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NIKE, INC. DEFERRED COMPENSATION PLAN

Employee Benefits Plan Agreement

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NIKE INC

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Title: NIKE, INC. DEFERRED COMPENSATION PLAN
Governing Law: Oregon     Date: 7/27/2009
Industry: Footwear     Sector: Consumer Cyclical

NIKE, INC. DEFERRED COMPENSATION PLAN, Parties: nike inc
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EXHIBIT 10.7

NIKE, INC.

DEFERRED COMPENSATION PLAN

(Amended and Restated Effective January 1, 2009)


NIKE, INC. DEFERRED COMPENSATION PLAN

January 1, 2009 Restatement

TABLE OF CONTENTS

 

 

  

Page

RECITALS

  

1

ARTICLE I TITLE AND DEFINITIONS

  

2

1.1       Title

  

2

1.2       Definitions

  

2

ARTICLE II PARTICIPATION

  

9

2.1       Participation

  

9

ARTICLE III DEFERRAL OF COMPENSATION

  

9

3.1       Participant Elections to Defer Compensation

  

9

3.2       Company or Participating Employer Contributions

  

11

3.3       Investment Elections

  

12

ARTICLE IV ACCOUNTS

  

13

4.1       Participant Accounts

  

13

ARTICLE V VESTING

  

14

5.1       Compensation Deferrals

  

14

5.2       Company or Participating Employer Contributions

  

14

ARTICLE VI DISTRIBUTIONS

  

14

6.1       Separation from Service Due to Retirement or Death

  

14

6.2       Separation from Service in Certain Circumstances

  

17

6.3       Scheduled Withdrawals

  

18

6.4       Unscheduled Withdrawals Due to Financial Emergency

  

18

6.5       Change of Control

  

19

6.6       Inability To Locate Participant

  

19

ARTICLE VII ADMINISTRATION

  

20

7.1       Retirement Committee

  

20

7.2       Retirement Committee Action

  

20

7.3       Powers and Duties of the Retirement Committee

  

20

7.4       Trustee Duties

  

22

7.5       Company Duties

  

22

ARTICLE VIII CLAIMS PROCEDURE

  

22

8.1       Submission of Claim

  

22

8.2       Denial of Claim

  

22

8.3       Review of Denied Claim

  

22

8.4       Decision upon Review of Denied Claim

  

22

 

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TABLE OF CONTENTS

(continued)

 

 

  

Page

ARTICLE IX MISCELLANEOUS

  

23

9.1       Unsecured General Creditor

  

23

9.2       Restriction Against Assignment

  

23

9.3       Withholding

  

23

9.4       Amendment, Modification, Suspension or Termination

  

23

9.5       Governing Law

  

23

9.6       Entire Agreement

  

23

9.7       Receipt or Release

  

24

9.8       Payments on Behalf of Persons Under Incapacity

  

24

9.9       No Employment Rights

  

24

9.10     Headings Not Part of Agreement

  

24

9.11     Tax Liabilities from Plan

  

24

APPENDIX I

  

 

ii


RECITALS

Effective January 1, 1998, NIKE, Inc. (the “Company”) combined its Supplemental Executive Savings Plan and its Supplemental Executive Profit Sharing Plan into a single plan, which was renamed the NIKE, Inc. Deferred Compensation Plan (the “Plan”). The Company subsequently amended and restated the Plan, effective as of January 1, 2000, January 1, 2003, and June 1, 2004.

On October 3, 2004, the U.S. Congress added Section 409A to the Internal Revenue Code when it enacted the American Jobs Creation Act of 2004. Among other things, Section 409A modified the tax rules applicable to non-qualified deferred compensation plans, such as the Plan.

Effective January 1, 2005, the Company adopted an interim amended and restated Plan to demonstrate good-faith compliance with Section 409A as interpreted in guidance issued by the Department of Treasury, including but not limited to Notice 2005-1. In April 2007, the Department of Treasury issued final regulations interpreting Section 409A. On November 1, 2007, the Company again amended and restated the Plan to substantially implement the final regulations and make certain other changes effective for amounts deferred on and after January 1, 2008.

