Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

Exhibit 10.1

BOB EVANS FARMS, INC. AND AFFILIATES

FOURTH AMENDED AND RESTATED

EXECUTIVE DEFERRAL PROGRAM

Originally effective January 1, 1999

First Amendment and Restatement effective June 14, 1999

Second Amendment and Restatement effective May 1, 2002

Third Amendment and Restatement effective January 1, 2008

Fourth Amendment and Restatement effective May 26, 2010

TABLE OF CONTENTS

ARTICLE I		DEFINITIONS			1
ARTICLE II		PARTICIPATION			6
2.01.		Eligibility and Election to Participate			6
2.02.		Designation of Beneficiary			8
ARTICLE III		CONTRIBUTIONS			9
3.01.		Participant Deferrals			9
3.02.		Employer Nonqualified Matching Contributions			9
3.03.		Discretionary Employer Contributions			10
3.04.		Stock Awards			10
ARTICLE IV		MEMBERS' ACCOUNTS; ALLOCATIONS			10
4.01.		Members’ Accounts			10
4.02.		Allocations of Pre-2008 Deferrals			11
4.03.		Allocations of Post-2008 Deferrals			11
4.04.		Calculating Net Gains or Losses; Crediting of Accounts			11
ARTICLE V		INVESTMENT FUNDS			12
5.01.		In General			12
5.02.		Phantom Share Investment Fund			12
5.03.		Stock Award Account			12
ARTICLE VI		AMOUNT AND DISTRIBUTION OF BENEFITS			13
6.01.		In General — Time and Form of Distribution			13
6.02.		Changes to Time and Form of Distribution			17
6.03.		Hardship Withdrawals			18
6.04.		Vested Benefits			19
6.05.		Effect of Change in Control on Phantom Shares			20
ARTICLE VII		PLAN COMMITTEE			20
7.01.		Appointment of Committee			20
7.02.		Powers and Duties			20
7.03.		Actions by the Committee			21
7.04.		Interested Committee Members			21
7.05.		Indemnification			21
7.06.		Conclusiveness of Action			22
7.07.		Payment of Expenses			22

7.08.		Claims Procedure			22
ARTICLE VIII		AMENDMENT TO THE PLAN			24
8.01.		Right to Amend			24
8.02.		Amendment Procedure			24
ARTICLE IX		TERMINATION OF THE PLAN			24
9.01.		Right to Terminate			24
9.02.		Plan Merger and Consolidation			24
9.03.		Successor Employer			25
ARTICLE X		UNFUNDED PLAN			25
ARTICLE XI		MISCELLANEOUS			25
11.01.		Voluntary Plan			25
11.02.		Non-alienation of Benefits			25
11.03.		Inability to Receive Benefits			26
11.04.		Lost Members			26
11.05.		Limitation of Rights			26
11.06.		Invalid Provision			26
11.07.		Governing Law			26
11.08.		Code §409A			26
11.09.		Tax Withholding			27
11.10.		Recoupment			27

BOB EVANS FARMS, INC. AND AFFILIATES

FOURTH AMENDED AND RESTATED
EXECUTIVE DEFERRAL PROGRAM

Effective January 1, 1999, Bob Evans Farms, Inc. (“Corporation”) adopted the Plan to provide deferred compensation to a select group of its management or highly compensated employees. Effective June 14, 1999, the Corporation amended and restated the Plan to allow it to make Discretionary Employer Contributions to the Accounts of selected Members. Effective May 1, 2002, the Corporation adopted the second amended and restated version of the Plan, which was subsequently amended effective as of January 1, 2005 and January 1, 2006. Effective January 1, 2008, the Corporation adopted the third amended and restated version of the Plan, as amended effective November 18, 2008. Effective May 26, 2010, the Corporation adopts the fourth amendment and restatement of the Plan to permit Participants to direct the deemed investment of their Accounts in Shares and to permit Participants to defer Stock Awards. This Plan is intended to be an unfunded, nonqualified program of deferred compensation within the meaning of Title I of ERISA.

ARTICLE I
DEFINITIONS

Whenever used in this Plan, the following words and phrases will have the meanings given below. Also, the singular form of any term will include the plural, the plural form will include the singular, the masculine pronoun will include the feminine and the feminine pronoun will include the masculine. Other words and phrases also may be defined in the Plan text.

Accounts means (a) the Employer Nonqualified Matching Contribution Account established for each Participant under Section 4.01(a)(i), (b) the Nonqualified Employee Deferral Account established for each Participant under Section 4.01(a)(ii), (c) the Discretionary Employer Contribution Account established under Section 4.01(a)(iii) for any Member for whose benefit the Employer makes a Discretionary Employer Contribution, (d) the Phantom Share Suspense Account established for all Participants who elect to invest deferrals of Compensation in the Phantom Share Investment Fund under Section 4.01(b), (e) the Phantom Share Investment Fund established for Participants and to which Phantom Shares are credited pursuant to Section 4.01(a)(iv), and (e) a Stock Award Account established for Participants who elect to defer Stock Awards under Section 4.01(a)(v). The Committee may establish such sub-accounts as may be necessary or appropriate for the administration of the Plan.

Base Salary means the gross base salary earned by a Participant for services performed for the Corporation or any other Group Member.

Beneficiary means the person designated by a Member under Section 2.02 to receive any death benefits payable under Section 6.01.

Board means the Corporation’s board of directors.

Bonus means any cash incentive award that (a) becomes payable to a Participant pursuant to any incentive plan maintained by the Corporation or any other Group Member and (b) is designated by the Committee as a “Bonus” under this Plan.

Change Agreement means an individual agreement between the Corporation and any Member describing the effect of a Change in Control.

Change in Control means:

(a) With respect to any Member who is a party to a Change Agreement, a “change in control” as defined in (and subject to the terms of) that Member’s Change Agreement; and

(b) With respect to all Members, as defined in the Bob Evans Farms, Inc. 2010 Equity and Cash Incentive Plan, as may be amended from time to time.

Code means the Internal Revenue Code of 1986, as amended.

Committee means the Plan Committee described in Article VII.

Compensation means the total cash remuneration earned by a Participant, including Base Salary, any Bonus, any Fiscal Year Compensation, any Performance-Based Compensation and any Stock Awards, for services performed for the Corporation or any other Group Member.

Deferral Election Form means a written or electronic (a) Salary Deferral Election Form, (b) Bonus Deferral Election Form and/or (c) Stock Award Deferral Election Form, as applicable, that each Eligible Employee completes to specify the portion of his or her Compensation to be deferred under the Plan. To the extent applicable, “Deferral Election Form” will include any enrollment form or deferral notice used under the Plan prior to January 1, 2008.

Disability means:

(a) With respect to Grandfathered Amounts, the date that it is established by a licensed physician selected by the Committee that the Member is not able to engage in any substantial gainful activity because of a medically determinable physical or mental impairment that is expected to result in death or to be of long, continued and indefinite duration. The Committee will consistently apply uniform principles when determining if a Member is disabled.

(b) With respect to Section 409A Amounts:

(i) The Member is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months; or

(ii) The Member is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Member’s Employer; or

(iii) The Member is determined to be totally disabled by the Social Security Administration or the Railroad Retirement Board.

Discretionary Employer Contribution Account means the account established for each Participant to which Discretionary Employer Contributions, if any, are allocated as described in Section 3.03.

Distribution Accounts means the In-Service Distribution Account, the Education Distribution Account and the Retirement Distribution Account, each as described in Section 4.02. Each Distribution Account will consist of at least one Sub-Account for each separate deferral affecting amounts for which services were performed or began before January 1, 2008 under Section 3.01. Where appropriate, a reference to a Member’s Distribution Accounts will include a reference to each applicable Sub-Account that has been established thereunder.

