**Exhibit 10.25**

 

 

 

**THEEXECUTIVE NONQUALIFIED EXCESS PLAN**

**PLANDOCUMENT**

 

 
|   | **© 2000 Executive Benefit Services, Inc.** |
|--------|--------------------------------------------------|
|   | **434 Fayetteville Street, Suite 1160**          |
|   | **Raleigh, NC 27601**                            |

 

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**TABLE OF CONTENTS**

 

**THE EXECUTIVE NONQUALIFIED EXCESS PLAN**

 
|            |                                                |
|-----------------|-----------------------------------------------------|
| Section 1. | Purpose                                             |
|            |                                                |
| Section 2. | Definitions                                         |
| 2.1             | “Accrued Benefit”                         |
| 2.2             | “Active Participant”                      |
| 2.3             | “Adoption Agreement”                      |
| 2.4             | “Adjustment Date”                         |
| 2.5             | “Beneficiary”                             |
| 2.6             | “Board”                                   |
| 2.7             | “College Education Account”               |
| 2.8             | “Committee”                               |
| 2.9             | “Compensation”                            |
| 2.10            | “Deferred Compensation Account”           |
| 2.11            | “Dependent Subaccount”                    |
| 2.12            | “Disability”                              |
| 2.13            | “Effective Date”                          |
| 2.14            | “Eligible Dependent”                      |
| 2.15            | “Employee”                                |
| 2.16            | “Employer”                                |
| 2.17            | “Employer Matching Credits”               |
| 2.18            | “Employer Performance Incentive Credits”  |
| 2.19            | “Independent Contractor”                  |
| 2.20            | “Normal Retirement Age”                   |
| 2.21            | “Participant”                             |
| 2.22            | “Participating Employer”                  |
| 2.23            | “Plan”                                    |
| 2.24            | “Plan Administrator”                      |
| 2.25            | “Plan Year”                               |
| 2.26            | “Qualified Distribution Event”            |
| 2.27            | “Regular In-Service Withdrawals Account”  |
| 2.28            | “Retire” of “Retirement”        |
| 2.29            | “Salary Deferral Agreement”               |
| 2.30            | “Salary Deferral Credits”                 |
| 2.31            | “Service”                                 |
| 2.32            | “Sponsor”                                 |
| 2.33            | “Spouse”  or “Surviving Spouse” |
| 2.34            | “Trust”                                   |
| 2.35            | “Trustee”                                 |
| 2.36            | “Years of Service”                        |
|            |
| Section 3. |  Credits to Deferred  Compensation Account     |
|                 |                                                     |  |

 

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| 3.1              | Salary Deferral Credits                            |
|------------------|----------------------------------------------------|
| 3.2              | Employer Matching Credits                          |
| 3.3              | Employer Performance Incentive Credits             |
|             |                                               |
| Section 4.  | Qualifiying Distribution Events                    |
| 4.1              | Death of a Participant                             |
| 4.2              | Disability                                         |
| 4.3              | Termination of Service                             |
| 4.4              | Retirement                                         |
|             |                                               |
| Section 5.  | In-Service Withdrawals                             |
| 5.1              | Regular In-Service Withdrawals                     |
| 5.2              | Financial Hardship Withdrawals                     |
| 5.3              | “Haircut” Withdrawals                    |
| 5.4              | College Education Withdrawals                      |
|             |                                               |
| Section 6.  | Qualified Distribution Events Payment Options      |
| 6.1              | Payment Options                                    |
| 6.2              | Prepayment                                         |
| 6.3              | Benefit Exchange                                   |
|             |                                               |
| Section 7.  | Vesting                                            |
|             |                                               |
| Section 8.  | Account; Deemed Investment; Adjustment of Accounts |
| 8.1              | Account                                            |
| 8.2              | Deemed Investments                                 |
| 8.3              | Adjustments to Deferred Compensation  Accounts     |
|             |                                               |
| Section 9.  | Administration by Committee                        |
| 9.1              | Membership of Committee                            |
| 9.2              | Committee officers; Subcommittee                   |
| 9.3              | Committee meetings                                 |
| 9.4              | Transaction of business                            |
| 9.5              | Committee records                                  |
| 9.6              | Establishment of rules                             |
| 9.7              | Conflicts of interest                              |
| 9.8              | Correction of errors                               |
| 9.9              | Authority to interpret Plan                        |
| 9.10             | Third party advisors                               |
| 9.11             | Compensation of members                            |
| 9.12             | Expense reimbursement                              |
| 9.13             | Indemnification                                    |
|             |                                               |
| Section 10. | Contractual Liability; Trust                       |
| 10.1             | Contractual Liability                              |
| 10.2             | Trust                                              |
|             |                                               |
| Section 11. | Allocation of Responsibilities                     |
|                  |                                                    |  |  |  |  |

 

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| 11.1             | Board                                            |
|------------------|--------------------------------------------------|
| 11.2             | Committee                                        |
| 11.3             | Plan Administrator                               |
|             |                                             |
| Section 12. | Benefits Not Assignable; Facility of Payments    |
| 12.1             | Benefits not assignable                          |
| 12.2             | Payments to minors and others                    |
|             |                                             |
| Section 13. | Beneficiary                                      |
|             |                                             |
| Section 14. | Amendment and Termination of Plan                |
|             |                                             |
| Section 15. | Communication to Participants                    |
|             |                                             |
| Section 16. | Claims Procedure                                 |
| 16.1             | Filing of a claim for benefits                   |
| 16.2             | Notification to claimant of decision             |
| 16.3             | Procedure for review                             |
| 16.4             | Decision on review                               |
| 16.5             | Action by authorized representative of  claimant |
|             |                                             |
| Section 17. | Miscellaneous Provisions                         |
| 17.1             | Set off                                          |
| 17.2             | Notices                                          |
| 17.3             | Lost distributees                                |
| 17.4             | Reliance on data                                 |
| 17.5             | Receipt and release for payments                 |
| 17.6             | Headings                                         |
| 17.7             | Continuation of employment                       |
| 17.8             | Merger or consolidation                          |
| 17.9             | Construction                                     |
|                  |                                                  |  |  |  |  |

 

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**THEEXECUTIVE NONQUALIFIED EXCESS PLAN**

 

**Section 1****.****                                          Purpose:**

 

By executionof the Adoption Agreement, the Employer has adopted the Plan set forth hereinto provide a means by which certain management Employees and IndependentContractors of the Employer may elect to defer receipt of current Compensationfrom the Employer in order to provide Retirement and other benefits on behalfof such Employees and Independent Contractors. The Plan is not intended to be a tax-qualified retirement plan underSection 401(a) of the Internal Revenue Code (the “Code”).  The Plan is intended to be an unfunded planmaintained primarily for the purpose of providing deferred compensationbenefits for a select group of management or highly compensated Employees underSections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement IncomeSecurity Act of 1974.