Notice 2007-86 issued by the Internal Revenue Service (“IRS”) requires the Plan to be amended by December 31, 2008 to be in full compliance with the final regulations under Section 409A effective as of January 1, 2009. Therefore, the Company is again amending and restating the Plan to bring the Plan into compliance with the regulations under Section 409A. This January 1, 2009 restatement of the Plan applies to deferral elections made or continued during the 2008 Annual Election Period ending no later than November 30, 2008 and during any Initial Election Period commencing on or after December 2, 2008, and shall not affect the validity of any deferral election filed during any prior Election Period pursuant to the Plan provisions in effect at such time. The time and form of payment of all amounts deferred under this Plan, whether before or after January 1, 2009, shall be governed by the terms of this January 1, 2009 restatement of the Plan, except that the prior Plan provisions on time and form of payment shall apply to any Participant whose Separation from Service occurs before October 23, 2008. Transition rules under the Plan in effect at various times between December 31, 2004 and January 1, 2009 as permitted pursuant to IRS guidance under Section 409A are set forth in Appendix I of this January 1, 2009 restatement of the Plan.

No amendment to the June 1, 2004 restatement of the Plan is made or intended for amounts deferred prior to January 1, 2005. An amount is considered to be deferred after December 31, 2004 if:

 

 

 

the Participant first acquires a legally binding right to be paid the amount (determined without regard to any deferral election by the Participant) after December 31, 2004; or

 

 

 

the amount is still subject to a substantial risk of forfeiture after December 31, 2004.

 

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Amounts deferred prior to January 1, 2005, including earnings on such amounts, are subject to the rules of the June 1, 2004 restatement of the Plan.

In connection with the Plan, the Company has established an irrevocable trust (the “Trust”) with a trustee (the “Trustee”) pursuant to a trust agreement (the “Trust Agreement”). The Company and the Participating Employers intend to make contributions to the Trust so that such contributions will be held by the Trustee and invested, reinvested and distributed, all in accordance with the provisions of this Plan and the Trust Agreement. The amounts contributed to the Trust and the earnings thereon shall be used by the Trustee to satisfy the liabilities of the Company under the Plan. The Trust is a “grantor trust,” with the principal and income of the Trust treated as assets and income of the Company for federal and state income tax purposes.

The assets of the Trust shall at all times be subject to the claims of the general creditors of the Company as provided in the Trust Agreement.

The existence of the Trust shall not alter the characterization of the Plan as “unfunded” for purposes of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and shall not be construed to provide income to Participants prior to actual payment of the vested accrued benefits under the Plan.

NOW THEREFORE, the Company does hereby adopt this amended and restated Plan as follows:

ARTICLE I

TITLE AND DEFINITIONS

1.1 Title . This Plan shall be known as the NIKE, Inc. Deferred Compensation Plan.

1.2 Definitions . Whenever the following words and phrases are used in this Plan, with the first letter capitalized, they shall have the meanings specified below.

(a) “ 401(k) Profit Sharing Plan ” means the 401(k) Savings and Profit Sharing Plan for Employees of NIKE, Inc.

(b) “ Account ” means for each Participant the bookkeeping account maintained by the Administrator that is credited with amounts equal to (1) the portion of the Participant’s Salary that he or she elects to defer, (2) the portion of the Participant’s Bonus that he or she elects to defer, (3) the portion of the Participant’s Fees that he or she elects to defer, (4) the portion of the Participant’s Long Term Incentive Payment that he or she elects to defer, (5) Company or Participating Employer contributions, if any, made to the Plan for the Participant’s benefit, and (6) adjustments to reflect deemed Investment Returns pursuant to Section 4.1(d).

(c) “ Administrator ” means the plan administrator appointed by the Retirement Committee pursuant to Section 7.3(a)(10) to handle day-to-day administration of the Plan and perform such other duties as shall be delegated by the Retirement Committee.

