Mindspeed Technologies, Inc. Deferred Compensation Plan

Page

PURPOSE

1

ARTICLE 1

DEFINITIONS

1

ARTICLE 2

SELECTION, ENROLLMENT, ELIGIBILITY

8

2.1

Selection by Committee

8

2.2

Enrollment Requirements

8

2.3

Eligibility/Commencement of Participation

8

2.4

Termination of Participation and/or Deferrals

8

ARTICLE 3

DEFERRAL COMMITMENTS/COMPANY MATCHING/CREDITING/TAXES

8

3.1

Minimum Deferrals

8

3.2

Maximum Deferral

9

3.3

Election to Defer/Effect of Election Form

10

3.4

Withholding of Annual Deferral Amounts

10

3.5

Annual Company Contribution Amount

11

3.6

Annual Company Matching Amount

11

3.7

Investment of Trust Assets

11

3.8

Vesting,

12

3.9

Crediting/Debiting of Account Balances

12

3.10

FICA and Other Taxes

15

3.11

Distributions

15

ARTICLE 4

SHORT-TERM PAYOUT/UNFORESEEABLE FINANCIAL EMERGENCIES/WITHDRAWAL ELECTION

15

4.1

Short-Term Payout

15

4.2

Other Benefits Take Precedence Over Short-Term

15

4.3

Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies

16

4.4

Withdrawal Election

16

ARTICLE 5

RETIREMENT BENEFIT

16

5.1

Retirement Benefit

16

5.2

Death Prior to Completion of Retirement Benefit

17

ARTICLE 6

PRE-RETIREMENT SURVIVOR BENEFIT

17

6.1

Pre-Retirement Survivor Benefit

17

6.2

Payment of Pre-Retirement Survivor Benefit

17

ARTICLE 7

TERMINATION BENEFIT

18

7.1

Termination Benefit

18

7.2

Payment of Termination Benefit

18

ARTICLE 8

SIX MONTH DELAY OF BENEFITS TO CERTAIN EMPLOYEES

18

Page

ARTICLE 9

DISABILITY WAIVER AND BENEFIT

18

9.1

Disability Benefit

18

9.2

Payment of Disability Benefit

18

ARTICLE 10

BENEFICIARY DESIGNATION

19

10.1

Beneficiary

19

10.2

Beneficiary Designation/Change/Spousal Consent

19

10.3

Acknowledgment

19

10.4

No Beneficiary Designation

19

10.5

Doubt as to Beneficiary

19

10.6

Discharge of Obligations

19

ARTICLE 11

LEAVE OF ABSENCE

19

11.1

Paid Leave of Absence

19

11.2

Unpaid Leave of Absence

20

11.3

Limits on Leave of Absence

20

ARTICLE 12

TERMINATION, AMENDMENT OR MODIFICATION

20

12.1

Termination of Plan

20

12.2

Amendment

21

12.3

Plan Agreement

21

12.4

Effect of Payment

21

ARTICLE 13

ADMINISTRATION

21

13.1

Committee Duties

21

13.2

Administration Upon Change In Control

21

13.3

Agents

22

13.4

Binding Effect of Decisions

22

13.5

Indemnity of Committee

22

13.6

Employer Information

22

ARTICLE 14

COORDINATION WITH OTHER BENEFITS

22

ARTICLE 15

CLAIMS PROCEDURES

23

15.1

Presentation of Claim

23

15.2

Notification of Decision

23

15.3

Review of a Denied Claim

23

15.4

Decision on Review

24

15.5

Legal Action

24

ARTICLE 16

TRUST

24

16.1

Establishment of the Trust

24

16.2

Interrelationship of the Plan and the Trust

24

Page

16.3

Distributions From the Trust

25

ARTICLE 17

MISCELLANEOUS

25

17.1

Status of Plan

25

17.2

Unsecured General Creditor

25

17.3

Employer’s Liability

25

17.4

Nonassignability

25

17.5

Not a Contract of Employment

25

17.6

Furnishing Information

26

17.7

Terms

26

17.8

Captions

26

17.9

Governing Law

26

17.10

Notice

26

17.11

Successors

26

17.12

Spouse’s Interest

26

17.13

Validity

27

17.14

Incompetent

27

17.15

Court Order

27

17.16

Distribution in the Event of Income Inclusion Under 409A

27

17.17

Insurance

27

17.18

Legal Fees To Enforce Rights After Change in Control

28

1.1

"Account Balance" shall mean, with respect to a Participant, a credit on the records of the Employer equal to the sum of (i) the Deferral Account balance, (ii) the vested Company Contribution Account balance and (iii) the Company Matching Account balance. The Account Balance, and each other specified account balance, shall be a bookkeeping entry only and shall be utilized solely as a device for the measurement and determination of the amounts to be paid to a Participant, or his or her designated Beneficiary, pursuant to this Plan.

