{"id":40435,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/senior-executive-restrictive-covenant-and-retention-plan.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"senior-executive-restrictive-covenant-and-retention-plan","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/senior-executive-restrictive-covenant-and-retention-plan.html","title":{"rendered":"Senior Executive Restrictive Covenant and Retention Plan – Omnicom Group Inc."},"content":{"rendered":"

OMNICOM
\nGROUP INC.<\/strong><\/a>
\nSENIOR EXECUTIVE RESTRICTIVE COVENANT AND RETENTION PLAN<\/strong><\/p>\n

\n<\/p>\n

\n

ARTICLE I<\/strong><\/p>\n

\n

PREAMBLE<\/strong><\/p>\n

\n

1.1 The purpose of this Senior Executive Restrictive Covenant and Retention
\nPlan (the “Plan”) is to secure non-competition, non-solicitation,
\nnon-disparagement and consulting agreements with Executive Officers and Key
\nEmployees for a significant period of time, and strengthen the retention aspect
\nof Executive Officers153 and Key Employees153 total compensation.<\/p>\n<\/p>\n

1.2 This Plan may be amended at any time and from time to time by the
\nCommittee to comply with the requirements of Section 409A of the Internal
\nRevenue Code (“Section 409A”), and regulations and interpretations issued
\nthereunder. Notwithstanding Section 10.1 of the Plan, any such amendment may be
\nmade without the consent of any Participant or Beneficiary, regardless of
\nwhether such amendment adversely affects any benefits or rights of a Participant
\nor Beneficiary arising under the terms of the Plan.<\/p>\n<\/p>\n

1.3 This Plan became effective as of December 15, 2006, and was previously
\namended on December 4, 2008, May 19, 2009 and March 29, 2010.<\/p>\n

ARTICLE II<\/strong><\/p>\n

\n

DEFINITIONS<\/strong><\/p>\n

\n

The following terms shall have the meaning set forth below:<\/p>\n<\/p>\n

2.1 “Annual Cap” means $1,500,000 for the first payment to any Participant;
\nprovided, however, that the Annual Cap shall be adjusted annually (beginning
\nwith the second annual payment to the Participant) by the most recent
\nCost-of-Living Adjustment used by the United States Social Security
\nAdministration. Notwithstanding anything else to the contrary, the Annual Cap
\nshall not be increased by more than 2.5% per calendar year.<\/p>\n<\/p>\n

2.2 “Beneficiary” means any person, persons, entity or entities designated in
\nwriting by the Participant to the Company to receive payment, if any, to be made
\nhereunder following the death of the Participant, and in the absence of such
\ndesignation, means (i) the Participant153s surviving spouse, while living, and
\n(ii) if there be no surviving spouse or upon the death of the surviving spouse,
\nthen to the estate of the Participant.<\/p>\n<\/p>\n

2.3 “Board” means the Board of Directors of the Company.<\/p>\n<\/p>\n

2.4 “Cause” means a termination of employment hereunder upon:<\/p>\n<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/tr>\n
\n

(i)<\/p>\n<\/td>\n

\n

the Participant153s having been convicted of, or having entered a plea bargain
\nor settlement admitting guilt for any felony committed in the execution of and
\nwhile performing the Participant153s duties as an Executive Officer or Key
\nEmployee where, as a result of such felony, the continued employment of the
\nParticipant would have a material adverse impact on the Company; provided, that,
\nthe Participant shall not be deemed to have been convicted of a felony until the
\nfelony conviction becomes final after the exhaustion of all appeals related to
\nthe conviction, or in the absence of an appeal, the exhaustion of all applicable
\nappeal periods related to the conviction;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/tr>\n
\n

(ii)<\/p>\n<\/td>\n

\n

the Participant153s having been the subject of any order, judicial or
\nadministrative, obtained or issued by the Securities and Exchange Commission,
\nfor any securities violation involving a material and willful act of fraud;
\nprovided, that, the Participant shall not be deemed to have been the subject of
\nany such order obtained or issued by the Securities and Exchange Commission<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

1<\/p>\n

\n

\n

\n<\/p>\n<\/p>\n

until the order becomes final after the exhaustion of all appeals related to
\nthe order, or in the absence of an appeal, the exhaustion of all applicable
\nappeal periods related to the order; or<\/p>\n<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/tr>\n
\n

(iii)<\/p>\n<\/td>\n

\n

the Participant153s having been convicted of, or having entered a plea bargain
\nor settlement admitting guilt for, the commission of an act of fraud or
\nembezzlement against the Company that results in material and demonstrable harm
\nto the Company; provided, that, the Participant shall not be deemed to have been
\nconvicted of an act of fraud or embezzlement against the Company until such
\nconviction becomes final after the exhaustion of all appeals related to the
\nconviction, or in the absence of an appeal, the exhaustion of all applicable
\nappeal periods related to the conviction.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