 

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(d) “ Annual Election Period ” means the period designated each year during which Participants submit their elections to defer Compensation. Unless modified by the Retirement Committee, an Annual Election Period shall end not later than November 30 of each year. For administrative convenience, a portion of each Annual Election Period may be designated as the open enrollment period; during the portion of each Annual Election Period after expiration of the open enrollment period, the ability of Participants to make or change elections may be limited, and the Administrator shall have discretion to accept or reject any elections or changes that are submitted.

(e) “ Beneficiary ” or “ Beneficiaries ” means the beneficiary last designated in writing by a Participant, in accordance with procedures established by the Administrator, to receive the benefits specified hereunder in the event of the Participant’s death. No Beneficiary designation shall become effective until it is filed with the Administrator during the Participant’s lifetime.

(f) “ Board of Directors ” or “ Board ” means the Board of Directors of the Company.

(g) “ Bonus ” means incentive compensation payable under the Company’s Performance Sharing Plan (PSP) or a similar annual incentive compensation plan maintained by a Participating Employer.

(h) “ Change of Control ” means any of the following with respect to the Company for all Participants, and also with respect to a Participating Employer for any Participant employed by or engaged as a Consultant to the Participating Employer at the time of the Change of Control:

(1) The date on which any person or group of persons, within the meaning of the final regulations under Code Section 409A, becomes the owner of fifty percent or more of the total fair market value of the Company’s Class A and Class B common stock or a Participating Employer’s common stock, or fifty percent or more of the combined voting power of the Company’s or Participating Employer’s then outstanding voting securities entitled to vote generally.

(2) The date on which any person or group of persons, within the meaning of the final regulations under Code Section 409A, acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition) forty percent or more of the combined voting power of the Company’s or Participating Employer’s then outstanding voting securities entitled to vote generally.

(3) The date on which a person or group of persons, within the meaning of the final regulations under Code Section 409A, acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition) assets of the Company or a Participating Employer equal to or greater than ninety percent of the total gross fair market value of all or substantially all of the Company’s or Participating Employer’s assets. A transfer of assets is not treated as a Change of Control if the assets are transferred to:

(A) a Company or Participating Employer shareholder (immediately before the asset transfer) in exchange for or with respect to its stock;

 

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(B) an entity, 50 percent or more of the total value or voting power of which is owned, directly or indirectly, by the Company or Participating Employer;

(C) a person, or more than one person acting as a group, that owns, directly or indirectly, 50 percent or more of the total value or voting power of the outstanding stock of the Company or Participating Employer;

(D) an entity, at least 50 percent of the total value or voting power of which is owned, directly or indirectly, by a person described in paragraph (C).

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

(j) “ Company ” means NIKE, Inc. and any successor corporation to NIKE, Inc.

(k) “ Compensation ” means the Salary, Bonus, Fees, and Long Term Incentive Payments that an Eligible Employee, Director or Consultant earns for services rendered to the Company or a Participating Employer.

(l) “ Consultant ” means any person, including an advisor but excluding anyone who is an Employee or a Director, engaged by the Company or a Participating Employer to render services to the Company or a Participating Employer and designated by the Retirement Committee as eligible to participate in the Plan; provided, however, that any such designation shall not become effective until the eleventh day after the Company notifies the Administrator that such person has been so designated. The Company shall promptly notify the Administrator of any such designation.

(m) “ Director ” means a non-Employee member of the Board; provided, however, that a new member of the Board shall not become a Director eligible to participate in the Plan until the eleventh day after the Company notifies the Administrator that such person has become a member of the Board. The Company shall promptly notify the Administrator when a person becomes a member of the Board.

(n) “ Discretionary Contribution ”, “ Ongoing Discretionary Contribution ” and “ Other Discretionary Contribution ” are defined in Section 3.2(c).

(o) “ Election Period ” means the period designated under this Plan when Participants submit their elections to defer Compensation. The term Election Period includes the Initial Election Period and any Annual Election Period.

