THE MCGRAW-HILL COMPANIES LOGO)">
(Amended and restated effective as of January 1, 2008)
(Amended and restated effective as of January 1, 2008)
The purpose of the Plan is to provide managers who are in a position to contribute to the
success of the Company Group with reasonable compensation in the event of their termination of
employment with the Company Group. The Plan is intended to satisfy the requirements of Section 409A
of the Code with respect to amounts subject thereto.
The following words and phrases as used herein shall have the following meanings:
SECTION 2.01 Attorneys Fees means any reasonable attorneys fees and disbursements incurred
in pursuing a Disputed Claim.
SECTION 2.02 Beneficiary means the person, persons or entity designated by the Participant
to receive any benefits payable under the Plan. Any Participants Beneficiary designation shall be
made in a written instrument filed with the Company and shall become effective only when received,
accepted and acknowledged in writing by the Company.
SECTION 2.03 Board means the Board of Directors of the Company.
SECTION 2.04 Cause means the Participants misconduct in respect of the Participants
obligations to the Company Group or other acts of misconduct by the Participant occurring during
the course of the Participants employment, which in either case results in or could reasonably be
expected to result in material damage to the property, business or reputation of the Company Group; that in no event shall unsatisfactory job performance alone be deemed to be Cause; and,
provided, further, that no termination of employment that is carried out at the request of a
person seeking to accomplish a Change in Control or otherwise in anticipation of a Change in
Control shall be deemed to be for Cause.
SECTION 2.05 CEO means the Chief Executive Officer of the Company.
SECTION 2.06 Change in Control means the first to occur of any of the following events:
(i) An acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) (a Person) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of either (1) the then outstanding shares
Common Stock (the Outstanding Common Stock) or (2) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the election of
directors (the Outstanding Voting Securities); excluding, however, the following: (1) any
acquisition directly from the Company, other than an acquisition by virtue of the exercise of a
conversion privilege unless the security being so converted was itself acquired directly from the
Company; (2) any acquisition by the Company; (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any entity controlled by the Company; or
(4) any acquisition pursuant to a transaction which complies with clauses (A), (B) and (C) of
subsection (iii) of this Section 2.06; or
(ii) A change in the composition of the Board such that
the Directors who, as of the Effective Date, constitute the Board (such Board shall be hereinafter
referred to as the Incumbent Board) cease for any reason to constitute at least a majority of the
Board; provided, however, for purposes of this Section 2.06, that any individual who becomes a
Director subsequent to the Effective Date, whose election, or nomination for election by the
Companys shareholders, was approved by a vote of at least a majority of those Directors who were
members of the Incumbent Board (or deemed to be such pursuant to this proviso) shall be considered
as though such Director were a member of the Incumbent Board; but, provided, further, that any such
individual whose initial assumption of office occurs as a result of either an actual or threatened
election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board shall not be so considered as a member of the Incumbent Board; or
(iii) Consummation of a reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the assets of the Company (Corporate Transaction); excluding, however, such a Corporate Transaction pursuant to
which (A) all or substantially all of the individuals and entities who are the beneficial
owners, respectively, of the Outstanding Common Stock and Outstanding Voting Securities
immediately prior to such Corporate Transaction will beneficially own, directly or
indirectly, more than 50% of, respectively, the 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 Corporate Transaction (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially all of the Companys
assets either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Corporate Transaction, of the
Outstanding Common Stock and Outstanding Voting Securities, as the case may be, (B) no
Person (other than the Company, any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Corporate Transaction) will beneficially
own, directly or indirectly, 20% or more of, respectively, the outstanding shares of
common stock of the corporation resulting from such Corporate Transaction or the combined
voting power of the
outstanding voting securities of such corporation entitled to vote
generally in the election of directors except to the extent that such ownership existed
prior to the Corporate Transaction, and (C) individuals who were members of the Incumbent
Board will constitute at least a majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction; or
(iv) The approval by the
shareholders of the Company of a complete liquidation or dissolution of the Company.
SECTION 2.07 Claimant has the meaning set forth in Section 8.01 of the Plan.
SECTION 2.08 Code means the Internal Revenue Code of 1986, as amended from time to time, and
the applicable rules and regulations promulgated thereunder.
SECTION 2.09 Commencement Date means the first day of the first regular payroll cycle
coincident with or next following the date of the Participants separation from service within
the meaning of Section 409A(a)(2)(A)(i) of the Code.
