Exhibit 4.1

I.	Pay Types from which Annual Deferral Amounts may be deferred by Participants are as follows:

	Pay Type	Maximum Percentage /Dollar	Description Notes (if necessary)
	☒ Base Salary	70%
	☐ Bonus – Short Term (non-performance based)
	☐ Bonus – Long Term (non-performance based)
	☒ Bonus – Short Term (performance based)	70%	Annual
	☐ Bonus – Long Term (performance based)
	☐ Commissions
	☒ Director Fees	100%
	☒ Equity Awards	100%
	☐ Other

II.	Annual Company Matching Amounts:  The Company will credit Annual Company Matching Amounts:

☐ Yes

☒  No

 

a.           Matching Contribution Formula:  (select (i) or (ii) below)

 

(i)

☐         Percent of Participant deferrals formula, subject to a specified limit, as follows:

(a)

☐ Matching Contribution Rate: _____% of (specify Pay Type names):

(b)

☐ Matching Contribution Limit: ______ % of each applicable Pay Type

(ii)

☐ Other matching formula: ________________________________________

III.	Discretionary Contributions.  The Company initially elects to credit Annual Company Discretionary Amounts for selected Participants.  The amounts to be calculated in one of the following manners (select one):

IV.

Vesting.

a.

The following Vesting Schedule shall apply to all Annual Company Matching Amounts, as follows (select one):

Years Completed	% of Contribution Vested
Year 0	0%
Year 1	0%
Year 2	0%
Year 3	0%
Year 4	0%
Year 5	100%
Year 6	%
Year 7	%
Year 8	%
Year 9	%
Year 10	%

b.

The Vesting Commencement Date shall be determined as follows (select one):

c.

The Vesting Increase Timing shall be determined as follows (select one):

d.

The Vesting Acceleration Events that will automatically vest 100% shall be determined as follows (select all that apply):

e.

Rehires: The below indicated date shall be used for the purposes of determining the Vesting Commencement Date of a former Participant who is rehired following a Termination of Employment, and who is selected for participation in accordance with the terms of the Program:

V.	Retirement Eligibility Date (select all that apply):

VI.	Distributions.

a.

☒  In-Service Distributions- Specified Calendar Year

(i)

May include employer contributions (only if no vesting limitations)  ☐  Yes   ☒ No

(ii)

Type of election is (select one):

(iii)

Available Forms of Distribution (select all that apply):

(iv)

The Minimum Deferral Period for vested balances, is _2_ years* measured from the beginning of the Program Year  For example: when enrolling for the _2022_ Program year, the earliest allowable In-Service Distribution year is  _2024_ (yyyy)

b.

☒  Retirement Distribution – commencing on termination of service after retirement eligibility date

(i)

Type of election applies to (select one):

(ii)

Forms of Distribution (select all that apply):

c.

☒  Termination Distribution (or Separation Distribution if not using Retirement vs. Termination)

(i)

Type of election applies to (select one):

(ii)

Forms of Distribution (select all that apply):

d.

☐  Disability Distribution

(i)

Type of election applies to (select one):

(ii)

Forms of Distribution (if separate from Retirement election, select all that apply):

e.

☒  Death Benefit Distribution (pre-commencement vs. post-commencement)

(i)

Form of Distribution pre-commencement of separation distribution

(ii)

Form of Distribution post-commencement of separation distribution

f.

☐  Additional Supplemental Death Benefit (may require consent for life insurance)

g.

☒  Change in Control Distribution

(i)

Distribution Election is (select one):

(ii)

Type of election applies to All deferred amounts

(iii)

Forms of Distribution (select all that apply):

(iv)

Shall apply if,

h.

☒  Default Distribution (if none selected then the Default Distribution election for all events will be Lump Sum at Separation from Service)

(i)

Forms of Distribution (select one):

(ii)

Time of Distribution:

i.

Small Accounts Payment

j.

The Program’s Identification Date for purposes of determining Specified Employee status is December 31 unless a different date is specified: _____________________  (for public companies only)

k.

