Exhibit 10.10
THE KITCHEN COLLECTION, INC.
LONG-TERM INCENTIVE COMPENSATION PLAN
(AS AMENDED AND RESTATED AS OF JANUARY 1, 2005)
1. Effective Date
The Effective Date of this amendment and restatement of The Kitchen
Collection, Inc. Long- Term Incentive Compensation Plan (the "Plan") is
January 1, 2005.
2. Purpose of the Plan
The purpose of this Plan is to further the long-term profits and growth of
The Kitchen Collection, Inc. (the "Company") by enabling the Company to attract
and retain key management employees by offering long-term incentive compensation
to those officers and key management employees who will be in a position to make
significant contributions to such profits and growth. This incentive is in
addition to annual compensation and is intended to reflect growth in the value
of the Company's stockholders' equity.
3. Application of the American Jobs Creation Act ("AJCA")
(a) Awards with Grant Dates of January 1, 2004 (the "Pre-2005 Awards") are
"grandfathered" under Code Section 409A (as enacted by the AJCA) and, as such,
will continue to be governed by the law applicable to nonqualified deferred
compensation prior to the enactment of Code Section 409A.
(b) Awards with Grant Dates of January 1, 2005 or later (the "Post-2004
Awards") are subject to the provisions of Code Section 409A, as enacted by the
AJCA. It is intended that the provisions of the Plan that relate to the
Post-2004 Awards be administered in accordance with the requirements of Code
Section 409A, so as to prevent the inclusion in gross income of any Post-2004
Awards hereunder in a taxable year that is prior to the taxable year or years in
which such Awards would otherwise be actually paid or made available to the
Participant.
4. Definitions
(a) "Award" shall mean an award of Book Value Units granted to a
Participant under this Plan for an Award Year in an amount determined pursuant
to a formula which is established by the Committee not later than the 90th
calendar day of the Award Year. The Participant's Awards shall be further
divided into the Pre-2005 Awards and the Post-2004 Awards in accordance with the
terms of Section 3 hereof.
KCI LTIP/2005 Restatement
(b) "Award Units" shall mean Book Value Units which are issued pursuant to,
and with such restrictions as are imposed by, the terms of this Plan.
(c) "Award Unit Price" as to any Book Value Unit shall mean the Book Value
on the Quarter Date coincident with or immediately preceding the Grant Date of
the Award.
(d) "Award Year" shall mean the calendar year on which an Award is based.
(e) "Beneficiary" shall mean the person(s) designated in writing (on a form
acceptable to the Committee) to receive the payment of all Awards hereunder in
the event of the death of a Participant. In the absence of such a designation
and at anytime when there is no existing Beneficiary hereunder, a Participant's
Beneficiary shall be his surviving legal spouse or, if none, his estate.
(f) "Book Value" as to any Book Value Unit shall mean an amount determined
by the Committee or, if no amount is set by the Committee, as of any date (i)
the stockholders' equity (as determined in accordance with generally accepted
accounting principles, applied on a consistent basis) allocable to the Common
Stock of the Company, as set forth on the balance sheet of the Company as of the
Quarter Date coincident with or immediately preceding such date, divided by (ii)
the number of Notional Shares existing as of such Quarter Date; provided,
however, that Book Value and/or the number of Notional Shares may be adjusted to
such an extent as may be determined by the Committee to preserve the benefit of
the arrangement for holders of Book Value Units and the Company, if in the
opinion of the Committee, after consultation with the Company's independent
public accountants, changes in the Company's accounting policies, acquisitions
or other unusual or extraordinary items have materially affected the
stockholders' equity allocable to the Notional Shares.
(g) "Book Value Unit" or "Unit" shall mean a right granted pursuant to the
terms and conditions set forth in Section 7.
(h) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(i) "Committee" shall mean the Compensation Committee of the Company's
Board of Directors or any other committee appointed by the Company's Board of
Directors to administer this Plan in accordance with Section 5.
(j) "Disability" or "Disabled." A Participant shall be deemed to have a
"Disability" or be "Disabled" if the Participant is determined to be totally
disabled by the Social Security Administration or if the Participant (i) is
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 (ii) is, 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, receiving income replacement benefits for a period
of not less than 3 months under an employer-sponsored accident and health plan.
(k) "Grant Date" shall mean the effective date of an Award, as determined
under Section 7(b)(ii) of the Plan.
