Tiffany and Company Executive Deferral Plan, amended and restated as of October 17, 2019

WHEREAS, effective October 1, 1989, Tiffany and Company, a New York corporation, established an unfunded executive deferral plan for the benefit of a select group of management or highly compensated employees;

WHEREAS, effective October 1, 1998, Tiffany and Company amended such plan to permit additional executives and the directors of its parent corporation, Tiffany & Co., a Delaware corporation, to participate and to provide certain additional alternatives with respect to compensation deferred in accordance with such plan;

WHEREAS, effective January 1, 2003, Tiffany and Company and its parent corporation further amended such plan to (i) eliminate Education Accounts, (ii) provide for the establishment of an unlimited number of Fixed Period Benefit subaccounts for pre-Retirement distributions, (iii) permit elections for deferral of Bonus Compensation to be made during the Plan Year that immediately proceeds the Plan Year in which such Bonus Compensation would otherwise be paid but limit deferral of Bonus Compensation to 90% of Bonus Compensation, (iv) allow the Administrator to make hardship distributions in circumstances that may or may not result from a Disability, (v) allow Participants to make daily changes in the Investment Funds used to value their respective Deferred Benefit Accounts, (vi) vary the Investment Funds available for such purposes and (vii) extend the Enrollment Period to the months of November and December each year.

WHEREAS, effective November 1, 2005, Tiffany and Company and its parent corporation further amended such plan to (i) permit executives of Iridesse, Inc. to participate, (ii) bring the plan into compliance with Section 409A of the Code as follows: (a) by requiring a recently Eligible Employee who wishes to participate in the year he becomes eligible to make a written election to become a Participant within thirty (30) days of his becoming eligible; (b) by requiring that Participants who wish to defer Bonus Compensation elect to

do so no later than six months before the end of the fiscal year to which such Bonus Compensation relates; (c) by requiring that elections to change the time and form of a distribution (i) be made at least twelve months in advance, and (ii) not defer distribution for a period of less than five years from the date such distribution would otherwise have been made; (d) requiring that Specified Employees not receive certain distributions resulting from a Termination of Service earlier than six months after the date of the Termination of Service; (e) providing that, in the event of plan termination, the Employer shall pay a benefit to the Participant or his Beneficiary as otherwise required under the plan; and (f) decreasing the minimum Retirement Account balance eligible for distribution on an installment basis; and (iii) make other miscellaneous modifications.

WHEREAS, effective January 1, 2006, Tiffany and Company and its parent corporation further amended such plan to change the Enrollment Period to the months of January through June each year, and to update such plan to reflect current operational practices.

WHEREAS, effective December 31, 2008, Tiffany and Company further amended such plan to change the definition of Termination of Service to ensure compliance with Section 409A of the Code.

WHEREAS, effective August 1, 2009, Tiffany and Company and its parent corporation further amended such plan to permit redirection of past contributions amongst Retirement Accounts.

WHEREAS, effective as of February 1, 2010, Tiffany and Company and its parent corporation further amended such plan to provide benefits for eligible participants whose DCRB contributions under the Tiffany & Co. Employee Profit Sharing and Retirement Savings Plan are limited by the Internal Revenue Code.

WHEREAS, effective as of September 4, 2012, Tiffany and Company and its parent corporation further amended such plan to vary the Investment Funds used to value Deferred Benefit Accounts.

WHEREAS, effective as of July 1, 2013, Tiffany and Company and its parent corporation further amended such plan to vary the Investment Funds used to value Deferred Benefit Accounts and to authorize Tiffany and Company to vary the Investment Funds due to underperformance, in the absence of approval from the parent corporation.

WHEREAS, effective as of March 17, 2016, and January 19, 2017, Tiffany and Company and its parent corporation further amended such plan to revise the terms of the Non-Competition and Confidentiality Covenants.

WHEREAS, effective as of October 17, 2019, Tiffany and Company and its parent corporation further amended such plan to permit revision of the terms of the Non-Competition and Confidentiality Covenants from time to time.

