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(b)
The Participant shall specify on his or her Compensation Deferral Agreement the amount of Deferrals and whether to
allocate Deferrals to a Termination Account or to a Specified Date Account. If no designation is made, Deferrals shall be
allocated to the Termination Account. A Participant may also specify in his or her Compensation Deferral Agreement the
Payment Schedule applicable to his or her Plan Accounts. If the Payment Schedule is not specified in a Compensation
Deferral Agreement, the Payment Schedule shall be the Payment Schedule specified in Section 6.2.
4.2
Timing Requirements for Compensation Deferral Agreements .
(a)
First Year of Eligibility. In the case of the first year in which an Eligible Employee becomes eligible to participate in the
Plan, he or she has up to 30 days following his or her initial eligibility to submit a Compensation Deferral Agreement with
respect to Compensation to be earned during such year. Unless otherwise determined by the Committee, the Compensation
Deferral Agreement described in this paragraph becomes irrevocable upon the end of such 30-day period. The determination
of whether an Eligible Employee may file a Compensation Deferral Agreement under this paragraph shall be determined in
accordance with the rules of Code Section 409A, including the provisions of Treas. Reg. Section 1.409A-2(a)(7).
A Compensation Deferral Agreement filed under this Section 4.2(a) applies only to Compensation earned on and after the
date the Compensation Deferral Agreement becomes irrevocable.
(b)
Prior Year Election. Except as otherwise provided in this Section 4.2 or as otherwise determined by the Committee,
Participants may defer Compensation by filing a Compensation Deferral Agreement no later than December 31 of the year
prior to the year in which the Compensation to be deferred is earned. A Compensation Deferral Agreement described in this
paragraph shall become irrevocable with respect to such Compensation no later than January 1 of the year in which such
Compensation is earned.
(c) Performance-Based Compensation. Participants may file a Compensation Deferral Agreement with respect to Performance-
Based Compensation no later than the date that is six months before the end of the performance period, provided that:
(i) the Participant performs services continuously from the later of the beginning of the performance period or the date
the criteria are established through the date the Compensation Deferral Agreement is submitted; and
(ii) the Performance-Based Compensation is not readily ascertainable as of the date the Compensation Deferral
Agreement is filed.
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A Compensation Deferral Agreement becomes irrevocable with respect to Performance-Based Compensation as of the day
immediately following the latest date for filing such election (which shall be determined by the Committee, consistent with
subsection (c) above). Any election to defer Performance-Based Compensation that is made in accordance with this
paragraph and that becomes due and payable as a result of the Participant’s death (as defined in Treas. Reg. Section 1.409A-1
(e)) or upon a Change in Control (as defined in Treas. Reg. Section 1.409A-3(i)(5)) prior to the satisfaction of the
performance criteria, will be void.
(d)
Sales Commissions. Sales commissions (as defined in Treas. Reg. Section 1.409A-2(a)(12)(i)) are considered to be earned
by the Participant in the taxable year of the Participant in which the sale occurs. The Compensation Deferral Agreement must
be filed before the last day of the year preceding the year in which the sales commissions are earned, and becomes
irrevocable after that date.
(e)
Certain Forfeitable Rights. With respect to a legally binding right to a payment in a subsequent year that is subject to a
forfeiture condition requiring the Participant’s continued services for a period of at least 12 months from the date the
Participant obtains the legally binding right, an election to defer such Compensation may be made on or before the 30 day
after the Participant obtains the legally binding right to the Compensation, provided that the election is made at least 12
months in advance of the earliest date at which the forfeiture condition could lapse. The Compensation Deferral Agreement
described in this paragraph becomes irrevocable after such 30 day. If the forfeiture condition applicable to the payment
lapses before the end of the required service period as a result of the Participant’s death (as defined in Treas. Reg. Section
1.409A-3(i)(4)) or upon a Change in Control (as defined in Treas. Reg. Section 1.409A-3(i)(5)), the Compensation Deferral
Agreement will be void unless it would be considered timely under another rule described in this Section.
(f)
Company Awards. Participating Employers may unilaterally provide for deferrals of Company awards prior to the date of
such awards. Deferrals of Company awards (such as sign-on, retention, or severance pay) may be negotiated with a
Participant prior to the date the Participant has a legally binding right to such Compensation.
(g)
“Evergreen” Deferral Elections . The Committee, in its discretion, may provide in the Compensation Deferral Agreement
that such Compensation Deferral Agreement will continue in effect for each subsequent year or performance period. Such
“evergreen” Compensation Deferral Agreements will become effective with respect to an item of Compensation on the date
such election becomes irrevocable under this Section 4.2. An evergreen Compensation Deferral Agreement may be
terminated or modified prospectively with respect to Compensation for which such election remains revocable under this
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