Effective Date means January 1, 1999, with respect to the Plan, June 14, 1999, with respect to the first amendment and restatement of the Plan, May 1, 2002, with respect to the second amendment and restatement of the Plan, January 1, 2008, with respect to the third amendment and restatement of the Plan, and [insert date], with respect to the fourth amended and restatement of the Plan.

Eligible Employee means each person employed by a Group Member who is a member of its select group of management or is a highly compensated employee.

Employer means the Group Member by which a Member is directly employed on the date of any event, act or occurrence described in this Plan. If, without a Separation from Service, a Member becomes a common law employee of a Group Member other than the Employer, that Group Member will automatically become that Member’s “Employer” under this Plan and will be fully liable as the Member’s Employer for all obligations arising under this Plan with respect to that Member during the period of that employment relationship.

Employer Nonqualified Matching Contribution Account means the account established for each Participant to which Employer contributions described in Section 3.02 are allocated.

ERISA means the Employee Retirement Income Security Act of 1974, as amended.

Fiscal Year Compensation means cash compensation (a) relating to a period of service that is coextensive with one or more consecutive taxable years of the Corporation or any other Group Member, of which no amount is paid or payable during the taxable year(s) of the Corporation or any other Group Member constituting the period of service and (b) that is designated by the Committee as “Fiscal Year Compensation” under this Plan.

Grandfathered Amounts means the portion, if any, of a Member’s Accounts that was earned and vested under the Plan (within the meaning of Code §409A) as of December 31, 2004 and any earnings (whether actual or notional) attributable to such portion of the Member’s Account (within the meaning of Code §409A).

Group means the Corporation and all persons with whom the Corporation would be considered a single employer under Code §§414(b) and (c).

Group Member means each entity that is a member of the Group.

Inactive Participant means a Participant who (a) has not Separated from Service but (i) no longer meets the eligibility conditions described in Section 2.01 or (ii) has cancelled his or her deferrals under Section 2.01(c), or (b) has Separated from Service but has not received a complete distribution of his or her Accounts.

Investment Funds means the funds established by the Committee under Article V to measure the investment gains and losses attributable to each Member’s Accounts. Effective as of the Effective Date, the Investment Funds will include the Phantom Share Investment Fund.

Member means, collectively, (a) a Participant or (b) an Inactive Participant.

Nonqualified Employee Deferral Account means the account established for each Participant to which deferrals of Compensation may be allocated, as elected by the Participant in accordance with Section 3.01.

Participant means an Eligible Employee who is participating in the Plan as provided in Section 2.01.

Performance-Based Compensation means cash compensation (a) the amount of which, or the entitlement to which, is contingent on the satisfaction of organizational or individual performance criteria relating to a performance period of at least 12 consecutive months, provided that such criteria have been established in writing by not later than 90 days after the commencement of the period of service to which the criteria relates and the outcome is substantially uncertain at the time the criteria are established and (b) that has been designated by the Committee as “Performance-Based Compensation” under this Plan. Any Performance-Based Compensation must meet the requirements of Code §409A and Treasury Regulation §1.409A-1(e).

Phantom Share means the notional investment into which amounts held in the Phantom Share Suspense Account are credited to the Phantom Share Investment Fund or Stock Award Account, which will reflect a deemed investment in Shares.

Phantom Share Suspense Account means the non-interest-bearing Account to which deferrals of Compensation are allocated pursuant to Section 3.01 prior to being credited to Participants’ Phantom Share Investment Funds.

Phantom Share Investment Fund means the separate Investment Fund maintained on behalf of each Participant who has elected to have Compensation converted into Phantom Shares and pursuant to which Phantom Shares are credited.

Plan means the Bob Evans Farms, Inc. and Affiliates Fourth Amended and Restated Executive Deferral Program, as described in this document and as it may be amended from time to time.

Plan Year means each 12-month period beginning on January 1, 1999 (and anniversaries of that date) while the Plan is in effect.

Post-2008 Deferrals has the meaning set forth in Section 4.03.

Pre-2008 Deferrals has the meaning set forth in Section 4.02(a).

Qualified 401K Plan means the Bob Evans Farms, Inc. and Affiliates 401K Retirement Plan, as it may be amended.

Section 409A Amounts means the portion of a Member’s Accounts that is not Grandfathered Amounts.

Separation from Service means a “separation from service” with the Group within the meaning of Treasury Regulation §1.409A-1(h).

Service Threshold means (a) the Member has completed at least ten Years of Vesting Service or (b) the sum of the Member’s age (measured in whole years only) and Years of Vesting Service (measured in whole years only) equals at least 70.

Severe Financial Hardship means:

(a) With respect to Grandfathered Amounts, (i) a sudden or unexpected illness or accident incurred by the Member or a member of the Member’s immediate family or (ii) the loss of the Member’s property due to casualty or other similar extraordinary and unforeseeable circumstances attributable to events beyond the Member’s control; and

(b) With respect to Section 409A Amounts, a severe financial hardship to the Member within the meaning of Treasury Regulation §1.409A-3(i)(3) resulting from: (i) an illness or accident of the Member or the Member’s spouse or dependent (as defined in Code §152 without regard to Code §§152(b)(1), (b)(2) and (d)(1)(B)); (ii) loss of the Member’s property due to casualty; or (iii) other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Member.

Specified Employee means a “specified employee” within the meaning of Treasury Regulation §1.409A-1(i) and as determined under the Corporation’s policy for determining specified employees.

Shares mean the common shares, par value $0.01, of the Corporation.

Spouse or Surviving Spouse means an individual who is legally married to a Member.

Stock Award means an equity-based award granted pursuant to the Corporation’s equity compensation plan after the Effective Date that the Committee, in its sole discretion, allows Participants to defer pursuant to this Plan.

Stock Award Account means the separate Account maintained on behalf of each Participant who has elected to defer Stock Awards which will be credited with the number of Phantom Shares and/or cash equal to the number of Shares and/or cash otherwise payable pursuant to the Stock Award.

Sub-Account means a sub-account maintained for each deferral of Compensation relating to services that were performed or began prior to January 1, 2008, and earnings or losses credited to such sub-account in accordance with Section 4.03.

Trust Agreement means the agreement, and any amendments to that agreement, between the Corporation and the Trustee providing for the management, investment and disbursement of funds held in the Trust Fund.

Trust Fund means the fund established under the Trust Agreement.

Trustee means the bank, trust company or individual designated by the Corporation to hold and invest the Trust Fund and to pay Plan benefits and expenses authorized by the Committee.

2000 Account means the separate account established for the benefit of each Member for whom the Corporation made an additional, nonrecurring contribution as of January 1, 2000. Except as otherwise provided in this Plan, each 2000 Account will be administered and distributed as if it is part of the affected Member’s Discretionary Employer Contribution Account.

Valuation Date means the last day of each calendar quarter during each Plan Year, or more frequent dates if the Committee, in its sole discretion, decides that more frequent valuations are needed for any reason.

Years of Vesting Service means the number of whole years during which the Member has been employed by the Corporation and any other Group Members, beginning on the Member’s date of hire with the Group.

ARTICLE II
PARTICIPATION

2.01. Eligibility and Election to Participate

(a) Eligibility. In its sole discretion, the Committee will decide which Eligible Employees may participate in the Plan and the earliest date on which they may participate.

(b) Election to Participate.

(i) In General. Except as otherwise provided in this Section 2.01(b), each Eligible Employee who is selected by the Committee to participate in the Plan may become a Participant (or continue or reinstate his or her active participation) in the Plan for any Plan Year by electing to defer Base Salary, any Bonus, Stock Awards and/or any other Compensation (as designated by the Committee in its sole discretion), for services to be performed during such Plan Year, pursuant to a Deferral Election Form and by submitting such form to the Committee by no later than December 31 of the immediately preceding Plan Year.