(p) “ Eligible Employee ” means any Employee who has a base salary of at least $150,000; provided, however, that an Employee whose initial base salary is at least $150,000 or an Employee whose base salary is increased to at least $150,000 shall not become an Eligible Employee until the eleventh day after the Company notifies the Administrator that the Employee has a base salary of at least $150,000. The Company shall promptly notify the Administrator of any Employee whose salary is at least $150,000.

 

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(q) “ Employee ” means a common law employee of the Company or a Participating Employer performing services regularly in the United States or, if not performing services regularly in the United States, a common law employee of the Company or Participating Employer who is on U.S. payroll and participating in a Company-sponsored Global Transfer Program.

(r) “ Fees ” means (1) in the case of Directors, amounts paid by the Company in the form of annual cash fees, including retainer fees, and fees paid for attendance at meetings of the Board and Board committees, and (2) in the case of a Consultant, the cash fees paid to such individual for services rendered to the Company.

(s) “ Fund ” or “ Funds ” means one or more of the investment funds selected by the Retirement Committee pursuant to Section 3.3.

(t) “ Initial Election Period ” means the 30-day period commencing with the date an individual becomes an Eligible Employee, Director or Consultant.

(u) “ Investment Return ” means, for each Fund, an amount equal to the pre-tax rate of gain or loss on the assets of such Fund (net of applicable fund and investment charges) from one Valuation Date to the immediately following Valuation Date.

(v) “ Long Term Incentive Payment ” means:

(1) an amount payable to an Eligible Employee under the Long Term Incentive Plan;

(2) an amount payable to an Eligible Employee under a plan or program established by a Participating Employer, and approved by the Company, to provide incentives to Employees of the Participating Employer to attain specified performance targets over a multi-year period;

(3) an amount payable under the NIKE, Inc. 1990 Stock Incentive Plan pursuant to an award with terms similar to awards made under the Long Term Incentive Plan; and

(4) an amount payable to an Eligible Employee under an award for a performance period (generally referred to as a Mid Plan Grant), where the Eligible Employee had previously received an award for that performance period on the same terms under the Long Term Incentive Plan or similar plan or program of a Participating Employer, and the additional award is made in recognition of the Eligible Employee’s promotion.

(w) “ Long Term Incentive Plan ” means the Long Term Incentive Plan of NIKE, Inc., as amended from time to time.

 

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(x) “ Participant ” means any Consultant, Director or Eligible Employee who elects to defer Compensation in accordance with Section 3.1 and any Employee who is credited with a Company or Participating Employer contribution in accordance with Section 3.2, and shall continue to include any person who ceases to be a Consultant, Director, Eligible Employee or Employee for as long as such person has a balance in his or her Account.

(y) “ Participating Employer ” means an entity directly or indirectly controlled by the Company or in which the Company has a significant equity or investment interest, which the Retirement Committee or any subcommittee thereof has designated as a Participating Employer in this Plan.

(z) “ Payment Commencement Date ” means:

(1) Except as provided in (2) or (3) below, a date within 90 days after the last day of the calendar quarter containing the Participant’s Separation from Service, provided that the Participant may not designate the date within this 90-day period when payment shall be made.

(2) Except as provided in (3) below, if the Participant is a Specified Employee on the date of the Participant’s Separation from Service (for a reason other than death), the Payment Commencement Date shall be a date determined by the Company not earlier than six months after the date of the Participant’s Separation from Service.

(3) If the Participant elects to change the form of payment with respect to any amount deferred under the Plan in accordance with Section 6.1(b)(4), the Payment Commencement Date applicable to such amount (other than in the case of a Separation from Service due to death) shall be five years after the date specified in (1) or (2) above, as applicable, and if the Participant elects to change the form of payment for a second or third time with respect to any amount deferred under the Plan in accordance with Section 6.1(b)(4), the Payment Commencement Date applicable to such amount (other than in the case of death) shall be delayed another five years for each such change.

(aa) “ Plan ” means the NIKE, Inc. Deferred Compensation Plan set forth herein, now in effect, or as amended from time to time.

(bb) “ Plan Year ” means the calendar year.

(cc) “ Profit Sharing Make Up Contribution ” is defined in Section 3.2(b).

