Big Lots Supplemental Savings Plan, amended and restated effective as of January 1, 2008

PURPOSE

4

CONCEPT

4

 

EFFECTIVE DATE

4

ARTICLE I

PARTICIPATION

 

Section 1.1 – Eligibility and Participation

5

Section 1.2 – Conditions of Participation

5

Section 1.3 – Election to Defer

5

Section 1.4 – Matching Employer Contributions

6

Section 1.5 – Deferred Accounts

6

Section 1.6 – Statement of Accounts

7

ARTICLE II

BENEFIT DISTRIBUTIONS FROM THE PLAN

 

Section 2.1 –Time of Distributions

8

Section 2.2 –Form of Distributions

8

Section 2.3 – Change in Control

8

Section 2.4 – Six Month Distribution Delay of Non-Grandfathered Amounts

8

Section 2.5 – Withholding & Payroll Taxes

8

Section 2.6 – Beneficiary Designation

8

ARTICLE III

WITHDRAWALS

 

Section 3.1 – Hardship Withdrawals

10

Section 3.2 – Withdrawal Procedures

10

ARTICLE IV

COMMITTEE

 

Section 4.1 – Committee

11

Section 4.2 – Committee Procedures

11

ARTICLE V

ADMINISTRATION

 

Section 5.1 – Administrative Powers and Duties

12

Section 5.2 – Expenses & Taxes

12

Section 5.3 – Records

12

Section 5.4 – Determinations

12

Section 5.5 – Legal Incompetency

13

Section 5.6 – Action by the Employer

13

Section 5.7 – Exemption From Liability; Indemnification

13

Section 5.8 – Nonalienation of Benefits

13

ARTICLE VI

INCLUSION AND WITHDRAWAL OF EMPLOYERS

 

Section 6.2 – Withdrawal of Employers

14

Section 6.3 – Sale or Liquidation of Employers

14

Section 6.4 – Transfer Between Participating Employers

14

ARTICLE VII

MISCELLANEOUS PROVISIONS

 

Section 7.1 – Employment and Other Rights

15

Section 7.2 – Right to Benefits

15

Section 7.3 – Offsets to Benefits

15

Section 7.4 – Amendment and Termination

15

Section 7.5 –Income Inclusion Under Section 409A of the Code

16

Section 7.6 – Claims Procedure

16

ARTICLE VIII

DEFINITIONS

 

Section 8.1 – Affiliate

19

Section 8.2 – Associate

19

Section 8.3 – Base Compensation

19

Section 8.4 – Beneficiary

19

Section 8.5 – Board

19

Section 8.6 – Change in Control

19

Section 8.7 – Code

20

Section 8.8 – Committee

20

Section 8.9 – Company

20

Section 8.10 –Compensation

20

Section 8.11 – Deferral Agreement

20

Section 8.12 – Deferred Account

20

Section 8.13 – Employer

21

Section 8.14 – ERISA

21

Section 8.15 – Fiscal Year Compensation

21

Section 8.16 – Grandfathered Amounts

21

Section 8.17 – Highly Compensated Employee

21

Section 8.18 – Matching Employer Contributions

21

Section 8.19 – Non-Grandfathered Amounts

21

Section 8.20 – Participant

21

Section 8.21 – Performance Bonus

22

Section 8.22 – Plan Year

22

Section 8.23 – Termination

22

Section 8.24 – Unforeseeable Emergency

22

ARTICLE IX

GENERAL PROVISIONS

 

Section 9.1 – ERISA Status

23

Section 9.2 – Compliance with Section 409A of the Code

23

Section 9.3 – Construction

23

Section 9.4 – Controlling Law

23

Section 9.5 – Effect of Invalidity of Provision

23

ARTICLE X

JOINDER AGREEMENT & FORMS

24

(a)

Each Participant must submit a completed Deferral Agreement to the Committee no later than the applicable election date set forth below.

 

(i)

Base Compensation.  A Deferral Agreement with respect to any Base Compensation for services performed during a Plan Year must be submitted no later than December 31 preceding the Plan Year in which such services will be performed.