WHEREAS, the purpose of the plan is to provide selected executives and directors an opportunity to defer a portion of their compensation in a manner best suited to each participant’s individual needs.

NOW, THEREFORE, to carry the above intentions into effect, Tiffany and Company does enter into this Amended and Restated Plan effective as of January 19, 2017.

    

“Administrator” means the individual appointed to administer the Plan pursuant to

Article VII.

“Affiliate” means, with reference to any Person, any second Person that controls, is controlled by, or is under common control with, any such first Person, directly or indirectly.

“Base Compensation” means a Participant’s salary and wages, including Executive Deferral Contributions made hereunder and any pretax elective deferrals to any Employer sponsored retirement savings plan or cafeteria plan, qualified pursuant to Section 401(k) or Section 125 of the Code, but excluding bonuses and overtime, all other Employer contributions to benefit plans, remuneration attributable to Employer sponsored stock option plans and all other forms of remuneration or reimbursement.

“Beneficiary” means the person, persons, trust or other entity, designated by written revocable designation filed with the Administrator by the Participant to receive payments in the event of the Participant’s death. If a designated Beneficiary does not survive the Participant or if no Beneficiary is designated as provided above, the Beneficiary shall be the legal representative of the Participant’s estate. If a designated Beneficiary survives the Participant but dies before payment in full of benefits under this Plan has been made, the legal representative of such Beneficiary’s estate shall become the Beneficiary. References to a Participant in this Plan in connection with payments hereunder shall also refer to such Participant’s Beneficiary unless the context clearly requires otherwise.

“Benefit Distribution Date” means a future date (or dates) selected by a Participant during the applicable Enrollment Period within guidelines established by the Administrator, as

adjusted as permitted in this Plan, on which the Participant shall be entitled to a benefit pursuant to this Plan equal to all or a designated portion of the balance of his Fixed Period Benefit Account.

“Board” means the Board of Directors of Tiffany and Company, a New York corporation.

“Bonus Compensation” means cash compensation paid to a Participant, excluding Base Compensation, under the Employer’s bonus program or programs (including, but not limited to cash Incentive Awards under Section 8 of Parent’s 1998 Employee Incentive Plan or Section 8 of Parent’s 2005 Incentive Plan), as such may exist and be modified from time to time, and payable to a Participant following the conclusion of the Employer’s fiscal year in respect of service performed at any time during such fiscal year.

 

“Cause” means a termination of Participant’s employment, involuntary on Participant’s part, which is the result of:

substantially performed Participant’s duties, and which performance is not substantially corrected by Participant within ten (10) days of receipt of such demand;

For purposes of this definition, no act or failure to act on Participant’s part shall be deemed “willful” unless done, or omitted to be done, by Participant in bad faith toward, or without reasonable belief that such action or omission was in the best interests of, Employer or its Affiliate. Notwithstanding the foregoing, Participant shall not be deemed to have been terminated for Cause for the purposes of this Plan unless and until there shall have been delivered to Participant a copy of a resolution duly adopted by the affirmative vote of not less than three-fourths (3/4th) of the entire membership of the Board (exclusive of the Participant if Participant is a member of such Board) at a meeting called and held for such purpose (after reasonable notice to Participant and an opportunity for Participant, together with counsel for Participant, to be heard before such Board), finding that, in the good faith opinion of such Board, Cause exists as set forth above.

“Committee” means the Board of Directors of Tiffany, which shall have authority over this Plan.

“Compensation” means Base Compensation, Bonus Compensation and Directors Compensation in the aggregate.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“DCRB Contribution” shall have the meaning given such term under the Tiffany & Co. Employee Profit Sharing and Retirement Savings Plan.

“DCRB Plan” means the portion of the Tiffany & Co. Employee Profit Sharing and

Retirement Savings Plan providing for “DCRB Contributions” as defined under such plan.

“Deferral Agreement” means a written or electronic agreement between a Participant and the Employer, whereby a Participant agrees to defer a portion of his Compensation and the Employer agrees to provide benefits pursuant to the provisions of this Plan.