(l) "Guidelines" shall mean the annual guidelines that are approved by the
Committee for the administration of the Awards granted under the Plan. To the
extent that there is any inconsistency between the Guidelines and the Plan, the
Guidelines shall control.
(m) "Hay Salary Grade" shall mean the salary grade or points assigned to a
Participant by the Company pursuant to the Hay Salary System, or any successor
salary system subsequently adopted by the Company.
(n) "Key Employee" shall mean a key employee, as defined in Section 416(i)
of the Code (without regard to paragraph (5) thereof) of the Company as long as
the stock of NACCO Industries, Inc. (or a related entity) is publicly traded on
an established securities market or otherwise on the date of the Employee's
Termination of Employment. Key Employees are identified on a controlled
group-wide basis and include non-resident alien employees (whether or not such
employees are eligible to participate in the Plan). The selected identification
date for Key Employees is December 31st. As such, any employee who is classified
by the Company as a Key Employee as of December 31st of a particular Plan Year
shall maintain such classification for the 12-month period commencing the
following April 1st. The Company shall have the sole and absolute discretion to
classify Employees as Key Employees hereunder. To the extent determined by the
Company, such classification may include up to 75 highly compensated employees
(including some who do not meet the statutory requirements of a Key Employee) as
long as such determination is made in a consistent, reasonable and good faith
manner.
(o) "Maturity Date" shall mean the date established by the Committee with
respect to a Post-2004 Award, as determined under Section 10(a) of the Plan.
(p) "Notional Shares" shall mean the number of assumed shares of Common
Stock of the Company as determined by the Committee from time to time in order
to implement the purposes of the Plan. The number of
Notional Shares under the Plan (including the Plan as in effect prior to the
Effective Date) shall equal one million shares.
(q) "Participant" shall mean any person who meets the eligibility criteria
set forth in Section 6 and who is granted an Award under the Plan.
(r) "Quarter Date" shall mean the last business day of each calendar
quarter.
(s) "Retirement" or "Retire" shall mean the termination of a Participant's
employment with the Company after the Participant has reached age 60 and
completed at least 15 years of service.
(t) "Target Award" shall mean the dollar value of the Award to be paid to a
Participant under the Plan assuming that the performance targets are met.
(u) "Termination of Employment" shall mean a separation of service as
defined in Code Section 409A (and the regulations and guidance issued
thereunder).
(v) "Unforeseeable Emergency" shall mean an event which results in a severe
financial hardship to the Participant as a consequence of (i) an illness or
accident of the Participant, the Participant's spouse or a dependent within the
meaning of Code Section 152(a), (ii) loss of the Participant's property due to
casualty or (iii) other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant.
5. Administration
(a) This Plan shall be administered by the Committee. A majority of the
Committee shall constitute a quorum, and the action of members of the Committee
present at any meeting at which a quorum is present, or acts unanimously
approved in writing, shall be the act of the Committee. All acts and decisions
of the Committee with respect to any questions arising in connection with the
administration and interpretation of this Plan, including the severability of
any or all of the provisions hereof, shall be conclusive, final and binding upon
the Company and all present and former Participants, all other employees of the
Company, and their respective descendants, successors and assigns. No member of
the Committee shall be liable for any such act or decision made in good faith.
(b) The Committee shall have complete authority to interpret all provisions
of this Plan, to prescribe the form of any instrument evidencing any Award
granted under this Plan, to adopt, amend and rescind general and special rules
and regulations for its administration, and to make all other determinations
necessary or advisable for the administration of this Plan.
6. Eligibility
Any person who is classified by the Company as a salaried employee of the
Company generally with Hay points of 800 or above (or a compensation level
equivalent thereto), who in the judgment of the Committee occupies an officer or
other key management position in which his efforts may significantly contribute
to the profits or growth of the Company, may be awarded Book Value Units;
provided, however, that (a) directors of the Company who are not classified as
salaried employees of the Company and (b) leased employees (as such term is
defined in Code Section 414) shall not be eligible to participate in this Plan.
A person who satisfies the requirements of this Section shall become a
Participant in the Plan when granted an Award hereunder.