SECTION 2.10 Committee means the Compensation Committee of the Board.
SECTION 2.11 Common Stock means the common stock, $1.00 par value per share, of the Company.
SECTION 2.13 Company Group means the Company and its Subsidiaries.
SECTION 2.14 Comparable Position has the meaning that shall be determined by the CEO after
taking into account the job requirements of a Participants then current position and the position
offered to a Participant, the duties of the two positions, the base pay of the two positions and
such other factors as the CEO deems relevant. A Comparable Position may require a Participant to
utilize different skills from those used in the Participants then current position. Aggregate
levels of benefits, cash bonus opportunities and titles do not need to be taken into account by the
CEO in assessing whether a position qualifies as a Comparable Position.
SECTION 2.15 Director means an individual who is a member of the Board.
SECTION 2.16 Disability means a Participants long-term disability pursuant to a
determination of disability under the Companys Long-Term Disability Plan.
SECTION 2.17 Disputed Claim means a claim for payments under the Plan that is disputed by
SECTION 2.18 Effective Date has the meaning set forth in Section 11.08 of the Plan.
SECTION 2.19 ERISA means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the applicable rules and regulations promulgated thereunder.
SECTION 2.20 Exchange Act means the Securities Exchange Act of 1934, as amended from time to
time, and the applicable rules and regulations promulgated thereunder.
SECTION 2.21 Excise Tax has the meaning set forth in Section 5.05 of the Plan.
SECTION 2.22 Extension Notice has the meaning set forth in Section 8.01 of the Plan.
SECTION 2.23 Local Position has the meaning that shall be determined by the CEO using
standards that are similar to the standards utilized under the Code (including, without limitation,
the distance standard in Section 217(c)(1)(A) of the Code), for purposes of moving expense
deductions, and such other factors as the CEO deems relevant.
SECTION 2.24 Long-Term Disability Plan
means The McGraw-Hill Companies
, Inc. Long-Term
Disability Plan, as amended from time to time (or any successor plan).
SECTION 2.25 Judgment or Award means a nonappealable, final judgment from a court of
competent jurisdiction or a binding arbitration award granting the Participant all or substantially
all of the amount sought in a Disputed Claim.
SECTION 2.26 Monthly Base Salary means a Participants highest regular monthly salary during
the preceding 24-month period, excluding any of the following: year-end or other bonuses, incentive
compensation, whether short-term or long-term, commissions, reimbursed expenses, and any payments
on account of premiums on insurance or other contributions made to other welfare or benefit plans.
SECTION 2.27 Participant means each employee who participates in the Plan, as provided in
Section 4.01 of the Plan.
SECTION 2.28 Payment has the meaning set forth in Section 5.06 of the
SECTION 2.30 Plan Administrator has the meaning set forth in Section 3.01 of the Plan.
SECTION 2.31 Protection Period has the meaning set forth in Section 10.01 of the Plan.
SECTION 2.32 Release means a termination and release agreement in the form approved by the
Plan Administrator, which shall, among other things, release the Company
Group, and each of their respective directors, officers, employees, agents, successors and assigns,
from any and all claims that the Participant has or may have against the Company Group and each of
their respective directors, officers, employees, agents, successors and assigns.
SECTION 2.33 Separation Pay has the meaning set forth in Section 5.01(a)(i) of the Plan.
SECTION 2.34 Separation Period has the meaning set forth in Section 5.01(a)(i) of the Plan.
SECTION 2.35 Separation Pay Plan
means the Separation Pay Plan of The McGraw-Hill Companies
Inc., as amended from time to time (or any successor plan).
SECTION 2.36 Specified Employee means a Participant who is a specified employee within the
meaning of Section 409A(a)(2)(b)(i) of the Code.
SECTION 2.37 Subsidiary means any subsidiary of the Company at least 20% of whose voting
shares are owned directly or indirectly by the Company.
SECTION 2.38 Substitute Position means a position which may not be comparable in title,
duties and responsibilities to a prior position, but which affords the Participant a comparable
level of base pay and which, in the judgment of the CEO, is consistent with the experience,
education or skills of the Participant. A Substitute Position may require a Participant to utilize
different skills from those used in the Participants then current position. Aggregate levels of
benefits, cash bonus opportunities and titles do not need to be taken into account by the CEO in
assessing whether a position qualifies as a Substitute Position.
