Exhibit 10.8
SECOND AMENDMENT
OF
H.B. FULLER
COMPANY
KEY EMPLOYEE DEFERRED
COMPENSATION PLAN
(2005 Amendment and
Restatement)
H.B. Fuller Company (“H.B.
Fuller”) and certain affiliated companies
(“Employers” or “Employer,” as applicable)
maintains a nonqualified, unfunded deferred compensation plan (the
“Plan”) for the benefit of a select group of employees
which is currently embodied in a document entitled “H.B.
Fuller Company Key Employee Deferred Compensation Plan (2005
Amendment and Restatement)” as amended by a First Amendment
adopted on January 24, 2008 (the “Plan
Statement”). To comply with final regulations under
section 409A of the Code, the Plan Statement is hereby amended
as follows:
1. CLARIFICATION REGARDING SCOPE
OF FIRST AMENDMENT. To clarify the scope of the First Amendment of
the Plan Statement, Section 1 of the Plan Statement is amended
effective January 23, 2008, by adding a new Section 1.1.4
to read as follows:
1.1.4. Scope of First
Amendment . The First Amendment of the Plan Statement adopted
on January 24, 2008, shall apply to Section 1.2.4(b) of
the Plan Statement and to Section 1.1(d)(ii) of the Prior Plan
Statement.
2. DEFINITION OF AFFILIATE.
Effective January 1, 2008, Section 1.2.2 of the Plan
Statement is amended to read as follows:
1.2.2. Affiliate — a
business entity that is treated as a single employer with H.B.
Fuller Company under the rules of section 414(b) and
(c) of the Code, including the eighty percent
(80%) standard therein.
3. DEFINITION OF ELIGIBLE
COMPENSATION. Effective January 1, 2008, Section 1.2.12
of the Plan Statement is amended to read as follows:
1.2.12. Eligible Compensation
— compensation which is Eligible Earnings as defined under
the H.B. Fuller Thrift Plan; provided, however, that Eligible
Compensation (i) shall be determined without regard to
limitations imposed under section 401(a)(17) of the Code, and,
(ii) to the extent not already excluded from the definition of
Eligible Earnings, Eligible Compensation, shall exclude:
(A) any awards under the Short-Term Incentive Plan or the
Annual and Long Term Incentive Plan, and (B) the value of all
stock options and stock appreciation rights (whether or not
exercised).
4. NAMES OF PERFORMANCE AWARD
PLANS. Effective January 1, 2008, Sections 1.2.17 and
1.2.21 are amended to read as follows (and Section 1 is
reordered accordingly) and all references in the Plan Statement to
“PUP Award” are replaced with “LTIP
Award”:
1.2.17. LTIP Award — a
cash award paid pursuant to the H.B. Fuller Annual and Long Term
Incentive Plan (or similar successor plan) which is
performance-based compensation as defined in section 409A of
the Code.
1.2.21. STIP Award — a
cash award paid pursuant to the H.B. Fuller Short Term Incentive
Plan (or similar successor plan) which is performance-based
compensation as defined in section 409A of the
Code.
5. DEFINITION OF SEPARATION FROM
SERVICE. Effective January 1, 2008, Section 1.2.20 of the
Plan Statement is amended to read as follows:
1.2.20. Separation from
Service — a severance of an employee’s employment
relationship with the Employers and all Affiliates for any reason
other than the employee’s death.
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(a)
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A transfer from
employment with an Employer to employment with an Affiliate, or
vice versa, shall not constitute a Separation from
Service.
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(b)
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Whether a
Separation from Service has occurred is determined based on whether
the facts and circumstances indicate that the Employer and employee
reasonably anticipated that no further services would be performed
after a certain date or that the level of bona fide services the
employee would perform after such date (whether as an employee or
as an independent contractor) would permanently decrease to no more
than twenty percent (20%) of the average level of bona fide
services performed (whether as an employee or an independent
contractor) over the immediately preceding thirty-six
(36) month period (or the full period of services to the
employer if the employee has been providing services to the
employer for less than thirty-six (36) months).
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(c)
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Separation from
Service shall not be deemed to occur while the employee is on
military leave, sick leave or other bona fide leave of absence if
the period does not exceed six (6) months or, if longer, so
long as the employee retains a right to reemployment with the
Employer or an Affiliate under an applicable statute or by
contract. For this purpose, a leave is bona fide only if, and so
long as, there is a reasonable expectation that the employee will
return to perform services for the Employer or an Affiliate.
Notwithstanding the foregoing, a 29-month period of
absen
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