(dd) “ Retirement ” means the Participant’s Separation from Service if at the time thereof the Participant has attained at least age 35 and has completed at least sixty (60) whole months of Service.

(ee) “ Retirement Committee ” means the Retirement Committee appointed by the Board to administer the Plan in accordance with Article VII. Unless specified otherwise by the Board, the “Retirement Committee” shall mean the Retirement Committee established under the 401(k) Profit Sharing Plan.

 

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(ff) “ Salary ” for any Plan Year means the base salary paid to an Eligible Employee for all pay periods that end during the Plan Year. Salary excludes any other form of compensation such as restricted stock, proceeds from stock options or stock appreciation rights, severance payments, moving expenses, car or other special allowance, adjustments for overseas employment, or any other amounts included in an Eligible Employee’s taxable income that is not compensation for services. Deferral elections shall be computed before taking into account any reduction in taxable income by salary reduction under Code Sections 125 or 401(k), or under this Plan.

(gg) “ Scheduled Withdrawal ” and “Scheduled Withdrawal Date” are defined in Section 6.3(a).

(hh) “ Separation from Service ” shall have the meaning ascribed to such term in Treasury Regulations §1.409A-1(h), except that the definition of Separation from Service in the foregoing regulation for an Employee shall be modified by substituting “45 percent” for “20 percent” with the effect that a Separation from Service shall occur on a date if the level of services to be provided by the Employee to the Company and its direct and indirect subsidiaries after that date is reasonably anticipated to be permanently reduced to less than 45 percent of the average level of bona fide services provided by the Employee to the Company and its direct and indirect subsidiaries during the immediately preceding period of 36 consecutive months.

(ii) “ Service ” means performance of services for the Company (including any entity that is directly or indirectly controlled by the Company or any entity in which the Company has a significant equity or investment interest, as determined by the Company for purposes of this Plan) or a Participating Employer as an Employee, Director or Consultant.

(jj) “ Specified Employee ” during any twelve-month period from April 1 through March 31 of the following year (an “Effective Period”) means:

(1) any Participant who, at any time during the last calendar year ending prior to the beginning of the Effective Period, (A) held a position of Vice President or higher of the Company, (B) was the chief executive officer of any Participating Employer that had consolidated revenues of more than $100 million during such calendar year, or (C) was an employee reporting directly to any such chief executive officer and holding a position of Vice President or higher of the Participating Employer; and

(2) any other Participant who, at any time during the last calendar year ending prior to the beginning of the Effective Period, was a “key employee” as defined in Section 416(i)(1)(A)(i), (ii) or (iii) of the Code (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5) of the Code), specifically including any Participant who was an officer of the Company or any

 

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subsidiary of the Company at any time during such calendar year and whose compensation received during such calendar year results in the Participant being one of the 50 highest-compensated persons for the year in the group of all such officers. For purposes of this Section 1.2(jj) only, “compensation” shall mean compensation as defined in the safe harbor set forth in Treasury Regulations §1.415(c)-2(d)(2), and therefore shall generally include (without limiting the detailed terms set forth in the referenced regulation) all wages and other amounts received for services to the Company and its subsidiaries including any amounts deferred under any 401(k), cafeteria or transportation fringe plan and any amounts received on account of an overseas assignment, but specifically excluding any compensation received on exercise of a stock option or vesting of restricted stock and any reimbursement of moving expenses.

(kk) “ Trust ”, “ Trustee ” and “ Trust Agreement ” are defined in the Recitals.

(ll) “ Unscheduled Withdrawal ” is defined in Section 6.4(a).

(mm) “ Valuation Date ” means each date on which Accounts are valued.

For purposes of adjusting each Participant’s Account balance for Investment Returns under Section 4.1(d), the Valuation Date means each day that the New York Stock Exchange is open for trading.

For purposes of Unscheduled Withdrawals, the Valuation Date means the date the Retirement Committee or any subcommittee thereof approves a request for an Unscheduled Withdrawal.