 

**Section 2****.****                                          Definitions:**

 

As used in thePlan, including this Section 2, references to one gender shall include theother and, unless otherwise indicated by the context:

** **

**2.1****                               “Accrued Benefit”**shall mean, with respect to eachParticipant, the balance credited to his Deferred Compensation Account.

 

**2.2****                               “Active Participant”** shall mean, with respect to any day or date, aParticipant who is in Service on such day or date; provided, that a Participantwho is in Service shall cease to be an Active Participant immediately upon adetermination by the Committee that the Participant has ceased to be anEmployee or Independent Contractor.

 

**2.3****                               “Adoption Agreement”** shall mean the written agreement pursuant to whichthe Employer adopts the Plan.  TheAdoption Agreement is a part of the Plan as applied to the Employer.

 

**2.4****                               “Adjustment Date”**shall mean the date designated in the Adoption Agreement for crediting theamount of any Salary Deferral Credits, Employer Matching Credits and EmployerPerformance Incentive Credits to each Deferred Compensation Account.

 

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**2.5          “Beneficiary”** shall mean the person, persons, entityor entities designated or determined pursuant to the provisions ofSection 13 of the Plan.

 

**2.6          “Board”**shall mean the Board of Directors of the Employer, if the Employer is acorporation.  If the Employer is not acorporation, “Board” shall mean the Employer.

 

**2.7****                               “College Education Account”** shall mean the separateaccount to be kept for each Participant and to be divided into one or moreDependent Subaccounts, as described in Section 5.4.

 

**2.8****                               “Committee”**shall mean the administrative committee provided for in Section 9.

 

**2.9****                               “Compensation”**shall have the meaning designated in the Adoption Agreement.

 

**2.10        “Deferred Compensation Account”** shall mean theseparate account to be kept for each Participant, as described in Sections 3and 8.  To the extent applicable, theDeferred Compensation Account may be credited with Salary Deferral Credits,Employer Matching Credits and Employer Performance Incentive Credits.

 

**2.11        “DependentSubaccount”**shall mean each separate subaccount tobe kept for each Participant as part of his College Education Account, asdescribed in Section 5.4.  To theextent applicable, each Dependent Subaccount may be credited with SalaryDeferral Credits, Employer Matching Credits, and Employer Performance IncentiveCredits.

 

**2.12        “Disability”** shall mean the inability of aParticipant to perform his regular duties with the Employer or any other dutieswhich the Employer is willing to assign to him by reason of any medicallydeterminable physical or mental impairment that can be expected to result indeath or to be of long continued or indefinite duration.  The determination of the existence or nonexistenceof Disability shall be made by the Committee in a nondiscriminatory mannerpursuant to an examination by a medical doctor selected or approved by theCommittee.

 

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**2.13        “Effective Date”** shall be the date designated in theAdoption Agreement as of which the Plan first becomes effective.

 

**2.14        “EligibleDependent”**shall mean any child (including anylegally adopted child) of a Participant who has not attained age 18 and who theParticipant designates as an Eligible Dependent in his Salary DeferralAgreement; provided, however, that the Committee in its discretion may approvethe designation of an individual other than the child of a Participant as anEligible Dependent.

 

**2.15        “Employee”** shall mean an individual in the Serviceof the Employer if the relationship between the individual and the Employer isthe legal relationship of employer and employee and if the individual is ahighly compensated or management employee of the Employer.  An individual shall cease to be an Employeeupon the first to occur of the following: (i) the Employee’s termination ofService; or (ii) a determination by the Committee that the Employee no longermeets the eligibility requirements for participation in the Plan.

 

**2.16        “Employer”** shall mean the Employer identified in theAdoption Agreement, and any Participating Employer which adopts this Plan.  The Employer may be a corporation, apartnership or sole proprietorship.  Allreferences herein to the Employer shall be applied separately to each suchEmployer as if the Plan were solely the Plan of that Employer.

 

**2.17        “EmployerMatching Credits”**shall mean the amounts credited to the Participant’s Deferred CompensationAccount by the Employer pursuant to the provisions of Section 3.2.

 

**2.18        “Employer Performance IncentiveCredits”**shall mean the amounts credited to the Participant’s Deferred CompensationAccount by the Employer pursuant to the provisions of Section 3.3.

 

**2.19        “IndependentContractor”**shall mean an individual in theService of the Employer if the relationship between the individual and theEmployer is not the legal relationship of employer and employee.  An individual shall cease to be anIndependent

 

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Contractor upon the termination of theIndependent Contractor’s Service.  AnIndependent Contractor shall include a director of the Employer who is not anEmployee.

 

**2.20        “NormalRetirement Age”**of a Participant shall mean the age designated in the Adoption Agreement.  The “Normal Retirement Date” of a Participantshall mean the date the Participant attains his Normal Retirement Age.

 

**2.21        “Participant”** shall mean with respect to any PlanYear an Employee or Independent Contractor who has been designated by theCommittee as a Participant and who has entered the Plan or who has an AccruedBenefit under the Plan. An Employee or Independent Contractor designated by theCommittee as a Participant who has not otherwise entered the Plan shall enterthe Plan and become a Participant as of the date determined by theCommittee.  A Participant who separatesfrom Service with the Employer and who later returns to Service will not beeligible to defer Compensation under the Plan except upon satisfaction of suchterms and conditions as the Committee shall establish upon the Participant’sreturn to Service, whether or not the Participant shall have an Accrued Benefitremaining under the Plan on the date of his return to Service.