7. Granting of Awards
The Committee may, from time to time and upon such conditions as it may
determine, authorize the granting of Awards to Participants, which shall be not
inconsistent with, and shall be subject to all of the requirements of, the
following provisions:
(a) Not later than the ninetieth day of each Award Year, the Committee
shall approve (i) a Target Award to be granted to each Participant for such
Award Year and (ii) a formula for determining the amount of each Award, which
formula is based upon the Company's average return on total capital employed for
such Award Year.
(b) Effective no later than April of the calendar year following the Award
Year, the Committee shall approve:
(i) a preliminary calculation of the amount of each Award based upon
the application of the formula (as in effect at the calculation date) and
actual performance to the Target Awards previously determined in accordance
with Section 7(a); and
(ii) a final calculation of the amount of each Award to be granted to
each Participant for the Award Year (with the specified "Grant Date" of
such Award being January 1st of the calendar year following the Award
Year). The Committee shall have the power to increase or decrease the
amount of any Award above or below the amount determined in accordance with
Section 7(b)(i); provided, however, no Award, including any Award equal to
the Target Award, shall be payable under the Plan to any Participant except
as determined by the Committee.
(c) Calculations of Target Awards shall initially be based on a
Participant's Hay Salary Grade as of January 1 of the Award Year. However Target
Awards may be changed during or after an Award Year under the following
circumstances: (i) if a Participant receives a change in Hay Salary Grade,
salary midpoint and/or long-term incentive compensation target percentage, such
change will be reflected in a pro-rata Target Award, (ii) employees hired into
or promoted to a position eligible to participate in the Plan (as specified in
Section 6 above) during an Award Year will, if designated as a Plan Participant
by the Committee, be assigned a pro-rated Target Award based on their length of
service during an Award Year and (iii) the Committee may increase or decrease
the amount of the Target Award at any time, in its sole and absolute discretion.
In order to be eligible to receive an Award for an Award Year, the Participant
must be employed by the Company and must be a Participant on December 31 of the
Award Year; provided, however, that if a Participant dies, becomes Disabled or
Retires during the Award Year, the Participant shall be entitled to a pro-rata
portion of the Award for such
Award Year, based on the number of days the Participant was actually employed by
the Company during the Award Year.
(d) Each Award shall be granted in the form of Book Value Units. The number
of Book Value Units to be issued to a Participant shall be determined by
dividing the amount of the Award by the Award Unit Price. Notwithstanding any
other provision of the Plan, the maximum cash value of the Awards granted to a
Participant under this Plan in a single year shall not exceed $250,000.
(e) Multiple Awards may be granted to a Participant; provided, however,
that no two Awards to a Participant may have identical performance periods.
8. Vesting
All Book Value Units granted pursuant to an Award hereunder shall be
immediately 100% vested as of the Grant Date.
9. Payment of Pre-2005 Awards
(a) Payment Restrictions. Each Pre-2005 Award shall provide that the Book
Value Units granted therein shall be subject to a payment restriction in the
manner and to the extent prescribed by the Committee for a period of five years
from the Grant Date, or such other shorter or longer period as may be specified
in the Guidelines for the Award Year. Notwithstanding the foregoing, such
payment restrictions shall automatically lapse upon death or a termination of
employment by reason of permanent disability (as determined by the Committee) or
Retirement.
(b) Payment Date/Value. Unless a Participant makes a deferral election
under Subsection (c) of this Section, as soon as practicable following the lapse
of a payment restriction applicable to a Pre-2005 Award pursuant to Subsection
(a) of this Section, the Company shall deliver to the Participant (or, if
applicable, his Beneficiary), a check in full payment of the Book Value Units
granted pursuant to such Award. The value of such Book Value Units shall be
based on the Book Value as of the Quarter Date coincident with or immediately
preceding the date on which the payment restriction lapses; provided, however,
that for Participants who terminated employment for reasons other than permanent
disability or Retirement prior to the date on which the payment restriction
lapses, the value of such Book Value Units shall be based on the Book Value as
of the Quarter Date coincident with or immediately preceding the date of
termination.