“Deferred Benefit Accounts” mean Retirement Accounts and Scheduled In-Service Withdrawal Accounts.

“Determination Date” shall mean the last business day of every month, for each Participant, his date of death, Retirement, or other termination of services with Employer and, with respect to Independent Directors only, termination of service as a Director.

“Director” means a member of Parent’s Board of Directors.

“Directors Compensation” means a Director’s annual retainer and any incremental annual retainer paid or payable by Parent to Director for service as a Director, including any per-meeting-attended compensation, but excluding Parent’s contributions to benefit and retirement plans, remuneration attributable to Parent-sponsored stock option plans and all other forms of remuneration or reimbursement.

“Disability” means a condition such that a Participant is (i) unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which 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) by reason of any medically determinable physical or mental impairment which 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 or health plan covering employees of Participant’s Employer.

“Education Account” means a Deferred Benefit Account established pursuant to

Section 4.1.

“Effective Date” means October 1, 1989.

“Eligible Student” means an individual who is a relative of a Participant and who is younger than the age of 14 when a subaccount is initially established, pursuant to Section 4.3B.

“Eligible Employees” means Directors, all officers of the Employer, “director”-level employees of Employer, and such other management and other highly compensated employees of the Employer as identified and approved by the Committee.

“Employer” means Tiffany, Parent, and Irridesse, or any other business entity which adopts this Plan with consent of the Board of Directors of Parent.

“Enrollment Period” means, with respect to any Plan Year, the months of January through June in the year preceding such Plan Year. The Enrollment Period may be extended through July in the year preceding such Plan Year, upon an Eligible Employee’s request and at the Administrator’s discretion. With respect to a person who becomes an Eligible Employee during the course of a Plan Year, in respect of such Plan Year the Enrollment Period means the thirty day period following the date he becomes an Eligible Employee.

“Excess DCRB Contribution” means the Plan contribution described in Sections 3.3 and 3.4.

“Executive Deferral Contribution” means the Plan contribution described in Section 3.2.

“Fixed Period Benefit Account” means a Deferred Benefit Account established pursuant to Section 4.3C.

“Independent Director” means a Director who is not an employee of Employer at the time Participation in this Plan commences.

“Investment Fund” or “Fund” means any one of the investment funds described in Schedule 4.5 which shall serve as means to measure value increases or decreases with respect to a Participant’s Deferred Benefit Accounts.

“Iridesse” means Iridesse, Inc., a Delaware corporation, and any successor organization.

“Non-Competition and Confidentiality Covenants” means an instrument containing restrictive covenants incorporating non-competition, non-solicitation and confidentiality requirements in such form as may be approved from time to time by the Compensation Committee of Parent’s Board of Directors, duly completed and executed by a Participant who is eligible to receive an Excess DCRB Contribution.

“Parent” means Tiffany & Co., a Delaware corporation, and any successor organization.

“Participant” means any Eligible Employee who has met the conditions for participation as set forth in Article II.

“Permitted Retirement Age” means that date on which the Participant has attained age 55, provided that if the Participant is an Independent Director the Permitted Retirement Age for such Participant shall be his age on the date his participation in the Plan commenced.

“Person” means any individual, firm, corporation, partnership, limited partnership, limited liability partnership, business trust, limited liability company, unincorporated

association or other entity, and shall include any successor (by merger or otherwise) of such entity.

“Plan” means the Tiffany and Company Executive Deferral Plan as described in this instrument, as amended from time to time.

“Plan Year” means the period from the November 1, 1989 through December 31, 1989 and thereafter, the twelve (12) consecutive month period beginning on each January 1 and ending on each December 31.

“Pre-2005 Balances” means Deferred Benefit Account balances as of December 31, 2004, including any Investment Fund performance subsequent to December 31, 2004 (i) credited to such Accounts and (ii) attributable to balances as of December 31, 2004.