(ii) First Year of Eligibility. In the discretion of the Committee, a Participant who first becomes eligible to participate in the Plan during a Plan Year may elect to defer any Compensation designated by the Committee in its sole discretion pursuant to a Deferral Election Form within 30 days after the date on which the Participant is first eligible to participate in the Plan, with respect to any such Compensation to be paid for services to be performed after such election is made. For purposes of this Section 2.01(b)(ii), a Participant is first eligible to participate in this Plan only if the Participant is not a participant in any other agreement, method, program or arrangement that, along with this Plan, would be treated as a single nonqualified deferred compensation plan under Treasury Regulation §1.409A-1(c)(2).

(iii) Fiscal Year Compensation. In the discretion of the Committee, a Participant may make a separate deferral election with respect to any Fiscal Year Compensation pursuant to a Deferral Election Form submitted to the Committee. Such election must be made no later than the last day of the Corporation’s fiscal year immediately preceding the fiscal year during which the Participant will perform the services for which such Fiscal Year Compensation may be paid.

(iv) Performance-Based Compensation. In the discretion of the Committee, a Participant may make a separate deferral election with respect to any Performance-Based Compensation pursuant to a Deferral Election Form submitted to the Committee. Such election must be made at least six months prior to the end of the performance period on which the Performance-Based Compensation is based and meet any other requirement set forth in Treasury Regulation §1.409A-2(a)(8); provided that in no event may an election to defer be made after such Performance-Based Compensation has become readily ascertainable.

(v) Other Elections. In the discretion of the Committee, a Participant may make such other deferral elections with respect to Compensation designated by the Committee in its sole discretion at such other time or times permitted by Section 409A of the Code. Any such deferral election will be made in a form acceptable to the Committee.

(vi) Evergreen Elections. A Participant’s deferral election(s) (or any modification thereof) under this Section 2.01 will continue to apply to Compensation in future years (and become irrevocable on the applicable dates described above) unless and until the Participant makes a new Deferral Election in accordance with Section 2.01(b)(i), 2.01(b)(iii) or 2.01(b)(iv). Notwithstanding anything to the contrary in this Plan (A) deferral elections regarding the contributions or allocations of Compensation to the Phantom Share Suspense Account will be irrevocable for the Plan Year to which such election relates, and (B) subject to any restrictions imposed by Section 16(b) of the Securities Exchange Act of 1934, as determined by the Committee, changes in investment elections with respect to future crediting of amounts to the Phantom Share Suspense Account may be made at the Participant’s discretion.

(vii) Inactive Participants. An Inactive Participant will not be permitted to submit a Deferral Election Form.

(c) Cancellation of Deferrals.

(i) Except to the extent provided in Section 2.01(c)(ii), a Participant will not be permitted to change, terminate or revoke the Participant’s deferral elections for such year after the applicable deadline set forth in Section 2.01(b).

(ii) Any deferrals by a Participant who obtains a Severe Financial Hardship distribution or a hardship distribution pursuant to Treasury Regulation §1.401(k)-(d)(3) from a tax-qualified defined contribution plan of the Group will be cancelled following the date of such distribution. An otherwise Eligible Employee will not be eligible to make another deferral election under the Plan until the later of the end of (A) the suspension period prescribed under the Qualified 401K Plan and (B) the Plan Year in which the Participant received the distribution. A Participant whose deferrals have been cancelled pursuant to this Section 2.01(c)(ii) may elect to make later deferrals under the Plan only in accordance with Section 2.01(b).

(d) Limitations on Elections. A Participant may not make an election to defer Compensation to the Phantom Share Suspense Account if, at the time the election is made, the Participant is in possession of “material non-public information” (within the meaning of Section 10b of the Securities Exchange Act of 1934).

2.02. Designation of Beneficiary

(a) Each Member may designate one or more Beneficiaries by completing a written or electronic beneficiary designation form prescribed by the Committee. Unless a Member who designates more than one Beneficiary also specifies the sequence or the portion of the death benefit to be paid to each Beneficiary, the death benefit will be paid in equal shares to all named Beneficiaries.

(b) A Member may change his or her Beneficiary at any time by completing a new beneficiary designation form in accordance with such form’s instructions. No change of Beneficiary will be effective until the revised form is received by the Committee. The identity of a Member’s Beneficiary will be based only on the designation in the form described in this section and will not be inferred from any other evidence.

(c) If a Member has not made an effective Beneficiary designation or if the Member’s Beneficiary dies before the Member, any Plan death benefit will be paid to the Member’s Surviving Spouse or, if there is no Surviving Spouse, to the Member’s estate. Any minor’s share of a Plan death benefit will be paid to the adult who has been appointed to act as the minor’s legal guardian and who has assumed custody and support of that minor.

(d) The Member and the Beneficiary (and not the Committee) are responsible for ensuring that the Committee has the Beneficiary’s current address.

ARTICLE III
CONTRIBUTIONS

3.01. Participant Deferrals

(a) Compensation — Other than Stock Awards. At the times and in the manner prescribed in Section 2.01(b), each Participant may elect to defer up to: (i) 100 percent of the Participant’s Bonuses, Fiscal Year Compensation and Performance-Based Compensation (other than Stock Awards); plus (ii) 80 percent of the Participant’s Base Salary. These amounts will be credited to the Participant’s Nonqualified Employee Deferral Account or the Phantom Share Suspense Account, as elected by the Participant at the time of deferral. Once made, the allocation of a Participant’s deferrals between the Nonqualified Employee Deferral Account and Phantom Share Suspense Account may not be revoked or changed with respect to the Compensation to which the election relates.

(b) Withholding. The Committee is authorized to make any and all necessary arrangements with the Participant in order to withhold Participant deferrals under Section 3.01(a) of this Plan. The Committee will determine the amount and timing of such withholding.

3.02. Employer Nonqualified Matching Contributions

(a) Each Employer intends to make an annual contribution to the Plan from its current or accumulated profits. This contribution will be calculated for each Plan Year under the following formula:

(i) The percentage of compensation to be matched under the Qualified 401K Plan for that Plan Year, minus the actual deferral percentage for all highly compensated employees calculated for that Plan Year under the Qualified 401K Plan, multiplied by

(ii) The rate at which deferrals are matched under the Qualified 401K Plan for that Plan Year, multiplied by

(iii) The amount deferred (excluding the amount or value of any Stock Awards deferred for such Plan Year) under the Plan by the Participant for that Plan Year.

(b) Employer Nonqualified Matching Contributions made under this formula will be allocated to the Employer Nonqualified Matching Contribution Account or Phantom Share Suspense Account of each Participant who both (i) deferred a portion of the Participant’s Compensation to the Plan for the Plan Year for which the matching contribution is made and (ii) is employed by a Group Member on the last day of the Plan Year for which the matching contribution is made. The allocation of Employer Nonqualified Matching Contributions between the Employer Nonqualified Matching Contribution Account and Phantom Share Account will be in the same proportion as the allocation of Compensation between such Accounts by the Participant.

3.03. Discretionary Employer Contributions

An Employer may allocate amounts, in addition to those described in Section 3.02, to the Discretionary Employer Contribution Account of one or more Members. The amount contributed and the Members affected are wholly within the Employer’s discretion.

3.04. Stock Awards

At the times and in the manner prescribed in Section 2.01(b), each participant may elect to defer up to 100 percent of any Stock Awards, which will be credited to the Stock Award Account as described in Section 4.01(a)(iii).

ARTICLE IV
MEMBERS’ ACCOUNTS; ALLOCATIONS

4.01. Members’ Accounts

(a) With respect to each Member, the Committee will maintain:

(i) An Employer Nonqualified Matching Contribution Account to record: (i) the Employer Nonqualified Matching Contributions made to the Member under Section 3.02, adjusted by the net income, gains or losses that are deemed attributable to those amounts (as described in Section 4.04(a)); minus (ii) any distributions made from this Account.