For purposes of a Scheduled Withdrawal, the Valuation Date means a day selected by the Company in its sole discretion for administrative practicality that falls within 30 days prior to the date of payment of the Scheduled Withdrawal.

For purposes of calculating lump sum payments under Section 6.1 or 6.2, the Valuation Date means a day selected by the Company in its sole discretion for administrative practicality that falls within 30 days prior to the payment date.

For purposes of calculating the dollar amount of a quarterly installment payment, the Valuation Date means a day selected by the Company in its sole discretion for administrative practicality that falls within 30 days prior to the date of the quarterly payment.

Any valuation under this Plan shall be based on the closing market prices of the investment Funds on the applicable Valuation Date or, if the Valuation Date is not a day on which the New York Stock Exchange is open for trading, the preceding such trading day.

Payment amounts and deductions from Accounts are based on asset values as of the Valuation Date even though actual payments to the Participant will be delayed for an administratively reasonable period of time to allow for processing and reporting of payments and withholding of applicable taxes.

 

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ARTICLE II

PARTICIPATION

2.1 Participation . An Eligible Employee, Director or Consultant shall become a Participant in the Plan by electing to defer a portion of his or her Compensation in accordance with Section 3.1. An Employee shall also become a Participant in the Plan by having a Company or Participating Employer contribution credited to him or her in accordance with Section 3.2.

ARTICLE III

DEFERRAL OF COMPENSATION

3.1 Participant Elections to Defer Compensation

(a) Initial Eligibility . Each Eligible Employee, Director or Consultant may elect to defer Salary or Fees by filing an election with the Administrator that conforms to the requirements of this Section 3.1, in a form provided by the Administrator, no later than the last day of his or her Initial Election Period. An election to defer Salary or Fees made during an Initial Election Period shall be irrevocable following completion of the Initial Election Period and shall be effective as to Salary and Fees earned during the remainder of the current Plan Year beginning with the first pay period beginning after the Initial Election Period.

(b) Automatic Continuation of Deferral Elections . A Compensation deferral election made under this Section 3.1 shall remain in effect, notwithstanding any change in the Participant’s Compensation, until modified or terminated at a subsequent Annual Election Period or as otherwise provided herein.

(c) Deferral Elections After Initial Election Period

(1) Annual Election Period . An Eligible Employee, Director or Consultant may elect to defer Compensation, or may modify or terminate a previous deferral election, by filing an election with the Administrator, in a form provided by the Administrator, during an Annual Election Period.

(2) Salary and Fees . A deferral election with respect to Salary or Fees made or continued during an Annual Election Period shall apply to Salary and Fees payable for services performed during the Plan Year following the Annual Election Period.

(3) Bonus . A deferral election with respect to Bonus made or continued during an Annual Election Period shall apply to Bonus payable in respect of the fiscal year commencing during the Plan Year following the Annual Election Period.

 

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(4) Long Term Incentive Payments . Long Term Incentive Payments generally are made in August of each year, based on actual financial performance compared against targets established by the Company or Participating Employer for a period of more than one fiscal year. The performance period is the time period specified in the agreement covering the award over which the performance of the Company or Participating Employer is measured to determine the amount of the Long Term Incentive Payment. A deferral election with respect to Long Term Incentive Payments made or continued during an Annual Election Period shall apply to Long Term Incentive Payments payable in respect of performance periods commencing during the Plan Year following the Annual Election Period. If a Long Term Incentive Payment is payable in either cash or Company stock, an election to defer the Long Term Incentive Payment shall be deemed to be an irrevocable agreement to receive the Long Term Incentive Payment in the form of cash and not as Company stock.

(5) Irrevocability . Any deferral election that is made or continued during an Annual Election Period shall be irrevocable following completion of the Annual Election Period with respect to the Compensation to which the deferral election applies.