“Retirement” means any Termination of Service by a Participant after attaining his Permitted Retirement Age, provided that if the Participant is an Independent Director, Retirement shall mean any Termination of Service after attaining his Permitted Retirement Age.

“Scheduled In-Service Withdrawal Account” means an Education Account or a Fixed Period Benefit Account, provided that, on and after January 1, 2003, all Education Accounts shall be converted to Fixed Period Benefit Accounts.

“Select Management Employee” means an Eligible Employee who has been appointed by the Board as an officer of Tiffany and Company with the title of Vice President, Group Vice President, Senior Vice President, Executive Vice President, President, Chairman of the Board, chief operating officer, or who otherwise has been specifically designated a Select Management Employee by the Board. For the purpose of this definition, once a person has been appointed a Select Management Employee, he or she will be deemed, for the purposes of this Plan, to remain a Select Management Employee,

regardless of any subsequent change in title or responsibility. Notwithstanding the foregoing, the term “Select Management Employee” does not include any person (a) whose principal place of work is outside the United States and (b) who is paid his Compensation from a foreign bank or bank branch or who is eligible to receive retirement, severance or similar benefits under foreign law or as a result of foreign custom.

“Specified Amount” means $130,000, adjusted as provided in Section 416(i)(1)(A) of the Code.

“Specified Employee” means (a) a Participant who is (i) an officer of the Employer by which such Participant is employed and (ii) who has an annual compensation greater than the Specified Amount, (b) a Participant who is a five-percent owner of the Employer by which such Participant is employed, or (c) a Participant who is a one-percent owner of the Employer by which such Participant is employed and having an annual compensation from the Employer of more than $150,000. Status as a Specified Employee shall be determined as of the December 31 most recently preceding Participant’s Termination of Service date.

“Termination of Service” means:

his or her Employer reasonably anticipate that either (A) no further services will be performed by the Participant for the Employer after the applicable date, or (B) that the level of bona fide services the Participant will perform for the Employer after such date (whether as an employee or as an independent contractor) will permanently decrease to no more than 20% of the average level of bona fide services performed by the Participant (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services to the Employer if the Participant has been providing services to the Employer less than 36 months).

“Tiffany” means Tiffany and Company, a New York corporation, and any successor organization.

“Retirement Account” means a Deferred Benefit Account established pursuant to

Section 4.1.

“Vested” means that portion of a Participant’s Deferred Benefit Accounts to which the Participant has a nonforfeitable right as defined in Section 5.1.

“Treasury Regulations” means the Treasury Regulations promulgated pursuant to the Code, as amended from time to time.

days of such designation and provided further that such election shall not be effective with respect to Compensation earned for services performed prior to the date of such election. Moreover, effective on and after February 1, 2010, if an Eligible Employee who is also a Select Management Employee is entitled to a DCRB Contribution under the DCRB Plan, and such DCRB Contribution is curtailed by reason of the limitations under Sections 401(a)(17) or 415 of the Code, the Eligible Employee shall receive an Excess DCRB Contribution under this Plan effective as of the date that such DCRB Contribution is made under the DCRB Plan regardless of whether the Eligible Employee has elected to participate in this Plan for any other purpose.

    

Plan Year.

A.    Throughout any one Plan Year, a Participant may defer all or any portion of his Compensation, except that a Participant may not defer: less than $2,000 in any Plan Year ending on or before December 31, 2002 or less than $1,000 in any other Plan Year (except Plan Years in which the Participant elects not to defer any portion of his Compensation); more than 50% of Base Compensation in any Plan Year; or more than 90% of Bonus Compensation payable in any Plan Year ending after December 31, 2002; or, for a person who becomes an Eligible Employee during the course of a Plan Year, any portion of Base Compensation or Bonus Compensation applicable to services performed prior to the Eligible Employee’s date of election in that Plan Year.

B.    The amount of Compensation that a Participant elects to defer shall be credited to the Participant’s Deferred Benefit Accounts during each Plan Year on or about that date on which the Participant would have, but for his deferral election,

have been paid such Compensation.