Installment Date:  Lump sum payments shall be made or installment payments shall begin following an event triggering payment, within the Section 409A Discretionary Payment Period and subject to any delay required under Section 409A:

VII.	Cause:  If the definition for “Cause” is different than that specified in the Program, specify the alternative definition that shall apply for purpose of this Program: (if blank, base Program definition will apply):

VIII.

Good Reason:  If the definition for “Good Reason” is different than that specified in the Program, specify the alternative definition that shall apply for purpose of this Program: (if blank, base Program definition will apply):

IX.

Governing Law:  The Program will generally be governed by federal law but the governing state law, to the extent not preempted by federal law, and in any case subject to the choice of law rules of any court before which any suit or proceeding affecting this Program may be heard, shall be the laws of the following state (specify state):

	COMPANY: Primo Water Holdings Inc.
	By:		/s/ Anne Melaragni
	Name:		Anne Melaragni
	Title:		Chief Human Resources Officer

1.43       “In-Service Distribution” means a distribution made pursuant to Section 6.5.

 

1.44       “Matching Contribution Limit” means, with respect to each Pay Type, the Maximum Contribution Limit set forth for such Pay Type in the Adoption Agreement, to be used and calculated as a limit on Annual Company Matching Amounts pursuant to Section 3.4.

6.9.4      as more particularly provided in Section 6.10, Article 7 or Section 11.8.

 

6.10      Deminimis Amounts.  Notwithstanding any other provisions of this Program to the contrary, the company may distribute a Participant’s vested Account Balance in a lump sum at any time if the balance does not exceed the then current limit (as indexed) under Section 402(g)(1)(B) of the Code and results in the termination of the Participant’s entire interest in this Program and all other similar plans in compliance with all Section 409A Requirements.

 

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ARTICLE 7.

UNFORESEEABLE EMERGENCIES

 

7.1       Application for Hardship Distribution or Deferral Election Termination.  In the event that any Participant incurs an Unforeseeable Emergency, if consistent with applicable Section 409A Requirements, such Participant may apply to the Committee for a Hardship Distribution in the form of (i) cancellation of existing Annual Deferral Amount elections for Pay Types not yet earned by such Participant, and (ii) to the extent cancellation of all such elections is insufficient to satisfy the needs resulting from such Unforeseeable Emergency, an accelerated payment (“Hardship Distribution”) of some or all of such Participant’s vested Account Balance.  The Committee shall consider the circumstances of each such case, and the best interests of the Participant and his or her family, and shall have the right, in its sole discretion, to allow such application, in full or in part, or to refuse to make a Hardship Distribution.  In the event that any Participant receives a distribution from a plan due to an unforeseeable emergency or a hardship pursuant to Treasury Regulation § 1.401(k)‑1(d)(3) (or successor regulation thereto, to the extent recognized for these purposes under Section 409A Requirements), such Participant’s existing Annual Deferral Amount elections for Pay Types not yet earned by such Participant shall be cancelled for the remainder of the Program Year.

 

7.2         Amount of Distribution.  In no event shall the amount of any Hardship Distribution payment exceed the lesser of: (a) the Participant’s vested Account Balance, or (b) the amount determined by the Committee to be necessary to alleviate the hardship, including any taxes payable by the Participant as a result of receiving such Hardship Distribution, and which is not reasonably available from other resources of the Participant, including reimbursement or compensation from insurance or otherwise, by liquidation of the Participant’s assets (unless liquidation of such assets would cause severe financial hardship) or by cessation of deferrals under this Program or other nonqualified plans in which such Participant participates, all in a manner consistent with any applicable Section 409A Requirements.

 

7.3        Rules Adopted By Committee.  The Committee shall have the authority to adopt additional rules and procedures relating to Hardship Distributions.  The request to take a Hardship Distribution shall be made by filing a form provided by and filed with the Committee and shall be accompanied by appropriate documentation evidencing the existence and extent of the hardship consistent with Section 409A Requirements.

 

ARTICLE 8.

