DOLLAR GENERAL
CORPORATION
DEFERRED COMPENSATION
PLAN
FOR NON-EMPLOYEE
DIRECTORS
(As Amended and Restated Effective
November 1, 2004)
ARTICLE I
Purpose and
Adoption of Plans
1.1
“ Introduction
” Dollar General Corporation (the “Company”)
previously established and maintained the Dollar General
Corporation Deferred Compensation Plan for Non-Employee Directors
(the “Plan”). Effective as of November 1,
2004, the Company hereby amends and restates the plan document of
the Plan, provided, however, that if this amendment and restatement
does not comply with Code Section 409A in any manner, the
provisions(s) not so complying shall not be effective until amended
to so comply (which amendment may be retroactive to the extent
permitted under Code Section 409A).
1.2
“ Rights of Directors
” The rights and benefits, if any, of a Director whose
service terminated before or after the effective date of this
amendment and restatement shall be determined in accordance with
the provisions of the Plan provided herein, provided, however, that
there shall be no change in the form or manner of benefits in pay
status on November 1, 2004.
1.3
“ Purpose of Plan
” The purpose of the Plan is to provide each Director with an
opportunity to defer some or all of the Director’s Fees as a
means of saving for retirement or other purposes.
ARTICLE II
Definitions
For purposes of the Plan, the following
terms shall have the following meanings unless a different meaning
is plainly required by the context. The words in the
masculine gender shall include the feminine and neuter genders and
words in the singular shall include the plural and words in the
plural shall include the singular.
2.1
“ Accounts ”
shall mean the account or accounts established and maintained by
the Plan Committee for bookkeeping purposes to reflect the interest
of a Participant in the Plan, as described below. The
Accounts shall be bookkeeping entries only and shall be utilized
solely as devices for the measurement and determination of the
amounts to be paid to a Participant or Beneficiary under the Plan.
Any Account balance for one or more periods may be separately
accounted for in subaccounts for any reason determined by the Plan
Committee.
2.2
“ Beneficiary ”
shall mean any person, estate, trust or organization entitled to
receive any payment under the Plan upon the death of a Participant.
The Participant shall designate his beneficiary on a form
provided by the Plan Committee.
2.3
“ Board ” shall
mean the Board of Directors of the Company.
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2.4
“ Change in Control
” means the happening of any of the following:
(a)
Any person or entity, including a
“group” as defined in Section 13(d)(3) of the Exchange
Act, other than the Company or a wholly-owned subsidiary thereof or
any employee benefit plan of the Company or any of its
subsidiaries, becomes the beneficial owner of the Company’s
securities having 35% or more of the combined voting power of the
then outstanding securities of the Company that may be cast for the
election of directors of the Company (other than as a result of an
issuance of securities initiated by the Company in the ordinary
course of business);
(b)
As the result of, or in connection with,
any cash tender or exchange offer, merger or other business
combination, sales of assets or contested election, or any
combination of the foregoing transactions, less than a majority of
the combined voting power of the then outstanding securities of the
Company or any successor corporation or entity entitled to vote
generally in the election of the directors of the Company or such
other corporation or entity after such transaction are held in the
aggregate by the holders of the Company’s securities entitled
to vote generally in the election of directors of the Company
immediately prior to such transaction; or
(c)
During any period of two consecutive
years, individuals who at the beginning of any such period
constitute the Board cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for
election by the Company’s shareholders, of each director of
the Company first elected during such period was approved by a vote
of at least two-thirds of the directors of the Company then still
in office who were directors of the Company at the beginning of any
such period.
2.5
“ Code ” shall
mean the Internal Revenue Code of 1986, as the same may be amended
from time to time, or the corresponding section of any subsequent
Internal Revenue Code, and, to the extent not inconsistent
therewith, regulations issued thereunder.
2.6
“ Company ”
shall mean Dollar General Corporation, a Tennessee corporation with
principal offices at Goodlettsville, Tennessee.
2.7
“ Deferral Election
” shall mean a Participant’s written election to defer
a portion of his Fees pursuant to Article IV.
2.8
“ Director ”
shall mean any non-employee director of the Company.
2.9
“ ERISA ” shall
mean the Employee Retirement Income Security Act of 1974, as the
same may be amended from time to time, or the corresponding section
of any subsequent legislation which replaces it, and, to the extent
not inconsistent therewith, the regulations issued
thereunder.
2.10
“ Exchange Act
” shall mean the Securities Exchange Act of 1934, as
amended.