1.2

"Annual Bonus" shall mean any compensation, in addition to Base Annual Salary relating to services performed during any calendar year, whether or not paid in such calendar year or included on the Federal Income Tax Form W-2 for such calendar year, payable to a Participant as an Employee under any Employer’s annual bonus and cash incentive plans, excluding stock options and restricted stock.

1.3

"Annual Company Contribution Amount" shall mean, for any one Plan Year, the amount determined in accordance with Section 3.5.

1.4

"Annual Company Matching Amount" shall mean, for any one Plan Year, the amount determined in accordance with Section 3.6.

1.5

"Annual Deferral Amount" shall mean that portion of a Participant’s Base Annual Salary, Annual Bonus and Directors Fees that a Participant elects to have, and is deferred, in accordance with Article 3, for any one Plan Year. In the event of a Participant’s Retirement, Disability (if deferrals cease in accordance with Section 9.1), death or a Termination of Employment prior to the end of

a Plan Year, such year’s Annual Deferral Amount shall be the actual amount withheld prior to such event.

1.6

"Annual Installment Method" shall be an annual installment payment over the number of years selected by the Participant in accordance with this Plan, calculated as follows: The Account Balance of the Participant shall be calculated as of the close of business on the last business day of the year. The annual installment shall be calculated by multiplying this balance by a fraction, the numerator of which is one, and the denominator of which is the remaining number of annual payments due the Participant. By way of example, if the Participant elects a 10-year Annual Installment Method, the first payment shall be 1/10 of the Account Balance, calculated as described in this definition. The following year, the payment shall be 1/9 of the Account Balance, calculated as described in this definition. Each annual installment after the first installment shall be paid in the first sixty (60) days of each calendar year following the calendar year of the first installment.

1.7

"Base Annual Salary" shall mean the annual cash compensation relating to services performed during any calendar year, whether or not paid in such calendar year or included on the Federal Income Tax Form W-2 for such calendar year, excluding bonuses, commissions, overtime, fringe benefits, stock options, relocation expenses, incentive payments, non-monetary awards, directors fees and other fees, automobile and other allowances paid to a Participant for employment services rendered (whether or not such allowances are included in the Employee’s gross income). Base Annual Salary shall be calculated before reduction for compensation voluntarily deferred or contributed by the Participant pursuant to all qualified or non-qualified plans of any Employer and shall be calculated to include amounts not otherwise included in the Participant’s gross income under Code Sections 125 , 402(e)(3), 402(h), or 403(b) pursuant to plans established by any Employer; provided, however, that all such amounts will be included in compensation only to the extent that, had there been no such plan, the amount would have been payable in cash to the Employee.

1.8

"Beneficiary" shall mean one or more persons, trusts, estates or other entities, designated in accordance with Article 10, that are entitled to receive benefits under this Plan upon the death of a Participant.

1.9

"Beneficiary Designation Form" shall mean the form established from time to time by the Committee that a Participant completes, signs and returns to the Committee to designate one or more Beneficiaries.

1.10

"Board" shall mean the board of directors of the Company.

1.11

"Business Combination" shall have the meaning set forth in Section 1.12.