SECTION 2.39 Supplemental Separation Pay has the meaning set forth in Section 5.01(a)(ii) of
SECTION 2.40 Supplemental Separation Period has the meaning set forth in Section 5.01(a)(ii)
of the Plan.
SECTION 2.41 Termination of Employment at Company Convenience means termination of the
employment of a Participant initiated by the Company Group, other than for Cause, and other than by
reason of death, Disability, voluntary resignation by a Participant, or lawful Company Group
mandated retirement at normal retirement
SECTION 3.01 Administration. The Plan shall be administered by the Executive Vice President,
Human Resources of the Company (the Plan Administrator), who shall have full authority to
construe and interpret the Plan, to establish, amend and rescind rules and regulations relating to
the Plan, and to take all such actions and make all such determinations in connection with the Plan
as he may deem necessary or desirable. Subject to Article VIII, decisions of the Plan Administrator
shall be reviewable by the CEO. Subject to Article VIII, the
CEO shall also have the full authority to make, amend, interpret, and enforce all appropriate rules
and regulations for the administration of the Plan and decide or resolve any and all questions,
including interpretations of the Plan, as may arise in connection with the Plan.
SECTION 3.02 Binding Effect of Decisions. Subject to Article VIII, the decision or action of
the CEO or Plan Administrator in respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules and regulations
promulgated hereunder shall be final, conclusive and binding upon all persons having any interest
in the Plan.
SECTION 3.03 Indemnification. To the fullest extent permitted by law, the CEO, the Plan
Administrator, the Board (and each member thereof), and any employee of the Company Group to whom
fiduciary responsibilities have been delegated shall be indemnified by the Company against any
claims, and the expenses of defending against such claims, resulting from any action or conduct
relating to the administration of the Plan, except claims arising from gross negligence, willful
neglect or willful misconduct.
SECTION 4.01 Eligible Participants. Subject to the approval of the CEO, the Plan Administrator
shall from time to time select Participants from among those employees who are in Grade Level 25 or
above (or equivalent successor grade) and who are determined by the Plan Administrator to be in a
position to contribute to the success of the Company Group.
SECTION 4.02 Participation Notification; Participation Agreement. The Company shall notify
each Participant in writing of his participation in the Plan, and such notice shall also set forth
the payments and benefits to which the Participant may become entitled. The Company may also enter
into such agreements as the CEO deems necessary or appropriate with respect to a Participants
rights under the Plan. Any such notice or agreement may contain such terms, provisions and
conditions not inconsistent with the Plan, including but not limited to provisions for the
extension or renewal of any
such agreement, as shall be determined by the CEO, in his sole discretion.
SECTION 4.03 Termination of Participation. A Participant shall cease to be a Participant in
the Plan upon the earlier of (i) his receipt of all of the payments, if any, to which he is or
becomes entitled under the terms of the Plan and the terms of any notice or agreement issued by the
Company with respect to his participation hereunder, or (ii) the termination of his employment with
the Company Group under circumstances not requiring payments under the terms of the Plan. In
addition, a Participant shall cease to be a Participant in the Plan if, prior to the occurrence of
a Termination of Employment at Company Convenience, the Participant is no longer in Grade Level 25
or above (or equivalent successor grade).