(c) Deferral Option. Prior to the date described in Subsection (b) of this
Section, subject to the rules and procedures specified in the Guidelines, a
Participant who is a citizen or resident of the United States may
make an irrevocable election to defer receipt of 100% of a Pre-2005 Award
granted to him for a particular Award Year for a period not to exceed ten (10)
years from the Grant Date of such Pre-2005 Award. A separate deferral election
may be made with respect to each Pre-2005 Award granted under the Plan. The
Pre-2005 Awards that are subject to such a deferral election shall continue to
be subject to the terms and conditions of this Plan and shall continue to be
valued in accordance with the terms of the Plan until the date of payment (or
further deferral, as described in the following sentence). In addition, a
Participant who is a citizen or resident of the United States and who has made
an irrevocable election to defer the receipt of all of a Pre-2005 Award until
exactly ten (10) years from the Grant Date of such Award shall be permitted
(subject to the rules and procedures contained in the Guidelines) to make
another irrevocable election to further defer the receipt of 100% of such
deferred Pre-2005 Award under and into The Kitchen Collection, Inc. Deferred
Compensation Plan for Management Employees (the "Deferred Compensation Plan").
Deferred Pre-2005 Awards payable to an active employee under this Plan shall be
paid to the Participant as soon as practicable following the payment date
previously elected by the Participant and shall be based on the Book Value as of
the Quarter Date coincident with or immediately preceding such payment date.
Deferred Pre-2005 Awards which are further deferred into the Deferred
Compensation Plan shall be credited to the Deferred Compensation Plan as soon as
practicable following the 10th anniversary of the Grant Date of such Pre-2005
Award and shall be based on the Book Value as of the Quarter Date coincident
with or immediately preceding such anniversary date. Notwithstanding the
foregoing, any deferral election hereunder shall automatically terminate (and
shall be of no further effect) upon a Participant's termination of employment
with the Company for any reason (including death or disability) and payment of
all such deferred Pre-2005 Awards shall be made as soon as practicable following
the date of the Participant's termination of employment, based on the Book Value
as of the Quarter Date coincident with or immediately preceding such termination
date; provided, however, that any Pre-2005 Awards that are subject to a deferral
election at the time of a Participant's Retirement shall automatically be
deferred under and into the Deferred Compensation Plan as of the date of the
Participant's Retirement, with the value of the Book Value Units being based on
the Book Value as of the Quarter Date coincident with or immediately preceding
such Retirement date if (and only if) the Participant has a currently-effective
payment election relating to Pre-2005 Awards under the Deferred Compensation
Plan and is then eligible to participate in the Deferred Compensation Plan.
10. Payment of Post-2004 Awards
(a) Maturity Date.
(i) In the Guidelines adopted for each Award Year, the Committee shall
establish a Maturity Date for the Book Value Units granted in each
Post-2004 Award for such Award Year which
shall generally be the fifth anniversary of the Grant Date of such
Post-2004 Award (or such other date specified in the Guidelines); provided,
however, that once established, the Maturity Date of an Award as specified
in the Guidelines may not thereafter be changed.
(ii) Notwithstanding the foregoing, (A) in the event a Participant
dies prior to the Maturity Date, the Maturity Date of all of the
Participant's outstanding Post-2004 Awards shall be the date of such
Participant's death and (B) in the event a Participant incurs a Termination
of Employment as a result of becoming Disabled or Retirement prior to the
Maturity Date (and prior to making a deferral election described in
Subsection (c) below), the Maturity Date of all of the Participant's
Post-2004 Awards shall be the date of his Disability or Retirement,
provided, however, that if a Participant who incurs a Termination of
Employment on account of Retirement is a Key Employee, the Participant's
Maturity Date shall be the six month anniversary of the date of his
Termination of Employment (or, if earlier, the date of the Participant's
death).
(b) Payment Date, Form of Payment and Value.
(i) Payment Date and Form. Unless a Participant timely makes a
deferral election under Subsection (c) of this Section, the Company shall
deliver to the Participant (or, if applicable, his Beneficiary), a check in
full payment of the Book Value Units granted pursuant to each Post-2004
Award as soon as practicable following the Maturity Date of such Award.
(ii) Value. For Participants who are employed on the Maturity Date,
the value of the Book Value Units shall be based on the Book Value as of
the Quarter Date on or immediately preceding the Maturity Date. For
Participants who incur a Termination of Employment for reasons other than
Disability or Retirement, the value of the Book Value Units shall be based
on the Book Value as of the Quarter Date coincident with or immediately
preceding the date of Termination (despite the fact that such amounts are
not paid until the Maturity Date). For Participants who die or incur a
Termination of Employment due to Disability or Retirement, the value of
such Book Value Units shall be based on the Book Value as of the Quarter
Date coincident with or immediately preceding the Maturity Date; provided,
however, that if a Participant who incurs a Termination of Employment on
account of Retirement is a Key Employee whose payment is delayed for 6
months, the value of the Book Value Units shall be based on the Book Value
as of the Quarter Date coincident with or immediately preceding the payment
date.