1.12

"Change in Control" shall mean the first to occur of any of the following events:

(a)

The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of either (i) the then outstanding             shares of common stock of the Company (the "Outstanding Company Common Stock")

or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding Company Voting Securities"); provided, however , that for purposes of this subsection (a), the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly from the Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company or (iv) any acquisition pursuant to a transaction which complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 1.12; or

(b)

Individuals who, as of the date this Trust was established, constituted the Board (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a Director subsequent to the date thereof whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the Directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

(c)

Consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company or the acquisition of assets of another entity (a "Business Combination"), in each case, unless, following such Business Combination, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 60% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company, any employee benefit plan (or related trust) of the Company or of such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 35% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or

(d)

Approval by the Company’s shareholders of a complete liquidation or dissolution of the Company.

1.13

"Claimant" shall have the meaning set forth in Section 15.1.

1.14

"Code" shall mean the Internal Revenue Code of 1986, as it may be amended from time to time.

1.15

"Committee" shall mean the committee described in Article 13.

1.16

"Company" shall mean Mindspeed Technologies, Inc., a Delaware corporation, and any successor to all or substantially all of the Company’s assets or business.

1.17

"Company Contribution Account" shall mean (i) the sum of the Participant’s Annual Company Contribution Amounts, plus (ii) amounts credited (net of amounts debited) in accordance with all of the applicable crediting provisions of this Plan that relate to the Participant’s Company Contribution Account, less (iii) all distributions made to the Participant or his or her Beneficiary pursuant to this Plan that relate to the Participant’s Company Contribution Account.

1.18

"Company Matching Account" shall mean (i) the sum of all of a Participant’s Annual Company Matching Amounts, plus (ii) amounts credited (net of amounts debited) in accordance with all of the applicable crediting provisions of this Plan that relate to the Participant’s Company Matching Account, less (iii) all distributions made to the Participant or his or her Beneficiary pursuant to this Plan that relate to the Participant’s Company Matching Account.

1.19

"Deduction Limitation" shall mean the following described limitation on a benefit that may otherwise be distributable pursuant to the provisions of this Plan. Except as otherwise provided, this limitation shall be applied to all distributions that are "subject to the Deduction Limitation" under this Plan. If an Employer determines in good faith prior to a Change in Control that there is a reasonable likelihood that any compensation paid to a Participant for a taxable year of the Employer would not be deductible by the Employer solely by reason of the limitation under Code Section 162(m), then to the extent deemed necessary by the Employer to ensure that the entire amount of any distribution to the Participant pursuant to this Plan prior to the Change in Control is deductible, the Employer may defer all or any portion of a distribution under this Plan. Any amounts deferred pursuant to this limitation shall continue to be credited/debited with additional amounts in accordance with Section 3.9 below, even if such amount is being paid out in installments. The amounts so deferred and amounts credited thereon shall be distributed to the Participant or his or her Beneficiary (in the event of the Participant’s death) at the earliest possible date, as determined by the Employer in good faith, on which the deductibility of compensation paid or payable to the Participant for the taxable year of the Employer during which the distribution is made will not be limited by Section 162(m), or if earlier, the effective date of a Change in Control, but only if such Change in Control would be a permissible payment event under Code Section 409A and related Treasury guidance and Regulations. Notwithstanding anything to the contrary in this Plan, the Deduction Limitation shall not apply to any distributions made after a Change in Control.

1.20

"Deferral Account" shall mean (i) the sum of all of a Participant’s Annual Deferral Amounts, plus (ii) amounts credited (net of amounts debited) in accordance with all of the applicable crediting provisions of this Plan that relate to the Participant’s Deferral Account, less (iii) all distributions

made to the Participant or his or her Beneficiary pursuant to this Plan that relate to his or her Deferral Account.

1.21

"Director" shall mean any member of the board of directors of any Employer.

1.22

"Directors Fees" shall mean the annual fees paid by any Employer, including retainer fees and meetings fees, as compensation for serving on the board of directors.

