. Nothing in the Plan shall be deemed to give a
Participant any right to be retained in the employ of the Employer or to
interfere with the Employer's right to discharge the Participant at any time,
with or without cause.
11.2 WITHHOLDINGS. The Employer shall withhold from any amount
distributable to a Participant under the Plan any applicable actual or
hypothetical federal, state, or local income or employment taxes or any other
amounts required to be withheld by law or withheld pursuant to Section 11.4. In
addition, the Employer may withhold from a Participant's currently payable
salary, bonus, or other compensation any applicable federal, state, or local
income or employment taxes that may be due upon the crediting of an amount to
the Participant's Account.
11.3 RIGHTS NOT TRANSFERABLE. Neither a Participant nor any other person
shall have any right to commute, sell, assign, transfer, pledge, anticipate,
mortgage, or otherwise encumber, transfer, hypothecate, alienate, or convey in
advance of actual receipt, the amounts, if any, payable hereunder, or any part
thereof, which are, and all rights to which are expressly declared to be,
unassignable and nontransferable. No part of the amounts payable shall, prior to
actual payment, be subject to seizure, attachment, garnishment, or sequestration
for the payment of any debts, judgments, alimony, or separate maintenance owed
by a Participant or any other person, be transferable by operation of law in the
event of a Participant's or any other person's bankruptcy or insolvency or be
transferable to a spouse as a result of a property settlement or otherwise.
11.4 OFFSET. If, at the time payments or installments of payments are to
be made hereunder, the Participant or Beneficiary or both are indebted or
obligated to the Company, then the remaining payments under the Plan to be made
to the Participant or the Beneficiary or both may, at the discretion of the
Company, be reduced by the amount of the indebtedness or obligation, provided,
however, that an election by the Company not to reduce any such payment or
payments shall not constitute a waiver of its claim for such indebtedness or
obligation or a waiver of its right to make an offset against payments in the
future.
11.5 NO FUNDING. The Plan constitutes a mere promise of the Employer to
make payments in accordance with the terms of the Plan. This Plan does not give
any Participant or his or her Beneficiary any interest, lien, or claim in or
against any specific assets of the Employer. The Participant and his or her
Beneficiary shall have only the rights of general, unsecured creditors of the
Employer with respect to their rights under the Plan.
The Company may, but shall not be required to, establish a grantor trust
as a funding source for its obligations under the Plan. If such a trust is so
established, it shall be the intention of the Company that the trust shall
constitute an unfunded arrangement for purposes of the Plan, such that the Plan
shall continue to be an unfunded plan maintained for the purpose of providing
deferred compensation to a select group of management or highly compensated
employees under ERISA. With respect to any Participant, the assets of the trust
so established shall remain subject to the claims of the creditors of that
Participant's Employer in the event of the Employer's bankruptcy or insolvency.
11.6 CONSTRUCTION. The headings in this Plan have been inserted for
convenience of reference only and are to be ignored in any construction of the
provision.
11.7 GENDER AND NUMBER. Except when otherwise clearly indicated by the
context, when used in the Plan words in any gender shall include any other
gender, and words in the singular shall include the plural, and words in the
plural shall include the singular.
11.8 SEVERABILITY. In the event any provision of the Plan shall be held
invalid or illegal for any reason, any illegality or invalidity shall not affect
the remaining parts of the Plan, but the Plan shall be construed and enforced as
if the illegal or invalid provision had never been inserted, and the Company
shall have the right to correct and remedy such questions of illegality or
invalidity by amendment as provided by the Plan.
11.9 GOVERNING LAW. The Plan shall be regulated, construed, and
administered in all respects under and by the laws of the state of Ohio, without
regard to its conflict of laws provisions, except when preempted by federal law.
11.10 VOIDING OF PLAN PROVISIONS. If any provision under this Plan causes
an amount deferred to become subject to income tax under the Code prior to the
time such amount is paid to the Participant, such provision shall be deemed null
and void with respect to such amount deferred and the Administrative Committee
shall take whatever steps as may be required to accomplish the deferral
objectives of the Plan without causing early taxation of such amount deferred
and without any Employer incurring additional cost or liability.
Plan adopted July 1, 2004