 

**2.22        “ParticipatingEmployer”**shall mean any trade or business (whether or not incorporated) which adoptsthis Plan with the consent of the Employer identified in the AdoptionAgreement.

 

**2.23        “Plan”** shall mean The Executive Nonqualified ExcessPlan, as herein set out or as duly amended. The name of the Plan as applied to the Employer shall be designated inthe Adoption Agreement.

 

**2.24        “PlanAdministrator”**shall mean the person designated in the Adoption Agreement.  If the Plan Administrator designated in theAdoption Agreement is unable to serve, the Employer shall be the PlanAdministrator.

 

**2.25        “Plan Year”** shall mean the twelve-month period endingon the last day of the month designated in the Adoption Agreement.

 

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**2.26        “QualifyingDistribution Event”**shall mean the Participant’sRetirement or the termination of Participant’s Service with the Employer forany reason, including as a result of his death or Disability.

 

**2.27        “Regular In-Service WithdrawalsAccount”**shall mean the separate account to be kept for each Participant, as describedin Section 5.1.  To the extentapplicable, the Regular In-Service Withdrawals Account may be credited withSalary Deferral Credits.

 

**2.28        “Retire” or“Retirement”**shall mean Retirement within the meaning of Section 4.4.

 

**2.29        “SalaryDeferral Agreement”**shall mean a written agreement entered into between a Participant and theEmployer pursuant to the provisions of Section 3.

 

**2.30        “SalaryDeferral Credits”**shall mean the amounts credited to the Participant’s Deferred CompensationAccount by the Employer pursuant to the provisions of Section 3.

 

**2.31        “Service”** shall mean employment by the Employer asan Employee.  If the Participant is anIndependent Contractor, “Service” shall mean the period during which thecontractual relationship exists between the Employer and the Participant.

 

**2.32        “Sponsor”** shall mean Executive Benefit Services,Inc.

 

**2.33        “Spouse”** or **“SurvivingSpouse”** shall mean, except as otherwise provided in the Plan, thelegally married spouse or surviving spouse of a Participant.

 

**2.34        “Trust”** shall mean the trust fund establishedpursuant to Section 10.2, if designated by the Employer in the AdoptionAgreement.

 

**2.35        “Trustee”** shall mean the trustee, if any, named inthe agreement establishing the Trust and such successor or additional trusteeas may be named pursuant to the terms of the agreement establishing the Trust.

 

**2.36        “Years ofService”**shall mean each Plan Year of Service completed by the Participant.  For vesting purposes, Years of Service shallbe calculated from the date designated in the Adoption Agreement.

 

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**Section 3****.****                                          Credits toDeferred Compensation Account:**

 

**3.1****                               Salary Deferral Credits:**  To the extent provided in the Adoption Agreement, each ActiveParticipant may elect, by entering into a Salary Deferral Agreement with theEmployer, to reduce his Compensation from the Employer by a dollar amount orpercentage specified in the Salary Deferral Agreement.  The amount of the Participant’s Salary ReductionCredit shall be credited by the Employer to the Deferred Compensation Accountmaintained for the Participant pursuant to Section 8.  The following special provisions shall applywith respect to the Salary Deferral Credits of a Participant:

 

3.1.1                        TheEmployer shall credit to the Participant’s Deferred Compensation Account oneach Adjustment Date an amount equal to the total Salary Reduction Credit forthe period ending on such Adjustment Date.

 

3.1.2                        Anelection pursuant to Section 3.1 shall be made by the Participant byexecuting and delivering a Salary Deferral Agreement to the Committee.  The Salary Deferral Agreement shall becomeeffective with respect to such Participant as of the first full payroll periodcommencing on or immediately following the January 1 which occurs afterthe date such Salary Deferral Agreement is received by the Committee; provided,that a Participant who first becomes a Participant in the Plan during a PlanYear may enter into a Salary Deferral Agreement to be effective as of the firstpayroll period next following the date he enters the Plan.  A Participant’s election shall continue ineffect, unless earlier modified by the Participant, until the Service of theParticipant is terminated, or, if earlier, until the Participant ceases to bean Active Participant under the Plan.

 

3.1.3                        AParticipant may unilaterally modify a Salary Deferral Agreement (either toincrease or decrease the portion of his future Compensation which is subject tosalary deferral within the percentage limits set forth in Section 3.1) byproviding a written modification of the Salary Deferral Agreement to theEmployer.  The modification shall becomeeffective as of the first full payroll period commencing on or immediatelyfollowing the January 1 which occurs after the date such written modificationis received by the Committee.  TheParticipant may terminate the Salary Deferral Agreement effective as of thedate designated in the Adoption Agreement.

 

3.1.4                        TheCommittee may from time to time establish policies or rules governing themanner in which Salary Deferral Credits may be made.

 

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**3.2****                               Employer Matching Credits:**  If designated by the Employer in theAdoption Agreement, as of each Adjustment Date, the Employer shall cause theCommittee to credit to the Deferred Compensation Account of each Participant anEmployer matching credit in accordance with the Adoption Agreement.

 

**3.3****                               Employer Performance Incentive Credits:**  If designated by the Employer in theAdoption Agreement, the Employer may credit to the Plan for such Plan Year anyamount as the Board in its discretion shall determine.  The Committee shall have the discretion tocredit to the Deferred Compensation Account of each Active Participant an amountof the Employer Performance Incentive Credit for the Plan Year as directed bythe Employer.

 

**Section 4****.****                                          QualifyingDistribution Events:**

 

**4.1****                               Death of a Participant:**  If a Participant dies while in Service, theEmployer shall pay a benefit to the Participant’s Beneficiary in the amountdesignated in the Adoption Agreement. Payment of such benefit shall be made by the Employer pursuant toSection 6.  If a Participant diesfollowing his Retirement or termination of Service for any reason, includingDisability, and before all payments to him under the Plan have been made, thebalance of the Participant’s vested Accrued Benefit shall be paid by theEmployer to the Participant’s Beneficiary pursuant to Section 6, and suchbalance shall be determined as of the commencement date of the payments.