1.23

"Disability" shall mean that a participant is (i) 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 twelve (12) months or (ii) 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 twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident or health plan covering employees of the Participant’s Employer.

1.24

"Disability Benefit" shall mean the benefit set forth in Article 9.

1.25

"Election Form" shall mean the form established from time to time by the Committee that a Participant completes, signs and returns to the Committee to make an election under the Plan.

1.26

"Employee" shall mean a person who is an employee of any Employer.

1.27

"Employer(s)" shall mean the Company and/or any of its subsidiaries (now in existence or hereafter formed or acquired) that have been selected by the Board to participate in the Plan and have adopted the Plan as a sponsor.

1.28

"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as it may be amended from time to time.

1.29

"Exchange Act" shall have the meaning set forth in Section 1.12.

1.30

"Executive Committee" shall mean the Company’s executive committee.

1.31

"First Plan Year" shall mean the period beginning June 27, 2003 and ending December 31, 2003.

1.32

"401(k) Plan" shall be that certain Mindspeed Technologies, Inc. Retirement Savings Plan adopted by the Company.

1.33

"Incumbent Board" shall have the meaning set forth in Section 1.12.

1.34

"Outstanding Company Common Stock" shall have the meaning set forth in Section 1.12.

1.35

"Outstanding Company Voting Securities" shall have the meaning set forth in Section 1.12.

1.36

"Participant" shall mean any Employee or Director (i) who is selected to participate in the Plan, (ii) who elects to participate in the Plan, (iii) who signs a Plan Agreement, an Election Form and a Beneficiary Designation Form, (iv) whose signed Plan Agreement, Election Form and Beneficiary Designation Form are accepted by the Committee, (v) who commences participation

in the Plan, and (vi) whose Plan Agreement has not terminated. A spouse or former spouse of a Participant shall not be treated as a Participant in the Plan or have an account balance under the Plan, even if he or she has an interest in the Participant’s benefits under the Plan as a result of applicable law or property settlements resulting from legal separation or divorce.

1.37

"Person" shall have the meaning set forth in Section 1.12.

1.38

"Plan" shall mean the Mindspeed Technologies, Inc. Deferred Compensation Plan, effective June 27, 2003, and amended and restated effective as of November 13, 2008, which shall be evidenced by this instrument and by each Plan Agreement, as they may be amended from time to time.

1.39

"Plan Agreement" shall mean a written agreement, as may be amended from time to time, which is entered into by and between an Employer and a Participant. Each Plan Agreement executed by a Participant and the Participant’s Employer shall provide for the entire benefit to which such Participant is entitled under the Plan; should there be more than one Plan Agreement, the Plan Agreement bearing the latest date of acceptance by the Employer shall supersede all previous Plan Agreements in their entirety and shall govern such entitlement. The terms of any Plan Agreement may be different for any Participant, and any Plan Agreement may provide additional benefits not set forth in the Plan or limit the benefits otherwise provided under the Plan; provided, however, that any such additional benefits or benefit limitations must be agreed to by both the Employer and the Participant.

1.40

"Plan Year" shall, except for the First Plan Year, mean a period beginning on January 1 of each calendar year and continuing through December 31 of such calendar year.

1.41

"Post-2004 Account" shall mean a subaccount of the Participant’s Account Balance which shall contain all amounts therein that were credited or first vested on or after January 1, 2005, plus the investment experience thereon, as credited or debited under Section 3.9 of the Plan.

1.42

"Pre-2005 Account" shall mean a subaccount of the Participant’s Account Balance which shall contain all amounts therein that were both credited and fully vested on or before December 31, 2004, plus the investment experience thereon, as credited or debited under Section 3.9 of the Plan.

1.43

"Pre-Retirement Survivor Benefit" shall mean the benefit set forth in Article 6.