If the Company or one of its Subsidiaries desires to terminate the
\nParticipant153s employment for Cause in accordance herewith, it shall provide the
\nParticipant with a notice of termination, and allow the Participant 90 days
\nfollowing the date of such notice to fully remedy, cure or rectify, if possible,
\nthe situation giving rise to the allegations of Cause. The cessation of
\nemployment of the Participant shall not be deemed to be for Cause unless and
\nuntil there shall have been delivered to the Participant a copy of a resolution
\nduly adopted by the affirmative vote of a majority of the entire membership of
\nthe Board (excluding the Participant, if the Participant is a member of the
\nBoard) at a meeting of the Board (after reasonable notice is provided to the
\nParticipant and the Participant is given an opportunity, together with counsel
\nfor the Participant, to be heard before the Board), finding that, in the good
\nfaith opinion of the Board, the Participant is guilty of the conduct described
\nabove, and specifying the particulars thereof in detail.<\/p>\n<\/p>\n

2.5 “Committee” means the Compensation Committee of the Board, or if there
\nshould be no Compensation Committee, means a committee of not less than three
\nmembers of the Board none of whom shall, while serving as a member of the
\nCommittee, be eligible to receive a benefit under the Plan from the Company.<\/p>\n<\/p>\n

2.6 “Company” means Omnicom Group Inc., a New York corporation.<\/p>\n<\/p>\n

2.7 “Disability” means the inability of the Participant, by reason of
\nphysical condition, mental illness or accident, to perform substantially all of
\nthe duties of the position at which he or she was employed by the Employer when
\nsuch disability commenced, provided that such disability constitutes a
\n“disability” within the meaning of Treasury Regulation Section 1.409A-3(i)(4) or
\nany successor regulation. The Committee shall make all determinations as to
\n“Disability,” after a hearing at which the Participant shall be entitled to be
\npresent with counsel of his or her choice and be heard by the Committee, and the
\ndetermination by the Committee shall be final and conclusive.<\/p>\n<\/p>\n

2.8 “Employee” means any person who is a full-time employee of an Employer.\n<\/p>\n<\/p>\n

2.9 “Employer” means the Company or a Subsidiary.<\/p>\n<\/p>\n

2.10 “Executive Officer” means, as determined by the Board on an annual
\nbasis, the Company153s president, any vice president of the Company in charge of a
\nprincipal business unit, division or function (such as sales, administration or
\nfinance), any other officer who performs a policy making function or any other
\nperson who performs similar policy making functions for the Company. Executive
\nOfficers of Subsidiaries may be deemed Executive Officers of the Company if they
\nperform such policy making functions for the Company.<\/p>\n<\/p>\n

2.11 “Employer Group” means the Company and all Subsidiaries.<\/p>\n<\/p>\n

2.12 “Final Average Pay” means the Participant153s average annual Pay
\ndetermined using the highest three (3) years of Pay during the Employee153s
\nemployment with the Employer, unless otherwise defined by the Participant153s
\nSenior Executive Restrictive Covenant and Retention Plan Agreement. For this
\npurpose, only full years of employment will be taken into account and partial
\nyears of employment will be disregarded.<\/p>\n<\/p>\n

2.13 “Key Employee” means any Employee specifically designated as a
\n“Participant” by the Board.<\/p>\n<\/p>\n<\/p>\n

2<\/p>\n

\n

\n

\n<\/p>\n<\/p>\n

2.14 “Participant” means a person who participates in the Plan in accordance
\nwith Article V below.<\/p>\n<\/p>\n

2.15 “Plan” means this Omnicom Group Inc. Senior Executive Restrictive
\nCovenant and Retention Plan, as may be amended from time to time.<\/p>\n<\/p>\n

2.16 “Pay” means the base salary plus bonus and other incentive compensation
\nearned in respect of any calendar year by the Participant, whether or not paid
\nto the Participant or waived or deferred by the Participant, excluding all other
\nforms of compensation, such as severance pay, contributions under benefit plans,
\nand the compensatory elements of stock awards.<\/p>\n<\/p>\n

2.17 “Percentage” means 5% plus 2% per Year of Executive Service, unless
\notherwise defined by the Participant153s Senior Executive Restrictive Covenant and
\nRetention Plan Agreement. Unless otherwise limited by the Participant153s Senior
\nExecutive Restrictive Covenant and Retention Plan Agreement, in no event may the
\nPercentage exceed 35%.<\/p>\n<\/p>\n