 

**4.2****                               Disability:**  If aParticipant suffers a Disability while in Service prior to his NormalRetirement Date, he shall terminate Service with the Employer as of the date ofthe establishment of his Disability, whereupon he shall commence receivingpayment of his vested Accrued Benefit, determined as of the commencement dateof the payments.  Such benefit shall bepaid by the Employer as provided in Section 6.

 

**4.3****                               Termination of Service:**  If the Service of a Participant with the Employer shall beterminated for any reason other than Retirement, Disability or death, hisvested Accrued Benefit shall be paid to him by the Employer as provided inSection 6, and such

 

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Accrued Benefit shall be determined as of thecommencement date of the payments.  If aParticipant’s Accrued Benefit is not fully vested at his termination ofemployment, he shall forfeit that portion of his Accrued Benefit that is notfully vested.  If he subsequentlyreturns to Service with the Employer, he shall be treated as a new Participantfor purposes of determining the vested portion of his Accrued Benefit.

 

**4.4          Retirement:**

 

4.4.1                        **Normal Retirement****: **AParticipant who is in Service shall be eligible to Retire from Service at hisNormal Retirement Date and commence receiving payment of his Accrued Benefit,determined as of the commencement date of the payments.  Payment of such benefit shall be made by theEmployer pursuant to Section 6.

 

4.4.2                        **Early Retirement****:** If so designated by the Employer in the Adoption Agreement, and subjectto the requirements for early retirement set forth therein, a Participant mayelect early retirement effective on any date prior to his Normal RetirementDate by filing 30 days’ written notice with the Committee before suchdate.  The Participant shall commencereceiving payment of his Accrued Benefit determined as of the commencement dateof the payments. Such benefit shall be paid by the Employer as provided inSection 6.

 

4.4.3                        **Delayed Retirement:**  If a Participant shall remain in Servicefollowing his Normal Retirement Date, his Retirement date shall be the date heactually terminates Service for reasons other than death or Disability,whereupon he shall commence receiving payment of his Accrued Benefit,determined as of the commencement date of the payments.  Payment of such benefit shall be made by theEmployer pursuant to Section 6. During the period that such Participant remains in Service pursuant tothis Section 4.4.3, he shall continue to be a Participant for each PlanYear in which he meets the requirements therefor.  If an Employee or Independent Contractor not otherwise aParticipant becomes eligible to enter the Plan following his Normal RetirementDate, the provisions of this Section 4.4.3 shall apply in determining hisRetirement date.

 

**Section 5****.  In-ServiceWithdrawals:**

 

**5.1****                               Regular In-Service Withdrawals: **If the Employer designates in theAdoption Agreement that regular in-service withdrawals shall be permitted underthe Plan, a Participant may make an irrevocable election in the Salary DeferralAgreement to withdraw a

 

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designated amount from his DeferredCompensation Account at the specified time or times designated by theParticipant in the Salary Deferral Agreement, and the Participant’s RegularIn-Service Withdrawals Account shall be credited in an amount equal to theamount so designated for regular in-service withdrawals.  The following special provisions shall applywith respect to the regular in-service withdrawals:

 

5.1.1                        TheRegular In-Service Withdrawals Account shall be established, adjusted forpayments, credited with Salary Deferral Credits, Employer Matching Credits, andEmployer Performance Incentive Credits, and credited or debited for deemedinvestment gains or losses in the same manner and at the same time as suchadjustments are made to the Deferred Compensation Account under Section 8and in accordance with the rules and elections in effect under Section 8.

 

5.1.2                        Notwithstandingany provision in this Section 5 to the contrary, if Participant incurs aQualifying Distribution Event prior to the date on which the entire balance ofhis Regular In-Service Withdrawals Account has been distributed to him, thenthe balance in the Regular In-Service Withdrawals Account on the date of theQualifying Distribution Event shall be combined with the Participant’s DeferredCompensation Account and distributed to him in the same manner and at the sametime as his Deferred Compensation Account is distributed to him underSection 6 and in accordance with the rules and elections in effect underSection 6.

 

**5.2****                               Financial Hardship Withdrawals:**  A distribution of the Deferred CompensationAccount may be made to a Participant on account of financial hardship, subjectto the following provisions:

 

5.2.1                        AParticipant may, at any time prior to his Retirement or termination of Servicefor any reason, including Disability, make application to the Committee toreceive a distribution in a lump sum of all or a portion of the total vestedamount credited to his Deferred Compensation Account (determined as of the datethe distribution, if any, is made under this Section 5.2) because of anunforeseeable emergency that results in severe financial hardship to the Participant. A distribution because of anunforeseeable emergency shall not exceed the amount required to meet theimmediate financial need created by the unforeseeable emergency and nototherwise reasonably available from other resources of the Participant.  Examples of an unforeseeable emergency shallinclude but shall not be limited to those financial needs arising on account ofa sudden or unexpected illness or accident of the Participant or of a dependentof the Participant, loss of the Participant’s property due to casualty, orother similar

 

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extraordinaryand unforeseeable circumstances arising as a result of events beyond thecontrol of the Participant.

 

5.2.2                        TheParticipant’s request for a distribution on account of financial hardship mustbe made in writing to the Committee. The request must specify the nature of the financial hardship, the totalamount requested to be distributed from the Deferred Compensation Account, andthe total amount of the actual expense incurred or to be incurred on account offinancial hardship.

 

5.2.3                        If adistribution under this Section 5.2 is approved by the Committee, suchdistribution will be made as soon as practicable following the date it isapproved.  The processing of the requestshall be completed as soon as practicable from the date on which the Committeereceives the properly completed written request for a distribution on accountof a financial hardship.  If aParticipant’s termination of Service occurs after a request is approved inaccordance with this Section 5.2.3, but prior to distribution of the fullamount approved, the approval of the request shall be automatically null andvoid and the benefits which the Participant is entitled to receive under thePlan shall be distributed in accordance with the applicable distributionprovisions of the Plan. Only one financial hardship distribution shall be madewithin any Plan Year.