PAYMENTS UPON TERMINATION OF EMPLOYMENT
SECTION 5.01 Separation Pay. (a) In the event of a Termination of Employment at Company
Convenience, the Participant shall be entitled to the following:
(i) an amount of separation pay
(the Separation Pay) equal to the Participants Monthly Base Salary for the number of months
following the Participants Commencement Date (the Separation Period) equal to the number of full
and partial years of the Participants continuous service with the Company Group, up to a maximum
of 20 years, multiplied by 0.3, and payable over the Separation Period in accordance with the
Companys payroll practices in effect from time to time; provided that the Separation Pay shall not
be less than three times such Monthly Base Salary and the Separation Period shall not be less than
(ii) if, not later than the date and time specified by the Plan Administrator, the
Participant delivers to the Company a signed and valid Release, a supplemental amount of separation
pay (the Supplemental Separation Pay) equal and in addition to the amount of the Participants
Separation Pay and payable following the Separation Period over the number of months in the
Separation Period (the Supplemental Separation Period) in accordance with the Companys payroll
practices in effect from time to time; provided, however, that a Release shall not be deemed
delivered by the Participant if it is revoked by the Participant during any applicable revocation
period set forth in the Release;
(iii) active participation in all Company-sponsored retirement,
life, medical, dental, accidental death and disability insurance benefit plans or programs in which
the Participant was participating at the time of his termination for the Separation Period and any
Supplemental Separation Period, but only to the extent permitted by applicable law as determined by
the Company and not otherwise provided under the terms of such plans and programs, it being
understood that continued participation in Company-sponsored retirement plans or programs shall be
limited to such plans or programs that are not intended to be qualified under Section 401(a) or
401(k) of the Code; provided that the Participant shall be responsible for any required payments for
participation in such plans or programs; provided, further, that, except with respect to amounts
subject to Section 409A of the Code, the CEO may authorize, in his sole discretion, in lieu of the
payments and benefits provided under this Section 5.01(a) of the Plan, payment to the Participant
of a single lump sum equal to 110% of the sum of the Participants Separation Pay and any
Supplemental Separation Pay (100% of Monthly Base Salary for the Separation Period and any
Supplemental Separation Period in lieu of salary continuation, and 10% of Monthly Base Salary for such
periods in lieu of benefits continuation).
(b) The payments and benefits described in Section 5.01(a) of the Plan shall be in lieu of any
other payments under the Plan or under any other severance pay or separation allowance plan,
program or policy of the Company Group, including the Companys Separation
Pay Plan; provided, however, if payments pursuant to the terms and conditions of the Companys
Separation Pay Plan would result in greater payments to a Participant than would be payable under
the Plan, said Participant shall in such event receive payments pursuant to the terms and
conditions of the Companys Separation Pay Plan in lieu of payments pursuant to the Plan.
SECTION 5.02 Death. In the event a Participant dies after the commencement of payments
pursuant to Section 5.01(a) of the Plan, the balance of said payments shall be payable in
accordance with Article IX of the Plan.
SECTION 5.03 Transfers. A Participants transfer to another employment location shall not by
itself entitle a Participant to any payments or benefits under the Plan.
SECTION 5.04 Corporate Transactions. A Participant shall not receive any payments or benefits
under the Plan in the event of a sale of the business unit of the Company Group with which the
Participant is associated, if the Participant (i) is offered a Local Position that is either a
Comparable Position or a Substitute Position with the buyer or the Company Group, whether or not
such offer is accepted by the Participant, or (ii) is employed following such transaction by the
buyer or the Company Group.
SECTION 5.05 Specified Employees. With respect to amounts subject to Section 409A of the Code,
notwithstanding the other provisions of this Article V, no payment to a Specified Employee under
the Plan shall be made or commenced prior to the date that is six months following the Specified
Employees Commencement Date; provided that amounts under the Plan that are otherwise payable to
the Specified Employee prior to such date shall be paid to the Specified Employee on or within 30
days after such date.
SECTION 5.06 Section 280G. In the event that any payment or benefit received or to be received
by any Participant pursuant to the Plan or any other plan or arrangement with the Company (each, a
Payment) would constitute an excess parachute payment within the meaning of Section 280G(b)(1)
of the Code, or would otherwise be subject to the excise tax imposed under Section 4999 of the
Code, or any similar federal or state law (an Excise Tax), as determined by an independent
certified public accounting firm selected by the Company, the amount of the Participants
Separation Pay (and Supplemental Separation Pay, if any) shall be limited to the largest amount
payable, if any, that would not result in the imposition of any Excise Tax to the Participant, but
only if, notwithstanding such limitation, the total Payments, net of all taxes imposed on the
Participant with respect thereto, would be greater if no Excise Tax were imposed.
MITIGATION AND OFFSET
SECTION 6.01 Mitigation. No Participant shall be required to mitigate the amount of any
payment under the Plan by seeking employment or otherwise, and there shall be no right of set-off
or counterclaim, in respect of any claim, debt or obligation, against any payments to the
Participant, his dependents, Beneficiaries or estate provided for in the Plan.
SECTION 6.02 Offset. If, after a Participants termination of employment with the Company
Group, the Participant is employed by another entity or becomes self-employed, the amounts (if any)
payable under the Plan to the Participant shall not be offset by the amounts (if any) payable to
the Participant from such new employment with respect to services rendered during the severance
period applicable to such Participant under the Plan.