(ii) A Nonqualified Employee Deferral Account to record: (i) the Member’s deferrals of Compensation elected to be contributed to this Account pursuant to Section 3.01(a)(i), adjusted by the net income, gains or losses that are deemed attributable to those amounts (as described in Section 4.04(a)); minus (ii) any distributions made from this Account.

(iii) A Discretionary Employer Contribution Account to record: (i) the Discretionary Employer Contributions, if any, made to the Member under Section 3.03, adjusted by the net income, gains or losses that are deemed attributable to those contributions (as described in Section 4.04(b)); minus (ii) any distributions made from this Account.

(iv) A Phantom Share Investment Fund to record the number of Phantom Shares credited to the Participant pursuant to Section 5.02.

(v) A Stock Award Account to record Stock Awards deferred by such Member pursuant to Section 3.04. Stock Awards will be credited to the Stock Award Account once the Stock Award vests. Until the Stock Award is credited to the Stock Award Account, the Stock Award will remain subject to the terms and conditions of the plan pursuant to which the Stock Award was granted and, if applicable, the associated award agreement.

(b) With respect to all Members, the Committee will maintain a Phantom Share Suspense Account to record: (i) the aggregate amounts that are deferred into the Plan by Participants under Section 3.01(a) for investment into the Phantom Share Investment Fund; minus (ii) any distributions made from this Account into the Phantom Share Investment Funds of Participants.

Amounts are credited to the Phantom Share Suspense Account pending allocation to Phantom Share Investment Fund of each Participant. Once funds are placed into the Phantom Share Suspense Account, Members will have no further control over such amounts, no such funds may be withdrawn by Members, no such funds may be transferred to any other Account established under the Plan, and no funds may be moved from any other Account established under the Plan into the Phantom Share Suspense Account. Notwithstanding the foregoing and in connection with the establishment of the Phantom Share Suspense Account, the Committee may, in its sole discretion, permit Members to make a one-time election to cause amounts allocated to a Member’s Accounts and payable upon a Member’s Retirement, Separation from Service or death to be allocated to the Phantom Share Suspense Account (“Reallocated Amounts”). The election will be made at such time or times and subject to such terms and conditions as the Committee may impose, in its sole discretion.

4.02. Allocations of Pre-2008 Deferrals

(a) With respect to Compensation deferrals relating to services that were performed or began prior to January 1, 2008 (“Pre-2008 Deferrals”), when completing a Deferral Election Form, a Participant could direct that the deferrals made pursuant to Section 3.01 be allocated to one or more of the Participant’s Retirement Distribution Account, In-Service Distribution Account or Education Distribution Account. If a Participant did not specify the Distribution Account(s) to which his or her deferrals were to be allocated, all such deferrals were allocated to the Participant’s Retirement Distribution Account. Any change to transfer a previously allocated Sub-Account from one Distribution Account to another Distribution Account will be effective only if such change meets the requirements described in Section 6.02.

(b) With respect to Pre-2008 Deferrals, amounts deferred under a Member’s Employer Nonqualified Matching Contribution Account and Discretionary Employer Contribution Account, if any, were allocated to his or her Retirement Distribution Account.

4.03. Allocations of Post-2008 Deferrals

With respect to Compensation deferrals relating to services performed entirely on or after January 1, 2008 (“Post-2008 Deferrals”), (a) deferrals made pursuant to Section 3.01 will be allocated to the Participant’s Nonqualified Employee Deferral Account or the Phantom Share Suspense Account, as applicable, and will not be further allocated to a Distribution Account and (b) amounts deferred under a Member’s Employer Nonqualified Matching Contribution Account and Discretionary Employer Contribution Account will not be further allocated to a Distribution Account.

4.04. Calculating Net Gains or Losses; Crediting of Accounts

(a) Accounts — Other Than Phantom Share Suspense Account and Stock Award Account. With respect to all Accounts other than the Phantom Share Suspense Account and Stock Award Account, as of each Valuation Date and except as provided in the Trust Agreement, the Trustee will determine the value of each Investment Fund established by the Committee under Section 5.01. The value of each Investment Fund will be calculated as if it had been invested as directed by Members. Any increase or decrease in the value of each Investment Fund, less associated

administrative and other Plan expenses described in Section 7.07, will be allocated to the relevant Accounts of each Member who was deemed to have invested in that fund since the preceding Valuation Date. This allocation will be based on (i) the value of the Investment Fund on the preceding Valuation Date and (ii) the portion of that value that is deemed to have been comprised of the Member’s Accounts.

(b) Phantom Share Suspense Account. With respect to the Phantom Share Suspense Account, as of each Valuation Date, the Trustee will convert the amount deferred by each Participant into the Phantom Share Suspense Account into Phantom Shares by dividing the amount deferred by each Participant by the closing price of a Share on the date of conversion and crediting the resulting number of whole and fractional Phantom Shares to the Phantom Share Investment Funds as provided in Section 5.02. Notwithstanding the foregoing, in the event of a Member’s Separation from Service or death prior to a Valuation Date, the amount of Compensation deferred by the Member and allocated to the Phantom Share Suspense Account will be converted into Phantom Shares as provided in this Section 4.04 and credited to the Member’s Phantom Share Investment Fund as of that date.

(c) Stock Award Account. The Stock Award Account will be credited with Phantom Shares and cash as described in Section 5.03.

ARTICLE V
INVESTMENT FUNDS

5.01. In General. Except as provided in Section 5.02, below, the Committee will establish and maintain one or more Investment Funds that will be used to measure the value of each Member’s Accounts; provided that neither the Group nor the Trustee is obliged to make the investments chosen by any Member. Each Member must select the Investment Fund(s) that will be used to measure the value of his or her Accounts by completing the appropriate section of the applicable Deferral Election Form. Rules and regulations relating to investment selections, including the frequency with which investment selections may be changed and the minimum percentage of a Member’s Accounts that may be treated as invested in each Investment Fund, will be established, from time to time, by the Committee and announced to Members.

5.02. Phantom Share Investment Fund. Shares deemed to have been purchased pursuant to Section 4.04(b) will be credited to the Phantom Share Investment Fund of each Member who has elected to defer Compensation to the Phantom Share Suspense Account for the relevant period based on the ratio that the amount of Compensation deferred to the Phantom Share Suspense Account by each Participant for such period bears to the aggregate balance of the Phantom Share Suspense Account immediately before its conversion into Phantom Shares. The crediting of Phantom Shares to the Phantom Share Investment Fund will be subject to the following:

(a) A Member may not make an election to (i) reallocate amounts invested in the Phantom Share Investment Fund into any other account under the Plan, or (ii) reallocate amounts credited to any other account under the Plan into the Phantom Share Investment Fund, except with respect to Reallocated Amounts.

(b) Unless otherwise determined by the Committee, any cash dividends or other dividends payable with respect to Shares will be credited to each Member based on the Phantom Shares held in such Member’s Phantom Share Investment Fund and be used to effect the deemed purchase of additional Phantom Shares as described in Section 4.04(b).

(c) The number of Phantom Shares credited to a Member’s Phantom Share Investment Fund will be adjusted from time to time to reflect stock splits, stock dividends or other changes in the Shares resulting from a change in the Corporation’s capital structure, as determined by the Committee in its sole discretion.

5.03. Stock Award Account. Stock Awards deferred into the Stock Award Account may not be invested in any Investment Funds; however, the Stock Award Account will be credited with a number of Phantom Shares and/or the amount of cash equal to the number of Shares and or cash otherwise deliverable or payable pursuant to the Stock Award. Phantom Shares credited to the Stock Award Account will be subject to the following:

(a) Unless otherwise determined by the Committee, any cash dividends or other dividends payable with respect to Shares will be credited to each Participant based on the number of Phantom Shares credited to the Member’s Stock Award Account.