 

5.2.4                        TheCommittee may from time to time adopt additional policies or rules governingthe manner in which such distributions may be made so that the Plan may beconveniently administered.

 

**5.3****          “Haircut” Withdrawals: **If the Employer designates in theAdoption Agreement that “haircut” withdrawals shall be permitted under thePlan, a Participant in Service may at his option make one or more withdrawalsfrom his Deferred Compensation Account by written request to the Committee;provided, however, that a Participant who requests a withdrawal under thisSection 5.3 shall incur a penalty (the “haircut”) equal to a percentage(not less than 10%), as designated by the Employer in the Adoption Agreement,of the amount withdrawn, and this penalty shall be forfeited from the DeferredCompensation Account of the Participant notwithstanding the provisions of Section 7.

 

**5.4****                               College Education Withdrawals: **If the Employer designates in theAdoption Agreement that college education withdrawals shall be permitted underthe Plan, a Participant may elect in the Salary Deferral Agreement for adesignated percentage or dollar

 

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amount of the Salary Deferral Credits to becredited to a College Education Account to be used to fund the collegeeducation of the Participant’s Eligible Dependent or Eligible Dependents. TheCollege Education Account shall be divided into Dependent Subaccounts for eachof the Participant’s Eligible Dependents, and the Participant may designate inthe Salary Deferral Agreement the percentage or dollar amount of each SalaryDeferral Credit to be credited to each Dependent Subaccount; provided, however,that the minimum credit that a Participant may elect to make to any DependentSubaccount is $1,000.  In the absence ofa clear designation, all credits made to the College Education Subaccount shallbe equally allocated to each Dependent Subaccount.  As soon as practicable after an Eligible Dependent of theParticipant attains age 18, the Employer shall pay to the Participant thebalance in the Dependent Subaccount with respect to such Eligible Dependent inannual installments over a period of four, five or six years, as designated bythe Participant in the Salary Deferral Agreement.  The following special provisions shall apply with respect to theDependent Subaccounts:

 

5.4.1                        TheDependent Subaccounts shall be established, adjusted for payments, creditedwith Salary Deferral Credits, Employer Matching Credits, and EmployerPerformance Incentive Credits, and credited or debited for deemed investmentgains or losses in the same manner and at the same time as such adjustments aremade to the Deferred Compensation Account under Section 8 and inaccordance with the rules and elections in effect under Section 8.

 

5.4.2                        Notwithstandingany provision in this Section 5 to the contrary, if Participant incurs a QualifyingDistribution Event prior to the date on which the entire balance of his CollegeEducation Account has been distributed to him, then the balance in the CollegeEducation Account on the date of the Qualifying Distribution Event shall becombined with the Participant’s Deferred Compensation Account and distributedto him in the same manner and at the same time as his Deferred CompensationAccount is distributed to him under Section 6 and in accordance with therules and elections in effect under Section 6.

 

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**Section 6****.****                                          QualifyingDistribution Events Payment Options:**

 

**6.1****                               Payment Options: **The Employer shall designate in the Adoption Agreement the paymentoptions available upon a Qualifying Distribution Event.  Upon a Participant’s entry into the Plan,the Participant shall elect among these designated payment options the methodunder which his vested Accrued Benefit or, in the event of his death, anybenefit payable as a result, will be distributed; provided, however, that theParticipant may change the method of payment with the consent of the Committeeby filing a written election with the Committee at least one year prior to thecommencement date of the payments.

 

**6.2****                               Prepayment:** Notwithstanding any other provisions of this Plan, if a Participant orany other person (a “recipient”) is entitled to receive payments under thePlan, the Committee in its sole discretion may direct the Employer to prepayall or any part of the payments remaining to be made to or on behalf of therecipient, or to shorten the payment period. The amount of such prepaymentshall be in full satisfaction of the Employer’s obligations hereunder to therecipient and to all persons claiming under or through the recipient with respectto the payments being prepaid.  In theevent of a partial prepayment, the Committee shall designate which installmentsare being prepaid and, if applicable, the accounts of the Participant fromwhich such prepayments shall be debited. The Committee’s determinations under this Section 6.2 shall befinal and conclusive upon all parties claiming benefits under this Plan.

 

**6.3****                               Benefit Exchange: **Notwithstanding any other provisions of this Plan, the Employer andthe Participant may enter into an agreement under which, in lieu of the paymentof the Participant’s vested Accrued Benefit upon a Qualifying DistributionEvent, the Participant’s vested Accrued Benefit will be exchanged for anothernonqualified benefit in accordance with rules established by the Committee.

 

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**Section 7****.****                                          Vesting:**

 

A Participantshall be fully vested (that is, nonforfeitable) in the portion of his DeferredCompensation Account attributable to Salary Deferral Credits, and all income,gains and losses attributable thereto. A Participant shall become fully vested in the portion of his DeferredCompensation Account attributable to Employer Matching Credits, EmployerPerformance Incentive Credits, and income, gains and losses attributable thereto,on the first to occur of:  (i) normalRetirement; (ii) Early Retirement; (iii) death while in Service; or (iv) inaccordance with the vesting schedule and provisions designated by theEmployer in the Adoption Agreement.

 

**Section 8****.****                                          Account;Deemed Investment; Adjustment of Accounts:**

** **

**8.1****                               Account:**  TheCommittee shall establish a book reserve account, entitled the “DeferredCompensation Account,” on behalf of each Participant.  Such account shall be adjusted pursuant to the provisions ofSection 8.3.

 

**8.2****                               Deemed Investments:**  The Deferred Compensation Account of a Participant shall becredited with an investment return determined as if the account were investedin one or more investment funds made available by the Committee.  The Participant shall elect the investmentfunds in which his Deferred Compensation Account shall be deemed to beinvested.  Such election shall be madein the manner prescribed by the Committee and shall take effect upon the entryof the Participant into the Plan. The investment election of the Participantshall remain in effect until a new election is made by the Participant.  In the event the Participant fails for anyreason to make an effective election of the investment return to be credited tohis account, the investment return shall be determined by the Committee.