1.44

"Retirement", "Retire(s)" or "Retired" shall mean, (1) with respect to an Employee who is not then a Director, separation from service with all Employers for any reason other than a leave of absence, death or Disability, as determined in accordance with Code Section 409A and related Treasury guidance and Regulations at such time as the sum of the Employee’s age and Years of Service equals at least fifty-five (55 ); and (2) with respect to a Director who is not then an Employee, separation from service as a Director for all Employers on or after the attainment of age seventy (70). If a Participant is both an Employee and a Director, or changes status between the two roles, whether there has been a separation from service upon a Retirement shall be determined under the applicable Treasury guidance and Regulations under Code Section 409A.

1.45

"Retirement Benefit" shall mean the benefit set forth in Article 5 .

1.46

"Short-Term Payout" shall mean the payout set forth in Section 4.1.

1.47

"Stock" shall mean Mindspeed Technologies, Inc. common stock, $1.00 par value, or any other equity securities of the Company designated by the Committee.

1.48

"Termination Benefit" shall mean the benefit set forth in Article 7.

1.49

"Termination of Employment" shall mean the separation from service with all Employers, voluntarily or involuntarily, for any reason other than Retirement, Disability, death or an authorized leave of absence, as determined in accordance with Code Section 409A and related Treasury guidance and Regulations. If a Participant is both an Employee and a Director, or changes status between the two, whether there has been a separation from service shall be determined under the applicable Treasury guidance and Regulations under Code Section 409A.

1.50

"Trust" shall mean the trust established pursuant to that certain Trust Agreement, dated as of June 27, 2003, between the Company and the Trustee named therein, as amended from time to time.

1.51

"Unforeseeable Financial Emergency" shall mean a severe financial hardship as defined in Treasury Regulations Section 1.409A-3(i)(3)(ii). Accordingly, without further limiting the definition, an unforeseeable emergency shall include a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participant’s spouse, the Participant’s Beneficiary, or the Participant’s dependent (as defined in Code Section 152, without regard to Code Section 152(b)(1), (b)(2), and (d)(1)(B)); loss of the Participant’s property due to casualty (including the need to rebuild a home following damage to a home not otherwise covered by insurance, for example, not 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. For example, the imminent foreclosure of or eviction from the Participant’s primary residence may constitute an unforeseeable emergency. In addition, the need to pay for medical expenses, including non-refundable deductibles, as well as for the costs of prescription drug medication, may constitute an unforeseeable emergency. Finally, the need to pay for the funeral expenses of a spouse, a Beneficiary, or a dependent (as defined in Code Section 152, without regard to Code Section 152(b)(1), (b)(2), and (d)(1)(B)) may also constitute an unforeseeable emergency. The determination of whether an "Unforeseeable Financial Emergency" exists shall be determined in the sole discretion of the Committee.

1.52

"Years of Service" shall mean the total number of full years in which a Participant has been employed by one or more Employers. For purposes of this definition, any time in which a Participant was employed by Rockwell International Corporation, a Delaware corporation, and/or Conexant Systems, Inc., a Delaware corporation, shall be counted. A year of employment shall be a 365-day period (or 366-day period in the case of a leap year) that, for the first year of employment, commences on the Employee’s date of hiring and that, for any subsequent year, commences on an anniversary of that hiring date. Any partial year of employment shall not be counted. Notwithstanding any provision of this Plan that may be construed to the contrary, for purposes of this definition, the Committee may, in its sole and absolute discretion, deem a Participant to be credited with additional years of employment for purpose of calculating his or her Years of Service.

2.1

Selection by Committee . Participation in the Plan shall be limited to a select group of management and highly compensated Employees and Directors of the Employers, as determined by the Committee in its sole and absolute discretion. From that group, the Committee shall select, in its sole and absolute discretion, Employees and Directors to participate in the Plan.

2.2

Enrollment Requirements . As a condition to participation, each selected Employee or Director shall complete, execute and return to the Committee a Plan Agreement, an Election Form and a Beneficiary Designation Form, all within thirty (30) days after he or she is first selected to participate in the Plan. In subsequent Plan Years, each selected Employee or Director must complete these requirements prior to the first day of such Plan Year. In addition, the Committee shall establish from time to time such other enrollment requirements as it determines in its sole and absolute discretion are necessary.