2.18 “Separation from Service” means a Participant153s “separation from
\nservice” with the Employer Group as such term is defined in Treasury Regulation
\nSection 1.409A-1(h) and any successor provision thereto.<\/p>\n<\/p>\n

2.19 “Senior Executive Restrictive Covenant and Retention Plan Agreement”
\nmeans a written agreement containing terms and conditions that are deemed
\nappropriate by the Committee.<\/p>\n<\/p>\n

2.20 “Subsidiary” means any company in which the Company holds, directly or
\nindirectly, 50% or more of its outstanding voting stock.<\/p>\n<\/p>\n

2.21 “Vested Participant” means a Participant who has completed seven Years
\nof Service.<\/p>\n<\/p>\n

2.22 “Year of Executive Service” means each complete or partial Year of
\nService during which the Participant was an Executive Officer or Key Employee.\n<\/p>\n<\/p>\n

2.23 “Year of Service” means each consecutive period of 365 days the
\nParticipant is in the continuous employ of a member or members of the Employer
\nGroup. For purposes of this Section, “continuous employ of a member or members
\nof the Employer Group” means consecutive employment by members of the Employer
\nGroup without interruption by reason of self-employment or employment by a third
\nparty employer, except as provided in Section 2.19(b) of the Plan.<\/p>\n<\/p>\n

The Participant shall be in the employ of the Employer regardless of absences
\nby reason of:<\/p>\n<\/p>\n

(a) sick leave, vacation leave, or other special leave approved by the
\nEmployer which does not exceed six months, provided the Participant returns to
\nwork for the Employer not later than the expiration date of the authorized leave
\nof absence; and<\/p>\n<\/p>\n

(b) time spent in the service of others at the request of, or with the
\napproval of, the Employer, provided the Participant returns to work for the
\nEmployer within fifteen (15) days following cessation of work for such other
\nparty.<\/p>\n<\/p>\n

ARTICLE III<\/strong><\/p>\n

\n

COMPANY153S PAYMENT OBLIGATION CONDITIONAL ON
\nPARTICIPANT REFRAINING FROM COMPETITIVE AND OTHER ACTIVITIES AFTER SEVERANCE OF
\nEMPLOYMENT<\/strong><\/p>\n

\n

3.1 It is a condition of the Company153s obligation to make payments hereunder
\nthat from the date of the Participant153s employment termination described in
\nSection 6.1 of the Plan that shall have given rise to the obligation to pay and
\nuntil the close of the last calendar year in respect of which the Participant is
\nentitled to receive payments hereunder:<\/p>\n<\/p>\n<\/p>\n

3<\/p>\n

\n

\n

\n<\/p>\n<\/p>\n

(a) that the Participant shall not, directly or indirectly, engage in, nor
\nbecome employed as an employee or retained as a consultant by any of the top 15
\nmarketing services organizations as reported most recently by Advertising Age
\n(determined at the time of entering into the Senior Executive Restrictive
\nCovenant and Retention Plan Agreement), or any of such marketing organizations153
\nsubsidiaries in the United States or any other country (“Protected Business”);
\nprovided, that, nothing shall prohibit the Participant from, directly or
\nindirectly, engaging in, or becoming employed as an employee or retained as a
\nconsultant, as described in Article IV or otherwise, by a member of the Employer
\nGroup;<\/p>\n<\/p>\n

(b) that the Participant shall not employ (including to retain, engage, or
\nconduct business with) or attempt to employ (other than on behalf of a member of
\nthe Employer Group) or assist anyone else to employ any person who is at the
\ntime of the alleged prohibited conduct, or was at any time during the preceding
\nyear, an employee of a member of the Employer Group;<\/p>\n<\/p>\n

(c) that the Participant shall not make any oral or written statement to any
\nperson or entity which disparages in a material way the business reputation of
\nthe Company or any member of the Employer Group or the top 50 clients of the
\nEmployer Group; and<\/p>\n<\/p>\n

(d) that the Participant shall not willfully engage in any activity which is
\nmaterially harmful to the interests of the Employer Group.<\/p>\n<\/p>\n