BENEFICIARY DESIGNATION

 

8.1       Beneficiary.  Each Participant shall have the right, at any time, to designate his or her Beneficiary(ies) (both primary as well as contingent) to receive any benefit under this Program after the Participant’s death.  The Beneficiary designated under this Program may be the same as or different from the Beneficiary designation under any other plan of the Company in which the Participant participates.

 

8.2       Beneficiary Designation; Change.   A Participant shall designate his or her Beneficiary by completing and signing the Beneficiary Designation Form and returning it to the Record Keeper.  A Participant shall have the right to change a Beneficiary by completing, signing and otherwise complying with the terms of the Beneficiary Designation Form and the Committee’s rules and procedures, as in effect from time to time.  The Committee and the Record Keeper shall be entitled to rely on the last Beneficiary Designation Form filed by the Participant and accepted by the Committee prior to his or her death.

 

8.3         No Beneficiary Designation.  If a Participant fails to designate a Beneficiary as provided above, or if all designated Beneficiaries predecease the Participant or die prior to complete distribution of the Participant’s benefits, then the Participant’s designated Beneficiary shall be deemed to be his or her surviving spouse.  If the Participant has no surviving spouse, the benefits remaining under the Program to be paid to a Beneficiary shall be payable to the executor or personal representative of the Participant’s estate.

 

8.4       Doubt as to Beneficiary.  If the Record Keeper has any doubt as to the proper Beneficiary to receive payments pursuant to this Program, the Committee shall have the right, exercisable in its discretion, to cause the Company to withhold such payments until this matter is resolved to the Committee’s satisfaction.

 

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8.5        Facility of Payment.  If a distribution is to be made to a minor, or to a person who is otherwise incompetent, then the Committee may, in its discretion, make such distribution (i) to the legal guardian, or if none, to a parent of a minor payee with whom the payee maintains his or her residence, or (ii) to the conservator or committee or, if none, to the person having custody of an incompetent payee.  Any such distribution shall fully discharge the Committee, the Record Keeper, the Company and the Program from further liability on account thereof.

 

8.6        Discharge of Obligation.  The payment of benefits under the Program to a Beneficiary shall fully and completely discharge the Company and the Committee from all further obligations under the Program with respect to the Participant, and that Participant’s Participation Agreement shall terminate upon such full payment of benefits.

 

ARTICLE 9.

MANAGEMENT AND ADMINISTRATION OF THIS PROGRAM

 

9.1        The Committee. The Committee shall be responsible for the management, operation and administration of the Program, and for processing claims under Article 10 of this Program.  The Committee shall administer the Program in accordance with its terms and shall have the discretion, power and authority to determine all questions arising in connection with the administration, interpretation and application of the Program.  Any such determination shall be conclusive and binding upon all persons.  The Committee shall have all powers necessary or appropriate to accomplish its duties under the Program.  The Committee from time to time may employ others to render advice with regard to its responsibilities under this Program and to perform services under this Program, including the services contemplated to be performed by the Record Keeper.  The Committee may also allocate its responsibilities to others and may exercise any other powers necessary for the discharge of its duties.

 

9.2       The Record Keeper.  Except to the extent provided to the contrary in a separate written agreement, the Record Keeper shall solely be responsible for keeping records of Account Balances, and for receiving and processing data pertaining to elections and transactions affecting Account Balances pursuant to the Program.

 

9.3       Information From Company.  The Company and each Affiliate shall supply full and timely information to the Committee and the Record Keeper on all matters as may be required properly to administer the Program.  The Committee and the Record Keeper may rely upon the correctness of all such information as is so supplied and shall have no duty or responsibility to verify such information.  The Committee and the Record Keeper shall also be entitled to rely conclusively upon all tables, valuations, certifications, opinions and reports furnished by any actuary, accountant, controller, counsel or other person employed or engaged by or on behalf of the Company or the Committee with respect to the Program.

 

9.4       Indemnification.  The Company, to the fullest extent permitted by applicable law, shall indemnify and hold harmless the members of the Committee, the Record Keeper and their respective employees, officers, directors, partners, agents, affiliates and representatives, from and against any and all claims, losses, liabilities, costs, damages and expenses (including without limitation reasonable attorneys’ fees) arising from any action or failure to act with respect to this Program on account of such party’s services hereunder, except in the case of gross negligence or willful misconduct.