2.11
“ Fees ” shall
mean the annual retainer, meeting and other fees, as well as any
per diem compensation for special assignments, earned by a Director
for his service as a member of the Board or a committee thereof
during a Plan Year or portion thereof.
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2.12
“ Investment Request
” shall mean a Participant’s written request to have
his Accounts deemed to be invested pursuant to Article
VII.
2.13
“ Participant ”
shall mean a Director or former Director who meets all of the
conditions of eligibility under Section 3.1 and who participates in
the Plan in accordance with Article IV.
2.14
“ Plan ” shall
mean this Dollar General Corporation Deferred Compensation Plan for
Non-Employee Directors, as reflected in this Plan
document.
2.15
“ Plan Committee
” shall mean the Compensation Committee of the Board or
another committee that is appointed by the Compensation Committee
to serve as the Plan Committee, subject to the provisions of
Section 10.1.
2.16
“ Plan Year ”
shall mean:
(i)
For periods beginning before
February 1, 2004, the 12 consecutive month period commencing
each February 1st and ending on the last day of January next
following;
(ii)
For the period beginning on
February 1, 2004, the 11 consecutive month period commencing
on February 1st and ending on the last day of December next
following; and
(iii)
For periods beginning on or after
January 1, 2005, the 12 consecutive month period commencing
each January 1st and ending on the last day of December next
following.
2.17
“ Termination ”
means retirement from the Board or other separation from service of
a Director (within the meaning of Code Section 409A(a)(2)(A)(i))
for any other reason other than Total and Permanent Disability or
death.
2.18
“ Total and Permanent
Disability ” shall mean the inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or to be of continuous period of not less than 12
months, as evidenced by qualification for disability income
benefits under the federal Social Security system.
2.19
“ Trust Agreement
”: The agreement, if any, by and between the Company
and any trustee under which assets pertaining to the Plan, if any,
is maintained. If assets pertaining to the Plan are
maintained pursuant to a Trust Agreement, such Trust Agreement is
intended to be a grantor trust (sometimes referred to as a rabbi
trust), of which the Company is the grantor, within the meaning of
subpart E, part I, subchapter J, chapter 1, subtitle A of the
Code.
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ARTICLE III
Eligibility
3.1
“ Eligibility Rules
” Any Director of the Company shall be eligible to
participate in the Plan.
ARTICLE IV
Deferral of Fees
under the Plan
4.1
“ Fees Which May Be
Deferred ”
(a)
Subject to Section 4.1(b), a Participant
may elect to defer all or any portion of his Fees.
(b)
Notwithstanding the provisions of Section
4.1(a), the Plan Committee or its delegate may establish lower
deferral limits for any Participant (or Participants) as it deems
necessary or advisable from time to time. Any affected
Participants will be notified of such lower deferral limits by the
Plan Committee (or its delegate).
4.2
“ Establishment of
Account ” An Account shall be established for each
Participant by the Plan Committee as of the effective date of such
Participant’s initial Deferral Election. The
Participant’s Account shall be credited at least monthly with
amounts that a Participant has deferred under Section
4.1.
4.3
“ Deferral Election
Form ” A Participant shall complete a Deferral
Election form, which shall be made in writing on a form prescribed
by the Plan Committee. The initial Deferral Election form
shall state:
(a)
That the Participant wishes to make an
election to defer the receipt of all or a portion of his
Fees;
(b)
The percentage of such elective deferral,
consistent with the provisions of Section 4.1;
(c)
Subject to the provisions of Sections 4.5
and 4.6 and Article VIII, the form of any distribution from the
Plan, which election may in the discretion of the Plan Committee be
made on a Plan Year (or multiple prospective Plan Years) by Plan
Year (or multiple prospective Plan Years) basis and/or separately
for different Accounts and/or contributions thereto;
(d)
That the deferral is to termination of
service as a Director (provided, however, that upon the
Participant’s unforeseeable emergency, amounts deferred may
be paid pursuant to Section 4.5(b)); and
(e)
Such other information that the Plan
Committee, in its discretion determines to be necessary or
advisable to administer deferral elections hereunder.
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4.4
“ Making and Modifying
Deferral Elections ”
(a)
Except as provided in Section 4.4(b), a
Deferral Election for a Plan Year must be filed on or before the
last day of the Plan Year immediately preceding the Plan Year to
which the Deferral Election relates in order to be effective for
Fees earned in that Plan Year.