C.    An election to defer Compensation pursuant to this Plan is irrevocable and shall continue until the earlier of: (i) the Participant’s Termination of Service, or (ii) the end of the Plan Year for which the deferral is effective.

D.    In respect of Bonus Compensation, an election to defer must be made no later than six months before the end of the fiscal year with respect to which such Bonus Compensation relates.

E.    Except as expressly provided in subsection D. above, each Eligible Employee shall file a Deferral Agreement with the Administrator during the applicable Enrollment Period for the Plan Year in question.

F.    No person who becomes an Eligible Employee during the course of Employer’s Fiscal Year may file a Deferral Agreement with respect to Bonus Compensation for that Fiscal Year except as expressly provided in subsection D. above.

A.    The amount of an Excess DCRB Contribution shall equal the excess of (i) the

amount of the DCRB Contribution that would have been made under the terms of the DCRB Plan without giving effect to the limit on compensation imposed by Section 401(a)(17) of the Code or the limit on annual additions imposed by Section 415 of the Code, over (ii) the actual amount of the DCRB Contribution made on behalf of such Eligible Employee.

B.    No Deferral Agreement shall be required for an Excess DCRB Contribution.

C.    If a Participant is eligible to continue receiving DCRB Contributions under the DCRB Plan while in receipt of payments under an employer-sponsored sickness or disability income plan or program, such Participant shall continue to be eligible to have allocations of Excess DCRB Contributions credited to his Deferred Benefit Accounts to the extent the requirements of Section 3.3 and this Section 3.4 are otherwise met. Such Excess DCRB Contributions may continue notwithstanding the Participant’s Termination of Service due to Disability.

A.    Retirement Account,

B.    Scheduled In-Service Withdrawal Accounts.

All contributions on behalf of a Participant shall be deposited to the appropriate Deferred Benefit Account, in accordance with Section 4.2.

    

Administrator, before the close of the Enrollment Period for each Plan Year, a written statement specifying the Eligible Employee’s allocation of anticipated contributions with respect to his Deferred Benefit Accounts. Notwithstanding the foregoing, an Excess DCRB Contribution shall be allocated only to the Eligible Employee’s Retirement Account.

A.    Retirement Subaccounts. In the event a Participant shall allocate a portion of his anticipated contributions to his Retirement Account, he may, during each applicable Enrollment Period, direct that portion of his anticipated contributions to (i) a lump sum subaccount or to (ii) one of four installment subaccounts.

A Participant entitled to receive Excess DCRB Contributions shall be permitted to select a Retirement subaccount for such contributions that is different from the Retirement subaccount selected for other contributions under the Plan. If a Participant entitled to receive an Excess DCRB Contribution has not selected a Retirement subaccount for such contributions, his Excess DCRB Contribution shall be allocated to the Retirement subaccount most recently selected by the Participant prior to the time such Excess DCRB Contribution is made or, if no such Retirement subaccount has been selected, to the lump sum subaccount. Notwithstanding the foregoing, if no Retirement subaccount has been selected by the Participant prior to his first Excess DCRB Contribution, the Participant shall be permitted to select a Retirement subaccount for such contribution (and for future Excess DCRB Contributions) at any time during the Enrollment Period ending in the calendar year in which such first Excess DCRB Contribution is made or such other time as may be permitted by the Administrator (but in no event later than December 31 of such calendar year).

Each Participant may only have one Retirement subaccount, except that a

Participant entitled to receive Excess DCRB Contributions shall be permitted to have two Retirement subaccounts-one for Excess DCRB Contributions and one for other contributions under the Plan..

Subject to Section 6.1.F below, the lump sum Retirement subaccount will be paid out in a lump sum within ninety (90) days of Retirement, and the installment Retirement subaccount will be paid in five (5), ten (10), fifteen (15) or twenty (20) annual installments, all pursuant to Section 6.1. In the absence of such designation, contributions for that Plan Year will be paid out in a lump sum as aforesaid.