ATTORNEYS FEES FOR DISPUTED CLAIMS
SECTION 7.01 General. If a Participant makes a Disputed Claim, the Company shall reimburse the
Participant for Attorneys Fees; provided that the Participant enters into a repayment agreement
with the Company, which shall require the Participant (i) to repay the Company for any
reimbursements made pursuant to this Section 7.01 if the Participant does not obtain a Judgment or
Award and (ii) to provide adequate security with respect to the amount subject to repayment under
this Section 7.01. With respect to amounts subject to Section 409A, such reimbursement shall be
made no later than the last day of the calendar year following the calendar year in which the
applicable Attorneys Fee expense was incurred, subject to the timely presentation to the Company
in writing of any periodic statements for Attorneys Fees. Unless the Judgment or Award specifies
whether it constitutes all or substantially all of the amount sought, such determination shall be
made by the Plan Administrator in its sole and absolute discretion.
SECTION 7.02 Change in Control. If a Disputed Claim is made with respect to a termination of
employment occurring during a period beginning on the date of a Change in Control and ending 24
months thereafter, the Participant shall be entitled to reimbursement of Attorneys Fees, whether
or not the Participant obtains a Judgment or Award. Such reimbursement shall be made on a
pay-as-you-go basis, as soon as practicable after presentation to the Company in writing of any
periodic statements for Attorneys Fees, but in no event later than the last day of the
Participants taxable year following the taxable year in which the applicable Attorneys Fees were
SECTION 7.03 Six Month Period Prior to Change in Control. Without affecting the rights of a
Participant under Section 7.01 of the Plan, a Participant shall be entitled to reimbursement of
Attorneys Fees for a Disputed Claim in accordance with the terms of Section 7.02 of the Plan with
respect to termination of employment occurring six months prior to a Change in Control, whether or
not the Participant obtains a Judgment or
Award; provided, however, that no reimbursement shall be made under this Section 7.03 in such
case (i) unless and until the Change in Control actually occurs or (ii) if reimbursement has been
made under Section 7.01 of the Plan.
SECTION 7.04 Section 409A. The reimbursements made to a Participant under this Article VII
during any calendar year shall not affect the amounts eligible for reimbursement in any other
calendar year. No reimbursement of Attorneys Fees made pursuant to this Article VII shall be paid
to any Participant following the last day of the sixth year following the termination of the period
described in Section 8.03 of the Plan.
SECTION 8.01 Claims. In the event any person or his authorized representative (a Claimant)
disputes the amount of, or his entitlement to, any benefits under the Plan or their method of
payment, such Claimant shall file a claim in writing with, and on the form prescribed by, the Plan
Administrator for the benefits to which he believes he is entitled, setting forth the reason for
his claim. The Claimant shall have the opportunity to submit written comments, documents, records
and other information relating to the claim and shall be provided, upon request and free of charge,
reasonable access to and copies of all documents, records or other information relevant to the
claim. The Plan Administrator shall consider the claim and within 90 days of receipt of such claim,
unless special circumstances exist which require an extension of the time needed to process such
claim, the Plan Administrator shall inform the Claimant of its decision with respect to the claim.
In the event of special circumstances, the response period can be extended for an additional 90
days, as long as the Claimant receives written notice advising of the special circumstances and the
date by which the Plan Administrator expects to make a determination (the Extension Notice)
before the end of the initial 90-day response period indicating the reasons for the extension and
the date by which a decision is expected to be made. If the Plan Administrator denies the claim,
the Plan Administrator shall give to the Claimant (i) a written notice setting forth the specific
reason or reasons for the denial of the claim, including references to the applicable provisions of
the Plan, (ii) a description of any additional material or information necessary to perfect such
claim along with an explanation of why such material or information is necessary, and (iii)
appropriate information as to the Plans appeals procedures as set forth in Section 8.02 of the
SECTION 8.02 Appeal of Denial. A Claimant whose claim is denied by the Plan Administrator and
who wishes to appeal such denial must request a review of the Plan Administrators decision by
filing a written request with the CEO for such review within 60 days after such claim is denied.
Such written request for review shall contain all relevant comments, documents, records and
additional information that the Claimant wishes the CEO to consider, without regard to whether such
information was submitted or considered in the initial review of the claim by the Plan
Administrator. In connection with that review, the Claimant may examine, and receive free of
charge, copies of pertinent Plan documents and submit such written comments as may be appropriate.