 

9.5        Section 409A Compliance.  The Company intends that this Program will be established, construed, administered and applied in compliance with all Section 409A Requirements, but in light of uncertainty with respect to such requirements and limits, the Company reserves the right to unilaterally interpret or amend the Program and/or any Participation Agreement or Deferral Election Form without the consent of the Participants and to take any actions that may be appropriate to comply with the Section 409A Requirements.

 

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ARTICLE 10.

CLAIMS PROCEDURES

 

10.1       Presentation of Claim.  A Participant or a Participant’s Beneficiary after a Participant’s death (such Participant or Beneficiary being referred to below as a “Claimant”) may deliver to the Committee a written claim for a determination under this Article with respect to the amounts distributable to such Claimant. The claim must state with particularity the determination desired by the Claimant. If the claim relates to disability benefits, the Committee shall ensure that all claims and appeals for disability benefits are adjudicated in a manner designed to ensure the independence and impartiality of the persons involved in making the decision.

 

10.2      Notification of Decision. The Committee shall consider a Claimant’s claim within a reasonable time, but no later than ninety (90) days after receiving the claim. If the Committee determines that special circumstances require an extension of time for processing the claim, written notice of the extension shall be furnished to the Claimant prior to the termination of the initial ninety (90) day period. In no event shall such extension exceed a period of ninety (90) days from the end of the initial period. Notwithstanding the forgoing, if the claim relates to a Disability determination the decision shall be rendered within forty-five (45) days which may be extended up to an additional thirty (30) days if due to matters beyond the control of the Program, the Committee needs additional time to process a claim, which may be further extended up to an additional thirty (30) days if due to matters beyond the control of the Program, the Committee needs additional time to process a claim. The extension notice shall indicate the special circumstances requiring an extension of time, the date by which the Committee expects to render the benefit determination, the standards on which entitlement to a disability benefit is based, the unresolved issues that prevent a decision on the claim and the additional information needed from the Claimant to resolve those issues, and the Claimant shall be afforded at least forty-five (45) days within which to provide the specified information.  The Committee shall notify the Claimant in writing either that the Claimant’s request has been allowed in full or denied in part or in full. In the case of an adverse benefit determination with respect to Disability benefits, on the basis of the Committee’s independent determination of the Participant’s disability status, the Committee will provide a notification in a culturally and linguistically appropriate manner (as described in Department of Labor Regulation Section 2560.503-1(o)).  If the Committee has reached a conclusion contrary, in whole or in part, to the Claimant’s requested determination, such notice must set forth in a manner calculated to be understood by the Claimant, and it must contain:

 

(i)          the specific reason(s) for the denial of the claim, or any part of it;

 

(ii)         specific reference(s) to pertinent provisions of this Program upon which such denial was based;

 

(iii)       a description of any additional material or information necessary for the Claimant to perfect the claim, and an explanation of why such material or information is necessary;

 

(iv)       notice that the Claimant has a right to request a review of the claim denial and an explanation of the claim review procedure and the time limits applicable to such procedures set forth in Section 10.3 below;

 

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(v)        a statement of the Claimant’s right to bring a civil action under ERISA §502(a) (or arbitration if applicable under the terms of the Program and permitted by ERISA) following an adverse benefit determination on review, and a description of any time limit that applies under the Program for bringing such an action; and

 

(vi)        in addition, with respect to a claim that related to Disability benefits:

 

(a)          a discussion of the decision, including an explanation or basis for disagreeing with or not following:

 

(1)         the views presented by the Claimant of health care professionals treating the Claimant and vocational professionals who evaluated the Claimant;

 

(2)        the views of medical or vocational experts whose advice was obtained on behalf of the Program in connection with a Claimant’s adverse benefit determination, without regard to whether the advice was relied upon in making the benefit determination; and

 

(3)         a disability determination regarding the Claimant presented by the Claimant made by the Social Security Administration.