Participants may, by written election made before December 31, 2006, redirect contributions made before the date of such election to Participant’s Retirement Account from the lump sum Retirement subaccount or any of the three installment Retirement subaccounts to the lump sum account or to any of the four installment subaccounts, provided (i) that each Participant shall, at the conclusion of such redirection process, have only one Retirement subaccount; and (ii) that such redirection shall not affect payments the Participant would otherwise receive in calendar year 2005 or 2006.

On and after August 1, 2009, Participants shall have a one-time option during his period of participation in the Plan to redirect, by written election, prior contributions to Participant’s Retirement Account from the lump sum Retirement subaccount or any of the four installment Retirement subaccounts to the lump sum Retirement account or to any of the four installment Retirement subaccounts, provided (i) that each Participant shall, at the conclusion of such redirection process, have only one Retirement subaccount (or two Retirement subaccounts in the case of a Participant who has received Excess DCRB Contributions and has selected a separate Retirement subaccount for such contributions); (ii) that Participant’s Retirement shall occur no earlier than one

year after Participant’s written election for redirection is received by the Plan Administrator; and (iii) Participant elects that distributions under the Retirement Subaccount resulting from the redirection hereunder, whether in a lump sum account or any of the four installment subaccounts, shall commence five years after Participant’s Retirement. Should Participant’s Retirement occur within one year following the date on which the Plan Administrator receives the written election for redirection under this paragraph, such written election shall be deemed null and void and Participant’s prior written election shall apply. A Participant who has received Excess DCRB Contributions and has selected two Retirement subaccounts (one for Excess DCRB Contributions and one for other contributions under the Plan) shall be permitted to make the one-time election described in this paragraph with respect to each such Retirement subaccount, and such elections need not be made at the same time.

B.    Education Subaccounts. In the event a Participant shall allocate a portion of his anticipated contributions to his Education Account, the Participant may further allocate amongst subaccounts on behalf of Eligible Students. Said allocation shall be made in writing prior to the beginning of the Plan Year on Participant’s Deferral Agreement, or such other forms as are required by the Administrator. In the absence of such suballocation, all contributions to the Participant’s Education Account shall be equally allocated among the Participant’s Education subaccounts. A Participant’s election pursuant to Section 4.5 shall apply uniformly to each subaccount. A Participant, in any one Plan Year, may not allocate less than $1,000 (except in Plan Years in which the Participant elects not to defer any portion of his Compensation) to any one Education subaccount.

Notwithstanding the foregoing, no Education Accounts shall be established effective following the Plan Year ending December 31, 2002, and all Education Accounts in effect as of such date shall be converted to Fixed Period Benefit Accounts or subaccounts by filing a conversion schedule with the Administrator

by which benefits payable in respect of each such Education Account and subaccount shall become payable upon a specific Benefit Distribution Date provided, however, that no conversion schedule shall permit amounts accumulated pursuant to the Plan prior to January 1, 2003 to be paid to a Participant or Beneficiary prior to the time such Participant or Beneficiary would have been entitled to such payment under the Plan as it existed prior to the amendments made effective January 1, 2003.

C.    Fixed Period Benefit Subaccounts. In the event a Participant shall allocate a portion of his anticipated contributions to his Fixed Period Benefit Account, the Participant may further allocate amongst subaccounts differentiated by Benefit Distribution Dates. Said allocation shall be made in writing prior to the beginning of the Plan Year on Participant’s Deferral Agreement, or such other forms as are required by the Administrator, provided that (i) each Participant shall have a one-time option in respect of each of his Benefit Distribution Dates to change such Benefit Distribution Date to a date at least five years subsequent to such original Benefit Distribution Date and (ii) such option is exercised, if at all, at least one year prior to the original Benefit Distribution Date by written notice to the Administrator. In the absence of such suballocation, all contributions to the Participant’s Fixed Period Benefit Account shall be equally allocated among Participant’s subaccounts. A Participant’s election pursuant to Section 4.5 shall apply uniformly to each subaccount. A Participant, in any one Plan Year, may not allocate less than $1,000 (except in Plan Years in which the Participant elects not to defer any portion of his Compensation) to any one Fixed Period subaccount. For elections made prior to November of 2002, a Participant shall not elect a Benefit Distribution Date with respect to the Fixed Period Benefit Account which occurs prior to twenty-four (24) months from the date on which the first contribution to such subaccount is first credited except as provided in Section 4.1 above. For elections made in or after November of 2002, a Participant shall not elect a Benefit Distribution Date with respect to a