 

(ii)

First Year of Eligibility.  In the discretion of the Committee, during a Plan Year in which an Associate first becomes a Participant in the Plan, the Deferral Agreement must be submitted to the Committee no later than thirty (30) days after the date on which the Associate first becomes a Participant in the Plan.  Such Deferral Agreement shall be effective only with respect to Base Compensation relating to services performed after the date of such election.  For purposes of this Section 1.3(a)(ii), an Associate is first eligible to participate in the Plan only if the Associate is not a participant in any other arrangement of any Employer that would be treated as a single nonqualified deferred compensation plan along with the Plan under Treasury Regulation §1.409A-1(c)(2).

 

(iii)

Performance Bonus.  In the discretion of the Committee, a Deferral Agreement with respect to any Performance Bonus must be submitted by the date that is no later than six (6) months before the end of the performance period on which the Performance Bonus is based; provided, that in no event may an election to defer be made after such Performance Bonus has become readily ascertainable.

 

(iv)

Fiscal Year Compensation.  In the discretion of the Committee, a Deferral Agreement with respect to any Fiscal Year Compensation for services performed during an Employer’s fiscal year must be submitted no later than the last day of the previous fiscal year of the Employer.

(b)

For each subsequent Plan Year, a Participant may amend his or her existing elections by submitting a new Deferral Agreement no later than the latest date for which an election to defer may be made, as provided in Section 1.3(a) of the Plan.  An election by a Participant that has not been amended pursuant to this Section 1.3(b) shall be deemed to be a new election for the subsequent Plan Year.

(c)

The minimum annual amount that a Participant shall elect to defer under the Plan for any Plan Year shall not be less than $1,000.

Less than 2

 

0%

2

 

25%

3

 

50%

4

 

75%

5 or more

 

100%

(a)

All Compensation deferred under the Plan and Matching Employer Contributions, if any, shall be credited to the Participant’s Deferred Account in the same manner as though contributed as permissible salary deferrals or matching contributions to the tax-qualified 401(k) plan. Separate Deferred Accounts shall be created and maintained for each Participant to reflect the appropriate allocation of deferred Compensation and Matching Employer Contributions to the accounts and investment funds maintained for the Participant. Such accounts and investment funds shall be established solely for recordkeeping purposes, shall not be required to be informally or formally funded or held in specific investments or as separated assets, and shall meet all of the requirements of Section 7.2 hereof as pertinent to unfunded, nonqualified deferred compensation plans. Credits and charges shall be made to the Deferred Accounts as described in subsections (b) and (c) of this Section 1.5.

(b)

The Committee may, for administrative purposes, establish unit values for one or more investment funds (or any portion thereof) and maintain the accounts setting forth each Participant’s interest in such investment fund (or any portion thereof) in terms of such units, all in accordance with such rules and procedures that the Committee shall deem fair, equitable and administratively feasible. A Participant’s interest in an investment fund (or any portion thereof) in the event a unit account is established shall be determined by multiplying the then value of a unit in said investment fund (or any portion thereof) by the number of units then credited to the Participant’s Deferred Account.

(c)

To extent authorized by the Board, a Participant shall have the authority to make investment elections with respect to deferred Compensation and any Matching Employer Contributions in a manner as prescribed by the Committee, including but not limited to electronic and telephonic means. Such investment authority, however, shall not give ownership rights to the Participant of his or her Deferred Account, but said Deferred Account shall continue to be owned and held in the name of the applicable Employer and subject to creditors’ rights as described in Section 7.2 of the Plan.

(a)

Filing Claims.  In general, neither Participants nor their Beneficiaries need to present a formal claim for benefits under the Plan in order to qualify for rights or benefits under the Plan.  If, however, any Participant or Beneficiary (“claimant”) is not granted the rights or benefits to which the person believes him or herself to be entitled, a formal claim for benefits must be filed in accordance with this Section 7.6.  A claim by any person must be presented to the Committee within the maximum time permitted by law or under regulations promulgated by the Secretary of Labor or his or her delegate pertaining to claims procedures.  The claims official will, within a reasonable time, and not later than the maximum period of time specified by law or under regulation, consider the claim and will issue his or her determination thereon in writing.  If the claim is granted, the appropriate distribution or payment will be made.  Before deciding the claim, the claims official will review the provisions of the Plan and other relevant Plan documents, including similar claims, to ensure and verify that the claim is made in accordance with those documents and that the decision is applied consistently with regard to similarly situated claimants.