(b) The number of Phantom Shares credited to a Member’s Stock Award Account will be adjusted from time to time to reflect stock splits, stock dividends or other changes in the Shares resulting from a change in the Corporation’s capital structure, as determined by the Committee in its sole discretion.

ARTICLE VI
AMOUNT AND DISTRIBUTION OF BENEFITS

6.01. In General — Time and Form of Distribution

(a) Pre-2008 Deferrals.

(i) In-Service Distribution Account. With respect to Pre-2008 Deferrals (and any earnings related thereto), the vested portion of each Sub-Account within a Member’s In-Service Distribution Account will be distributed in a lump sum within 60 days following the earliest of (A) the first day of the calendar year specified in the Member’s Deferral Election Form, (B) the Member’s death, (C) the date the Member becomes Disabled, or (D) the date the Member Separates from Service before reaching age 55.

(ii) Education Distribution Account. With respect to Pre-2008 Deferrals (and any earnings related thereto), the vested portion of each Sub-Account within a Member’s Education Distribution Account will be distributed (or begin to be distributed) within 60 days following the earliest of (A) the first day of the calendar year specified in the Member’s Deferral Election Form, (B) the Member’s death, (C) the date the Member becomes Disabled, or (D) the date the Member Separates from Service before reaching age 55. Each such Sub-Account, to the extent vested, will be distributed in five substantially equal annual installments; provided, however, that the Member may elect that such distribution be made in a lump sum in the year specified in the Member’s

Deferral Election Form or in four or fewer substantially equal annual installments beginning in the year specified in such Deferral Election Form. Notwithstanding the foregoing, if a distribution of the Education Distribution Account is due to a Member’s death, Disability or Separation from Service before reaching age 55, such distribution will be made in a lump sum.

(iii) Retirement Distribution Account. With respect to Pre-2008 Deferrals (and earnings related thereto), the vested portion of each Sub-Account within a Member’s Retirement Distribution Account will be distributed (or begin to be distributed) within 60 days following the earliest of (A) the first day of the calendar year specified in the Member’s Deferral Election Form, (B) the Member’s death, (C) the date the Member becomes Disabled, or (iv) the date the Member Separates from Service (regardless of the Member’s age). Each such Sub-Account, to the extent vested, will be distributed in a lump sum or in substantially equal monthly, quarterly or annual installments for a period of no more than ten years as elected by the Member in the Member’s Deferral Election Form. Notwithstanding the foregoing, if a distribution of the Retirement Distribution Account is due to a Member’s death, Disability or Separation from Service before reaching age 55, such distribution will be made in a lump sum.

(iv) Substantially Equal Installments. If a Member elects substantially equal annual installments under this Section 6.01(a), (A) the first distribution will equal the value of the vested portion of the applicable Sub-Account as of the most recent Valuation Date divided by the number of annual installments elected, and (B) each distribution thereafter will be made on the anniversary of the initial distribution date and will equal the balance of the vested portion of the applicable Sub-Account as of the most recent Valuation Date divided by the number of remaining annual installments. If a Member elects monthly or quarterly installments under Section 6.01(a)(iii), the amount of each distribution will be calculated as described in the preceding sentence; provided that such amount will further be divided by twelve in the case of monthly installments or four in the case of quarterly installments.

(b) Post-2008 Deferrals.

(i) Nonqualified Employee Deferral Account. With respect to Post-2008 Deferrals (and earnings related thereto), the Nonqualified Employee Deferral Account will be distributed (or begin to be distributed) within 60 days following the earliest to occur of (A) the first day of the calendar year specified in the Member’s Deferral Election Form, (B) the Member’s death, (C) the date of the Member’s Disability or (D) the date of the Member’s Separation from Service.

(A) In-Service Distributions. If a distribution under this Section 6.01(b)(i) is based on the first day of the calendar year specified in the Member’s Deferral Election Form, such distribution will be made in a lump sum or up to 10 substantially equal annual installments, as elected by the Member in the applicable Deferral Election Form. Notwithstanding the foregoing, if a Member elects annual installments under this subparagraph (A), but Separates from

Service prior to receiving all of those annual installments, any remaining balance will be paid in accordance with subparagraph (C) below.

(B) Distributions Upon Death or Disability. If a distribution under this Section 6.01(b)(i) is due to the Member’s death or Disability, such distribution will be made in a lump sum.

(C) Distributions Upon Separation from Service. If a distribution under this Section 6.01(b)(i) is due to the Member’s Separation from Service, the Member has reached the Service Threshold and the present value of the Member’s Accounts is at least $25,000 as of the Valuation Date immediately preceding the Member’s Separation from Service, then such distribution will be made in a lump sum or up to 20 substantially equal annual installments, as elected by the Member in the applicable Deferral Election Form. If a distribution under this Section 6.01(b)(i) is due to the Member’s Separation from Service under any other circumstances, such distribution will be made in a lump sum.

Notwithstanding the foregoing, if a Member does not make a timely election relating to a distribution under this Section 6.01(b)(i), then such distribution will be made in a lump sum.

(ii) Employer Nonqualified Matching Account and Discretionary Employer Contribution Account. With respect to Post-2008 Deferrals (and earnings related thereto), the vested portions of a Member’s Employer Nonqualified Matching Account and Discretionary Employer Contribution Account will be distributed (or begin to be distributed) within 60 days following the earliest to occur of (A) the Member’s death, (B) the date the Member becomes Disabled or (C) the date the Member Separates from Service. Distributions of amounts described in this Section 6.01(b)(ii) will be made in accordance with subparagraphs (B) and (C) of this Section 6.01(b)(i).

(iii) Installments. If a Member has selected substantially equal annual installments under this Section 6.01(b), (A) the first distribution will equal the value of the vested portion of the applicable Account as of the most recent Valuation Date divided by the number of annual installments selected, and (B) each distribution thereafter will be made on the anniversary of the initial distribution date and will equal the balance of the vested portion of the applicable Account as of the most recent Valuation Date divided by the number of remaining annual installments.

(iv) Phantom Share Investment Fund. A Member will receive a distribution from his or her Phantom Share Investment Fund within 60 days following the earlier of the Member’s Separation from Service or death. The Member will receive whole Shares, with any fractional Shares being distributed in cash based on the fair market value of a Share on the date of distribution. In the distribution, the Trustee will deliver Shares held in the Trust or Shares purchased on the open market and the number of whole Shares distributed and fractional Shares settled in cash will equal the number of Phantom Shares credited to such Member’s Phantom Share Investment Fund on the date of distribution.

(A) Distributions Upon Death or Disability. If a distribution under this Section 6.01(b)(iv) is due to the Member’s death, such distribution will be made in a lump sum.

(B) Distributions Upon Separation from Service. If a distribution under this Section 6.01(b)(iv) is due to the Member’s Separation from Service, the distribution will be made in the same number of installments as elected by the Member under Section 6.01(b)(i)(C) and if no election was made, the distribution will be made in a lump sum.

(C) Distributions of Reallocated Amounts. Notwithstanding the foregoing, any distribution with respect to a Member’s Reallocated Amounts will be made at the same time and in the same form as originally elected by the Participant pursuant to Section 6.01 or as changed pursuant to Section 6.02.

(v) Stock Award Account. A Member will receive a distribution from his or her Stock Award Account within 60 days following the earlier of the Member’s Separation from Service or death. In the distribution, the Trustee will deliver Shares from the equity plan pursuant to which the Stock Award was granted and held in the Trust equal the number of Phantom Shares credited to such Member’s Stock Award Account, and cash equal to the amount of cash credited to such Member’s Stock Award Account, each on the date of distribution.