(b)
With respect to Directors’ Fees
payable for all or any portion of a Plan Year after a
person’s initial election to the office of Director of the
Company, any such person wishing to participate in the Plan may
file a proper Deferral Election within 30 days after election to
office. Any Deferral Election shall be effective upon filing
or as soon as possible thereafter with respect to such Fees earned
subsequent to filing.
(c)
An effective Deferral Election may not be
revoked or modified (except as to changes in the designation of
Beneficiary and as otherwise stated herein) with respect to Fees
payable for a Plan Year or portion of a Plan Year for which the
Deferral Election is effective. A Deferral Election shall
apply only for such Plan Year, unless the Plan Committee in its
sole discretion waives the requirement for an annual election form
(thereby making Deferral Elections evergreen until changed or
revoked). In order to defer a portion of his Fees for a
subsequent Plan Year, a Director must make a new Deferral Election
in accordance with this Section.
(d)
The termination of participation in the
Plan shall not affect amounts previously deferred by the
Participant under the Plan.
(e)
It is intended that all Deferral
Elections and modifications thereto will comply with the
requirements of Code Section 409A. The Plan Committee is
authorized to adopt rules or regulations deemed necessary or
appropriate in connection therewith to anticipate and/or comply the
requirements of Code Section 409A (including any transition or
grandfather rules thereunder). In this regard the Committee
is expressly authorized to permit elections prior to
January 1, 2005 on such basis as it deems necessary or
appropriate.
4.5
“ In-Service Distributions
and Election Form Procedures ”
(a)
A Participant may not elect to receive a
“time specific” in-service distribution of vested
amounts credited to his Account.
(b)
A Participant who is a Director may
request to receive an “unforeseeable emergency
hardship” in-service lump sum distribution of vested amounts
credited to his Account in the event he has an unforeseeable
emergency hardship. Upon a finding by the Plan Committee that
the Participant has an unforeseeable emergency hardship, the Plan
Committee (in its sole discretion) may authorize the payment of all
or a part of a Participant’s vested Account in the form of a
lump sum distribution prior to his Termination or other cessation
of service as Director. Any such written request must
set forth the circumstances constituting such unforeseeable
emergency hardship. Notwithstanding the foregoing, the Plan
Committee may not direct payment of any amounts credited to the
Account of a Participant to the extent that such unforeseeable
emergency hardship is or may be relieved (i) through reimbursement
or compensation by insurance or otherwise or (ii) by liquidation of
the Participant’s assets, to the extent that such liquidation
would itself not cause severe financial hardship. Any
distribution
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due to unforeseeable emergency hardship
shall only be permitted to the extent reasonably needed to satisfy
such hardship plus amounts necessary to pay taxes reasonably
anticipated as a result of the distribution, and shall be made in
the sole discretion of the Plan Committee, both with respect to the
determination as to whether an unforeseeable emergency hardship
exists and as to the amount distributable. In all cases, the
requirements and standards set forth in Code Section 409A will
govern the determinations of a Participant’s eligibility for
and the amount of any distributions under this Section 4.5(b).
For purposes hereof, “unforeseeable emergency
hardship” means as 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(a)), loss of the
Participant's property due to casualty (including the need to
rebuild a home following damage to a home not otherwise covered by
homeowner's insurance, e.g., as a result of a natural disaster), or
other similar extraordinary and unforeseeable circumstances arising
as a result of events beyond the control of the
Participant.
(c)
In-service distributions shall be made in
the manner described in Section 8.6.
4.6
“ Amending the Deferral
Election to Change Form of Distribution at Termination Not
Permitted ” A Participant may not change his elected
or default form of the distribution of his existing Account to be
made at Termination. The foregoing is not intended to
prohibit new and different elections on a prospective basis for
amounts earned in a subsequent Plan Year to the extent permitted
under Section 4.3. Form of payment elections in effect on
November 1, 2004 shall continue to apply to all Account
balances attributable to deferrals (and earnings thereon) for
periods prior to January 1, 2005 and, unless otherwise
determined by the Plan Committee (e.g., by permitting Plan Year by
Plan Year elections effective prospectively), to Deferral Elections
made on or after November 1, 2004.
ARTICLE V
Change in
Control
5.1
“ Change in Control
” Notwithstanding any provision of this Plan to the contrary,
in the event of a Change in Control, each Participant shall receive
an automatic lump sum distribution of his entire Account not later
than 15 days after the date of the “Change in Control”,
but in no event earlier than the earliest time permitted for
payment assuming compliance with Code Section 409A (e.g., if the
Change in Control is not a change in the ownership or effective
control of the Company, or in the ownership of a s