(c) Deferral Option. A Participant may make an irrevocable election to
defer receipt of 100% of a Post-2004 Award granted to him for a particular Award
Year. A separate deferral election may be made with respect to each Post-2004
Award granted under the Plan. Such a deferral election must be made, in writing,
on a form approved by the Committee and (i) will not be valid unless the
election is made at least 12 months prior to the Maturity Date of the Award and
(ii) will not be given effect until at least 12 months after the date on which
such election is made. If a valid and timely deferral election is made with
respect to a Post-2004 Award, the payment of such Award will automatically be
deferred until the 10th anniversary of the Grant Date of such Award. The
Post-2004 Awards that are subject to such a deferral election shall continue to
be valued in accordance with the terms of the Plan until the date of payment.
Post-2004 Awards that are deferred until the 10th anniversary of the Grant Date
shall be paid as soon as practicable thereafter in the form of a single,
lump-sum payment and shall be based on the Book Value as of the Quarter Date
coincident with or immediately preceding such date. Notwithstanding the
foregoing, any deferral election under this Subsection (c) shall automatically
terminate (and shall be of no further effect) upon a Participant's death or
Termination of Employment due to Disability and payment of all such deferred
Awards shall be made as soon as practicable
following the date of such death or Termination of Employment due to Disability,
based on the Book Value as of the Quarter Date coincident with or immediately
preceding such date.
(d) Notwithstanding the foregoing, the Committee may at any time, upon
written request of the Participant, cause to be paid to such Participant an
amount equal to all or any part of the Participant's Post-2004 Awards, if the
Committee determines, based on such reasonable evidence that it shall require,
that such a payment or payments is necessary for the purpose of alleviating the
consequences of an Unforeseeable Emergency occurring with respect to the
Participant. Payments made on account of an Unforeseeable Emergency shall be
permitted only to the extent the amount does not exceed the amount reasonably
necessary to satisfy the emergency need (plus an amount necessary to pay taxes
and penalties reasonably anticipated as a result of the distribution) and may
not be made to the extent such Unforeseeable Emergency is or may be relieved
through reimbursement or compensation by insurance or otherwise or by
liquidation of the Participant's assets (to the extent such liquidation would
not itself cause severe financial hardship).
11. Amendment, Termination and Adjustments
(a) The Committee, in its sole and absolute discretion, may alter or amend
this Plan from time to time; provided, however, that no such amendment shall,
without the consent of a Participant, affect the amount of any outstanding Award
or any Award Units of such Participant.
(b) The Committee, in its sole and absolute discretion, may terminate this
Plan in its entirety at any time; provided that, except as provided in this
Subsection, no such termination shall, without the consent of a Participant,
affect the amount of any outstanding Award or any Award Units of such
Participant. Except as otherwise provided in an amendment to the Plan, all
Target Awards and Awards granted prior to any termination of this Plan shall
continue to be subject to the terms of this Plan. Notwithstanding the foregoing,
upon a complete termination of the Plan, the Committee, in its sole and absolute
discretion, shall have the right to change the time of distribution of
Participants' Award Units under the Plan, including requiring that all such
Award Units be immediately distributed in the form of lump sum cash payments
(but only to the extent such change is permitted by Code Section 409A).
(c) Any amendment or termination of the Plan shall be in the form of a
written instrument executed by an officer of the Company on the order of the
Committee. Such amendment or termination shall become effective as of the date
specified in the instrument or, if no such date is specified, on the date of its
execution.
(d) The Committee may make or provide for an adjustment in the total number
of Award Units to be issued under this Plan as the Committee in its sole
discretion, exercised in good faith, may determine is
equitably required to reflect (i) any stock dividend, stock split, combination
of shares, recapitalization or any other change in the capital structure of the
Company, (ii) any merger, consolidation, spin-off, split-off, spin-out,
split-up, reorganization, partial or complete liquidation or other distribution
of assets, issuance of rights or warrants to purchase securities, or (iii) any
other corporate transaction or event having an effect similar to any of the
foregoing.