In the event that the Committee determines that the Participant has breached
\nany of the provisions of Subsections (a) through (d) above, it shall give the
\nParticipant written notice thereof stating in detail the particular act or
\nfailures that constitute such breach and the specific action that the Committee
\nrequires the Participant to take to cure such alleged breach. Any such notice
\nmust be given within ninety (90) days after the Committee first determines that
\nsuch acts or failures constitute a breach. The Committee must give the
\nParticipant a reasonable opportunity to cure in all circumstances in which it
\nalleges that the Participant has breached any of the provisions of Subsections
\n(a) through (d) above. The Participant shall have ninety (90) days after
\nreceiving such notice to remedy such breach. The determination of (i) whether a
\nbusiness is in the top 15 marketing services organizations as reported in
\nAdvertising Age, (ii) whether the Participant employed, attempted to employ or
\nassisted anyone else to employ any employee of the Employer Group, (iii) whether
\nthe Participant made statements which disparages in a material way, and (iv)
\nwhether the Participant willfully engaged in any activity which is materially
\nharmful, shall be made by the Committee in good faith after a hearing at which
\nthe Participant shall be entitled to be present with counsel of his choice and
\nbe heard by the Committee, and any such determination by the Committee shall be
\nfinal and conclusive.<\/p>\n<\/p>\n

3.2 Nothing herein prohibits or restricts the Participant from engaging in
\nthe Protected Business in the geographic areas described in Subsection 3.1(a) of
\nthe Plan, employing, attempting to employ or assisting anyone else to employ any
\nemployee of a member of the Employer Group, making disparaging statements, or
\nwillfully engaging in activity which is harmful to the interests of the Employer
\nGroup (collectively “Activities”); provided, however, in the event the
\nParticipant chooses to engage in any of such Activities, the Company153s
\nobligation to make payments hereunder shall forthwith terminate as to payments
\nwhich might otherwise have become payable to the Participant in respect of the
\ncalendar year in which such Activity occurred and to the Participant or the
\nBeneficiary in respect of all calendar years thereafter, but the Participant
\nshall not be obligated to refund to the Company any payments theretofore paid to
\nParticipant hereunder.<\/p>\n<\/p>\n

ARTICLE IV<\/strong><\/p>\n

\n

COMPANY153S PAYMENT OBLIGATION CONDITIONAL ON PARTICIPANT153S
\nAVAILABILITY FOR ADVISORY AND CONSULTATIVE SERVICES AFTER SEVERANCE OF
\nEMPLOYMENT<\/strong><\/p>\n<\/p>\n

4.1 If the Participant has not attained the age of 55 as of the date of his
\ntermination of employment, it is a further condition of the Company153s obligation
\nto make payments hereunder that, from the date of the Participant153s employment
\ntermination described in Section 6.1 of the Plan that shall have given rise to
\nthe obligation to pay and until the Participant attains the age of 55, the
\nParticipant, if not physically or mentally disabled, shall, as an<\/p>\n<\/p>\n<\/p>\n

4<\/p>\n

\n

\n

\n<\/p>\n<\/p>\n

independent contractor and upon not less than thirty (30) days prior written
\nnotice from the Company, make his or her services available to the Company as an
\nadvisor and consultant with respect to activities of the department or unit of
\nthe Company153s business to which the Participant was last assigned; provided,
\nhowever, that the Participant shall not be obligated to make his or her services
\navailable (i) for more than forty-five (45) business days in the aggregate in
\nany one calendar year and for more than seven (7) consecutive business days in
\nany one calendar year, and (ii) during the period from December 15 through
\nJanuary 15. Such advisory or consulting services shall be rendered at such times
\nand places as may be mutually convenient to the Chief Executive Officer of the
\nCompany and the Participant. The scheduling of the Participant153s advisory and
\nconsulting activities shall take into account his or her other business, family
\nand civic commitments. The Company shall reimburse the Participant for
\nreasonable traveling, transportation and living expenses necessarily incurred by
\nthe Participant while away from his or her regular place of residence in the
\nperformance of such advisory and consultative services for the Company.<\/p>\n<\/p>\n

In the event that the Committee determines that the Participant has breached
\nany of the provisions of Section 4.1 above, it shall give the Participant
\nwritten notice thereof stating in detail the particular act or failures that
\nconstitute such breach and the specific action that the Committee requires the
\nParticipant to take to cure such alleged breach. Any such notice must be given
\nwithin ninety (90) days after the Committee first determines that such acts or
\nfailures constitute a breach. The Committee must give the Participant a
\nreasonable opportunity to cure in all circumstances in which it alleges that the
\nParticipant has breached any of the provisions of Section 4.1 above. The
\nParticipant shall have ninety (90) days after receiving such notice to remedy
\nsuch breach. The determination of whether the Participant has violated any
\nprovision of Section 4.1 above shall be made by the Committee in good faith
\nafter a hearing at which the Participant shall be entitled to be present with
\ncounsel of his choice and be heard by the Committee, and any such determination
\nby the Committee shall be final and conclusive.<\/p>\n<\/p>\n