Written notice of the decision on review shall be furnished to the Claimant within 60
days after receipt by the CEO of a request for review. In the event of special circumstances
which require an extension of the time needed for processing, the response period can be extended
for an additional 60 days, as long as the Claimant receives an Extension Notice. If the CEO denies
the claim on review, notice of the CEOs decision shall include (i) the specific reasons for the
adverse determination, (ii) references to applicable Plan provisions, (iii) a statement that the
Claimant is entitled to receive, free of charge, reasonable access to, and copies of, all
documents, records and other information relevant to the claim and (iv) a statement of the
Claimants right to bring an action under Section 502(a) of ERISA following an adverse benefit
determination on a review and a description of the applicable limitations period under the Plan.
The Claimant shall be notified no later than five days after a decision is made with respect to the
SECTION 8.03 Statute of Limitations. A Claimant wishing to seek judicial review of an adverse
benefit determination under the Plan, whether in whole or in part, must file any suit or legal
action, including, without limitation, a civil action under Section 502(a) of ERISA, within three
years of the date the final decision on the adverse benefit determination on review is issued or
should have been issued under Section 8.02 of the Plan or lose any rights to bring such an action.
If any such judicial proceeding is undertaken, the evidence presented shall be strictly limited to
the evidence timely presented to the Plan Administrator. Notwithstanding anything in the Plan to
the contrary, a Claimant must exhaust all administrative remedies available to such Claimant under
the Plan before such Claimant may seek judicial review pursuant to Section 502(a) of ERISA.
SECTION 8.04 Change in Control. Notwithstanding any other provision of the Plan, the authority
granted pursuant to Articles III, VII and VIII to the Plan Administrator and to persons making
determinations on claims for benefits and reviews of claims shall, when exercised (i) during the
period of 24 months following a Change in Control or (ii) with respect to any termination of
employment that occurs during the period of 24 months following a Change in Control or that is
carried out at the request of a person seeking to accomplish a Change in Control or otherwise in
anticipation of a Change in Control, shall not be discretionary, but shall be subject to de novo
review by a court of competent jurisdiction or an arbitrator, as applicable.
SECTION 9.01 Beneficiary Designation. Each Participant shall have the right, at any time, to
designate any person, persons, entity or entities as his Beneficiary or Beneficiaries (both primary
as well as contingent) to whom payment under the Plan shall be paid in the event of his death prior
to complete distribution to the Participant of the benefits due him under the Plan.
SECTION 9.02 Amendments. Any Beneficiary designation may be changed by a Participant by the
written filing of such change on a form prescribed by the Company. The new Beneficiary designation
form shall cancel all Beneficiary designations previously filed.
SECTION 9.03 No Beneficiary Designation. If a Participant fails to designate a Beneficiary as
provided above, or if all designated Beneficiaries predecease the Participant, then any amounts to
be paid to the Participants Beneficiary shall be paid to the Participants estate.
SECTION 9.04 Effect of Payment. The payment under this Article IX of the amounts due to a
Participant under the Plan to a Beneficiary shall completely discharge the Companys obligations in
respect of the Participant under the Plan.
AMENDMENT AND TERMINATION OF PLAN
SECTION 10.01 Amendment and Termination. (a) The Company shall have the right at any time, in
its discretion, to amend the Plan, in whole or in part, or to terminate the Plan, by resolution of
the Board or Committee or delegate thereof, except that no amendment or termination shall impair or
abridge the obligations of the Company to any Participant or the rights of any Participant under
the Plan without the express written consent of the affected Participant (i) with respect to any
termination of employment that occurred before such amendment or termination, or (ii) in all other
cases, until 6 months have elapsed from the time of the amendment or termination. In addition, in
no event shall the Plan be amended or terminated (x) during the period of 24 months following a
Change in Control (the Protection Period), or (y) to the extent that it is carried out at the
request of a person seeking to accomplish a Change in Control or otherwise in anticipation of a
Change in Control, in each case without the express written consent of the affected Participant.
Notwithstanding the foregoing, except with respect to a termination of employment that occurs
during the Protection Period, the Company shall have the right to terminate the Plan at any time
following the Protection Period.
(b) Except for the amendments made in accordance with Section 10.01(a) of the Plan, no
modifications, alternations and/or changes made to the terms and/or provisions of the Plan, either
globally or for an individual participant, will be effective unless evidenced by a writing that
directly refers to the Plan and which is signed and dated by the Plan Administrator.