 

**8.3****                               Adjustments to Deferred Compensation Accounts:**  With respect to each Participant who has aDeferred Compensation Account under the Plan, the amount credited to suchaccount shall be adjusted by the following debits and credits, at the times andin the order stated:

 

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8.3.1                        TheDeferred Compensation Account shall be debited each business day with the totalamount of any payments made from such account since the last preceding businessday to him or for his benefit.

 

8.3.2                        TheDeferred Compensation Account shall be credited on each Adjustment Date withthe total amount of any Salary Deferral Credits, Employer Matching Credits andEmployer Performance Incentive Credits to such account since the last precedingAdjustment Date.

 

8.3.3                        TheDeferred Compensation Account shall be credited or debited on each daysecurities are traded on a national stock exchange with the amount of deemedinvestment gain or loss resulting from the performance of the investment fundselected by the Participant in accordance with Section 8.2.  The amount of such deemed investment gain orloss shall be determined by the Committee and such determination shall be finaland conclusive upon all concerned.

 

**Section 9****.****                                          Administrationby Committee:**

 

**9.1****                               Membership of Committee:**   The Committee shall consist of at leastthree individuals who shall be appointed by the Board to serve at the pleasureof the Board.  Any member of theCommittee may resign, and his successor, if any, shall be appointed by theBoard. The Committee shall be responsible for the general administration andinterpretation of the Plan and for carrying out its provisions, except to theextent all or any of such obligations are specifically imposed on the Board.

 

**9.2****                               Committee officers; Subcommittee:**   The members of the Committee shall elect aChairman and may elect an acting Chairman. They shall also elect a Secretary and may elect an acting Secretary,either of whom may be but need not be a member of the Committee.  The Committee may appoint from itsmembership such subcommittees with such powers as the Committee shalldetermine, and may authorize one or more of its members or any agent to executeor deliver any instruments or to make any payment on behalf of the Committee.

 

**9.3****                               Committee meetings:**   The Committee shall hold such meetings upon such notice, at suchplaces and at such intervals as it may from time to time determine.  Notice of meetings shall not be required ifnotice is waived in writing by all the members of the Committee at the time inoffice, or if all such members are present at the meeting.

 

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**9.4****                               Transaction of business:**   A majority of the members of the Committeeat the time in office shall constitute a quorum for the transaction ofbusiness.  All resolutions or otheractions taken by the Committee at any meeting shall be by vote of a majority ofthose present at any such meeting and entitled to vote.  Resolutions may be adopted or other actiontaken without a meeting upon written consent thereto signed by all of themembers of the Committee.

 

**9.5****                               Committee records:**   The Committee shall maintain full and complete records of itsdeliberations and decisions.  The minutesof its proceedings shall be conclusive proof of the facts of the operation ofthe Plan.

 

**9.6****                               Establishment of rules:**   Subject to the limitations of the Plan, theCommittee may from time to time establish rules or by-laws for theadministration of the Plan and the transaction of its business.

 

**9.7****                               Conflicts of interest:**   No individual member of the Committee shallhave any right to vote or decide upon any matter relating solely to himself orto any of his rights or benefits under the Plan (except that such member maysign unanimous written consent to resolutions adopted or other action takenwithout a meeting), except relating to the terms of his Salary DeferralAgreement.

 

**9.8****                               Correction of errors:**   The Committee may correct errors and, so far as practicable, mayadjust any benefit or credit or payment accordingly.  The Committee may in its discretion waive any notice requirementsin the Plan; provided, that a waiver of notice in one or more cases shall not bedeemed to constitute a waiver of notice in any other case.  With respect to any power or authority whichthe Committee has discretion to exercise under the Plan, such discretion shallbe exercised in a nondiscriminatory manner.

 

**9.9****                               Authority to interpret Plan:**  Subject to the claims procedure set forth inSection 16, the Plan Administrator and the Committee shall have the dutyand discretionary authority to interpret and construe the provisions of thePlan and to decide any dispute which may arise regarding the rights ofParticipants hereunder, including the discretionary authority to

 

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construe the Plan and to make determinationsas to eligibility and benefits under the Plan. Determinations by the PlanAdministrator and the Committee shall apply uniformly to all persons similarlysituated and shall be binding and conclusive upon all interested persons.

 

**9.10****                        Third party advisors:**  The Committee may engage an attorney, accountant, actuary or anyother technical advisor on matters regarding the operation of the Plan and toperform such other duties as shall be required in connection therewith, and mayemploy such clerical and related personnel as the Committee shall deemrequisite or desirable in carrying out the provisions of the Plan.  The Committee shall from time to time, butno less frequently than annually, review the financial condition of the Planand determine the financial and liquidity needs of the Plan.  The Committee shall communicate such needsto the Employer so that its policies may be appropriately coordinated to meetsuch needs.

 

**9.11****                        Compensation of members:**  No fee or compensation shall be paid to anymember of the Committee for his Service as such.

 

**9.12****                        Expense reimbursement:**  The Committee shall be entitled toreimbursement by the Employer for its reasonable expenses properly and actuallyincurred in the performance of its duties in the administration of the Plan.

 

**9.13****                        Indemnification:** No member of the Committee shall be personally liable by reason of anycontract or other instrument executed by him or on his behalf as a member ofthe Committee nor for any mistake of judgment made in good faith, and theEmployer shall indemnify and hold harmless, directly from its own assets(including the proceeds of any insurance policy the premiums for which are paidfrom the Employer’s own assets), each member of the Committee and each otherofficer, employee, or director of the Employer to whom any duty or powerrelating to the administration or interpretation of the Plan may be delegated orallocated, against any unreimbursed or uninsured cost or expense (including anysum paid in settlement of a claim with the prior written approval of the Board)arising out of any act or omission to act in connection with the Plan unlessarising out of such person’s own fraud, bad faith, willful misconduct or grossnegligence.