Scheduled In-Service Withdrawal Account which occurs prior to twenty-four (24) months from the last day in the Plan Year in which such election is made.

already accumulated in his Deferred Benefit Accounts. A Participant may change his investment selection at any time throughout the course of each Plan Year. Notwithstanding the foregoing sentence, the Administrator retains the discretion to restrict the quantity of investment changes made by a participant in a Plan Year, should that Participant’s investment changes indicate market timing or other abuse.

Plan by designating new or additional funds for the purposes of Section 4.7 and each Participant shall redirect the valuation of his or her Deferred Benefit Accounts effective with the date of such amendment.

B. Vesting Schedule - DCRB Contributions.    A Participant shall be Vested in his Excess DCRB Contributions and Investment Fund performance credited to such contributions in his Deferred Benefit Accounts if, and to the same extent, he is vested in his DCRB Contributions under the DCRB Plan.

C. Forfeiture of Vested DCRB Contributions. Notwithstanding Section 5.1B, any Excess DCRB Contributions and Investment Fund performance credited to such contributions in a Participant’s Deferred Benefit Accounts that would otherwise be payable to a Participant or to his Beneficiary shall be forfeited in the event that (i) the Participant’s employment with Employer is terminated by the Employer for Cause, (ii) the Participant voluntarily resigns from the Employer prior to reaching Participant’s Permitted Retirement Age and fails to execute and deliver to the Employer the Non-Competition and Confidentiality Covenants prior to the effective date of such resignation, or (iii) a former Participant who has executed and delivered the Non-Competition and Confidentiality Covenants breaches Section 2 of such Covenants.

    

6.1    Termination of Service.

  

Retirement Account, shall be paid to the Participant or the Participant’s Beneficiary, as provided in Section 6.2 below.

the date of his Retirement, (ii) in the case of Participant who has made a written election on and after August 1, 2009 for redirection, pursuant to the fifth paragraph of 4.3A, the fifth anniversary of his Retirement, or (iii) in the case of Disability, his 65^th birthday; provided that, in all cases, Participant has no discretion or control in determining the Plan Year in which such lump sum amount is paid. Subject to Section 6.1F, if the Participant’s Termination of Service shall occur as a result of Participant’s Retirement or Disability, and the Participant has elected deferrals to an installment subaccount under Section 4.3A, the benefit in respect of such subaccount shall be paid by Employer to Participant in five, ten, 15 or 20 annual installments beginning within 90 days of (x) the date of his Retirement, (y) in the case of Participant’s written election on and after August 1, 2009 for redirection, pursuant to the fifth paragraph of 4.3A, the fifth anniversary of Participant’s Retirement, or (z) in the case of Disability, his 65^th birthday; provided that, in all cases, Participant has no discretion or control in determining the Plan Year in which such lump sum amount is paid; and with each subsequent annual installment to be paid on or before February 1 of each subsequent year, determined as follows:

    

6.3 Education Account.

Determination Age, the Employer shall pay to the Participant a benefit, as soon as administratively possible, determined as follows:

6.4    Fixed Period Benefit Account.

6.5    Unforeseeable Emergency Distribution.

    

Section shall be based upon uniform and nondiscriminatory rules and standards applicable to all Participants similarly situated and shall be final, conclusive and binding on all interested parties.