 

(b)       if the adverse benefit determination is based on a medical necessity or experimental treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment for the determination, applying the terms of the Program to the Claimant’s medical circumstances, or a statement that such explanation will be provided free of charge upon request;

 

(c)         either the specific internal rules, guidelines, protocols, standards or other similar criteria of the Program relied upon in making the adverse determination or, alternatively, a statement that such rules, guidelines, protocols, standards or other similar criteria of the Program do not exist; and

 

(d)        a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the Claimant’s claim for benefits. Whether a document, record, or other information is relevant to a claim for benefits shall be determined by Department of Labor Regulation Section 2560.503-1(m)(8).

 

10.3      Review of a Denied Claim.  On or before sixty (60) days after receiving a notice from the Committee that a claim has been denied, in whole or in part, (180 days in the case of a Disability claim) a Claimant (or the Claimant’s duly authorized representative) may file with the Company a written request for a review of the denial of the claim.  The Claimant (or the Claimant’s duly authorized representative):

 

10.3.1    may, upon request and free of charge, have reasonable access to, and copies of, all documents, records and other information relevant to the claim for benefits;

 

10.3.2    may submit written comments or other documents; and/or

 

10.3.3    may request a hearing, which the Company, in its sole discretion, may grant.

 

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10.3.4    If the initial claim is for disability benefits, and the claim requires an independent determination by the Committee of a Participant’s Disability status, and the Committee denies the claim, in whole or in part, the Claimant shall have the opportunity for a full and fair review by the Committee of the denial, as follows:

 

(i)         Prior to such review of the denied claim, the Claimant shall be given, free of charge, any new or additional evidence considered, relied upon, or generated by the Program, insurer, or other person making the benefit determination in connection with the claim, or any new or additional rationale, as soon as possible and sufficiently in advance of the date on which the notice of adverse benefit determination on review is required to be provided, to give the Claimant a reasonable opportunity to respond prior to that date.

 

(ii)       The Committee shall respond in writing to such Claimant within forty-five (45) days after receiving the request for review.  If the Committee determines that special circumstances require additional time for processing the claim, the Committee can extend the response period by an additional forty-five (45) days by notifying the Claimant in writing, prior to the end of the initial 45-day period that an additional period is required. The notice of extension must set forth the special circumstances and the date by which the Committee expects to render its decision.

 

(iii)       The Claimant shall be given the opportunity to submit issues and written comments to the Committee, as well as to review and receive, without charge, all relevant (as defined in applicable ERISA regulations) documents, records and other information relating to the claim. The reviewer shall take into account all comments, documents, records and other information submitted by the Claimant relating to the claim regardless of whether the information was submitted or considered in the initial benefit determination.

 

(iv)        In considering the review, the Committee shall take into account all comments, documents, records and other information submitted by the Claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. Additional considerations shall be required in the case of a claim for disability benefits. For example, the claim will be reviewed by an individual or committee who did not make the initial determination that is subject of the appeal, nor by a subordinate of the individual who made the determination, and the review shall be made without deference to the initial adverse benefit determination. If the initial adverse benefit determination was based in whole or in part on a medical judgment, the Committee will consult with a health care professional with appropriate training and experience in the field of medicine involving the medical judgment. The health care professional who is consulted on appeal will not be the same individual who was consulted during the initial determination or the subordinate of such individual. If the Committee obtained the advice of medical or vocational experts in making the initial adverse benefits determination.