 

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**Section 10****.****                                   ContractualLiability; Trust:**

 

**10.1****                        Contractual Liability:**  The obligation of the Employer to makepayments hereunder shall constitute a contractual liability of the Employer tothe Participant. Such payments shall be made from the general funds of theEmployer, and the Employer shall not be required to establish or maintain anyspecial or separate fund, or otherwise to segregate assets to assure that suchpayments shall be made, and the Participant shall not have any interest in anyparticular assets of the Employer by reason of its obligations hereunder.  To the extent that any person acquires aright to receive payment from the Employer, such right shall be no greater thanthe right of an unsecured creditor of the Employer.

 

**10.2****                        Trust:**  If sodesignated in Section 2.34 of the Adoption Agreement, the Employer mayestablish a Trust with the Trustee, pursuant to such terms and conditions asare set forth in the Trust Agreement. The Trust, if and when established, is intended to be treated as agrantor trust for purposes of the Code. The establishment of the Trust is not intended to cause Participants torealize current income on amounts contributed thereto, and the Trust shall beso interpreted and administered.

 

**Section 11****.****                                   Allocation ofResponsibilities:**

 

The personsresponsible for the Plan and the duties and responsibilities allocated to eachare as follows:

 

**11.1****                        Board:**

 

(i)                                     Toamend the Plan;

 

(ii)                                  Toappoint and remove members of the Committee; and

 

(iii)                               Toterminate the Plan.

 

**11.2****                        Committee:**

 

(i)                                     Todesignate Participants;

 

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(ii)                                  Tointerpret the provisions of the Plan and to determine the rights of theParticipants under the Plan, except to the extent otherwise provided inSection 16 relating to claims procedure;

 

(iii)                               Toadminister the Plan in accordance with its terms, except to the extent powersto administer the Plan are specifically delegated to another person or personsas provided in the Plan;

 

(iv)                              Toaccount for the Accrued Benefits of Participants; and

 

(v)                                 Todirect the Employer in the payment of benefits.

 

**11.3****                        Plan Administrator:**

 

(i)                                     Tofile such reports as may be required with the United States Department ofLabor, the Internal Revenue Service and any other government agency to whichreports may be required to be submitted from time to time; and

 

(ii)                                  Toadminister the claims procedure to the extent provided in Section 16.

 

**Section 12****.****                                   Benefits NotAssignable; Facility of Payments:**

 

**12.1****                        Benefits not assignable:**   No portion of any benefit credited or paid under the Plan withrespect to any Participant shall be subject in any manner to anticipation,alienation, sale, transfer, assignment, pledge, encumbrance or charge, and anyattempt so to anticipate, alienate, sell, transfer, assign, pledge, encumber orcharge the same shall be void, nor shall any portion of such benefit be in anymanner payable to any assignee, receiver or any one trustee, or be liable forhis debts, contracts, liabilities, engagements or torts.

 

**12.2****                        Payments to minors and others:**   If any individual entitled to receive apayment under the Plan shall be physically, mentally or legally incapable ofreceiving or acknowledging receipt of such payment, the Committee, upon thereceipt of satisfactory evidence of his incapacity and satisfactory evidencethat another person or institution is maintaining him and that no guardian orcommittee has been appointed for him, may cause any payment otherwise payableto him to be made to such person or institution so maintaining him.

 

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Payment to such person or institution shallbe in full satisfaction of all claims by or through the Participant to theextent of the amount thereof.

 

**Section 13****.****                                   Beneficiary:**

 

TheParticipant’s beneficiary shall be the person or persons designated by theParticipant on the beneficiary designation form provided by and filed with theCommittee or its designee.  If theParticipant does not designate a beneficiary, the beneficiary shall be hisSurviving Spouse.  If the Participantdoes not designate a beneficiary and has no Surviving Spouse, the beneficiaryshall be the Participant’s estate.  Thedesignation of a beneficiary may be changed or revoked only by filing a newbeneficiary designation form with the Committee or its designee.  If a beneficiary (the “primary beneficiary”)is receiving or is entitled to receive payments under the Plan and dies beforereceiving all of the payments due him, the balance to which he is entitledshall be paid to the contingent beneficiary, if any, named in the Participant’scurrent beneficiary designation form. If there is no contingent beneficiary, the balance shall be paid to theestate of the primary beneficiary.  Anybeneficiary may disclaim all or any part of any benefit to which suchbeneficiary shall be entitled hereunder by filing a written disclaimer with theCommittee before payment of such benefit is to be made.  Such a disclaimer shall be made in a formsatisfactory to the Committee and shall be irrevocable when filed.  Any benefit disclaimed shall be payable fromthe Plan in the same manner as if the beneficiary who filed the disclaimer haddied on the date of such filing.

 

**Section 14****.****                                   Amendment andTermination of Plan:**

 

The Board mayamend any provision of the Plan or terminate the Plan at any time; provided,that in no event shall such amendment or termination reduce any Participant’sAccrued Benefit as of the date of such amendment or termination, nor shall anysuch amendment affect the terms of the Plan relating to the payment of suchAccrued Benefit.

 

Notwithstandingthe foregoing, the Plan shall be terminated upon the occurrence of one or moreof the events designated in the Adoption Agreement.  Upon the occurrence of a

 

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termination event, the Accrued Benefit ofeach Participant shall become fully vested and payable to the Participant in alump sum.

 

**Section 15****.****                                   Communication toParticipants:**

 

The Employershall make a copy of the Plan available for inspection by Participants andtheir beneficiaries during reasonable hours at the principal office of theEmployer.

 

**Section 16****.****                                   Claims Procedure:**

 

The followingclaims procedure shall apply with respect to the Plan:

 

**16.1****                        Filing of a claim for benefits:**  If a Participant or beneficiary (the“claimant”) believes that he is entitled to benefits under the Plan which arenot being paid to him or which are not being accrued for his benefit, he shallfile a written claim therefor with the Plan Administrator.  In the event the Plan Administrator shall bethe claimant, all actions which are required to be taken by the PlanAdministrator pursuant to this Section 16 shall be taken instead byanother member of the Committee designated by the Committee.