SECTION 10.02 Section 409A. If, in the good faith judgment of the Plan Administrator, any
provision of the Plan would violate the requirements of Section 409A of the Code, or otherwise
cause any person to be subject to the interest and penalties imposed under Section 409A of the
Code, such provision shall be modified by the Plan Administrator in its sole discretion to
maintain, to the maximum extent practicable, the original intent of the applicable provision
without causing the interest and penalties under Section 409A of the Code to apply, and,
notwithstanding any provision in the Plan to the contrary, the Plan Administrator shall have broad
authority to amend or to modify the Plan, without advance notice to or consent by any person, to
the extent necessary or desirable to ensure that no payment or benefit under the Plan is subject to
tax under Section 409A of the Code. Any determinations made by the Plan
Administrator under this Section 10.02 shall be final, conclusive and binding on all persons.
SECTION 11.01 Effect on Other Plans. Except as expressly provided in Article V of the Plan
with respect to the Companys Separation Pay Plan, (i) nothing in the Plan shall affect the level
of benefits provided to or received by any Participant (or the Participants estate or
Beneficiaries) as part of any employee benefit plan of the Company, and (ii) the Plan shall not be
construed to affect in any way the Participants rights and obligations under any other plan
maintained by the Company on behalf of employees.
SECTION 11.02 Unsecured General Creditor. Participants and their Beneficiaries shall have no
legal or equitable rights, interest or claims in any property or assets of the Company Group. The
assets of the Company Group shall not be held under any trust for the benefit of Participants or
their Beneficiaries or held in any way as collateral security for the fulfilling of the obligations
of the Company Group under the Plan. Any and all of the assets of the Company Group shall be, and
remain, the general, unpledged, unrestricted assets of the Company Group. The obligation of the
Company Group under the Plan shall be merely that of an unfunded and unsecured promise of the
Company Group to pay money in the future.
SECTION 11.03 Nonassignability. Each Participants rights under the Plan shall be
nontransferable except by will or by the laws of descent and distribution and except insofar as
applicable law may otherwise require. Subject to the foregoing, neither a Participant nor any other
person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage or
otherwise encumber, transfer, hypothecate or convey in advance of actual receipt the amounts, if
any, payable hereunder, or any part thereof, which are, and all rights to which are, expressly
declared to be nonassignable and non-transferable. No part of the amounts payable shall, prior to
actual payment, be subject to seizure or sequestration for the payment of any debts, judgments,
alimony or separate maintenance owed by a Participant or any other person, nor be transferable by
operation of law in the event of a Participants or any other persons bankruptcy or insolvency.
SECTION 11.04 Not a Contract of Employment. The terms and conditions of the Plan shall not be
deemed to constitute a contract of employment with the Participant, and the Participant (or his
Beneficiary) shall have no rights against the Company Group except as specifically provided herein.
Moreover, nothing in the Plan shall be deemed to give a Participant the right to be retained in the
service of the Company Group or to interfere with the rights of the Company Group to discipline or
discharge him at any time.
SECTION 11.05 Binding Effect. The Plan shall be binding upon and shall inure to the benefit of
the Participant or his Beneficiary, his heirs and legal representatives, and the Company.
SECTION 11.06 Withholding; Payroll Taxes. To the extent required by the law in effect at the
time payments are made, the Company shall withhold from payments made hereunder any taxes or other
amounts required to be withheld for any
federal, state or local government and other authorized deductions.
SECTION 11.07 Severability. In the event that any provision or portion of the Plan shall be
determined to be invalid or unenforceable for any reason, the remaining provisions and portions of
the Plan shall be unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
SECTION 11.08 Effective Date. The Plan was initially effective as of January 28, 1987 (the
Effective Date). This amendment and restatement is effective as of January 1, 2008.
SECTION 11.09 Governing Law
. The Plan shall be construed under the laws of the State of New
, to the extent not preempted by federal law.
SECTION 11.10 Headings. The section headings used in this document are for ease of reference
only and shall not be controlling with respect to the application and interpretation of the Plan.
SECTION 11.11 Rules of Construction. Any words herein used in the masculine shall be read and
construed in the feminine where they would so apply. Words in the singular shall be read and
construed as though used in the plural in all cases where they would so apply. All references to
sections are, unless otherwise indicated, to sections of the Plan.