 

10.4       Decision on Review. The review committee appointed by the Company shall render a decision on review promptly, and no later than sixty (60) days after the Company receives the Claimant’s written request for a review of the denial of the claim (45 days in the case of a Disability claim). If the Company determines that special circumstances require an extension of time for processing the claim, written notice of the extension shall be furnished to the Claimant prior to the termination of the initial sixty (60) day period. In no event shall such extension exceed a period of sixty (60) days from the end of the initial period (45 days in the case of a Disability claim). The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Company expects to render the benefit determination. In rendering its decision, the Company shall take into account all comments, documents, records and other information submitted by the Claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. In the case of an adverse benefit determination with respect to disability benefits, on the basis of the Committee’s independent determination of the Participant’s disability status, the Committee will provide a notification in a culturally and linguistically appropriate manner (as described in Department of Labor Regulation Section 2560.503-1(o)).  The decision must be written in a manner calculated to be understood by the Claimant, and it must contain:

 

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10.4.1    specific reasons for the decision;

 

10.4.2    specific reference(s) to the pertinent provisions of this Program upon which the decision was based;

 

10.4.3   a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to and copies of, all documents, records and other information relevant (as defined in applicable ERISA regulations) to the Claimant’s claim for benefits.

 

10.4.4    a statement describing any voluntary appeal procedures offered by the Program and the Claimant’s right to obtain the information about such procedures;

 

10.4.5    a statement of the Claimant’s right to bring a civil action under ERISA Section 502(a) (or arbitration where applicable under the terms of the Program and permitted under ERISA) which shall describe any applicable contractual limitations period that applies to the Claimant’s right to bring such an action, including the calendar date on which the contractual limitations period expires for the claim; and

 

10.4.6    a discussion of the decision, including an explanation of the basis for disagreeing with or not following:

 

(i)          the views presented by the Claimant of health care professionals treating the Claimant and vocational professionals who evaluated the Claimant;

 

(ii)        the views of medical or vocational experts whose advice was obtained on behalf of the Program in connection with a Claimant’s adverse benefit determination, without regard to whether the advice was relied upon in making the benefit determination; and

 

(iii)        a disability determination regarding the Claimant presented by the Claimant made by the Social Security Administration.

 

10.4.7   If the adverse benefit determination is based on a medical necessity or experimental treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment for the determination, applying the terms of the Program to the Claimant’s medical circumstances, or a statement that such explanation will be provided free of charge upon request; and

 

10.4.8   Either the specific internal rules, guidelines, protocols, standards or other similar criteria of the Program relied upon in making the adverse determination or, alternatively, a statement that such rules, guidelines, protocols, standards or other similar criteria of the Program do not exist.

 

10.5      Failure of Program to Follow Procedures. In the case of a claim for Disability benefits, if the Program fails to strictly adhere to all the requirements of this claims procedure with respect to a disability claim, the Claimant is deemed to have exhausted the administrative remedies available under the Program, and shall be entitled to pursue any available remedies under ERISA Section 502(a) on the basis that the Program has failed to provide a reasonable claims procedure that would yield a decision on the merits of the claim, except where the violation was: (a) de minimis; (b) non-prejudicial; (c) attributable to good cause or matters beyond the Program’s control; (d) in the context of an ongoing good-faith exchange of information; and (e) not reflective of a pattern or practice of non-compliance. The Claimant may request a written explanation of the violation from the Program, and the Program must provide such explanation within ten (10) days, including a specific description of its basis, if any, for asserting that the violation should not cause the administrative remedies to be deemed exhausted. If a court rejects the Claimant’s request for immediate review on the basis that the Program met the standards for the exception, the claim shall be considered as re-filed on appeal upon the Program’s receipt of the decision of the court. Within a reasonable time after the receipt of the decision, the Program shall provide the claimant with notice of the resubmission.

 

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ARTICLE 11.

MISCELLANEOUS

 

11.1       Trust. Except as set forth below, nothing contained in this Program, nor any action taken pursuant to its provisions by any person, shall create, or be construed to create, a trust of any kind, or a fiduciary relationship between the Company and any other person.  Despite the foregoing, if the Company elects to establish a grantor trust for the purpose of holding any assets intended to fund the payment of any benefits under this Program, the Company shall have no obligation to make any contributions or deposits into such trust and all assets of such trust shall remain subject to the claims of the Company’s creditors generally in the event of any insolvency or bankruptcy of the Company, and except as permitted under applicable Section 409A Requirements, no such assets shall be located outside of the United States of America.  No trust or restriction shall be imposed on any assets intended to fund the payment of any benefits under this Program as a result of any change in Company’s financial health.  The creation of any trust shall not relieve the Company of its obligations under this Program.