2.3

Eligibility/Commencement of Participation . Provided an Employee or Director selected to participate in the Plan has met all enrollment requirements set forth in this Plan and required by the Committee, including returning all required documents to the Committee within the specified time period, that Employee or Director shall commence participation in the Plan upon the date determined by the Committee. The Participant shall not be permitted to defer under this Plan any portion of his or her Base Salary, Bonus, and/or Directors Fees that are paid with respect to services performed prior to his or her commencement date, except to the extent permissible under Code Section 409A and related Treasury guidance or Regulations. If an Employee or a Director fails to meet all such requirements within the period required by the Committee, that Employee or Director shall not be eligible to participate in the Plan until the first day of the Plan Year following the delivery to and acceptance by the Committee of the required documents.

2.4

Termination of Participation and/or Deferrals . If the Committee determines in good faith that a Participant no longer qualifies as a member of a select group of management or highly compensated employees, as membership in such group is determined in accordance with Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, the Committee shall have the right, in its sole and absolute discretion, to (i) terminate any deferral election the Participant has made for the remainder of the Plan Year in which the Participant’s membership status changes, (ii) prevent the Participant from making future deferral elections and/or (iii) take further action that the Committee deems appropriate. Notwithstanding the foregoing, in the event of a Termination of the Plan, the termination of affected Participant’s eligibility for participation in the Plan shall not be governed by this Section 2.4, but rather shall be governed by the terms of this Plan until such time as the Participant’s Account Balance is paid in accordance with the terms of the Plan.

3.1

Minimum Deferrals .

(a)

Base Annual Salary. Annual Bonus and Director’s Fees . For each Plan Year, a Participant may elect to defer, as his or her Annual Deferral Amount, Base Annual Salary, Annual Bonus and/or Director’s Fees in the following minimum amounts for each deferral elected:

Deferral

Minimum Amount

Base Annual Salary

$

2,000

Annual Bonus

$

2,000

Directors Fees

$

2,000

If an election is made for less than stated minimum amounts, or if no election is made, the amount deferred shall be zero.

(b)

Short Plan Year . Notwithstanding the foregoing, if a Participant first becomes a Participant after the first day of a Plan Year, or in the case of the first Plan Year of the Plan itself, the minimum Base Annual Salary deferral shall be an amount equal to the minimum set forth above, multiplied by a fraction, the numerator of which is the number of complete months remaining in the Plan Year and the denominator of which is twelve (12).

3.2

Maximum Deferral .

(a)

Base Annual Salary, Annual Bonus and Directors Fees. For each Plan Year, a Participant may elect to defer, as his or her Annual Deferral Amount, Base Annual Salary, Annual Bonus and/or Directors Fees up to the following maximum percentages for each deferral elected:

Deferral

Maximum Percentage

Base Annual Salary

100

%

Annual Bonus

100

%

Directors Fees

100

%

(b)

Notwithstanding the foregoing, if a Participant first becomes a Participant after the first day of a Plan Year, or in the case of the first Plan Year of the Plan itself, the maximum Annual Deferral Amount, with respect to Base Annual Salary, Annual Bonus and Directors Fees shall be limited to the amount of compensation not yet earned by the Participant as of the date the Participant submits a Plan Agreement and Election Form to the Committee for acceptance.

3.3

Election to Defer/Effect of Election Form .

(a)

First Plan Year. In connection with a Participant’s commencement of participation in the Plan, the Participant shall make an irrevocable deferral election for the Plan Year in which the Participant commences participation in the Plan, along with such other elections as the Committee deems necessary or desirable under the Plan. For these elections to be valid, the Election Form must be completed and signed by the Participant, timely delivered to the Committee (in accordance with Section 2.2 above) and accepted by the Committee. As a condition to making such irrevocable deferral election for the Plan Year, such Participant shall make an irrevocable election under such Election Form to make the maximum "Basic Pre-Tax Contributions" and "Supplemental Pre-Tax Contributions" (as such terms are defined in the 401(k) Plan) permitted under the terms of the 401(k) Plan for such Plan Year.