12. General Provisions
(a) No Right of Employment. Neither the adoption or operation of this Plan,
nor any document describing or referring to this Plan, or any part thereof,
shall confer upon any employee any right to continue in the employ of the
Company, or shall in any way affect the right and power of the Company to
terminate the employment of any employee at any time with or without assigning a
reason therefor to the same extent as the Company might have done if this Plan
had not been adopted.
(b) Governing Law. The provisions of this Plan shall be governed by and
construed in accordance with the laws of the State of Ohio, except when
preempted by federal law.
(c) Liability for Payment/Expenses.
(i) The Company shall be liable for the payment of any Award to or on
behalf of a Participant.
(ii) Expenses of administering the Plan shall be paid by the Company.
(d) Assignability. No Award granted to a Participant under this Plan shall
be transferable by him for any reason whatsoever; provided, however, that upon
the death of a Participant the right to the proceeds of an Award shall be
transferred to a Beneficiary.
(e) Taxes. There shall be deducted from each payment under the Plan the
amount of any tax required by any governmental authority to be withheld and paid
over to such governmental authority for the account of the person entitled to
such payment.
(f) Limitation on Rights of Participants; No Trust.
(i) No trust has been created by the Company for the payment of Book
Value Units granted under this Plan; nor have the grantees of Book Value
Units been granted any lien on any assets of the Company to secure payment
of such benefits. This Plan represents only an unfunded, unsecured
promise to pay by the Company, and the Participants and Beneficiaries are
merely unsecured creditors of the Company.
(ii) Notwithstanding any other provision of the Plan to the contrary,
the Company shall not be required to make any payment hereunder to any
Participant or Beneficiary if the Company is "Insolvent" at the time such
payment is due to be made or if the payment would jeopardize the solvency
of the Company, provided that the payment shall be made during the first
calendar year in which the funds of the Company are sufficient to make the
payment without jeopardizing the solvency of the Company. For purposes of
the Plan, the Company shall be considered Insolvent at such time as it (1)
is unable to pay its debts as they mature or (2) is subject to a pending
voluntary or involuntary proceeding as a debtor under the United States
Bankruptcy Code (or similar foreign law).
(g) Payment to Guardian. If an Award is payable to a minor, to a person
declared incompetent or to a person incapable of handling the disposition of his
property, the Committee may direct payment of such Award to the guardian, legal
representative or person having the care and custody of such minor, incompetent
or person. The Committee may require such proof of incompetency, minority,
incapacity or guardianship as it may deem appropriate prior to the distribution
of such Award. Such distribution shall completely discharge the Company from all
liability with respect to such Award.
(h) Miscellaneous.
(i) Headings are given to the sections of this Plan solely as a
convenience to facilitate reference. Such headings, numbering and
paragraphing shall not in any case be deemed in any way material or
relevant to the construction of this Plan or any provisions thereof.
(ii) The use of the masculine gender shall also include within its
meaning the feminine. The use of the singular shall also include within its
meaning the plural, and vice versa.
(iii) Time of Payment/Processing. All payments under the Plan shall be
made on, or as soon as practicable after, the specified payment date (and,
in any event, no later than December 31 of the year that includes the
specified payment date or, if later, by the 15th day of the third calendar
month following the specified payment date). Notwithstanding the foregoing,
if the calculation of the amount payable for the Post-2004 Awards is not
administratively practicable due to events beyond the control of the
Company and the Participant, the payment shall be made during the first
calendar year in which the payment is administratively practicable.
(iv) Acceleration of Payments. Notwithstanding any provision of the
Plan to the contrary, payments of Post-2004 Awards hereunder may be
accelerated (i) to the extent necessary to comply with a certificate of
divestiture (as defined in Code Section 1043(b)(2)) or (ii) to the extent
necessary to pay the FICA taxes imposed under Code Section 3101, and the
income withholding taxes related thereto. Payments may also be accelerated
if the Plan (or a portion thereof) fails to satisfy the requirements of
Code Section 409A; provided that the amount of such payment may not exceed
the amount required to be included as income as a result of the failure to
comply with Code Section 409A.
THE KITCHEN COLLECTION, INC.
By: /s/ Charles A. Bittenbender
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Title: Assistant Secretary
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Date: February 8, 2006
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