 

11.2      No Right To Company Assets; Unsecured Claim.  Payments to any Participant or Beneficiary hereunder shall be made from assets which shall continue, for all purposes, to be part of the general, unrestricted assets of the Company, or as applicable, the Participating Employer that employed the Participant.  No person shall have any interest in any such asset by virtue of any provision of this Program.  The Company’s obligation (or the obligation of the Participating Employer that employed the Participant) hereunder shall be an unfunded and unsecured promise to pay money in the future.  A Participating Employer is not responsible for (and has no obligation with respect to) benefits payable to a Participant (or behalf of a Participant) who is or was employed with the Company or another Participating Employer unless the second Participating Employer is a successor to the legal liabilities of the first Participating Employer.  To the extent that any person acquires a right to receive payments from the Program under the provisions hereof, such right shall be no greater than the right of any unsecured general creditor of the Company (or Participating Employer, as applicable); no such person shall have or acquire any legal or equitable right, interest or claim in or to any property or assets of the Company (or any Participating Employer).  In the event that, in its discretion, the Company or a Participating Employer purchases an insurance policy or policies insuring the life of a Participant or any other property, to allow the Company (or Participating Employer) to recover or meet the cost of providing benefits, in whole or in part, hereunder, no Participant or Beneficiary shall have any rights whatsoever therein or in the proceeds therefrom.  The Company (or Participating Employer, as applicable) shall be the sole owner and beneficiary of any such insurance policy or property and shall possess and may exercise all incidents of ownership therein.

 

11.3       Captions. The captions of the articles, sections and paragraphs of this Program are for convenience only and shall not control or affect the meaning or construction of any of its provisions.

 

11.4       Furnishing Information. Each Participant and his or her Beneficiary(ies) shall cooperate with the Committee and the Record Keeper by furnishing any and all information requested by the Committee or the Record Keeper and take such other actions as may be requested in order to facilitate the administration of the Program and the payments of benefits hereunder, including but not limited to taking such physical examinations as the Committee may deem necessary.

 

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11.5       No Contract Of Employment.  Nothing contained herein shall be construed to be a contract of employment for any term of years, nor as conferring upon any Participant the right to continue to be employed by the Company or any Affiliate in his or her present capacity or in any capacity.  It is expressly understood that this Program relates to the payment of deferred compensation for each Participant’s services, and is not intended to be an employment contract.

 

11.6      Benefits Not Transferable.  No Participant or Beneficiary under this Program shall have any power or right to transfer, assign, anticipate, hypothecate or otherwise encumber any part or all of the amounts payable hereunder.  No such amounts shall be subject to seizure by any creditor of any such Participant or Beneficiary, by a proceeding at law or in equity, nor shall such amounts be transferable by operation of law in the event of bankruptcy, insolvency or death of the Participant or Beneficiary.  Any such attempted assignment shall be void.

 

The interest in the benefits hereunder of a spouse of a Participant who predeceases the Participant shall automatically pass to the Participant and shall not be transferable by such spouse in any manner, including but not limited to such spouse’s will, nor shall such interest pass under the laws of intestate succession.

11.7     Successors. The provisions of this Program shall bind and inure to the benefit of the Participant’s employer and its successors and assigns and the Participant and the Participant’s designated Beneficiaries.

 

11.8       Amendment and Termination.  To the extent permitted under Section 409A Requirements, this Program may be amended or terminated by the Company at any time, without notice to or consent of any person, pursuant to resolutions adopted by the Company.  Any such amendment or termination shall take effect as of the date specified therein and, to the extent permitted by law and Section 409A Requirements, may have retroactive effect.  However, no such amendment or termination shall reduce the vested balance then credited to the Participant’s Account Balance under Section 4.  The Company and each participating Employer reserve the right to terminate its participation in this Program.  Except as otherwise provided below, the termination of the Program shall not affect the distribution provisions in effect for the Accounts maintained under the Program, and all amounts deferred prior to the date of any such Program termination shall continue to become due and payable in accordance with the distribution provisions in effect immediately prior to such Program termination.  Payment of the Account Balances may be accelerated upon Program termination and liquidation of the Program only in compliance with all Section 409A Requirements as then in effect.  Section 409A regulations currently permit acceleration of distributions under the following circumstances:

 

11.8.1    Dissolution/Bankruptcy.  The Program may be terminated and liquidated within 12 months of a corporate dissolution taxed under Code section 331, or with the approval of a bankruptcy court pursuant to 11 U.S.C. 503(b)(1)(A), provided that the amounts deferred under the Program are included in the Participants’ gross incomes in the latest of:

 

(i)          The calendar year in which the Program termination and liquidation occurs

 

(ii)         The calendar year in which the amount is no longer subject to a substantial risk of forfeiture; or

 

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(iii)        The first calendar year in which the payment is administratively practicable.

 

11.8.2    Change in Control.  The Program may be terminated and liquidated pursuant to irrevocable action taken by the Company within the 30 days preceding or the 12 months following a change in control event (as defined in Treas. Reg. section 1.409A-3(i)(5)).  For purposes of this subsection, an arrangement will be treated as terminated only if all substantially similar agreements, methods, programs, and other arrangements sponsored by the Company immediately after the time of the change in control event with respect to which deferrals of compensation are treated as having been deferred under a single plan under Treas. Reg. section1.409A-1(c)(2) are terminated and liquidated with respect to each participant that experienced the change in control event, so that under the terms of the termination and liquidation all such participants are required to receive all amounts of compensation deferred under the terminated agreements, methods, programs, and other arrangements within 12 months of the date the Company irrevocably takes all necessary action to terminate and liquidate the agreements, methods, programs, and other arrangements.

 

11.8.3    Termination of All Programs.  The Program may be terminated and liquidated at any time provided that:

 

(i)          The termination and liquidation does not occur proximate to a downturn in the financial health of the Company or applicable Participating Employer;

 

(ii)         All agreements, methods, programs, and other arrangements sponsored by the Company that would be aggregated with any terminated and liquidated agreements, methods, programs, and other arrangement under Treas. Reg. section 1.409A-1(c) if the same Participant had deferrals of compensation under all of the agreements, methods, programs, and other arrangements that are terminated and liquidated;

 

(iii)        No payments are made other than payments that would be payable under the terms of the plans if the termination and liquidation had not occurred are made within 12 months of the termination date;

 

(iv)         All payments are made within 24 months of the date the Company takes all necessary action to irrevocably terminate and liquidate the Program; and

 

(v)          The Company does not adopt a new arrangement that would be aggregated with the Program under Section 1.409A-1(c) of the Treasury Regulations provision for the deferral of compensation at any time within 3 years following the date of termination of the Program.

 

11.9       Notice.  Either the Committee or the Record Keeper may specify that any election, form, designation, agreement or communication by a Participant under the Program shall be made or submitted online at a site on the World Wide Web designated for such purpose, or by other reasonable electronic means.  Subject to the foregoing, any notice, consent or demand required or permitted to be given under the provisions of this Program shall be in writing, and shall be signed by the party giving or making the same.  If such notice, consent or demand is mailed, it shall be sent by United States certified mail, postage prepaid, addressed, if to the Company or the Committee, to the Company Address set forth in the Adoption Agreement, and if to the Record Keeper, to the Record Keeper Address set forth in the Adoption Agreement, and if to any Participant, to such Participant’s address most recently submitted by him or her to the Record Keeper (and in the absence of such submission, as most recently appearing on the records of the Company).  The date of such mailing shall be deemed the date of notice, consent or demand.  Any person may change the address to which notice is to be sent by giving notice of the change of address in the manner aforesaid.

 

11.10     Governing Law.  The Program and the right and obligations of all persons hereunder shall be governed by and construed in accordance with the laws of the state set forth in the Adoption Agreement, other than its laws regarding choice of law, to the extent that such state law is not preempted by federal law.

 

 

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