(A) Distributions Upon Death or Disability. If a distribution under this Section 6.01(b)(v) is due to the Member’s death, such distribution will be made in a lump sum.

(B) Distributions Upon Separation from Service. If a distribution under this Section 6.01(b)(v) is due to the Member’s Separation from Service, the distribution will be made in the same number of installments as elected by the Member under Section 6.01(b)(i)(C) and if no election was made, the distribution will be made in a lump sum.

(c) Valuation. Except with respect to the Phantom Share Investment Fund and Stock Award Account, and unless otherwise provided in this Plan, the amount of all distributions (including those made to a Member who Separates from Service before reaching age 55) will be determined as of the Valuation Date immediately preceding the date the distribution is to be made or begin, as the case may be.

(d) Death Benefits. Notwithstanding anything in this Plan to the contrary, if a Member dies after the occurrence of another distribution event, but before his or her Accounts have been fully distributed, the undistributed value of the Member’s Accounts will be paid to the Member’s Beneficiary in a lump sum within 60 days after the Member’s death.

(e) Distribution Delay for Specified Employees. Notwithstanding anything in this Plan to the contrary, in the case of any Member who is a Specified Employee as of the date of his or her Separation from Service, any Section 409A Amounts due to the Member under the Plan in connection with such Separation from Service will not be distributed for a period of six months

after the date of such Separation from Service (“Six-Month Delay Period”) or, if earlier, the date of the Specified Employee’s death. If the Six-Month Delay Period applies to a Member, each payment of Section 409A Amounts to which the Member is entitled under this Plan in connection with the Member’s Separation from Service will be delayed for six months.

(f) Limited Cashout. Notwithstanding anything in this Plan to the contrary, the Corporation, in its sole discretion, may make a lump sum distribution of a Member’s Accounts, other than the Phantom Share Investment Fund or Stock Award Account, under the Plan if: (i) the distribution results in the termination and liquidation of the entirety of the Member’s interest under the Plan and all agreements, methods, programs or other arrangements with respect to which deferrals of compensation are treated as having been deferred under a single nonqualified deferred compensation plan under Treasury Regulation §1.409A-1(c)(2); and (ii) the aggregate distribution under the arrangements is not greater than the applicable dollar amount under Code §402(g)(1)(B).

(g) Full Discharge. Once a Member’s Accounts have been fully distributed, the Corporation, all other Group Members, the Committee and the Plan will have no further liability to the Member or, if appropriate, to his or her Beneficiary.

6.02 Changes to Time and Form of Distribution

(a) Grandfathered Amounts. With respect to Grandfathered Amounts, a Member may:

(i) Change the form in which a Sub-Account of the Member’s Retirement Distribution Account will be (or is being) distributed. This request must be made in writing and will be approved by the Committee only to the extent that it affects distributions made more than 12 months after the date such request is received by the Committee.

(ii) Change the form in which a Sub-Account of the Member’s Education Distribution Account will be distributed by returning a completed Deferral Election Form to the Committee specifying the revised form of distribution but only if the Deferral Election Form is returned to the Committee at least 12 months and one day before the distribution from the Education Distribution Account is to be made under the terms of an earlier election.

(iii) Transfer a previously allocated Sub-Account from one Distribution Account to another Distribution Account by returning a completed Deferral Election Form to the Committee specifying the Distribution Account but only if the Deferral Election Form is returned to the Committee at least 12 months and one day before the amount to be transferred otherwise would have been distributable under the terms of the most recent election.

(iv) Change the distribution dates described in Sections 6.01(a) but only if (A) the Member returns to the Committee a completed Deferral Election Form specifying the new distribution date and the Distribution Account (or portion of that account) to which it relates and (B) the Deferral Election Form deferring the distribution date is returned to

the Committee at least 12 months and one day before the previously specified distribution date.

(b) Section 409A Amounts. With respect to Section 409A Amounts, a Member will be permitted to change the Member’s distribution elections with respect to an Account (or, if applicable, Sub-Account) if such change meets the following requirements:

(i) A Member may change the form or timing of distribution (based on the choices available under the applicable subsections of Section 6.01) by submitting an election on a new Deferral Election Form; provided, however, that such change must meet the following requirements: (A) the election may not take effect until at least 12 months after the date on which such election is made; (B) the payment with respect to which such election is made must be deferred (other than a distribution upon death, Disability or Severe Financial Hardship) for a period of not less than five years from the date such payment would otherwise have been paid; and (C) any subsequent election affecting a distribution at a specified time (or pursuant to a fixed schedule) may not be made less than 12 months before the date the payment is scheduled to be paid. A subsequent election may be changed at any time before the last permissible date for making such election, as described in this Section 6.02(b).

(ii) Once the distribution of an Account (or, if applicable, Sub-Account) to a Member begins, no changes to the Member’s distribution election with respect to such Account (or, if applicable, Sub-Account) will be permitted.

     Notwithstanding the foregoing a Member may change the time or form of distribution of such Member’s Phantom Share Investment Fund or Stock Award Account only with the express, written consent of the Committee.

6.03. Hardship Withdrawals

Notwithstanding the foregoing, in its sole discretion, the Committee may distribute all or a portion of the Member’s Nonqualified Employee Deferral Account before the time otherwise determined under Section 6.01 if the Committee decides that the Member has encountered a Severe Financial Hardship. A distribution based on a Severe Financial Hardship will not be greater than the lesser of (i) the amount reasonably necessary to satisfy the emergency need (which may include amounts necessary to pay any federal, state, local or foreign income taxes or penalties reasonably anticipated to result from distribution) or (ii) the value of the Member’s Nonqualified Employee Deferral Account as of the distribution date. To the extent a distribution based on a Severe Financial Hardship is taken from a Member’s Distribution Accounts, such distribution will be taken proportionately from each of the Member’s Distribution Accounts. A distribution of Section 409A Amounts under this Section 6.03 may not be made to the extent that such emergency is or may be relieved through reimbursement or compensation from insurance or otherwise, by liquidation of the Member’s assets, to the extent the liquidation of such assets would not cause severe financial hardship, or by cancellation of deferrals in accordance with Section 2.01(c)(ii).

6.04. Vested Benefits

(a) A Member who is actively employed by a Group Member after December 31, 2001 will be vested in 100 percent of the value of the Member’s Nonqualified Employee Deferral Account.

(b) Subject to Section 6.04(d), a Member will be vested in amounts credited to his or her Employer Nonqualified Matching Contribution Account and, unless the Employer specifies otherwise when a Discretionary Employer Contribution is made, his or her Discretionary Employer Contribution Account, if any, under the following table:

YEARS OF VESTING SERVICE
WHEN PARTICIPANT
SEPARATES FROM SERVICE		VESTED PERCENTAGE
1			0	%
2			20	%
3			40	%
4			60	%
5			80	%
6			100	%

(c) Subject to Section 6.04(d), a Member will be fully vested in his or her 2000 Account on the later of (i) reaching age 55 and (ii) completing at least six Years of Vesting Service.

(d) (i) Regardless of a Member’s Years of Vesting Service, the Member will be fully vested in his or her Employer Nonqualified Matching Contribution Account and, unless the Employer specifies otherwise when a Discretionary Employer Contribution is made, the Member’s Discretionary Employer Contribution Account, if any, at the earliest of (A) age 55, (B) the date the Member dies or (C) the date the Member become Disabled.

(ii) Regardless of a Member’s Years of Vesting Service, the Member will be fully vested in his or her 2000 Account on the earliest of (A) the date the Member dies or (B) the date the Member becomes Disabled.

(iii) Subject to any limitation imposed under a Change Agreement, if, within 36 months after a Change in Control, (A) the Plan is terminated and not replaced with a similar program providing comparable benefits and features or (B) with respect to a Member who is a party to a Change Agreement, an event occurs that generates a change in control payment under the Member’s Change Agreement, such Member will be fully vested in all of his or her Accounts.