(d) Amount of Deferral . The amount of Compensation that an Eligible Employee, Director or Consultant may elect to defer is as follows:

(1) Any whole percentage of Salary up to 100%;

(2) Any whole percentage of Bonus up to 100%;

(3) Any whole percentage of Fees up to 100%; and

(4) Any whole percentage of Long Term Incentive Payments up to 100%;

provided, however, that no election under this Section 3.1 shall be effective to reduce the Compensation paid to an Eligible Employee to an amount that is less than the total amount necessary (i) to satisfy any required withholding of applicable employment taxes (e.g., FICA contributions) payable with respect to amounts deferred hereunder, (ii) to satisfy any withholding obligations under a cafeteria plan as defined in Section 125(d) of the Code, and (iii) to satisfy any resulting income tax withholding required with respect to Compensation that cannot be deferred.

(e) Suspension or Termination of Deferrals

(1) Unscheduled Withdrawals under Old Plan . If a Participant receives an unscheduled in-service withdrawal (with 10 percent forfeiture) under the June 1, 2004 restatement of the Plan, all deferral elections of the Participant under this Plan that are then irrevocable shall remain in effect, but the Participant shall be prohibited from making or continuing any deferral elections during the next two Annual Election Periods following receipt of the unscheduled in-service withdrawal.

 

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(2) Hardship Withdrawal under 401(k) Profit Sharing Plan . If a Participant receives a hardship withdrawal under the 401(k) Profit Sharing Plan (or a Participating Employer’s qualified plan):

(A) all of the Participant’s deferral elections under this Plan shall be prospectively canceled so that no additional Compensation shall be deferred under those deferral elections after the date of the hardship withdrawal, and

(B) if the hardship withdrawal is received in any Plan Year after June 30 of that Plan Year, the Participant shall be ineligible to make any deferral election during the Annual Election Period occurring during that Plan Year.

(3) Loss of Eligibility . If a Participant ceases to be an Eligible Employee, Director or Consultant, all deferral elections of the Participant under this Plan that are then irrevocable shall remain in effect, but the Participant shall be ineligible to make or continue deferral elections during subsequent Annual Election Periods unless and until the Participant re-establishes eligibility as an Eligible Employee, Director or Consultant.

3.2 Company or Participating Employer Contributions

(a) Profit Sharing Eligibility . An Employee who qualifies for a profit sharing contribution for a fiscal year under the 401(k) Profit Sharing Plan (or a Participating Employer’s qualified retirement plan, if applicable) shall be eligible for a Company or Participating Employer contribution under Section 3.2(b) for such fiscal year if he or she either (1) made a deferral election under Section 3.1 that resulted in the deferral of any Salary or Bonus otherwise payable during such fiscal year, or (2) receives compensation (as defined under the 401(k) Profit Sharing Plan or a Participating Employer’s qualified retirement plan, if applicable) during such fiscal year exceeding the Code Section 401(a)(17) limit (as indexed, $225,000 for fiscal 2008), or both.

(b) Profit Sharing Make Up Contribution . An Employee who is eligible under Section 3.2(a) for any fiscal year shall be credited with a “Profit Sharing Make Up Contribution” for such fiscal year. The “Profit Sharing Make Up Contribution” shall be equal to the amount determined by multiplying (1) the percentage applied to eligible compensation in calculating the profit sharing contribution under the 401(k) Profit Sharing Plan or applicable Participating Employer’s qualified retirement plan for the fiscal year, by (2) the amount determined by subtracting the Employee’s eligible compensation used to calculate his or her profit sharing contribution under the 401(k) Profit Sharing Plan or applicable Participating Employer’s qualified retirement plan from the Employee’s compensation (as defined under the 401(k) Profit Sharing Plan or applicable Participating Employer’s qualified retirement plan) received during such fiscal year determined (A) before any reduction for deferral of Salary or Bonus under this Plan and (B) without regard to the Code Section 401(a)(17) limit.

 

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(c) Discretionary Contributions . In addition to contributions in accordance with Section 3.2(b), the Company or a Participating Employer may, in its sole discretion, make discretionary contributions (“Discretionary Contributions”) to the Accounts of one or more Employees, Directors or Consultants at such times, in such amounts, and subject to such vesting schedules, if any, as the Board, the Participating Employer or the Retirement Committee may determine. If the Company or a Participating Employer agrees to make a Dis


 
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