4.2 In the event the Participant chooses not to render advisory and
\nconsultative services to the Company as provided in Section 4.1 of the Plan, the
\nCompany153s obligation to make payments hereunder shall forthwith terminate as to
\npayments which might otherwise have become payable to the Participant in respect
\nof the calendar year in which such event occurred and to the Participant or the
\nBeneficiary in respect of all calendar years thereafter, but the Participant
\nshall not be obligated to refund to the Company any payments theretofore paid to
\nParticipant hereunder.<\/p>\n<\/p>\n

ARTICLE V<\/strong><\/p>\n

\n

PARTICIPATION<\/strong><\/p>\n

\n

5.1 The Committee shall select, in its sole discretion, those Employees who
\nare eligible to become Participants in the Plan.<\/p>\n<\/p>\n

5.2 An eligible Employee shall become a Participant in the Plan effective
\nupon the Employee executing and returning to the Company153s Secretary a Senior
\nExecutive Restrictive Covenant and Retention Plan Agreement.<\/p>\n<\/p>\n

ARTICLE VI<\/strong><\/p>\n

\n

BENEFITS<\/strong><\/p>\n

\n

6.1 Except as otherwise set forth in the Participant153s Senior Executive
\nRestrictive Covenant and Retention Plan Agreement, in the event the
\nParticipant153s employment with the Employer Group terminates for any reason other
\nthan for Cause after the Participant has completed seven Years of Service and
\nthe Participant incurs a Separation from Service, then the Company, subject to
\nall the terms and conditions hereof, shall become obligated to pay to the
\nParticipant, or to the Beneficiary if the obligation arises because of the death
\nof the Participant, each year, for fifteen (15) consecutive calendar years
\ncommencing in the year determined under Section 6.2 of the Plan, an amount equal
\nto the lesser of (a) the product obtained by multiplying the Participant153s Final
\nAverage Pay by the Percentage; or (b) the Annual Cap (each such annual payment
\nan “Annual Installment Payment”). Each Annual Installment Payment made pursuant
\nto this Section 6.1 shall be deemed a separate payment under this Plan for all
\npurposes.<\/p>\n<\/p>\n<\/p>\n

5<\/p>\n

\n

\n

\n<\/p>\n<\/p>\n

6.2 Except as otherwise set forth in the Participant153s Senior Executive
\nRestrictive Covenant and Retention Plan Agreement, the benefits to be paid under
\nSection 6.1 of the Plan, if any, shall commence upon the later of (a) the
\nParticipant153s attainment of age 55 (subject to Section 6.3 of the Plan), or (b)
\nthe calendar year following the calendar year in which the Participant dies or
\nincurs a Separation from Service; provided, however, that the following
\nexceptions apply:<\/p>\n<\/p>\n

(i) If the Participant becomes subject to a Disability, then the
\nParticipant153s benefits shall commence in the calendar year following the
\ncalendar year in which such Disability occurs, provided, however, that this
\nclause (i) shall not be construed so as to delay the commencement of the payment
\nof the Participant153s benefits beyond the date on which the payment of such
\nbenefits would otherwise have commenced under the terms of this Plan;<\/p>\n<\/p>\n

(ii) If the Participant dies prior to receiving the first payment of his or
\nher benefits, then 100% of the benefits that would have been paid to the
\nParticipant had the Participant lived to receive all payments shall be paid to
\nthe Beneficiary in annual payments over the total number of calendar years as to
\nwhich the Company would have been obligated to make payments hereunder to the
\nParticipant;<\/p>\n<\/p>\n

(iii) If the Participant dies after receiving the first payment of his or her
\nbenefits, but before the Participant has received all of the payments in respect
\nof the total number of calendar years as to which the Company is obligated to
\nmake payments hereunder (“Payment Period”), the Company shall thereafter be
\nobligated to make annual payments to the Beneficiary during the remainder of the
\nPayment Period, equal to 100% of the amount which the Company would have been
\nobligated to pay to the Participant had the Participant lived to receive all
\npayments; and<\/p>\n<\/p>\n

(iv) Notwithstanding any provision of the Plan to the contrary, except
\npursuant to clause (i) above, no portion of the Participant153s benefits shall be
\nprovided to the Participant prior to the earlier of (i) the expiration of the
\nsix-month period measured from the date of the Participant153s Separation from
\nService or (ii) the date of the Participant153s death. Upon the earlier of such
\ndates, all payments deferred pursuant to this Section 6.2(iv) shall be paid in a
\nlump sum to the Participant. Thereafter, payments will resume in accordance with
\nthis Plan.<\/p>\n<\/p>\n