 

**16.2****                        Notification to claimant of decision:**  Within 90 days after receipt of a claim bythe Plan Administrator (or within 180 days if special circumstances require anextension of time), the Plan Administrator shall notify the claimant of hisdecision with regard to the claim.  Inthe event of such special circumstances requiring an extension of time, thereshall be furnished to the claimant prior to expiration of the initial 90-dayperiod written notice of the extension, which notice shall set forth thespecial circumstances and the date by which the decision shall befurnished.  If such claim shall bewholly or partially denied, notice thereof shall be in writing and worded in amanner calculated to be understood by the claimant, and shall set forth:  (i) the specific reason or reasons for thedenial; (ii) specific reference to pertinent provisions of the Plan on whichthe denial is based; (iii) a description of any additional material orinformation necessary for the claimant to perfect the claim and an explanationof why such material or information is necessary; and (iv) an explanation ofthe procedure for review of the denial. If the Plan Administrator fails to notify the claimant of the decisionin timely manner, the

 

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claim shall be deemed denied as of the closeof the initial 90-day period (or the close of the extension period, if applicable).

 

**16.3****                        Procedure for review:**  Within 60 days following receipt by the claimant of noticedenying his claim, in whole or in part, or, if such notice shall not be given,within 60 days following the latest date on which such notice could have beentimely given, the claimant shall appeal denial of the claim by filing a writtenapplication for review with the Committee. Following such request for review,the Committee shall fully and fairly review the decision denying the claim.  Prior to the decision of the Committee, theclaimant shall be given an opportunity to review pertinent documents and tosubmit issues and comments in writing.

 

**16.4****                        Decision on review:**  The decision on review of a claim denied in whole or in part bythe Plan Administrator shall be made in the following manner:

 

16.4.1                  Within 60 daysfollowing receipt by the Committee of the request for review (or within 120days if special circumstances require an extension of time), the Committeeshall notify the claimant in writing of its decision with regard to theclaim.  In the event of such specialcircumstances requiring an extension of time, written notice of the extensionshall be furnished to the claimant prior to the commencement of the extension.  If the decision on review is not furnishedin a timely manner, the claim shall be deemed denied as of the close of theinitial 60-day period (or the close of the extension period, if applicable).

 

16.4.2                  With respect toa claim that is denied in whole or in part, the decision on review shall setforth specific reasons for the decision, shall be written in a mannercalculated to be understood by the claimant, and shall cite specific referencesto the pertinent Plan provisions on which the decision is based.

 

16.4.3                  The decision ofthe Committee shall be final and conclusive.

 

**16.5****                        Action by authorized representative ofclaimant:**   All actions setforth in this Section 16 to be taken by the claimant may likewise be takenby a representative of the claimant duly authorized by him to act in his behalfon such matters.  The Plan Administratorand the Committee may require such evidence as either may reasonably deemnecessary or advisable of the authority to act of any such representative.

 

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**Section 17****.****                                   MiscellaneousProvisions:**

 

**17.1****                        Set off:**  Notwithstanding any other provision of this Plan, the Employer mayreduce the amount of any payment otherwise payable to or on behalf of aParticipant hereunder by the amount of any loan, cash advance, extension ofcredit or other obligation of the Participant to the Employer that is then dueand payable, and the Participant shall be deemed to have consented to suchreduction.

 

**17.2****                        Notices:**  EachParticipant who is not in Service and each beneficiary shall be responsible forfurnishing the Committee or its designee with his current address for themailing of notices and benefit payments. Any notice required or permitted to be given to such Participant orbeneficiary shall be deemed given if directed to such address and mailed byregular United States mail, first class, postage prepaid.  If any check mailed to such address isreturned as undeliverable to the addressee, mailing of checks will be suspendeduntil the Participant or beneficiary furnishes the proper address.  This provision shall not be construed asrequiring the mailing of any notice or notification otherwise permitted to begiven by posting or by other publication.

 

**17.3****                        Lost distributees:**  A benefit shall be deemed forfeited if the Plan Administrator isunable to locate the Participant or beneficiary to whom payment is due on orbefore the fifth anniversary of the date payment is to be made or commence;provided, that the deemed investment rate of return pursuant toSection 8.2 shall cease to be applied to the Participant’s accountfollowing the first anniversary of such date; provided further, however, thatsuch benefit shall be reinstated if a valid claim is made by or on behalf ofthe Participant or beneficiary for all or part of the forfeited benefit.

 

**17.4****                        Reliance on data:** The Employer, the Committee and the Plan Administrator shall have theright to rely on any data provided by the Participant or by anybeneficiary.  Representations of such datashall be binding upon any party seeking to claim a benefit through aParticipant, and the Employer, the Committee and the Plan Administrator shall

 

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have no obligation to inquire into theaccuracy of any representation made at any time by a Participant orbeneficiary.

 

**17.5****                        Receipt and release for payments:**  Subject to the provisions ofSection 17.1, any payment made from the Plan to or with respect to anyParticipant or beneficiary, or pursuant to a disclaimer by a beneficiary,shall, to the extent thereof, be in full satisfaction of all claims hereunderagainst the Plan and the Employer with respect to the Plan. The recipient ofany payment from the Plan may be required by the Committee, as a conditionprecedent to such payment, to execute a receipt and release with respectthereto in such form as shall be acceptable to the Committee.

 

**17.6****                        Headings:**  Theheadings and subheadings of the Plan have been inserted for convenience ofreference and are to be ignored in any construction of the provisions hereof.

 

**17.7****                        Continuation of employment:**   The establishment of the Plan shall not beconstrued as conferring any legal or other rights upon any Employee or anypersons for continuation of employment, nor shall it interfere with the rightof the Employer to discharge any Employee or to deal with him without regard tothe effect thereof under the Plan.

 

**17.8****                        Merger or consolidation:**   No employer-party to the Plan shallconsolidate or merge into or with another corporation or entity, or transferall or substantially all of its assets to another corporation, partnership,trust or other entity (a “Successor Entity”) unless such Successor Entity shallassume the rights, obligations and liabilities of the employer-party under thePlan and upon such assumption, the Successor Entity shall become obligated toperform the terms and conditions of the Plan.

 

**17.9****                        Construction: **TheEmployer shall designate in the Adoption Agreement the state according to whoselaws the provisions of the Plan shall be construed and enforced, except to theextent that such laws are superseded by ERISA.

 

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