(b)

Notification to Claimant.  If a claim request is wholly or partially denied, the Committee will furnish to the claimant a notice of the decision within 90 days, (or if the claim is a claim on account of disability, no later than 45 days after the receipt of such claim) in writing and in a manner calculated to be understood by the claimant, which notice will contain the following information:

 

(i)

Specific reason or reasons for the denial;

 

(ii)

Specific references to pertinent Plan provisions upon which the denial is 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)

An explanation of the Plan’s claims review procedure describing the steps to be taken by a claimant who wishes to submit his claims for review and the time limits applicable to such procedures;

 

(v)

A statement of the claimant’s right to bring a civil action under Section 502(a) of ERISA following an adverse determination upon review; and

 

(vi)

In the case of an adverse determination of a claim on account of disability, the information to the claimant shall include, to the extent necessary, the information set forth in Employee Benefits Security Administration Regulation §2560.503-1(g)(1)(v).

(c)

Review Procedure.  The claimant or his authorized representative may, with respect to any denied claim:

 

(i)

Request a review upon a written application filed within 60 days (180 days in the case of a denial of a claim on account of disability) after receipt by the claimant of written notice of the denial of his claim;

 

(ii)

Review and receive copies of all documents relating to the claimant’s claim for benefits, free of charge; and

 

(iii)

Submit documents, records, issues and comments in writing.

(d)

Decision on Review. The Committee (or its designee) will render a decision upon review not later than 60 days (45 days in the case of a claim on account of disability) after receipt of the request for review.  If special circumstances (such as the need to hold a hearing on any matter pertaining to the denied claim) warrant additional time, the decision will be rendered as soon as possible, but not later than 60 days after receipt of the request for review.  Written notice of any such extension will be furnished to the claimant prior to the commencement of the extension.  This notice will indicate the special circumstances requiring the extension and the date by which the Committee expects to render a decision and will be provided to the claimant prior to the expiration of the initial 45-day or 60-day period.  The Committee will consider all information submitted by the claimant, regardless of whether the information was part of the original claim.  The decision on review will be in writing and will include:

 

(i)

Specific reason or reasons for the decision;

 

(ii)

Specific references to pertinent Plan provisions upon which the decision is based;

 

(iii)

The claimant’s ability to review and receive copies of all documents relating to the claimant’s claim for benefits, free of charge;

 

(iv)

An explanation of any voluntary review procedures describing the steps to be taken by a claimant who wishes to submit his claims for review and the time limits applicable to such procedures; and

 

(v)

A statement of the claimant’s right to bring a civil action under Section 502(a) of ERISA.

(a)

With respect to Grandfathered Amounts:

 

(i)

Any person or group (as defined in Section 13 of Exchange Act) other than the Company or an Affiliate becomes the beneficial owner of, or has the right to acquire (by contract, option, warrant, conversion of convertible securities or otherwise), twenty (20) percent or more of the outstanding common shares of the Company entitled to vote for the election of directors; or

 

(ii)

A majority of the Board is replaced within any period of two (2) years or less by directors not approved by the majority of the directors of the Company in office at the beginning of such period, or a majority of the Board at any date consists of persons not so approved; or

 

(iii)

The shareholders of the Company approve an agreement to merge or consolidate the Company with another company other than an Affiliate or an agreement to sell or otherwise dispose of all or substantially all of the assets to an entity other than an Affiliate.

(b)

With respect to Non-Grandfathered Amounts:

 

(i)

The acquisition by any person, or more than one person acting as a group, of shares of the Company that, together with the shares the Company held by such person or group, constitutes more than fifty (50) percent of the total fair market value or total voting power of all of the shares of the Company; or

 

(ii)

A majority of the members of the Board is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; or

 

(iii)

The acquisition by any person, or more than one person acting as a group, within any twelve (12) month period, of ownership of shares possessing thirty (30) percent or more of the total voting power of all of the shares of the Company; or

 

(iv)

The acquisition by any person, or more than one person acting as a group, within any twelve (12) month period, of assets of the Company that have a total gross fair market value equal to or more than forty (40) percent of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions.

By:

 /s/ Charles W. Haubiel II

Title:

Senior Vice President, General

Counsel and Corporate Secretary