6.3 Payments hereunder as a result of the Participant attaining age 55 shall
\ncommence as soon as practicable as determined by the Company but no later than
\nthe later of (i) ninety (90) days following the Participant153s attainment of age
\n55, and (ii) the fifteenth day of the third calendar month following the
\nParticipant153s attainment of age 55 and subsequent payments shall be made in each
\ncalendar year of payment following the Participant153s attainment of age 55 during
\nthe first ninety (90) days of the subject calendar year. Except as otherwise
\nprovided herein, all payments under this Article shall be made by the Company in
\neach calendar year of payment during the first ninety (90) days of the subject
\ncalendar year.<\/p>\n<\/p>\n

6.4 The Company may, at any time and from time to time, seek to fund, in
\nwhole or in part, its obligation under the Plan by applying for insurance on the
\nlife of a Participant. Such Participant shall, if requested in writing by the
\nCompany, undergo a physical examination for such purpose by medical examiners
\ndesignated by the Company, and if the Participant should refuse to undergo such
\nphysical examination the Company shall have the right to terminate its
\nobligation under the Plan by giving written notice of such termination to the
\nParticipant.<\/p>\n<\/p>\n

6.5 For purposes of clarifying the provisions of the Plan, including Article
\nVI, the Participant shall not be deemed an Employee solely by serving as a
\nnon-executive member or Chairman of the Board (or any similar committee of any
\nEmployer).<\/p>\n<\/p>\n

ARTICLE VII<\/strong><\/p>\n

\n

DESIGNATION AND IDENTITY OF BENEFICIARY<\/strong><\/p>\n

\n

7.1 A Participant may designate a Beneficiary by signing, dating and filing
\nwith the Secretary of the Company a written instrument setting forth the name(s)
\nand address(es) of the Beneficiary, and if the Beneficiary be<\/p>\n<\/p>\n<\/p>\n

6<\/p>\n

\n

\n

\n<\/p>\n<\/p>\n

more than one person or entity, describing the allocation of the payment
\nbenefit among them. A Participant may change his or her designation of a
\nBeneficiary and thereby revoke a prior designation of a Beneficiary at any time
\nand from time to time by filing a new such written instrument with the
\nSecretary. The Beneficiary named in the last unrevoked designation of
\nBeneficiary so filed by the Participant prior to his or her death shall be the
\nBeneficiary for purposes of the Plan. In the absence of a designation of
\nBeneficiary by the Participant, or in the event the last written designation of
\nBeneficiary on file with the Secretary has been revoked by the Participant, the
\nBeneficiary shall be as described in Section 2.1 of the Plan.<\/p>\n<\/p>\n

7.2 It is a condition of the Company153s obligation to make payments to the
\nBeneficiary hereunder that (a) in making payments the Company may, in its sole
\nand absolute discretion, rely upon signed, written declarations, verifying the
\nidentity of a Beneficiary filed with the Secretary of the Company by a person or
\nentity claiming to be such Beneficiary; (b) any payment made by the Company in
\ngood faith to any claimant, whether or not such declarations shall have been
\nfiled with the Company, shall pro tanto, discharge any obligation the Company
\nmight otherwise have to make payment to any and all other actual or possible
\nclaimants; (c) any person or entity claiming to be entitled to receive payments
\nhereunder following the death of the Participant shall have recourse only
\nagainst the person or entity to whom the Company shall have made payment in good
\nfaith; and (d) in the event the Company, on advice of counsel, delays payment of
\nany sums becoming due to a Beneficiary by reason of a dispute as to the
\nlegitimacy of the claim of such Beneficiary, no interest, penalty or damage
\nshall accrue, become payable by or be assessed against the Company by reason of
\nsuch delay in payment.<\/p>\n<\/p>\n

ARTICLE VIII<\/strong><\/p>\n

\n

ADMINISTRATION<\/strong><\/p>\n

\n

8.1 The Plan shall be administered by the Committee. A majority vote of the
\nCommittee members shall control any decision of the Committee. The Committee
\nshall have all powers necessary to administer the Plan, including the power to:\n<\/p>\n<\/p>\n

(a) make and enforce such rules and regulations as it deems necessary or
\nproper for the administration of the Plan;<\/p>\n<\/p>\n

(b) interpret the Plan, decide all questions concerning the Plan (whether of
\nfact or otherwise) and determine the eligibility of any person to receive
\npayments hereunder, each in its sole discretion; any such interpretation or
\ndetermination to be reviewed under an abuse of discretion standard;<\/p>\n<\/p>\n

(c) appoint such agents, counsel, accountants, consultants, and other persons
\nas may be required to assist in administering the Plan; and<\/p>\n<\/p>\n

(d) allocate and delegate its responsibilities under the Plan and to
\ndesignate other persons to carry out any of its responsibilities under the Plan,
\nany such allocation, delegation or designation to be in writing.<\/p>\n<\/p>\n