(e) The vested percentage of a Member who Separated from Service before the effective date of the third amendment and restatement of the Plan will be determined in accordance with the terms of the Plan in effect on the date the Member Separated from Service.

(f) Members will be fully vested in deferrals of Compensation allocated to the Phantom Share Suspense Account and in Phantom Shares credited to their Phantom Share Investment Funds.

(g) Members will be fully vested their Stock Award Accounts.

6.05. Effect of Change in Control on Phantom Shares

In the event of a Change in Control, the Board, in its sole discretion, may elect to convert the Phantom Shares credited to the Phantom Share Investment Funds and Stock Award Accounts of Members to cash based on the fair market value of a Share on the date of conversion or treat any undistributed Phantom Shares credited to the Phantom Share Investment Funds and Stock Award Accounts of Members in the same manner as the Shares in the Change in Control.

ARTICLE VII
PLAN COMMITTEE

7.01. Appointment of Committee

The Board will appoint a committee of at least three persons to administer the Plan. A Committee member may resign at any time by sending written notice to the Board specifying the effective date of his or her termination (which must always be prospective). Vacancies in the Committee will be filled by the Board as the need arises. Also, in its sole discretion, the Board may remove any Committee member at any time by giving written notice of removal to the affected Committee member and specifying the effective date of that action (which must always be prospective).

7.02. Powers and Duties

The Committee is fully empowered to exercise complete discretion to administer the Plan and to construe and apply all of its provisions. The Committee may delegate any of its powers and duties to any other person or organization. These powers and duties include:

(a) Determining which employees are Eligible Employees, which of them may participate in the Plan, their Years of Vesting Service and the value of their benefits;

(b) Resolving disputes that may arise with regard to the rights of Eligible Employees, Members and their legal representatives or Beneficiaries under the terms of the Plan;

(c) Obtaining from each Group Member, Member and Beneficiary information that the Committee needs to determine any Member’s or Beneficiary’s rights and benefits under the Plan. The Committee may rely conclusively upon any information furnished by a Group Member, a Member or a Beneficiary;

(d) Compiling and maintaining all records it needs to administer the Plan;

(e) Upon request, furnishing each Employer with reasonable and appropriate reports of its administration of the Plan;

(f) Authorizing the Trustee to distribute all benefits that are payable under the Plan;

(g) Engaging legal, administrative, actuarial, investment, accounting, consulting and other professional services that the Committee believes are necessary and appropriate;

(h) Authorizing the Deferral Election Form with respect to Members’ elections to the Phantom Share Suspense Account, the Reallocated Amounts and, if necessary, Members’ deferral elections to the Phantom Share Suspense Account;

(i) Authorizing any change to a Member’s distribution election with respect to the Member’s Phantom Share Investment Fund;

(j) Adopting rules and regulations for the administration of the Plan that are not inconsistent with the terms of the Plan; and

(k) Doing and performing any other acts provided for in the Plan.

7.03. Actions by the Committee

The Committee may act at a meeting, or in writing without a meeting, by the vote or assent of a majority of its members. The Committee will appoint one of its members to act as a secretary to record all Committee actions. The Committee also may authorize one or more of its members to execute papers and perform other ministerial duties on behalf of the Committee.

7.04. Interested Committee Members

No member of the Committee may participate in any Committee action that directly affects that member’s individual interest in the Plan. These matters will be determined by a majority of the remainder of the Committee.

7.05. Indemnification

(a) The Corporation will indemnify and hold harmless any Committee member or employee who performs services to or on behalf of the Plan (the “Indemnified Party”) against all liabilities and all reasonable expenses (including attorney fees and amounts paid in settlement other than to any Group Member) incurred or paid in connection with any threatened or pending action, suit or proceeding brought by any party in connection with the Plan. However, this indemnification will not extend to any Indemnified Party whose conduct in connection with the Plan is found to have been grossly negligent or wrongful. This determination will be based on any final judgment rendered in connection with the action, suit or proceeding complaining of the conduct or its effect or, if no final judgment is rendered, by a majority of the Board or by independent counsel to whom the Board has referred the matter.

(b) The obligations under this section may be satisfied, in the Corporation’s discretion, through the purchase of a policy or policies of insurance providing equivalent protection.

7.06. Conclusiveness of Action

Subject to Section 7.08, any action on matters within the discretion of the Committee will be conclusive, final and binding upon all Members and upon all persons claiming any rights hereunder, including Beneficiaries.

7.07. Payment of Expenses

Committee members will not be separately compensated for their services relating to the Plan. However, the Corporation will reimburse Committee members for all appropriate expenses they incur while carrying out their Plan duties.

7.08. Claims Procedure

(a) Filing Claims. Any Member or Beneficiary (a “claimant”) who believes that he or she is entitled to an unpaid Plan benefit may file a claim with the Committee.

(b) Notification to Claimant. If the claim is wholly or partially denied, the Committee will, within a reasonable period of time, and within 90 days of the receipt of such claim, or if the claim is a claim on account of Disability, within 45 days of the receipt of such claim, provide the claimant with written notice of the denial setting forth in a manner calculated to be understood by the claimant:

(i) The specific reason or reasons for which the claim was denied;

(ii) Specific reference to pertinent Plan provisions, rules, procedures or protocols upon which the Committee relied to deny the claim;

(iii) A description of any additional material or information that the claimant may file to perfect the claim and an explanation of why this material or information is necessary;

(iv) An explanation of the Plan’s claims review procedure and the time limits applicable to such procedure and a statement of the claimant’s right to bring a civil action under ERISA §502(a) following an adverse determination upon review; and

(v) In the case of an adverse determination of a claim on account of Disability, the information to the claimant will include, to the extent necessary, the information set forth in Department of Labor Regulation §2560.503-1(g)(1)(v).

If special circumstances require the extension of the 45-day or 90-day period described above, the claimant will be notified before the end of the initial period of the circumstances requiring the extension and the date by which the Committee expects to reach a decision. Any extension for deciding a claim will not be for more than an additional 90-day period, or if the claim is on account of Disability, for not more than two additional 30-day periods.

(c) Review Procedure. If a claim has been wholly or partially denied, the affected claimant, or his or her authorized representative may:

(i) Request that the Committee reconsider its initial denial by filing a written appeal within 60 days after receiving written notice that all or part of the initial claim was denied (180 days in the case of a denial of a claim on account of Disability);

(ii) Review pertinent documents and other material upon which the Committee relied when denying the initial claim; and

(iii) Submit a written description of the reasons for which the claimant disagrees with the Committee’s initial adverse decision.

An appeal of an initial denial of benefits and all supporting material must be made in writing within the time periods described above and directed to the Committee. The Committee is solely responsible for reviewing all benefit claims and appeals and taking all appropriate steps to implement its decision.

The Committee’s decision on review will be sent to the claimant in writing and will include specific reasons for the decision, written in a manner calculated to be understood by the claimant, as well as specific references to the pertinent Plan provisions, rules, procedures or protocols upon which the Committee relied to deny the appeal. The Committee will consider all information submitted by the claimant, regardless of whether the information was part of the original claim. The decision will also include a statement of the claimant’s right to bring an action under ERISA §502(a).

The Committee’s decision on review will be made not later than 60 days (45 days in the case of a claim on account of Disability) after the Committee’s receipt of the request for review, unless special circumstances require an extension of time for processing, in which case a decision will be rendered as soon as possible, but not later than 120 days (90 days in the case of a claim on account of Disability) after receipt of the request for review. This notice to the claimant 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.