(b)

Subsequent Plan Years . For each succeeding Plan Year, an irrevocable deferral election for that Plan Year, and such other elections as the Committee deems necessary or desirable under the Plan, shall be made by timely delivering to the Committee, in accordance with its rules and procedures, before the end of the Plan Year preceding the Plan Year for which the election is made, a new Election Form. If no such Election Form is timely delivered for a Plan Year, the Annual Deferral Amount shall be zero for that Plan Year. As a condition to making such irrevocable deferral election for the Plan Year, such Participant shall make an irrevocable election under such Election Form to make the maximum "Basic Pre-Tax Contributions" and "Supplemental Pre-Tax Contributions" (as such terms are defined in the 401(k) Plan) permitted under the terms of the 401(k) Plan for such Plan Year.

(c)

Performance-Based Compensation . Notwithstanding the foregoing, the Committee may, in its sole discretion, determine that an irrevocable deferral election pertaining to performance-based compensation may be made by the Participant’s timely delivering an Election Form to the Committee, in accordance with its rules and procedures, no later than six (6) months before the end of the performance service period. "Performance-based compensation" shall be compensation from an Employer based on services performed over a period of at least twelve (12) months, in accordance with Code Section 409A and related Treasury guidance or Regulations. Beginning January 1, 2009 (or such other effective date of the final Treasury Regulations), the definition of "performance-based compensation" in the final Treasury Regulations shall govern.

(d)

Transition Rules . Notwithstanding the other provisions of this Section 3.3, the Committee may, in its sole discretion, permit deferrals pursuant to irrevocable deferral elections as permitted in the transition guidance established by the Internal Revenue Service under Code Section 409A.

3.4

Withholding of Annual Deferral Amounts . For each Plan Year, the Base Annual Salary portion of the Annual Deferral Amount shall be withheld from each regularly scheduled Base Annual Salary payroll in equal amounts, as adjusted from time to time for increases and decreases in Base Annual Salary. The Annual Bonus and/or Directors Fees portion of the Annual Deferral Amount shall be withheld at the time the Annual Bonus or Directors Fees are or otherwise would be paid to the Participant, whether or not this occurs during the Plan Year itself.

3.5

Annual Company Contribution Amount . For each Plan Year, an Employer, in its sole and absolute discretion, may, but is not required to, credit any amount it desires to any Participant’s Company Contribution Account under this Plan, which amount shall be for that Participant the Annual Company Contribution Amount for that Plan Year. The amount so credited to a Participant may be smaller or larger than the amount credited to any other Participant, and the amount credited to any Participant for a Plan Year may be zero, even though one or more other Participants receive an Annual Company Contribution Amount for that Plan Year. The Annual Company Contribution Amount, if any, shall be credited as of the date determined by the Committee in its sole and absolute discretion. If a Participant is not employed by an Employer as of the last day of a Plan Year for a reason other than his or her Retirement or death while employed, the Annual Company Contribution Amount for that Plan Year shall be zero.

3.6

Annual Company Matching Amount . A Participant’s Annual Company Matching Amount for any Plan Year shall be equal to the match the Participant would have received under the 401(k) Plan during the corresponding plan year of the 401(k) Plan, but for (i) his or her Participation in this Plan and (ii) the limitations imposed under Code Sections 401(a)(17), 401(k)(3), 402(g) and 415, less the match actually credited to the Participant’s 401(k) Plan account. If a Participant is not employed by an Employer, or is no longer providing services as a Director, as of the last business day of a Plan Year other than by reason of his or her Retirement or death, the Annual Company Matching Amount for such Plan Year shall be zero. In the event of Retirement or death, a Participant shall be credited with the Annual Company Matching Amount for the Plan Year in which he or she Retires or dies. A Participant’s Annual Company Matching Amount for any Plan Year shall be equal to: (a) t