8.2 The decision or action of the Committee with respect to any question
\narising out of or in connection with the administration, interpretation and
\napplication of the Plan and the rules and regulations promulgated hereunder
\nshall be final, conclusive and binding upon all persons having any interest in
\nthe Plan.<\/p>\n<\/p>\n

8.3 The Company shall indemnify and hold harmless the members of the
\nCommittee and the Board, and any of its delegates, against any and all claims,
\nloss, damage, expense or liability arising from any action or failure to act
\nwith respect to this Plan on account of such member153s service on the Committee
\nor the Board, or the service of such delegate, except where (i) his or her acts
\nwere committed in bad faith or were the result of his or her active and
\ndeliberate dishonesty and were material to such action; or (ii) he or she
\npersonally gained in fact a financial profit or other advantage to which he or
\nshe was not legally entitled.<\/p>\n<\/p>\n<\/p>\n

7<\/p>\n

\n

\n

\n<\/p>\n<\/p>\n

ARTCILE IX<\/strong><\/p>\n

\n

CLAIMS PROCEDURE<\/strong><\/p>\n

\n

9.1 If a Participant or Beneficiary (“Claimant”) does not receive a benefit
\nto which the Claimant believes he or she is entitled, the Claimant may file a
\nwritten claim with the Committee. The Claimant153s claim will be processed by the
\nCommittee within ninety (90) days (in special circumstances, this period may be
\nextended for an additional ninety (90) days by written notice to the Claimant).
\nIf the Claimant153s claim is denied, he or she will be notified in writing, and
\nsuch notification will include the reasons for the denial, specific references
\nto pertinent Plan provisions, a description of any additional material or
\ninformation necessary for the Claimant to perfect the claim, together with an
\nexplanation of why the material or information is necessary, and a description
\nof the Plan153s claim review procedure, described below, including a statement of
\nthe Claimant153s right to bring a civil action under the Employee Retirement
\nIncome Security Act of 1974, as amended (“ERISA”) Section 502(a) following an
\nadverse benefit determination on review.<\/p>\n<\/p>\n

9.2 If the Claimant is dissatisfied with the Committee153s determination, the
\nClaimant may request, in writing, a review by the Board of the Committee153s
\ndetermination. The Claimant also has the right to review and obtain copies of
\nrelevant documents and to submit issues and comments in writing. The Claimant
\nmust request a claim review not later than sixty (60) days after the date the
\nClaimant receives the Committee153s notification. The Board153s review shall take
\ninto account all comments, documents, records, and other information submitted
\nby the Claimant related to the claim, without regard to whether such information
\nwas submitted or considered by the Committee.<\/p>\n<\/p>\n

9.3 Within sixty (60) days of receipt of a request for review of the disputed
\nclaim (in special circumstances, 120 days, by written notice to the Claimant),
\nthe Board will review the claim and advise the Claimant, in writing, of its
\ndetermination. The writing will include the reasons for the Board153s decision,
\nspecific references to pertinent Plan provisions, a statement that the Claimant
\nis entitled to receive reasonable access to and copies of all documents, records
\nand other information relevant to the claim, and a statement of the Claimant153s
\nright to bring a civil action under ERISA Section 502(a). The Board153s decision
\nshall be final and conclusive.<\/p>\n<\/p>\n

ARTICLE X<\/strong><\/p>\n

\n

TERMINATION, SUSPENSION OR AMENDMENT<\/strong><\/p>\n

\n

10.1 The Committee may, in its sole discretion, terminate or suspend the Plan
\nat any time, in whole or in part only in a manner that complies with Treasury
\nRegulation \u00a7 1.409A-3(j)(4)(ix). The Committee may, in its sole discretion,
\namend the Plan or a Participant153s Senior Executive Restrictive Covenant and
\nRetention Plan Agreement at any time, and from time to time, for any reason. Any
\namendment, termination or suspension shall be in writing. Except as provided in
\nSection 1.2 of the Plan, no amendment, termination, or suspension may adversely
\naffect the benefits or rights of a Participant arising under the terms of the
\nPlan or a Senior Executive Restrictive Covenant and Retention Plan Agreement in
\na material manner without the consent of such Participant.<\/p>\n<\/p>\n

ARTICLE XI<\/strong><\/p>\n

\n

MISCELLANEOUS<\/strong><\/p>\n

\n

11.1 This Plan is an unfunded plan maintained primarily to provide deferred
\ncompensation benefits for a select group of management or highly-compensated
\nemployees within the meaning of Sections 201, 301, and 401 of ERISA, and
\ntherefore is exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA.\n<\/p>\n<\/p>\n