Notwithstanding anything in this Section 7.08 to the contrary, in the case of a claim on account of Disability: (A) the review of the denied claim will be conducted by a named fiduciary who is (i) determined by the Committee and (ii) neither the individual who made the benefit determination nor a subordinate of such person; and (B) no deference will be given to the initial benefit determination. For issues involving medical judgment, the Committee (or, if applicable, the named fiduciary) must consult with an independent health care professional who may not be the health care professional who decided the initial claim.

To the extent permitted by law, the decision of the Committee (if no review is properly requested) or the decision of the Committee (or, if applicable, the named fiduciary) on review, as the case may be, will be final and binding on all parties. No legal action for benefits under the Plan will be brought unless and until the claimant has exhausted his or her remedies under this section.

ARTICLE VIII
AMENDMENT TO THE PLAN

8.01. Right to Amend

The Corporation may modify, alter or amend the Plan at any time. However, no amendment may affect any Member’s or Beneficiary’s vested rights accrued under the Plan before the effective date of that amendment without the Member or, if applicable, the Beneficiary’s consent. If an amendment heightens the vesting conditions described in Section 6.04, each Member having three or more Years of Vesting Service may elect to have his or her vested rights computed without regard to that amendment, but only if the Member files a written election to this effect with the Committee during the period beginning on the date the amendment is adopted and ending on the later of (a) 60 days after the date the amendment is adopted; (b) 60 days after the amendment is effective or (c) 60 days after the Member is issued a written notice of the amendment.

8.02. Amendment Procedure

The Board, an executive committee of the Board or other Board committee or any executive officer to which or to whom the Board delegates discretionary authority over the Plan may exercise the Corporation’s right to amend the Plan.

ARTICLE IX
TERMINATION OF THE PLAN

9.01. Right to Terminate

(a) The Corporation may terminate the Plan in whole or in part at any time by written action of its Board. Each Member affected by a full or partial Plan termination or by a complete discontinuance of contributions will be 100 percent vested in the value of all of his or her Accounts.

(b) In the event of a termination of the Plan, the Committee may (i) distribute any Grandfathered Amounts at the time the Plan terminates or partially terminates, even if this date is earlier than the date benefits otherwise would be distributed under Article VI or (ii) hold such Grandfathered Amounts until they are otherwise payable under the terms of the Plan.

(c) In the event of a termination of the Plan, except as permitted under Treasury Regulation §1.409A-3(j)(4)(ix), no Section 409A Amounts will be distributed until they are otherwise payable under the terms of the Plan.

9.02. Plan Merger and Consolidation

If the Plan is merged into or consolidated with any other plan, each affected Member will be entitled to a benefit immediately after the merger, consolidation or transfer (determined as if the surviving plan had then terminated) at least equal to the benefit he or she had accrued immediately before the merger or consolidation (determined as if the Plan terminated immediately before that merger or consolidation).

9.03. Successor Employer

If any Employer dissolves into, reorganizes, merges into or consolidates with another business entity, provision may be made by which the successor will continue the Plan and Trust, in which case the successor will be substituted for the Employer under the terms and provisions of this Plan and the Trust Agreement. The substitution of the successor for the Employer will constitute an assumption by the successor of all Plan liabilities and the successor will have all of the powers, duties and responsibilities of the Employer under the Plan.

ARTICLE X
UNFUNDED PLAN

Notwithstanding any Plan provision to the contrary, the Plan constitutes an unfunded, unsecured promise by each Employer to pay only those benefits that are accrued by Members under the terms of the Plan. Neither the Corporation nor any other Group Member will segregate any assets into a fund established exclusively to pay Plan benefits unless the Corporation, in its sole discretion, establishes a trust for the purpose of holding assets from which all or part of a Plan benefit may be paid. Neither the Corporation nor any other Group Member is liable for the payment of Plan benefits that are actually paid from a trust established for that purpose. However, the Corporation (and each other Group Member) are obliged to pay any benefits not paid from any trust. Members, Beneficiaries and other persons claiming a Plan benefit through them have only the rights of general unsecured creditors and do not have any interest in or right to any specific asset of any Group Member. Nothing in this Plan constitutes a guaranty by the Corporation, any other Group Member or any other entity or person that their assets will be sufficient to pay Plan benefits.

ARTICLE XI
MISCELLANEOUS

11.01. Voluntary Plan

The Plan is purely voluntary on the part of each Group Member. None of the establishment of the Plan, any amendment to it, the creation of any fund or account or the payment of any benefits may be construed as giving any person (a) a legal or equitable right against any Group Member, the Trustee or the Committee other than those specifically granted under the Plan or conferred by affirmative action of the Committee or any Group Member in a manner that is consistent with the terms and provisions of this Plan or (b) the right to be retained in the service of any Group Member. All Members remain subject to discharge to the same extent as though this Plan had not been established.

11.02. Non-alienation of Benefits

The right of a Member, Beneficiary or any other person to receive Plan benefits may not be assigned, transferred, pledged or encumbered except as provided in the Member’s Beneficiary designation, by will or by applicable laws of descent and distribution. Any attempt to assign, transfer, pledge or encumber a Plan benefit will be null and void and of no legal effect.

11.03. Inability to Receive Benefits

Any Plan benefit payable to a Member or Beneficiary who is declared incompetent will be paid to the guardian, conservator or other person legally charged with the care of his or her person or estate. Any payment made under this section will completely discharge the Plan’s liability with respect to that payment. The Committee is not required to see to the application of any distribution made to any person.

11.04. Lost Members

Each Member is obliged to keep the Committee apprised of his or her current mailing address and that of his or her Beneficiary. The Committee’s obligation to search for any Member or Beneficiary is limited to sending a registered or certified letter to the Member’s or Beneficiary’s last known address.

11.05. Limitation of Rights

Nothing in the Plan, expressed or implied, is intended or may be construed as conferring upon or giving to any person, firm or association (other than Group Members, Members, their Beneficiaries and their successors in interest) any right, remedy or claim under or by reason of this Plan.

11.06. Invalid Provision

If any provision of this Plan is held to be illegal or invalid for any reason, the Plan will be construed and enforced as if the offending provision had not been included in the Plan. However, that determination will not affect the legality or validity of the remaining parts of this Plan.

11.07. Governing Law

The Plan will be governed by and construed in accordance with the laws of the United States and, to the extent applicable, the laws of Ohio.

11.08 Code §409A

(a) It is intended that the Plan comply with Code §409A and the Treasury Regulations promulgated thereunder (and any subsequent IRS notices or guidance), and this Plan will be interpreted, administered and operated accordingly. Nothing herein will be construed as an entitlement to or guarantee of any particular tax treatment to any Member.

(b) The Corporation may accelerate the time or schedule of a distribution of Section 409A Amounts to a Member at any time the Plan fails to meet the requirements of Code §409A and the Treasury Regulations promulgated thereunder. Such payment may not exceed the amount required to be included in income as a result of the failure to comply with the requirements of Code §409A and the Treasury Regulations promulgated thereunder.

(c) Notwithstanding any terms of the Plan to the contrary, a Member will be allowed to make changes to the time and/or form of distribution of the Member’s Section 409A Amounts in calendar year 2008, as permitted by the transition relief provided in IRS Notice 2007-86.

11.09. Tax Withholding

The Corporation or any Group Member, as applicable, will withhold from amounts payable pursuant to this Plan, from other amount owed to a Member, or require the Member to remit to the Corporation or Group Member, as applicable, an amount sufficient to satisfy federal, state and local tax withholding requirements with respect to the vesting, payment or cancellation of any benefit under this Plan.

11.10. Recoupment

The right of any person to payment under this Plan will be subject to the Bob Evans Farms, Inc. Executive Compensation Recoupment Policy, as may be amended from time to time, or any successor or replacement policy, or the terms of any agreement between the Corporation and a Member regarding the recoupment of compensation.