1.    The Fixed Period Benefit Account,

2.    The Education Account,

3.    The Retirement Account.

A.    To adopt such rules and regulations consistent with the provisions of the Plan;

B.    To enforce the Plan in accordance with its terms and any rules and regulations he establishes;

C.    To maintain records concerning the Plan sufficient to prepare reports, returns and other information required by the Plan or by law;

D.    To construe and interpret the Plan and to resolve all questions arising under the Plan;

E.    To direct the Employer to pay benefits under the Plan, and to give such other directions and instructions as may be necessary for the proper administration of the Plan;

F.    To be responsible for the preparation, filing and disclosure on behalf of the Plan of such documents and reports as are required by any applicable federal or state law.

A.    The specific reason for the denial,

B.    Specific reference to the Plan Provision on which the denial is based,

C.    Description of additional information necessary for the claimant to present his claim, if any, and an explanation of why such material is necessary, and

D.    An explanation of the Plan’s claim procedure.

The claimant will have sixty (60) days to request a review of the denial by the Administrator, who will provide a full and fair review. The request for review must be written and submitted to the same person who handles initial claims. The claimant may review pertinent documents, and he may submit issues and comments in writing. The decision by the Administrator with respect to the review must be given within sixty (60) days after receipt of the request, unless special circumstances require an extension (such as for a hearing). In no event shall the decision be delayed beyond one hundred twenty (120) days after receipt of the request for review. The decision shall be written in a manner calculated to be understood by the claimant, and it shall include specific reasons and refer to specific Plan provisions as to its effect.

Participant is deceased) shall have the right to elect to challenge such forfeiture through binding arbitration held in New York City, New York under the then existing Commercial Arbitration Rules of the American Arbitration Association. Arbitration proceedings shall be conducted by three arbitrators who shall be authorized to determine whether Cause for termination existed, but solely for the purpose of determining rights to benefits under this Plan. Without limit to their general authority, the arbitrators shall have the right to order reasonable discovery in accordance with the Federal Rules of Civil Procedure. The final decision of the arbitrators shall be binding and enforceable without further legal proceedings in court or otherwise, provided that either party to such arbitration may enter judgment upon the award in any court having jurisdiction. The final decision arising from the arbitration shall be accompanied by a written opinion and decision which shall describe the rational underlying the award and shall include findings of fact and conclusions of law. The cost of such arbitration shall initially be borne equally to the parties to such arbitration (which parties shall be limited to the Employer and the Participant (or his Beneficiary)), and each party shall bear its or his own legal fees; however, the arbitrators shall have authority to award the Participant (or his Beneficiary) his or her legal fees and costs if the arbitrators determine that the decision to forfeit any benefit was made in bad faith. As a condition to proceeding with such arbitration the Employer may require the Participant or his Beneficiary to agree, in writing, that the arbitration award will be binding upon the Participant or such Beneficiary, as the case may be, in connection with rights under this Plan, and that the Participant waives any right to proceed through court proceedings. Such award shall be confidential and shall not be binding or admissible in connection with any other proceeding.

respect of any benefit under this Plan prior to payment under the terms of this Plan of such benefit, then Employer shall pay to the Participant who is required to pay such tax the amount of such tax and such Participant’s Deferred Benefits shall be reduced by the amount of such tax. Employer reserves the right, in its sole discretion, to allocate the amount of such tax among the various Deferred Benefit Accounts of any Participant who is required to pay such tax. For the purposes of this Section 8.5 the term “Final Determination” means (i) an assessment of tax by the United States Internal Revenue Service addressed to the Participant or his Beneficiary which is not timely appealed to the courts; (ii) a final determination by the United States Tax Court or any other Federal Court, the time for an appeal thereof having expired or been waived; or (iii) an opinion by Employer’s counsel, addressed to Employer and in form and substance satisfactory to Employer, to the effect that amounts payable under the Plan are subject to Federal income tax to the Participant or his Beneficiary prior to payment under the terms of the Plan. No Final Determination shall be deemed to have occurred until the Employer has actually received a copy of the assessment, court order or opinion which forms the basis thereof and such other documents as it may reasonably request.

MISCELLANEOUS