11.2 With respect to rights and benefits derived from the existence of the
\nPlan, Participants shall be unsecured general creditors of the Company, with no
\nsecured or preferential right to any assets of the Company or any other party
\nfor payment of benefits under this Plan. Any property held by the Company for
\nthe purpose of generating the cash flow for benefit payments shall remain its
\ngeneral, unpledged and unrestricted assets.<\/p>\n<\/p>\n<\/p>\n

8<\/p>\n

\n

\n

\n<\/p>\n<\/p>\n

11.3 The Company shall be responsible for the payment of all benefits
\nprovided under the Plan. At its discretion, the Company may establish one or
\nmore trusts, with such trustees as the Board may approve, for the purpose of
\nproviding for the payment of such benefits. Although such a trust shall be
\nirrevocable, its assets shall be held for payment of all the Company153s general
\ncreditors in the event of insolvency. To the extent any benefits provided under
\nthe Plan are paid from any such trust, the Company shall have no further
\nobligation to pay them. If not paid from the trust, such benefits shall remain
\nthe obligation of the Company.<\/p>\n<\/p>\n

11.4 The Company shall withhold from payments hereunder any taxes required to
\nbe withheld from such payments under applicable local, state or federal law.
\n11.5 The right of a Participant or Beneficiary to receive payments hereunder is
\npersonal, non-assignable and non-transferable by operation of law or otherwise.
\nThe word “otherwise” in the preceding sentence shall include, without
\nlimitation, any execution, levy, garnishment, attachment or seizure by any other
\nlegal process. If at the time the Company is to make a payment to a Participant
\nor Beneficiary hereunder the Participant or Beneficiary is not entitled to
\nreceive such payment by reason of non-compliance with the provisions of this
\nSection 11.5, the obligation of the Company to make such payment shall forthwith
\nterminate.<\/p>\n<\/p>\n

11.5 Any payment to be made by the Company to a person under the age of 21
\nyears may be made to such person or to a guardian of the property of such person
\nor to a parent of such person as the Company may, in its sole and absolute
\ndiscretion, determine. The Company may delay such payment until the Company has
\nreceived notice of the appointment and qualification of a guardian of the
\nproperty of such person, and no interest, penalty or damage shall accrue, become
\npayable by or be assessed against the Company by reason of such delay in
\npayment.<\/p>\n<\/p>\n

11.6 Nothing herein contained shall be deemed to give the Participant the
\nright to remain in the employ of the Employer or to interfere with the right of
\nthe Employer to terminate the Participant153s employment at any time, nor to give
\nthe Employer the right to require the Participant to remain in its employ or to
\ninterfere with the Participant153s right to terminate employment at any time.<\/p>\n<\/p>\n

11.7 Except as preempted by ERISA, the provisions of this Plan shall be
\nconstrued and interpreted in accordance with the laws of the State of New York,
\nand is subject to all applicable federal, state and municipal laws and
\nregulations now or hereafter in force.<\/p>\n<\/p>\n

11.8 If any provision of this Plan shall be held illegal or invalid for any
\nreason, said illegality or invalidity shall not affect the remaining parts
\nhereof, and this Plan shall be construed and enforced as if such illegal and
\ninvalid provision had never been inserted herein.<\/p>\n<\/p>\n

11.9 The failure of any party to insist upon strict adherence to any term of
\nthe Plan on any occasion shall not be considered a waiver of any right
\nhereunder, nor shall it deprive that party of the right thereafter to insist
\nupon strict adherence to that term or any other term of the Plan.<\/p>\n<\/p>\n

11.10 The provisions of this Plan shall bind and inure to the benefit of the
\nCompany and its successors and assigns, and to the Participants and their
\nrepresentatives, heirs and estate. The term successors as used herein shall
\ninclude any corporate or other business entity which shall, whether by merger,
\nconsolidation, purchase or otherwise acquire all or substantially all of the
\nbusiness and assets of the Company, and successors of any such corporation or
\nother business entity.<\/p>\n<\/p>\n

11.11 It is intended that this Plan shall be limited, construed and
\ninterpreted in accordance with Section 409A of the Code. It is also intended
\nthat to the extent that any payment or benefit described hereunder is subject to
\nSection 409A of the Code, it shall be paid in a manner that will comply with
\nSection 409A of the Code, including guidance issued by the Secretary of the
\nTreasury and the Internal Revenue Service with respect thereto. No provision in
\nthis Plan shall be interpreted or construed to directly or indirectly transfer
\nany liability for a failure to comply with Section 409A of the Code from a
\nParticipant or other individual to the Company, or any other individual or
\nentity affiliated with the Company.<\/p>\n<\/p>\n

As Amended and Restated on July 20, 2010<\/em><\/p>\n<\/p>\n<\/p>\n

9<\/p>\n

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